The current 50-50 Senate has placed the Senate filibuster rule at center stage, as you know, which caused the Atlantic to publish a tale from filibuster history that I had never heard before, found amazing and has an amusing punch line, so I’m passing it along.
As a history nerd, I confess I hadn’t heard anything about this before, but in the 19th century, the U.S. House also had a version of the filibuster that enabled a minority to block passage of a bill. (It was quite unlike the current Senate version, where 60 votes can end debate, leading to a final vote on passage of a bill.)
The 19th century rules of the U.S. House required that a majority of House members must be present in order for a vote on final passage to be taken. Sounds reasonable, at least on the face of it.
In those days of 19th century travel, many members were often absent. But in a common situation, a majority would be present (enough to hold the vote). And the majority party would have enough to win the vote (which could pass a bill, with a majority of those voting.
So the pre-filibuster House version of a filibuster would work like this: Minority party members who were present would refuse to answer when their name was called during the roll call on a bill, basically pretending to be absent. Often, with present members pretending to absent, that tactic would prevent an up-or-down vote on the bill from going forward and the bill couldn’t pass.
Get it? They were present, but they wouldn’t say so when their name was called. At the time, by custom, if they didn’t answer “present” when their name was called, they would be marked as absent, and if enough of them pulled that trick, the vote on final passage of the bill, by rule, couldn’t occur. It was a sort of super-filibuster, built on a lie, based on the I’m-here-but-refuse-to-acknowledge-that-I’m-here tactic.
In the 1888 elections, Republicans won control of the White House, the Senate, and the House for the first time in nearly two decades. In theory, the GOP could finally pass its ambitious agenda. But because its majority margin in the lower chamber was extremely small — just three votes — and they were seldom all present, Democrats could deny a quorum nearly any time they chose by refusing to answer the roll call.
Partisan polarization was almost as bad as it is today, which meant that the assumption back then was the same as it is now: The minority party would use the filibuster to derail the majority’s legislative agenda. House Democrats, then in the minority, were prepared to use the don’t-answer-when-they-call-our-names gag to prevent Republicans from getting their bills to a vote.
[image_credit]Library of Congress/Brady-Handy Photograph Collection[/image_credit][image_caption]Speaker Thomas B. Reed[/image_caption]
“I had made up my mind,” he later said, “that if political life consisted of sitting helplessly in the Speaker’s Chair and seeing the majority helpless to pass legislation, I had had enough of it and was ready to step down and out.”
So Speaker Reed decided to start each session by taking attendance, to establish who was actually present. He did it not by calling the roll, but by noting who was in the House and announcing their names. This was intended to prevent filibuster-by-pretending-we’re-not-here gag. Democratic Rep. James McCreary was present, as evidenced by the fact that Speaker Read could see him in the room and Reed declared him present. McCreary replied: “I deny your right, Mr. Speaker, to count me as present,” protested Kentucky’s James McCreary.
This led to the statement by Reed that I found so hilarious as to set off this little bit of House filibuster history:
“The Chair is making a statement of fact that the gentleman is present,” Reed replied. “Does he deny it?”
Reed’s tactic worked. And, I gather, the filibuster by refusing to admit you were present tactic was over.
I’ve borrowed this whole tale from David Litt, writing for the Atlantic. His fuller, smarter, better version of this little-remembered House filibuster history, titled “We already got rid of the filibuster once before,” can be read here.
One has to wonder to what degree the House minority used this tactic up until 1888, since it essentially made legislation in the House impossible absent consent of the the minority party. So momentous acts like the Missouri Compromise also required House party leaders to agree? One supposes this shows just how little substantive legislation must have been passed by the Congress for the first century of the country’s existence. The little factoid about the Texas rep kicking down a door to escape being “present” at a debate sounds about right for 2021 as well…..
I suppose this demonstrates just how deeply anti-majoritarian and anti-democratic the American people have long been. And how little the “common good” has ever had any real purchase in American politics.
Having passed a momentous bill like the $1.9 trillion Covid Recovery Act by relying on the absurd “budget reconciliation” nonsense, senate Dems are about to find that their rules will now be used by Gravedigger of Democracy McConnell to block a vote on literally every other bill the House passes. So a “Great Debate” about the dead hand of the filibuster is at hand….
Old news:
The Founders did not plan on political parties as part of their governmental system.
And in that they were fairly foolish, since party politics had become a critical aspect of the British parliamentary system since at least the fall of the Duke of Marlborough in 1715 or so. That they thought the new nation would be exempt from such a development was preposterous.
At least in retrospect.
I would guess that they overestimated their break from their British heritage.
Also, Washington’s status provided a misleading sense of unity. Party politics really didn’t develop until the first election.