The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Tuesday, May 24, 2005
 

The (Great-grand-)mother of nuclear options


Thank Goodness it's off the table, for the moment: with any luck, those red-lining levels of hypocrisy on both sides will return to their usual level of toxicity: just bearable.

Useful for future reference - I'm sure we'll be revisiting the nuclear option ere long - is a 2002 dissertation by Gregory Koger of UCLA Obstruction in the U.S. House and Senate: a Bicameral Analysis of Institutional Choice [1].

Particularly interesting (of what I've read) is his Chapter 7 covering the Senate during the period (1913-19) straddling the introduction of the cloture rule.

The highly fortuitous - Clinton '92-style - election of Woodrow Wilson in 1912, together with Democratic control of both Houses, led to a certain amount of White House direction of Capitol affairs.

Wilson was as addicted to regularity as Tammany's Charles Murphy; and the previously ineffective Democratic Caucus was kicked into action [2].

The fun and games started in earnest (p19a) with the ship purchase bill S 6856 during the lame duck session of the 63rd Congress (which dragged into March 1915).

There was jiggery-pokery involved in achieving the necessary two-thirds majority in the Caucus [3]; when the Dems thought they would lose the bill, there was a majority filibuster while Dem whips rounded up errant senators; then, the Dems proposed adding the standing rules of the Senate a rule directing a vote on the bill on a date, and a time, specified in the rule.

The motion proposing this rule never came to a vote, because a motion to table an amendment to the substantive motion [4] failed.

I infer from Koger that this is the first time that such a rule - modelled on the sort of rules that had been governing consideration of bills in the House for several decades [5] - had been proposed in the Senate.

There seems to be no question that a simple majority would have sufficed to pass the new rule.

There was, however, a Plan B:
Had the Democrats not conceded defeat, they had a majoritarian strategy prepared to force a vote on the shipping bill and, in the process, transform the Senate. Ollie James (D-KY) suggested during Senate debate that any member could move the previous question on the bill. Once the chair ruled this motion out of order, any member could appeal the ruling. James promised to force a vote on his ruling if he was the presiding officer. Democrats seriously considered the strategy but abandoned it because they did not have the votes to win.

Plus ├ža change...

The point of this trip down Memory Lane? Just another illustration of the fact, so painful (or inconvenient!) for Dems to acknowledge: the filibuster is a shenanigan, not the Holy Grail. If the institution of unlimited debate were essential to the existence of the Senate, why doesn't the Constitution provide for it?

In any case, the passage of Rule XXII (as it now is) definitively put the kibosh on that institution. What once had been unlimited was thenceforth limited: the required level of supermajority needed to limit debate was a matter of detail, not principle.

(George Bernard Shaw had an apposite story on the point.)

  1. The title makes you fear the worst; but, in fact, the statistical tail isn't allowed to wag the dog.

  2. The Democratic Caucus had been formed in 1903 to organise Dem action on the Panama Canal; there was passed (p6a)
    a rule allowing 2/3 of the caucus to bind party members to vote the caucus position, provided that members would not have to violate instructions from a state legislature, pledges to constituents, or their interpretation of the Constitution...
  3. Dem leaders found themselves one vote short - using an abacus to count votes? - and Charles Thomas agreed to switch (out of the goodness of his heart, presumably).

  4. RC 539 on February 12 1915; Voteview does not give the number of the resolution for the new rule.

    The amendment would have made the new rule inapplicable to bills on which senators' votes had previously been mandated - as, for instance, by the Democratic Caucus!

  5. February 24 1883 is the date of the first: a useful paper A Pre-Twentieth Century Look at the House Committee on Rules on the Rules Committee site has the story, and much else of interest besides, by the look of it.

MORE

On the question of Wilson's deciding to operate as a party man, rather than at the head of a cross-party Progressive coalition - I find it a little surprising that Koger even entertains the possibility.

So far as I understand it, Wilson was, first and last, a scion of the Confederacy. Any weakening in the North-South coalition would place in jeopardy the solidity of the Congressional defence of the Southern way of life. So that was never going to happen.

Besides, as Governor of New Jersey, he had worked (with considerable success) with the state Democratic machine on a Progressive programme in a microcosm of national Democratic organisation.


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