Reed's Rules, 19th Century Nuclear Option

Flip your television clicker over to C-SPAN's coverage of the House of Representatives and watch the speeches on the floor. View these for any length of time and you will notice a pattern. The chair will announce "The gentleman from so-and-so is recognized for five minutes." If he finishes before the time limit is up, the member will say, "I yield back the balance of my time." If he is not finished, the sharp rap of the speaker's gavel will be heard -- even as the member continues speaking -- and the voice from the dais will intone, "The time of the gentleman has expired." If the member holding forth doesn't sit down right quick -- unless he asks for (and receives) unanimous consent to continue -- he can be escorted from the floor.

Clearly, it is much easier to shut down a windbag in the House than it is in the Senate, where the filibuster still protects the right to effectively unlimited debate. But as the Senate moves closer to some sort of confrontation over filibusters of President Bush's judicial nominees, there's a question hanging in the air worth asking: Why is the filibuster allowed in the Senate but not in the House of Representatives?

The answer is that the filibuster did indeed once have a home in the House. That it doesn't anymore is a tribute to a 19th-century Republican hero: Speaker Thomas Brackett Reed of Maine. If he is recalled at all today, it is because of the memorable nickname his enemies fastened to him in the wake of Reed's successful abolition of the filibuster in the House: "Czar."

Even historically minded Americans have very little time for congressional leaders, who tend to be quickly forgotten regardless of their merits. Thomas B. Reed deserves better, for his name lives on in Reed's Rules, the guide to parliamentary procedure that governs the operations of the House of Representatives (and many state legislatures) to this day.

Like most prominent late-19th-century American politicians, Reed was a Civil War veteran, though he freely admitted that his one year spent aboard a U.S. Navy gunboat plying the Mississippi had never brought him under enemy fire. Qualified as a lawyer after the war, he served as a member of the Maine state legislature and state attorney general before being elected to Congress in 1876.

For 12 years, Reed bided his time. Blessed with an almost photographic memory, he learned the legislative process inside and out. He quickly concluded that the House suffered from a "tyranny of the minority," by which the will of the voters, as expressed through their ballots, could be frustrated.

The primary weapon of the minority was the so-called "silent quorum" or "silent filibuster." Under the House rules of the time, a quorum of 165 members, a majority, had to be present in order for business to be conducted. But in order for a member to be counted as "present," he had to affirmatively answer when his name was called by the clerk. If the member refused to answer, even if physically present in the chamber, he was marked absent. Since, invariably, some members actually were absent -- either ill, traveling, or otherwise unavailable -- it usually wasn't difficult for a minority, by remaining silent during the roll call, to prevent the majority party from reaching the necessary 165 members "present." Thus, the will of the majority was thwarted without an actual vote having to be taken. (Sound familiar?)

This tactic enraged Reed. When he was elected speaker at the beginning of the 51st Congress in 1889, conditions were ripe for change. For the first time since 1874, one party controlled the White House and both houses of Congress. (Again, sound familiar?) Determined to be an active legislator, not merely a figurehead, he knew that if he was to succeed he had to break the silent filibuster.

But the GOP majority in the House-- 168 Republicans to 160 Democrats -- was wafer-thin and some of its members were considered unreliable. (Think RINOs -- Republicans in Name Only -- were invented in 2001?) Even Joseph Cannon, Reed's close friend and confidant (and a future speaker himself), advised Reed not to make any attempt to move against the silent filibuster. More ominously, Democratic leader John Carlisle made it clear that he would consider any legislation passed in defiance of the silent filibuster to be unconstitutional, and would take the matter to the courts.

Reed was having none of it. A top-notch lawyer himself, he was satisfied that Carlisle would have no case if it ever came to a courtroom showdown. As for his own party, Reed was confident that the Democrats would react so wildly to any effort to abolish the silent filibuster that it would rally any wavering GOPers behind his effort.

The stakes, though, could scarcely have been higher. "He knew that the fight would focus upon him the nation's attention," writes Barbara Tuchman in her excellent account of Reed's breaking of the silent filibuster in her book The Proud Tower (from which this account is largely drawn). Reed also knew that if he failed, "his Congressional career would be over."

The new speaker's chance came on January 29, 1889, on a motion over a disputed election. Only 163 members affirmatively answered the quorum call, two short of the necessary 165. Instead of simply leaving it at that, however, Reed turned to the clerk of the House and directed him to "record the names of the following members present and refusing to vote." Reed then began reeling off the list of names of Democrats present in the chamber who had refused to answer when their names were called.

As Tuchman records the scene, "pandemonium broke loose" in the House chamber. It was the beginning of five days of parliamentary tumult. A few Democrats attempted to maintain decorum, demanding formally, "I appeal the decision of the Chair!" Most others, however, were less gracious. They shouted, swore, threatened, and pounded their fists on tables and desks. Nevertheless, Reed went on reading the list of names in a calm, assured voice. When he reached the name of Rep. James McCreary of Kentucky, the latter exclaimed "I deny your right, Mr. Speaker, to count me as present!"

Reed abruptly ceased reading and, for a moment, a hush fell on the raucous chamber. In a measured voice, Reed calmly observed, "The Chair is making a statement of fact that the gentleman is present. Does he deny it?" Reed then resumed reading his list of names.

Upon reaching the end, Reed declared that a quorum was present in the chamber. When a Democratic member appealed the ruling, Reed firmly denied the appeal. Every Democrat was on his feet yelling, except for a Texas representative, who was conspicuously sharpening a Bowie knife against the sole of his boot while sitting quietly in his seat.

A Republican member -- probably one of those 19th-century RINOs -- then moved for a debate on the rule change. Reed decided to allow it. For four days the debate raged. There were points of order, appeals, and endless quorum calls. Reed would repeat the same procedure as on the first day, reading the names of the silent Democrats into the journal as "present." Tempers reached such a fevered pitch that, at one point, a knot of Democratic members advanced menacingly down the center aisle toward the speaker's chair, giving the impression that Reed would be physically assaulted. Even the galleries joined in, with spectators and reporters shouting and screaming abuse at the speaker.

All manner of invective was tossed about, with various nicknames being chosen for the presiding officer. "Tyrant," "dictator," and "monster" were among the printable ones. But somewhere along the line, someone shouted "Czar," and that was the one that seemed to stick. From that day forward, he was "Czar" Reed.

Throughout this ordeal, Reed maintained an outward calm, though those who saw him in the privacy of his office could see his hands tremble with suppressed rage. What no one knew at the time was that Reed had already resolved to resign from the House if his effort to change the rules failed. "I had made up my mind 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," he said later.

That turned out not to be necessary. After four days, the Democrats tried to absent themselves in actuality, refusing to come to the floor when the quorum was called. Two Republicans who were ill were brought into the chamber on cots. Still one vote short. Finally, Rep. John Sweney of Iowa, who was en route from his district during most of the battle, suddenly appeared at the door of the chamber with the words "One more, Mr. Speaker!" The fight was over. The Democrats sullenly returned to the chamber.

A new set of rules, drafted by Reed, was thus instituted. A quorum consists of 100 members, all members must vote, all present shall be counted, etc. Collectively, they were dubbed "Reed's Rules."

Theodore Roosevelt, who would later break with Reed over the annexation of the Philippines, was in awe. He called the breaking of the silent filibuster a reform "of far greater importance" than any piece of legislation. That became evident a few years later when the Democrats retook control of Congress. They immediately threw out "Reed's Rules," reinstituting the silent filibuster. Reed promptly turned it against them with relish. He succeeded in so thoroughly tying up the House that in frustration the Democrats were compelled to bring back Reed's Rules. Declining to gloat, Reed merely observed, "The scene here is a more effective address than any I could make."

Since that time, the House of Representatives has become the legislative body that is most responsive to its leadership. Few bills that are strongly supported by the speaker's party fail to reach a vote and pass. The minority party has a right to be heard, to vote, and, as Reed once put it, "draw its pay," but little more. This is not a matter of simple power politics, as Reed knew, but of representative government itself. The party winning the most votes in an election has the right to see its program voted on and moved, not merely debated. Otherwise, the public becomes cynical about the entire democratic process -- and rightfully so.

Majority rule no doubt has its problems, but they pale in comparison with those presented by minority rule. The term was unknown in 1889, but "going nuclear" can be unavoidable when a majority party finds itself caught between keeping faith with its electors and an obstinate minority that simply refuses to yield. "Czar" Reed knew that. Does Sen. Bill Frist?

The filibuster (as we know it, requiring active prolonged speaking; not Reed's "I'm not here" kind) does serve a purpose, permitting an adamant minority a voice in the face of a complacent majority. Too often votes for a bill are obtained by ignorance, haste, bargaining, bias, etc. - and not by actual understanding of what a bill does and its impact; a filibuster permits the minority to be heard and make such a ruckus that passage, while still possible, requires more effort than a largely disinterested majority may be willing to expend.

The key to a proper filibuster is: once it starts, there is no break until it STOPS. The objecting minority must continue non-stop, around the clock, no weekends, with no additional business being addressed, until the objecting parties simply cannot go on. This requires a real commitment from the filibustering side, a passionate belief that consuming all that time and effort, at significant personal and procedural cost, is in fact worth it. Example: Alphonse D'Amato single-handedly held up proceedings for a couple days by talking continuously (singing, reading the phone book, ...) but got his point across to a legislature that otherwise would have generally ignored his concern.

The current flaw in the filibuster is that a "stop-and-go" option has been added: business continues pretty much as usual, with the legislative body returning to the issue periodically. Hence, judicial appointments have been held up by a minority that keeps saying "let's do some other things, then pick this up again tomorrow...or next week." That's not a true filibuster.

We need a return to the true filibuster. If the Dems want to hinder appointment of some judges, fine - they can take the podium and explain their concerns in great length ... and nothing else gets done until they give up. If they want to stop judicial appointments, they can ... but at the cost of not having time to pass other Dem-desireable legislation.

"Now, he can get rid of it for presidential appointments, but he will be stuck with it for legislation, and the President's agenda will be stuck in the Senate."

But only until the next session of Congress. If the Republicans can pick up one or two more votes and perhaps switch some current RINOS for conservatives, the chance could be even better to get it changed.

What a fine piece of work. Highest compliments to the writer. I've long believed that reaching into our history and finding an example that is almost identical to a situation faced today, is the best way to win a debate.

Although I had heard of "Czar" Reed in the dim recesses of an American history course many decades ago, I had never heard the details of this particular story. I think that hundreds of copies of this article should be forwarded to Majority Leader Frist.

And if Frist backs away from the fight and doesn't make the effort, then the entire text of this article should be tattooed on his sorry *ss, IMHO.

Congressman Billybob

Latest column, "Death in a Courtly Manner"

A true filibuster is still a way for the minority to block the majority. I don't think that's appropriate for issues in which only a majority is required. Now, if you had a way for a minority that feels strongly on an issue to cause delay for a limited period of time, that would be ok by me. Kind of like a way to force people to "think on it". But no way the minority should be able to completely block legislation or appointments supported by the majority.

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