Minority Rights, Majority Rule: Partisanship and the Development of Congress

Minority rights, majority rule

Minority rights, majority rule Partisanship and the development of Congress

SARAH A. BINDER

CAMBRIDGE UNIVERSITY PRESS

CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 2RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521582391 ©Sarah A. Binder 1997 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 1997 A catalogue recordfor this publication is available from the British Library Library of Congress Cataloguing in Publication data Binder, Sarah A. Minority rights, majority rule: partisanship and the development of Congress / Sarah B. Binder. p.

cm.

Includes bibliographical references (p. ). ISBN 0-521-58239-3. -ISBN 0-521-58792-1 (pbk.) 1. United States. Congress. 2. Legislation - United States. 3. United States - Politics and government - Decision making. I. Title. JK1098.858 1997 328.73-dc20 96^3843 CIP ISBN-13 978-0-521-58239-1 hardback ISBN-10 0-521-58239-3 hardback ISBN-13 978-0-521-58792-1 paperback ISBN-10 0-521-58792-1 paperback Transferred to digital printing 2006

For Forrest and Noa, a patient and loving majority

Contents

List of tables and Preface

figures

page viii xi

1 The partisan basis of procedural choice 2 The evolving concepts of House and Senate minority rights 3 Procedural choice in the early Congress: The case of the "previous question" 4 Allocating minority rights in the House, 1789-1990 5 Institutionalizing party in the nineteenth-century House 6 Stacking the partisan deck in the twentieth-century House 7 Inherited rules and procedural choice in the Senate 8 Assessing the partisan theory

1 19 43 68 86 132 167 202

Appendix 1: Summary of changes in minority rights Appendix 2: Measuring congressional workload Appendix 3: Measuring party behavior

211 218 220

Bibliography Index

225 233

vn

Tables and figures

Tables 3.1 Voting to sustain the Speaker's ruling on the previous question motion by voting to refer a petition to repeal trade restrictions, 10th Congress, 1807 3.2 Voting to sustain the Speaker's ruling on the previous question motion by voting for passage of a trade embargo bill, 11th Congress, 1811 3.3 Voting to weaken the previous question motion by voting to declare war against Britain, 12th Congress, 1812 4.1 Conditions fostering suppression of minority rights, 1789-1894 4.2 Conditions fostering suppression of minority rights, 1895-1990 4.3 Minority rights suppression, 1789-1894 (maximum likelihood logit model) 4.4 Minority rights suppression, 1895-1990 (maximum likelihood logit models) 4.5 Conditions fostering creation of minority rights, 1789-1990 5.1 Partisan divisions on selected roll-call votes affecting minority rights, 1837-1860 5.2 Relationship of policy and procedural preferences on selected roll-call votes affecting minority rights, 1837-1860 5.3 Partisan divisions on selected roll-call votes affecting minority rights, 1868-1894 5.4 Relationship of policy and procedural preferences on selected roll-call votes affecting minority rights, 1868-1894 6.1 Partisan divisions on selected roll-call votes affecting minority rights, 1909-1979 6.2 Use of discharge process, 61st-67th Congresses

Vlll

59 60 62 76 77 78 81 83 94 96 112 113 137 143

List of

figures

6.3 Relationship of policy and procedural preferences on selected roll-call votes affecting minority rights, 1925-1965 7.1 Failed nineteenth-century efforts to limit minority rights in the Senate 7.2 Coalition size on rules changes limiting Senate minority rights, 1789-1990 7.3 Coalition size on rules changes limiting minority rights, House versus Senate, 1789-1990 7.4 Conditions fostering suppression of Senate minority rights, 1789-1990 7.5 Number of filibusters per Congress, by decade, 1841-1990 Al. 1 Summary of House minority rights creation, 1789-1994 Al .2 Summary of House minority rights suppression, 1789-1994 A1.3 Change in Senate minority rights, 1789-1994

ix 147 172 174 175 175 196 212 213 216

Figures 1.1 2.1 2.2 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 5.1 7.1 A3.1 A3.2

Partisanship and expected change in minority party rights Change in House minority rights Change in Senate minority rights House workload, 1789-1823 Time consumed by the House agenda, 1789-1823 Partisan cohesion in the House, 1789-1823 Partisan differences in the House, 1789-1823 Levels of House floor activity, 1789-1823 Obstructive House floor motions, 1789-1823 Comparison of House and Senate workload, 1789-1823 Comparison of House and Senate partisan differences, 1789-1823 Mean partisan differences in the House, 1815-1894 Number of filibusters, 1789-1992 Majority and minority party strength (House), lst-lOlst Congresses Majority and minority party strength (Senate), lst-lOlst Congresses

15 26 26 51 52 53 55 56 57 63 64 87 179 222 223

Preface

This book seeks to explain what is plainly evident to most students and even casual observers of Congress. In the House of Representatives, the majority rules - with the minority seldom granted a substantive chance to influence the making of national policy. In the Senate, it is the minority that quite often calls the shots - with the filibuster empowering a minority to frustrate the designs of the majority. Such differences are said to reflect competing values of the American political system: our national institutions are designed to protect both the power of the majority to act with dispatch and the power of minorities to temper the excesses of the majority. On that logic, it is not surprising that the two legislative chambers differ so radically in their central tendencies. But that is not the way the two chambers started out in 1789. The rules of the two chambers in fact were nearly identical at the start: House majorities were not expressly favored over the minority and Senate minorities were not expressly favored over the majority. Members of the early Congresses, however, were not content to leave untouched the rules chosen for them by the first House and Senate. Indeed, political scrambles over the set of rules governing each chamber began soon after opposing sides began to scuffle over policy for the nascent country. Perhaps not surprisingly, those two fights - over policy and over procedure - often became intertwined. As I show in this book, members' choices over procedure are more often than not shaped by their preferences over policy. Nowhere is this more evident than in contests that repeatedly occur over the distribution of procedural rights in the House and Senate - the rules governing, for example, how and when policy and procedural proposals will be considered in committee and on the floor and who can speak and for how long. My goal in this book then is not only to trace the development of minority rights and majority rule in Congress, but also to explain when and why each chamber took the distinctive path it did. I give political parties a central role in explaining such procedural development in Congress. Con-

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tests between partisan coalitions have throughout congressional history altered the distribution of parliamentary rights. And, perhaps most importantly, the rules resulting from such contests have in turn shaped the outcomes of subsequent battles over policy and procedure alike. New majorities inherit procedural decisions from the past - an institutional dynamic that has fueled the power of partisan majorities in the House but stopped them cold in their tracks in the Senate. In writing this book, I've racked up my fair share of winters in Minnesota and summers in Washington, D.C. Whether freezing or sweating, I've also racked up my fair share of debts along the way. My greatest is to Steve Smith, who has been extraordinarily generous with his time, advice, and ideas (and free books), and I am grateful for his willingness to share them all. I will continue to value his collaboration and friendship in the years to come. I have also learned much from Bill Flanigan, John Howe, Frank Sorauf and Jim Stimson; they have each always been generous with their suggestions and advice throughout winters (and summers) in Minnesota. And, although I've tried to make it an even trade of baked goods for data, I am still in debt to Bob Hammarberg. I also would not have warm memories of subzero mornings in Minneapolis without the friendship and advice of Chris Anderson, Stacey Hunter Hecht, Eric Lawrence, and Paula O'Loughlin. Not content with accumulating debts in Minnesota, I've stored up quite a few at the Brookings Institution in Washington, D.C. I am appreciative of all the advice and support of Bob Katzmann, Tom Mann, and Joe White, as well as my other colleagues in Governmental Studies. Dan Carpenter, Carrie Hennefeld, Laurel Imig, and Jon Oberlander have increased my debts fourfold. I have benefited from and owe thanks as well to several people in Washington and elsewhere who have been willing to read and comment on my work, including Stan Bach, Joe Cooper, Doug Dion, Gerald Gamm, David Rohde, Eric Schickler, Kenneth Shepsle, Barbara Sinclair, and Charles Stewart. I also wish to thank Garry Young for sharing his historical data on partisanship in the House. For keeping me out of tangible debt, I am grateful for the financial support of both the University of Minnesota and the Brookings Institution. Dissertation and William Stout fellowships from Minnesota and a Robert Hartley Fellowship from Brookings have provided generous support for this project. I also thank the University of Texas Press for permission to reprint material in Chapter 3 that first appeared as "Partisanship and Procedural Choice: Institutional Change in the Early Congress, 1789-1823" in the Journal of Politics 57:4, 1093-1118. In addition, much of the material in Chapter 4 first appeared as "The Partisan Basis of Procedural Choice: Allo-

Preface

xiii

eating Parliamentary Rights in the House, 1789-1990," in the American Political Science Review 90:1, 8-20. At Cambridge University Press, I am also in debt to Alex Holzman and particularly to Katharita Lamoza for helping to make the transition from manuscript to book as painless as possible. I also wish to thank my family for their consistent willingness to read everything I send their way and for their perpetual encouragement. Strangely enough, my conservative brother still keeps up on the work of his liberal-minded sister even though House Republicans (at least for now) have all the rights that they want; I interpret this as a sign of his genuine support. But my ultimate debt is to Forrest Maltzman (even though the political science department paid for dinner that first time . . .). Again and again, he has made choices to ensure my own good fortune (and our good fortune together) instead of his own. Sharing personal and professional lives - as well as his love and subscription to Congressional Quarterly - will always be a truly wonderful thing.

The partisan basis of procedural choice

As it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power are the forms and rules of proceeding. Thomas Jefferson, 18011 It is but too evident, that when the right of debate is taken away - when a majority can . . . screen themselves from exposure (however weak, arbitrary or wicked their measures may be) by sealing the lips of a minority on the floor of congress, we may soon bid adieu to our best and dearest rights. It is laying the axe at the very root of the tree of liberty. Representative Archibald McBryde, 18102 Compiling a manual of parliamentary practice in 1801, Thomas Jefferson emphatically recognized the importance of procedure in securing the rights of minority party members in the U.S. Congress. In a democratic political institution, majorities would achieve their favored outcomes by taking advantage of their superior size, and minorities would resist by availing themselves of protective rules to amend, delay, or obstruct the majority's agenda. Yet, as suggested by Representative Archibald McBryde (Federalist-North Carolina) in a public letter to constituents just a few years later, the portrait of congressional rules as stable guarantors of the minority party's right to participate meaningfully in the legislative process is deceptive. Far from rigidly securing the rights of the opposition, congressional rules are themselves 1 2

Jefferson's Manual of Parliamentary Practice, in U.S. Congress, House (1993a:116). "From Archibald McBryde" May 10, 1810, in Cunningham (1978:708-9).

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Minority rights, majority rule

the object of choice. Just as policy outcomes are contested by coalitions within each chamber, so too are the formal rules of the legislative game. Indeed, granted the power under the Constitution to make their own rules, House and Senate majorities - unwilling or unable to depend on their numbers to effect desired policy outcomes - have historically both extended and suppressed the rights of minority parties in Congress. The warning issued by Representative McBryde in 1810 should suggest to us the contingent character of minority rights. In theory, a legislature's claim to be representative presupposes a commitment to equal participation by its members. In practice, the evolution of congressional minority rights suggests otherwise. I argue in this book that, far from enjoying iron-clad protection, minority rights are in fact conditional on the shape of partisan forces within the institution. Because members recognize that policy outcomes depend on the set of rules under which competing legislative proposals are formulated and considered, battles over procedure reflect a much broader contest among legislators over the power to control the agenda. Minority parties have historically lost parliamentary rights, I argue, when members of the majority party believe rules changes are necessary to secure favored policy outcomes; minority parties have recouped some of those rights when cross-party coalitions emerge to demand new rights from a weakened majority party. Thus, identifying the precise partisan conditions under which changes in minority rights are most likely to occur is my first goal in this work. To be sure, congressional scholars do not have a monopoly on observations about minority rights in Congress. Even a cursory inspection of the House and Senate would lead most observers to note the disparity in rights across the two chambers. Whereas the House today is a highly partisan body in which the minority party holds relatively few rights, the Senate is a loosely organized chamber thatfiercelyprotects the rights of minorities of any composition and size (including one). Such institutional differences, however, are not necessarily a matter of original design: both the House and Senate started with a relatively similar slate of rights afforded their members. Neither are interchamber differences simply a question of historical interest. In fact, many members and observers of Congress today believe that the appropriate balance between minority rights and majority rule has yet to be reached by either chamber. At issue is how to balance the majority's capacity to act efficiently with the minority's right to be heard and to offer alternatives. Explaining why and when the two chambers developed such divergent legislative styles is thus my second goal in this study. Although the contest over minority rights is only one dimension of procedural politics, the evolution of minority rights underpins the institutional development of Congress. Accounting for changes in minority rights is thus

The partisan basis of procedural choice a necessary step to explaining the evolution of majority party power in Congress - explaining when and why majority parties successfully accrued such power in the House and why they failed so miserably in the Senate. Thus, my third goal in this book is not simply to piece together the history of minority rights, but, more than that, to situate their development in a broader theory of procedural choice and institutional change in Congress. The evolution of minority rights will suggest that a theory of institutional change starts with a simple premise: institutions reflect purposive behavior. Political bodies are designed and altered to secure their members' most preferred outcomes. But, importantly, legislators do not always get the rules they want. The array of legislative rules reflects both the preferences of legislators and the rules inherited from the past. Earlier procedural decisions are inherited by subsequent majorities - and act as constraints when those majorities try to choose their own sets of rules. Institutional change in Congress, in other words, is likely to be path-dependent: procedural outcomes will depend on the historical path already taken. To build my theory of the partisan basis of procedural choice, I move in two directions. First, I examine changes over time in the array of parliamentary rights allocated to the minority, examining every case of change in formal House and Senate rules affecting minority rights from the beginning of Congress in 1789 to the Republican victories in 1994. The cost of assessing the entirety of Congress's procedural past is, of course, the difficulty of pursuing each case in exhaustive detail. Such an approach, however, is essential for developing both a generalizable and a historically sound theory of congressional development. Moreover, only by embracing such a long sweep of history can I adequately assess the influence of inherited rules on subsequent procedural choice. Second, I take a cross-sectional view of minority rights in the two chambers of Congress, studying concurrent changes in parliamentary rights in the House and Senate. If existing institutional rules affect the likelihood and direction of rules changes, a comparison of House and Senate experience with minority rights should tell us much about the effects of institutional history on procedural change. Taking advantage of differences between the two chambers and of changes in each chamber over time, I craft a theory of institutional development poised to explain not only historical variation, but the prospects for future change as well. Theories of institutional change in Congress Traditional works on congressional development - including studies of committees (McConachie 1898), early legislative methods (Harlow 1917), and party government (Hasbrouck 1927) - charted institutional change in rich detail but fell short in identifying and explaining patterns of change

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in Congress's past. Indeed, despite the profession's predominant focus on political institutions in the early twentieth century, political scientists produced little theory about institutional change (Shepsle 1989). With the advent of studies in the postwar behavioral tradition - which sought to explain political behavior, not institutions - few scholars focused on the institutional arenas in which political decisions were made. Even with the growth of "new institutionalism" studies in the late 1970s, rules remained exogenous to the study of congressional decision making (Shepsle 1979; Shepsle and Weingast 1987). Although formal theorists are now elaborating how institutional features structure policy outcomes, their models too often depict institutions as ex ante bargains struck prior to the legislative game.3 Moreover, these models generally assume that legislators hold fixed sets of preferences. But when preferences and contexts change, an institution's rules are often no longer satisfactory to a majority of its members.4 Although we know from more traditional congressional scholars that both policy preferences and environmental change appear to drive institutional change (Cooper and Brady 1981; Cooper and Young 1989; Sinclair 1989; Smith 1989; Stewart 1989), theoretical work that predicts the timing and direction of such change is limited. A growing number of scholars are now turning to the historical record to explain change in legislative institutions - employing rational choice, organizational theory, sociological and evolutionary perspectives.5 Several of these studies focus on specific aspects of congressional development, including the emergence of standing committees (Gamm and Shepsle 1989), the development of bill introduction rules (Cooper and Young 1989), and the development of seniority norms (Katz and Sala 1996). Such studies often draw distinctions between macro (contextual) and micro (individual) levels of explanation. The macro approach argues that changes in external demands and institutional norms shape institutional arrangements.6 In contrast, the micro approach posits the rational choice of rules to secure legislators' preferences, with institutional changes reflecting the aggregate outcome of individual calculations. 3 4

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6

See, for example, Shepsle and Weingast (1987) and Shepsle's critique (1989). Aldrich (1989) develops an argument about "frustrated majorities" and institutional failure. For his broader argument about the incentives for rational politicians to alter partisan institutions see Aldrich (1995). From an ecological perspective, Kaufman (1985) also details the ways in which organizations often fail to meet the demands of their changing environments. Studies of institutional change have been undertaken by state theorists as well. Because their work is focused primarily on the development of nonlegislative institutions (for an overview, see Swift and Brady 1994), I confine my discussion here to studies outside the state building literature. Norms and values in the macro perspective are conceptualized as more than simply a reflection of individual interests.

The partisan basis of procedural choice The macro perspective on institutional change is not new to the study of Congress. In chronicling the institutionalization of the House, Polsby (1968) argued that changes in the internal structure of the House were driven largely by environmental changes outside the institution. As the responsibilities of the national government increased and as career paths led to longer terms of service within the chamber, the House developed an organizational structure that emphasized a division of labor and more routinized mechanisms of procedure. Isolating size and increasing workload, Polsby argues that relating the size of the House to the amount of work it performs would likely explain much of the institutionalization of the House (1968:164-5). Polsby's emphasis on pressures outside the institution driving institutional change is also reflected in Cooper's (1977) work on organizational theory and the structure of Congress. As argued by Cooper, demands on an organization vary over time. To adapt to such environmental change, leaders in Congress are likely to try to improve the institution's productive and integrative capacities. For example, Cooper notes that congressional leaders since 1910 have periodically attempted to protect their control over the agenda - in essence, their integrative capacity - by limiting opportunities for minority obstruction. More recently, Cooper and Young (1989) have shown that increases in workload and membership in the nineteenthcentury House created problems of time for majorities seeking to control the legislative agenda. As House majorities gradually altered bill introduction rules in the course of gaining greater control over the floor agenda, members traded individual floor access for unrestricted introduction of bills. Thus, as argued by Cooper and Young, procedural change appears to be driven in part by changes in the shape of demands faced by the chamber. In contrast, a microrational perspective views institutions as "intelligent means to preconceived ends. . . . They are chosen by individuals to accomplish particular purposes" (Gamm and Shepsle 1989:40). Under such a perspective, members of an institution would choose those arrangements that maximize their chances of securing preferred outcomes and alter those procedures that prove too costly to their goals to maintain. Gamm and Shepsle (1989), for example, argue that Speaker Henry Clay moved toward a system of standing committees in the House in an effort to hold together an increasingly heterogeneous coalition after the War of 1812. Clay, under a rational theory of leadership, chose those institutional arrangements that maximized his ability to preserve his coalition, maintain his position as Speaker, and position himself for higher office (Gamm and Shepsle 1989). A rational choice approach to modeling institutional change also guided Stewart (1989), who developed a theory of budgetary structural reform for the period 1865 to 1921. As argued by Stewart, members' demand for dis-

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tributive benefits induced their choice of a decentralized appropriations process - although preexisting economic and institutional forces constrained members' pursuit of such electoral goals. It may not be desirable, however, in generating a theory of institutional change to radically divorce micro and macro perspectives. Indeed, the "theoretical optimum" likely lies somewhere between the two (Gamm and Shepsle 1989:63). Purposive agents are situated in and bounded by particular contexts - and both goals and contexts are likely to change over time. Institutional change under such an integrated view would result from interaction of changes in both external environmental demands and the distribution of preferences within the chamber. Still, as suggested by March and Olsen (1989), there are limits to a theory that posits environmental factors and individual choice as the sole determinants of an institution's path. Instead, they argue that institutions have, in effect, a life of their own: "rules are independent of the individual actors who execute them and are capable of surviving considerable turnover in individuals" (1989:23). Rules and routines, March and Olsen suggest, are sticky things. Once they develop, they often pose insurmountable barriers to external and internal forces of change.7 Even Riker (1980), who argued that procedural choices would be as unstable as policy choices under certain conditions, seemed to recognize the difficulty of altering existing institutions: "If institutions do generate an outcome in which everyone loses, it is reasonable to expect some new and less distasteful institutions - which is to say that even the most fundamental institutions lack equilibria, although it may take generations to alter them [em-

phasis added]" (1980:445). Taken together, these competing perspectives suggest the benefits of casting a broad theoretical net when explaining institutional change. The character and alignment of members' preferences, the nature of external demands, and the constraints and opportunities posed by inherited institutional rules - each of these ought to be considered when explaining the politics of procedural rights. Thus, to explain changes in the allocation of minority rights, I start by considering the likely influence of both micro and macro sources of change on members' procedural choices. External demands and procedural choice Linking procedural change and institutional strains is perhaps the most familiar approach to explaining the development of the House and Senate. Conventional accounts of congressional development suggest that the rapid 7

But see Shepsle and Weingast (1984), who argue that legislative rules are durable largely because of the frequently high costs of evading or altering them.

The partisan basis ofprocedural choice early growth of the House led to the swift introduction of limits on individual rights; institutional strains, in short, were said to have made "legislative egalitarianism impossible" (Stewart 1992, 86). In the Senate, where membership and legislative activity remained small in its formative first decades, no such limits were necessary. Rooted in an organizational theory perspective, this conventional view of congressional development links changes in external demands to procedural change within the institution (Cooper 1977). The logic of the argument is relatively simple: increases in the size and complexity of an institution's workload make existing ways of doing business too cumbersome, increase the value of time in the institution, and lead its members to adopt procedures intended to ease pressures caused by the press of new and expanding amounts of legislative activity. With respect to changes in minority rights, increases in the size and workload of a chamber would increase the incentive of the majority to limit the rights of individuals and chamber minorities to slow down the legislative process. Because every member's ability to achieve his or her own political goals is in theory equally and adversely affected by expansion of the chamber's agenda, it would be in the collective interest of members to support new rules aimed at better management of chamber activity. Such procedural changes would increase the likelihood that both majority and minority party coalitions would gain the time necessary to pursue legislative goals important to their respective coalitions - thus increasing individual members' support for such change. Of course, because rules changes in the House are adopted by simple majority vote, majority party leaders in practice need only to convince their own partisans of the need for such changes in the rules. Thus, a theoretical emphasis on external demands and procedural choices would lead me to expect that a majority party would be most likely to suppress minority rights in response to increasing levels of demands an increase in legislative activity that increased the value of time for the majority party. A second expectation drawn from such an institutional logic connects changes in workload and size to efforts to strengthen minority rights. If increases in the size and workload of the chamber lead to restrictions on minority rights, then lessening of external demands ought to increase members' incentives to expand minority rights. When majority parties respond favorably to minority party demands for new rights, I would expect that declining workload and easing time pressures convince the majority to loosen restrictions on the minority. A brief comparison of the early House and Senate - a comparison I return to in detail in Chapter 3 - illustrates the possible connections between size, workload, and minority rights. As argued by Alexander (1916), Stewart (1992), and others, the House quickly created a means of limiting debate,

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whereas the Senate - a much smaller chamber, frequently meeting in secret and taking its agenda from the House - eliminated the previous question motion without debate in 1806. The Senate dropped its previous question rule because it was rarely used: standing at thirty-four members in 1806, the small size of the Senate could accommodate unlimited discussion on the issues that came before it.8 In short, the Senate could process its agenda without encountering pressures of time.9 In contrast, the argument goes, by 1811 the House had already doubled in size to 141 members, creating time constraints that made unlimited debate impossible in that chamber. There is reason to be cautious, however, in arguing that changes in legislative activity spark changes in minority rights. It may be that an increase in legislative demands will only provoke efforts to streamline the legislative process if a minority party takes advantage of the increase to obstruct the majority's agenda. Changes in political conditions, in other words, might make increases in otherwise routine activities unbearable for the majority party. Consider, for example, the increase in recorded floor votes in the House in the 1970s. As explored in Chapter 6 and by Smith (1989: chapter 3), the flood of amendments by minority party Republicans proved noisome to the Democratic majority not simply because of the increased time spent on the floor, but also because of the political content of the Republican-sponsored votes. The influence of changes in external demands on minority rights might therefore be conditional on underlying political conditions. Their independent effect, in other words, might be quite small. My doubts about members' willingness to alter parliamentary rights simply on account of increased workload stem from a more fundamental claim about the political characteristics of congressional rules. Although clearly many structural arrangements in Congress are not partisan matters, there is arguably a direct link between procedural rules and the balance of power within an institution (Knight 1992). By setting the boundaries of permissible action, and thereby limiting choices of an institution's members, rules distribute power among decision makers (Levi 1990; Schauer 1991). Rules, in other words, may be said to reflect the prevailing balance of forces within an institution. Since the balance of power in Congress is generally measured along a partisan dimension, and since rules governing minority rights affect the allocation of power within each chamber, I would expect conflict over minority rights to directly engage partisan considerations. Changes in parliamentary rights, in other words, are likely to have partisan implications 8

9

But note Cooper (1962) shows in some detail that the previous question had not yet developed into a means of cloture in either chamber at that point. A fuller story of the 1806 rule change is explored in Chapter 7. Oppenheimer (1985) explores the link between time pressures and legislative activity in the contemporary Senate.

The partisan basis of procedural choice making it unlikely that majority party members would suppress rights simply in response to increasing chamber activity. Alternative explanations of change in minority rights thus draw on the politics of partisan advantage rather than on collective institutional concerns - to account for procedural change. Party competition and procedural choice In assessing the postreform Democratic House (1974-1994) - in which minority rights to offer amendments were routinely limited by the majority party and many committees disproportionately stacked in the majority party's favor (Bach and Smith 1988; Smith 1989) - many observers speculated about the impact on procedural choices of what had appeared to be nearpermanent Democratic majorities and Republican minorities. Because the majority often limited minority party rights when the Democrats controlled the House from 1955 to 1994 - the longest period of uninterrupted party control of either chamber in American history - many scholars have argued that the majority was simply incapable of understanding what it was like to be in the minority. As argued by Mann and Ornstein (1993:55) before Republicans took control of the House in the 1994 midterm congressional elections, What may be missing today is any sense on the part of the minority of the demands and responsibilities of government, and any appreciation on the part of the majority of the frustrations and constraints of assuming the role of the opposition. The majority seems to view its power as an entitlement and has set up a structure of patronage that pervades the institution.

In contrast, Democratic and Republican parties across the same period in the Senate had experienced legislative life in both the majority and minority, and "partisan tensions and their effects have been much more subdued" (Mann and Ornstein 1993:55). Without a doubt, they concluded, with more frequent party turnover in the House, each side would develop an institutional memory of life in both positions and, by implication, would be more likely to favor a more equitable distribution of procedural rights. This perspective suggests that members choose procedural arrangements based on their calculations about future parliamentary needs. Recognizing that the allocation of procedural rights has implications for a party's ability to meet its goals, majority party members would seek those procedural rights that would best serve their longer-term partisan interests. Assuming that both majority and minority party members can make a reasonable calculation about their future status in the institution, each side would make procedural choices about minority party rights accordingly. Majority parties

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Minority rights, majority rule

anticipating defeat in the coming election would create minority rights to prepare for their parliamentary future; majority parties anticipating continued control of the chamber would suppress minority rights knowing that such changes would make it easier to maintain their future control of the chamber agenda. Longer-term electoral calculations, in other words, would be linked to short-term choices over chamber rules. A scenario at the close of the 43rd Congress in 1875, however, raises questions about the influence of future parliamentary needs on procedural choices. As explored in detail in Chapter 5, in 1875 majority party Republicans brought the House back into a lame-duck session, the November 1874 elections having cost them control of the coming Congress for the first time in nearly twenty years. Facing persistent obstructionism by the Democratic minority and anxious to ensure passage of what would be the last Reconstruction-era civil rights bill before losing control of the House, Republicans changed the rules to limit minority obstructionism (see Kelly 1959; Wyatt-Brown 1965; Foner 1988). Instead of expanding minority rights to prepare for their impending minority status, the majority party suppressed minority rights in an effort to secure its immediate party goals. The 1875 case suggests that short-term, rather than long-term, partisan calculations might motivate members' procedural choices - a possibility explored in the next section. The partisan basis of procedural choice I start with the familiar observation that the dominant divisions within Congress are partisan ones. On the most important policy questions, congressional political parties tend to occupy different positions. Whether they support fellow partisans because they represent similar constituencies or because they individually or collectively value a favorable party record or reputation, party members have multiple incentives to support party positions within the legislature (Cox and McCubbins 1993; Smith 1993a). Moreover, members have an institutional interest in supporting their party, since the allocation of numerous institutional positions and resources is party-based. When a majority party is extraordinarily strong it is unlikely to expend much effort on procedural matters. Large and cohesive majorities can set legislative agendas, assemble policy coalitions, and secure legislative victories with relative ease (Hurley, Brady, and Cooper 1977; Brady 1988; Clubb, Flanigan, and Zingale 1990). Unlikely to face factional disputes among their members, such majorities can also easily defeat most minority obstructionism. Given a strong enough coalition, such majorities will rarely be constrained by decision rules requiring either a bare majority or super-

The partisan basis of procedural choice majority vote for passage. Indeed, when a majority party so dominates the chamber, there should be little debate over the set of chamber rules: given the similarity of members' views, nearly any set of rules would produce similar legislative results. It is fairly unusual, however, for the majority party to enjoy such unchallenged power within Congress.10 As majority party strength declines, it becomes tougher for a majority to successfully pursue its policy agenda. Given the difficulties of assembling and maintaining a majority coalition under such conditions, the advantages and disadvantages conferred by existing rules become far more salient to members (Fink and Humes 1992). Because legislative rules determine, for example, which proposals may be advanced, who may propose them, and how the proposals will be pitted against each other, chamber rules have a much larger effect in determining the winning legislative coalition when party members' preferences begin to diverge. It follows then that members' procedural choices should closely reflect their views about policy. Indeed, as suggested by the 1875 case above - as well as by Dion (1991) and Fink (1994) for portions of the nineteenth century - majority parties are likely to try to change the rules in their favor if they believe such changes will increase their chances of legislative success. Unless such changes are deemed necessary for securing policy goals, a majority party would not necessarily invest in efforts to alter chamber rules in its interests. Instead, efforts to change House rules are more likely when minority obstructionism hampers the achievement of the majority party's legislative goals. Partisan need for restrictive rules changes would thus shape members' preferences over rules. Partisan need alone, however, is arguably insufficient to produce restrictive procedural change. A majority party must also be sufficiently stronger than the minority to succeed in its procedural effort. Capacity for change is important, because legislative action - on either policy or procedural fronts - consumes time, energy, and support of party leader and members alike. Assembling a coalition in favor of procedural reform is costly to chamber parties in several ways. First, evaluating existing rules and proposing alternatives consumes time and energy of party members. Before the House Rules Committee was made a permanent standing committee in 1880, any effort to propose rules changes usually demanded new appointments to a select panel to consider procedural reform.11 In the Senate - a continuing body, where the rules are not reconsidered and adopted every two years 10 11

Indeed, according to Brady (1988), the dominant majorities associated with realignment periods have emerged only three times in the nation's political past. The costs of evaluating and proposing new rules arguably decreased after the Rules Committee became a standing committee with a more stable membership and the addition of permanent staff clerks.

11

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Minority rights, majority rule

the costs of gaining floor consideration of a rules package are arguably even higher. Second, and relatedly, any effort expended on procedural reform detracts from resources potentially spent by members on their own personal agendas and by parties on a common policy agenda. With finite resources, neither majority nor minority party leaders are likely to devote time and energy to procedural change without evidence of strong support by their fellow partisans. The majority party, in short, must be sufficiently united over its legislative goals in order to successfully limit minority rights. Minority obstructionism is unlikely to impel support for restrictions on minority rights if the majority party itself is factionalized over policy. Furthermore, because suppressing minority rights by definition limits the minority's ability to amend, debate, or obstruct the majority's agenda, the minority party is unlikely to lend any support to majority party efforts to limit the minority's parliamentary rights. Thus, sufficient partisan capacity, as well as partisan need, is likely to be necessary for suppressing minority rights. As the strength of the majority party increases relative to the minority party, it follows that limits on procedural rights should be more likely. A reverse logic holds for the creation of minority rights. The weaker the majority party, the more likely a faction of the majority will join a crossparty coalition in favor of expanding minority rights. Under such conditions, extending minority rights would serve the policy interests of both minority party members and those majority party members desiring to challenge the majority party's control of the agenda. If cross-party coalitions are necessary to extract procedural rights from the majority, then strong minority parties are essential to the creation of new rights: the stronger the minority party, the fewer the number of majority party defectors necessary to form a winning coalition in favor of extending minority rights. The creation of minority rights would thus reflect short-term calculations by the majority of the majority party: either lose the procedural battle to a cross-party coalition or propose procedural concessions to avoid almost certain defeat. Immediate short-term policy preferences - rather than longer-term calculations about party control or broader institutional concerns about managing the legislative agenda - would thus motivate members to either suppress or create minority party rights. A theory of change based on partisan alignments thus identifies the balance of power between majority and minority coalitions as the engine of change in parliamentary rights. Because of the centrality of rules for policy outcomes under all but the most powerful majority parties, I expect that both majority and minority parties will seek to alter the rules to their own advantage - thus both majority and minority strength matter. As the balance of power between majority and minority parties shifts over time, so too does the potential for change in the scope of rights allocated to the minority party.

The partisan basis ofprocedural choice

13

Inherited rules and procedural choice The partisan theory so far suggests that policy preferences alone shape procedural outcomes. Such a perspective, however, contradicts what we know about institutional outcomes: legislative strategies are shaped by both member goals and chamber rules. It follows then that procedural outcomes will depend on both the alignment of preferences and the institutional context. If the shape of Congress's procedural landscape was relatively stable over time, predicting change in the scope of minority rights would be relatively easy. We would simply assume away institutional change and assess the impact of changing preferences on a single set of chamber rules. Such a view of congressional change would imply that rules changes usually revert to a stable equilibrium: whatever turns members take off of an institution's path, they eventually end up on similar institutional terrain. But even early institutional scholars questioned such a view. As argued by Sait (1938:529), "Institutions rise out of experience. . . . A borrowed institution will change in character to the extent that the new environment differs from the old" (Sait 1938:529). Indeed, institutions rarely hold to a single pattern over time. Instead, "political outcomes are path-dependent . . . what outcome occurs depends on the historical path, that is, the set of endogenous institutional arrangements, chosen in advance of the selection of the particular outcome(s) being analyzed" (Aldrich 1994:229-30). As Aldrich points out, only if there is a stable median voter (so that outcomes are induced on the basis of preferences alone) are existing structures unimportant to subsequent change - something he argues "happens with massprobability zero" (230). These concerns suggest that the character of the institutional arena will play a role in explaining patterns of congressional change - since an institution's inherited rules might either inhibit or encourage episodes of institutional change. At any given time in a chamber's history, a set of inherited rules marks the contours of a legislative body. Such rules contribute to shaping the institutional environment in several ways. First, the set of prevailing rules affects how readily a majority party can assemble a winning coalition to secure either policy or procedural goals. It is difficult to define, for example, "strong" and "weak" parties independent of the rules of the legislative game. As explored in Chapter 5, for example, reliance on the "suspension" rule (and its requirement of a two-thirds majority for passage) to bring bills to the floor in the nineteenth-century House meant that a dependable twothirds majority was almost always necessary to give the majority party unchallenged control over the agenda. In other words, a majority party holding 65 percent of chamber seats under such rules might find it as difficult to secure favored outcomes as would a party holding just 51 percent of chamber seats under the same set of rules.

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Minority rights, majority rule

Second, and relatedly, inherited rules alter the costs incurred by coalitions seeking to change the rules. In the Senate, a two-thirds majority is required under Rule 22 to invoke cloture and end debate on proposals to alter chamber rules. In comparison, a simple majority in the House can cut off debate on proposed rules changes or can simply report a special rule waiving any cumbersome rule. Thus the costs incurred by Senate majority parties in pursuing procedural reform are likely to be far higher than those incurred by House leaders. Conversely, inherited rules can also decrease the costs of procedural change. By eliminating the practice of the disappearing quorum in 1890 - in which minority party members would be present but refuse to vote, thereby obstructing action by the majority party - small majority parties that followed were far less susceptible to minority obstructionism in pursuing their procedural goals. Expanding the partisan theory to embrace institutional effects is particularly important in accounting for differences in the nature of House and Senate minority rights. The shape of preferences alone is unlikely to explain changes in Senate parliamentary rights. For example, although electoral conditions led to historic levels of party homogeneity and polarization in the late nineteenth century, Republican majorities in the Senate tried and failed to replicate the success of their Republican allies in the House in suppressing minority rights. Lacking a previous question motion - a rule that enables a simple majority to cut off debate and proceed to a vote - exceedingly cohesive Senate majorities were unable to adopt a cloture rule to limit Senate debate. Although Brady, Brody, and Epstein (1989) have argued that party homogeneity drove Senate organizational arrangements during that period, the failure of Senate majorities at that time to adopt a cloture rule to restrict unlimited debate suggests that both preference alignments and institutional context are necessary to fully explain institutional change in the Senate.12 Before the creation of Rule 22 and its provisions for cloture to end debate, any single senator could theoretically prevent a majority's effort to alter chamber rules. With the adoption of cloture provisions under Rule 22 in 1917, a two-thirds majority of Senators has generally been required to invoke cloture on motions to amend Senate rules.13 Given the extraordinarily high threshold for changing Senate rules, it should be rare to find cases in which Senate majority parties successfully isolated minority rights for 12

13

Of course, the impact of institutional rules on Senate change has not gone unnoticed, with Smith (1989) arguing that Senate rules yield procedural battles far different from those occurring in the House. See also Sinclair (1989), who assesses the impact of high transaction costs on institutional change in the modern Senate. Until changes to Rule 22 in 1949, cloture was not permissible at all on motions to proceed to proposals to change Senate rules.

The partisan basis ofprocedural choice

15

COALITION SEEKING RULE CHANGE

MAJORITY PARTY STRENGTH

High Low

Majority party

Cross-party

Minority party

suppression package

no change creation

no change no change

Figure 1.1. Partisanship and expected change in minority party rights. suppression. In theory, any coalition for suppressing rights would have to be so large and cohesive as to be near impossible. Instead, it is more likely that even strong majority parties trying to suppress minority rights would be forced to extend procedural concessions to build bipartisan coalitions in favor of change. By co-opting those opposed to procedural change, concessions by the majority would arguably lower the costs of change incurred by a majority trying to alter chamber rules to its advantage. Thus, change in Senate minority rights should be infrequent, adopted by bipartisan majorities, and packaged to both reinforce some minority rights while retracting others. Predictions from the partisan theory The general relationship between partisanship and procedural choice is shown in Figure 1.1. Drawing from the expected influence of partisan needs and capacity on procedural choice, the figure shows the expected change in minority rights with variation in the strength of the majority party and the identity of the coalition seeking change in its procedural rights. If a majority party holds a sufficient advantage in party strength over the minority party, and if minority obstructionism increases its need for procedural change (top left offigure),suppression of minority rights is most likely. Given the relative weakness of the minority party under such conditions, the chances of an expansion in minority rights are quite minimal. If the majority party's advantage in strength dissipates, however, a clean suppression of minority rights is unlikely to occur (bottom left). If majority party members still sought to alter chamber rules to their advantage, they would likely be too weak to secure only favorable changes in parliamentary rights. Under such conditions, the majority party would be most likely to pass a set of rules changes that packaged both restrictions and extensions of minority rights. Without procedural concessions to the minority party, the majority party's diminished strength would be insufficient to secure rules changes that solely restricted minority rights. At the same time, the strength of the minority party would increase its bargaining power over procedural reforms, limiting

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Minority rights, majority rule

the majority party's power to unilaterally dictate the course of procedural change. But when the breakup of a strong majority party coalition coincides with the emergence of a cross-party coalition seeking procedural reforms, creation of minority party rights is most likely (bottom middle offigure).Under such conditions the minority party attracts a few members from a weakened majority party and forms a cross-party coalition to successfully reinforce minority party rights. Conceding limits on other minority rights at the same time is unlikely under such conditions, given the presence of a strong enough cross-party coalition formed against the majority party position. If the minority party exploits those newly acquired rights, however, upon regaining its strength the majority party is likely to feel the need to retaliate and suppress those rights once again (top left). Something of a cyclical nature to changes in minority rights thus emerges once the minority party succeeds in procuring new parliamentary rights. Newly acquired minority rights are likely to last only as long as the procedural coalition and partisan conditions that first secured them. The continuity of such a cycle, of course, is contingent on the emergence of a cross-party coalition; without support from a majority party faction, minority parties are unlikely to succeed in extracting new parliamentary rights (right top and bottom of figure). It is important to remember that the dynamics depicted in Figure 1.1 occur within particular strategic and institutional contexts. Both majority party strength and the identity of the coalition seeking a rule change are shaped by electoral outcomes (strategic context) and inherited rules (institutional context). Whether or not a cross-party coalition emerges with a set of common procedural needs, for example, depends both on election results and on the set of rules that the parties inherit at the start of a new Congress. The institutional arena also affects the requisite majority party strength for passing desired rules changes. Depending on the nature of the rules, changes in parliamentary rights may be easier or harder to obtain than expected on the basis of preference alignments alone. Inherited rules, that is, may temper the effects of party strength on procedural change, at times raising the threshold for strong majority parties seeking to alter the rules to their advantage. As explored above and in Chapter 7, for example, under Senate rules individuals and minority coalitions find it relatively easy to prevent the majority from limiting their rights. Alternatively, as explored in Chapter 6, a set of rules strongly empowering the majority party over other coalitions in the House can make it easier for majority parties seeking to limit minority rights. In such an institutional context, a majority party would not have to accrue such a large advantage in strength over the minority in order to secure favored procedural change. In sum, far from being the outcome

The partisan basis of procedural choice of a principled commitment to legislative fairness, minority rights under the partisan theory are no more than the result of hard-nosed partisan battles fought, of course, under a particular set of inherited institutional rules. Plan of the book There is unfortunately no neat definition of congressional minority rights, nor any ready list of such rights that can easily be consulted. The problems of identifying minority rights are exacerbated when trying to study their evolution over time. Thus, I start in Chapter 2 by devising a definition of minority rights and a strategy for identifying their creation and suppression. In sketching the nature of congressional minority rights, I argue that members' perceptions of minority rights have evolved over time and have followed different courses in the House and Senate. I argue, moreover, that changes in the nature of minority rights in the House have been intertwined with the development of political parties, whereas the concept of rights in the Senate has been more resistant to change. Efforts to model change in minority rights, I argue, must be sensitive both to historical shifts in the nature of those rights and to differences in House and Senate rights that have emerged over time. Chapter 3 presents a first test of the proposition that the alignment of partisan preferences shapes procedural outcomes. The chapter focuses on adoption of the previous question motion in 1811, the first significant formal restriction on minority rights in the House. In the chapter, I weigh the relative influence of increasing workload and partisan needs and capacity on procedural choice, and discuss how adoption of the previous question helped to structure subsequent battles over the allocation of parliamentary rights. I find a strong partisan basis for the decision to adopt a previous question rule, but little support for conventional accounts of early congressional development that link the new rule to the chamber's need to manage its growing size and workload. The case for the partisan theory is bolstered by assessing the Senate's decision in the same period to eliminate its own previous question rule. I turn in Chapter 4 to a broader assessment of procedural change in the House - creating statistical models to assess the relative influence of workload, party competition, and partisan needs and capacity on the suppression of minority rights in the House over the course of congressional history. Statistical findings on the conditions fostering the creation of minority rights are also presented and discussed in the chapter. Having found little support for the workload and party competition explanations in Chapter 4, I focus more carefully in Chapters 5 and 6 on the influence of short-term partisan advantage on procedural choice in the House. In Chapter 5,1 argue

17

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Minority rights, majority rule

that the emergence of a highly partisan, majoritarian House by the end of the nineteenth century resulted from a century of partisan-based decisions about the allocation of parliamentary rights. In Chapter 6, I assess battles over minority rights in the twentieth century, as cross-party coalitions have more frequently emerged to challenge party control of the agenda. I find that majority parties since 1900 have regularly recouped their procedural losses by suppressing minority rights extended after 1900. The record of procedural change over the history of the House bears little resemblance to the procedural record in the Senate. How and why extreme individualism has developed and persisted in the Senate is the focus of Chapter 7. In that chapter, I explore the Senate's resistance to procedural reform in order to assess the relative weight of partisanship and inherited rules in shaping parliamentary rights in that chamber. Although the Senate's protection of individual rights is widely assumed to reflect senators' historical commitment to the equal rights of senators and the states they represent, I argue instead that inherited rules have made all but impossible the adoption of rules to empower a partisan majority - despite periodic and partisan efforts to do just that. I conclude in Chapter 8 by assessing the rules adopted by the new Republican majorities after the 1994 midterm congressional elections and by evaluating the performance of the partisan theory in light of recent change. Recent developments in the Congress suggest that the partisan theory captures well the ever-continuing battles over the rights of the minority in the American Congress.

The evolving concepts of House and Senate minority rights

You cannot vest the minority with rights which the majority do not enjoy and still keep it a minority. For if the minority have rights which the majority are denied, members would all hasten to join the minority, which would then become a majority and lose at once its identity as a minority and its rights. Representative William Cockran, 19091 I look upon it as unnecessary and a gratuitous wrong on our part to limit the rights of the minority here. To-day I am with the majority on this floor; next week I may not be. I have been in bodies where I acted with minorities; and remembering the benefits that I have received from rules securing the rights of minorities I resolved then . . . that I would never do anything, as a member of a legislative body, tending to restrict or deprive the minority of any rights I had enjoyed as a member of such body. Representative Henry Dawes, 18742

From the vantage point of William Cockran (D-New York), speaking on the House floor in 1909, there is something paradoxical - if not politically naive - about the idea of minority party rights. In a competitive political environment, it seems odd that a majority party would create attractive procedural rights for the minority, yet exclude itself from enjoying them. Indeed, from the perspective of Henry Dawes (R-Massachusetts) some thirty years earlier, majority parties would be wise to craft minority rights strategically. Instead of allocating rights narrowly to the minority party, the majority might be better served by extending rights to minorities of any composi1 2

Congressional Record, 60 Cong. 2, January 7, 1909, 612. Congressional Record, 43 Cong. 1, January 20, 1874, 789.

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Minority rights, majority rule

tion and size - including one. In fact, it would appear that the Senate long ago took to heart the advice of Henry Dawes: entrenching individual and minority rights regardless of party. As noted by Senator Lowell Weicker (R-Connecticut) on the floor in 1986, "I have all the power of the majority leadership, minority leadership of the Senate as a whole. I have all of that as one person"{CongressionalRecord, 99 Cong. 2, February 26, 1986, 1663). As suggested by these perspectives on minority rights, no single concept of minority rights dominates congressional procedure. At one end of a spectrum are party-based or partisan minority rights: procedural privileges allocated narrowly and explicitly to the minority party (such as the right of the minority party to call witnesses at committee hearings). At the other end are nonpartisan political minority rights: rules writ broadly enough to guarantee procedural protection for minorities of any size and composition (such as the right of a member to call for a motion to adjourn or the right guaranteeing opponents of a conference report time to present their views on the floor). This spectrum of rights has several implications for a study of procedural change. First, it is no easy task to define and identify which rules constitute minority rights. If I simply tally references to the minority party in House and Senate formal rules, I would find relatively few of the rules that have historically been considered to be important rights. Thus, careful definition and identification of minority rights is prerequisite to studying their evolution. Second, if minority rights take more than one form, temporal or cross-sectional differences in the nature of House and Senate rights are possible and may have theoretical significance. In fact, as I argue in this chapter, there is a discernable pattern to changes in House minority rights, with party-based rights emerging by the early twentieth century - a pattern that failed to occur in the Senate. Conceptual shifts in the nature of minority rights, I argue, have been interwoven with major institutional change in the House. The very idea of procedural rights as a necessary protection for the minority party took root only when the majority party had secured for itself firm control of the legislative agenda by the end of the nineteenth century. The evolution of minority rights and the institutionalization of party are, in other words, mutually dependent. Defining minority rights, sketching their conceptual history, and placing that historical change in a larger institutional and partisan context - my three tasks in this chapter - are prerequisite to exploring the politics of their formal change. Characterizing and identifying minority rights There is no standing definition or recognized list of congressional minority rights. Perusing the index to the 504 pages of the House rules manual for

Evolving concepts ofHouse and Senate minority rights

21

the 103rd Congress (1993-1994) yields only six references to "minority" and seven references to the "rights" of members. As suggested above, however, not all procedural protections for chamber minorities make direct reference to the minority party. Indeed, members of the minority party themselves rarely adopt a succinct definition. For example, one member once characterized minority rights as simply those rules that "allow a minority to attack that [majority] program, and have a fair shot at it."3 To cull the largest set of minority rights - including rights of both political and partisan minorities - I start with a definition of minority rights, ascertain which House and Senate rules best fit the definition, and then determine the timing of their formal creation and/or suppression.4 Defining minority rights I define minority rights as procedural advantages protectedfrom arbitrary change that enable members of the minority party to amend, debate, or obstruct the majority

agenda. A procedural advantage confers on a member or group of members preferential access to the legislative process at a particular stage of the game. For example, House members opposing final passage of a bill were guaranteed the right in 1909 to propose a motion to recommit, or return, a bill to committee prior to final passage. A procedural advantage can be created in one of two ways: explicitly by means of a formal chamber rule, or implicitly by the interpretation of other chamber rules. For example, the formal rule that guaranteed the minority party the right to call witnesses to a committee hearing explicitly created a procedural advantage for the minority party. In contrast, the informal practice in the nineteenth century of the "disappearing quorum" - in which members would be present but refuse to vote - implicitly created a minority right: there was no formal rule recognizing the legitimacy of the disappearing quorum. Instead, the only relevant House rule stated that a quorum was to be verified by the taking of a roll-call vote. If enough minority party members refused to answer the call of their names, a "disappearing quorum" could prevent the establishment of a voting quorum and thereby nullify the vote - despite the physical presence of a requisite majority of the House. Most rules changes suppressing minority rights have involved the adoption of a formal rule to eliminate such implicitly protected rights. 3 4

Bill Frenzel (R-Minnesota), Congressional Record, 101 Cong. 1, January 3, 1989, HI 2. An alternative approach is taken by Dion (1991) in a study of the suppression of minority rights to obstruct in the nineteenth-century House of Representatives. Recognizing the difficulty of defining minority rights, Dion (1991) identifies four episodes of major institutional reform during the partisan period of the 1830s to 1890s and then determines which involved rules changes that concerned the rights of the minority to obstruct. Not all changes in minority rights, however, have occurred during times of major institutional reform.

22

Minority rights, majority rule

A procedural advantage - whether created explicitly or implicitly in the rules - is protected from arbitrary change5 if it can be eliminated only by a formal rule change adopted by a chamber majority of specified size. Thus, although Speaker Joseph Cannon (R-Illinois) in the 58th through 60th Congresses (1903-1909) permitted the minority party to propose its own slate of appointments to committees. Cannon single-handedly eliminated that right during the 61st Congress (1909-1911).6 Because the minority's appointment powers were contingent on the good will of the speaker, the right was subject to arbitrary change and hence a formal minority right of appointment did not exist in those Congresses. Finally, rules that enable a coalition to amend, debate, or obstruct the majority's agenda are procedures that make it harder for a majority to achieve its preferred outcomes: by increasing the time consumed and costs incurred to pass a bill in committee or on the floor, by causing the majority to accept changes to its preferred outcomes, or by preventing outright the passage of an item on the majority's agenda. For example, as explored in Chapter 5, the minority's ability to offer unlimited dilatory motions in the House made impossible the impeachment of President Andrew Johnson in 1868 and passage of a Reconstruction civil rights bill in 1875 - until the minority's right to offer dilatory motions was restricted on both occasions. Selecting minority rights

Such a definition of minority rights still leaves open the question of what "counts" as a minority right. Is it enough that the effect of a rule empowers the minority? Or must the rule have originally been intended to protect the minority? By emphasizing only "intent," I miss key minority rights. For example, requiring a two-thirds vote to suspend the rules - a key protection for a minority seeking to block floor passage of a bill - was originally intended to limit minority access to the floor agenda. If I emphasize only "effect," I am likely to exclude those rights fought for by the minority party but which proved ineffective for protecting the minority party. Members in the minority have long recognized the difference between intention and effect. Opposing a change in the suspension rule in 1873, Charles Eldredge (D-Vermont) argued that "we do not always know the effect of a rule by merely reading it. It is only by its use [that] we become acquainted with its effect" {CongressionalRecord, 43 Cong. 1, December 18, 1873, 315). 5

6

To be sure, minorities and majorities can have quite different views of what constitutes arbitrary action by the majority - even if a majority vote is required to abolish the right. The choice of the word arbitrary is simply meant to distinguish those rights afforded protection under chamber rules from those with no such standing. For an account of majority and minority committee assignment practices under Cannon, see Congressional Record, 62 Cong. 2, January 11, 1912, 854-65.

Evolving concepts of House and Senate minority rights

23

My solution in defining minority rights is to err on the side of liberally selecting rules that protect minority rights. To identify minority rights that have existed at any time in House and Senate history, I use two selection criteria. Rules meeting either standard are counted as minority rights. Minority identification standard: Rules advocated by the minority party to provide procedural advantages for the minority party qualify as minority rights. Under the identification standard, any rule identified by the minority party as a minority right is counted as such, allowing me to count as minority rights rules that do not explicitly mention the minority party. For example, in the 1960s minority party Republicans in the House argued that the practice of proxy voting in committee violated the rights of the minority party. With proxy voting, the majority party could win votes in committee, even if not all of its contingent were present to vote. Thus, House Republicans repeatedly called for a ban on proxy voting in committee as a minority right - even though proxy voting bans do not explicitly empower the minority party.7 The second selection criteria concerns the effects of chamber rules, rather than simply intent: Effects standard: Rules that have the effect of helping the minority party to challenge the majority qualify as minority rights, regardless of the original purpose or supporting coalition of the rule. Under the effects standard, a rule qualifies as a minority right if over time its effects redound to the advantage of the minority party - allowing it to challenge or influence majority control of the agenda. The effects standard is essential for identifying minority rights because rules often develop uses contrary to their original purpose. The effects standard, in other words, allows me to include as minority rights those rules that the majority in effect "mistakenly" adopted: far from having been intended to benefit the minority, a rule might originally have been intended to harm the minority party's interests. The clearest example of a rule that had the effect of helping the minority even though it was not identified by the minority as a right when it was created - is the House rule requiring a two-thirds majority to suspend the rules. Although the suspension procedure today largely, but not exclusively, works to the benefit of large bipartisan majorities (Bach 1990), the twothirds standard was originally intended in 1822 to make it harder for members to gain floor consideration of pet projects; two-thirds of the chamber would have to agree to suspend the regular order of business to allow such 7

See, for example, minority party rules platforms in Congressional Record, 99 Cong. 1, January 3, 1985, H19; 100 Cong. 1, January 6, 1987, H9; 101 Cong. 1, January 3, 1989, H10. The Republicans' willingness to ban proxy voting even once they took control of the House after the 1994 elections is discussed in Chapter 8.

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Minority rights, majority rule

a. change in the floor agenda. The two-thirds rule, however, also weakened the majority party's control over the agenda, since one-third of the chamber could prevent the majority from scheduling preferred bills for floor consideration. Indeed, as explored in Chapters 5 and 6, subsequent changes to the suspension rule in the nineteenth and twentieth centuries reflected majority party efforts to craft a more effective suspension rule. Hence, I count the suspension rule as a minority right. If only a minority identification standard was used, one of the key minority rights of the nineteenth century would be overlooked. Together, these two criteria offer a set of decision rules for evaluating whether or not a rule counts as a minority right. With these guidelines, I then use several sources to identify all minority rights in House and Senate history. These sources include the official rules manuals of the House and Senate (U.S. Congress 1993a and U.S. Congress 1990), histories of each chamber (for example, McConachie 1898; Alexander 1916; Hasbrouck 1927; Haynes 1960; Galloway 1976), primary accounts of rules changes in the Annals of Congress, the Congressional Globe, and the Congressional Record,

secondary accounts of rules debates such as those appearing in Congressional Quarterly Almanac and diaries and biographies of such members as Thomas Hart Benton (1897), Thomas Reed (in Robinson 1930), James Garfield (1981), and John Quincy Adams ([1874-1877] 1969). After identifying the universe of minority rights, I determine from the above sources the dates of their creation or suppression by a formal rule change in the House and Senate.8 Initial patterns

Chronological lists of minority rights and their creation and suppression in the House and Senate appear in Appendix 1 (Tables Al.l, A1.2, A1.3). In addition to indicating the timing of each right's creation and suppression, the tables note what type of minority is targeted under the rule. Rules creating political minority rights are procedural advantages broadly allocated to minorities of any composition and size (including one) within the chamber. Looking first at the House, guaranteeing debate time in 1970 for opponents 8

In identifying cases of minority rights creation, I consider only cases in which rights were created by a formal rule change. That is,1 do not include as creation events the emergence of informal practices considered to be minority rights. Such informal practices, such as the disappearing quorum, rarely have an identifiable point of creation and by definition are not formally protected under the rules. I do include as cases of minority rights suppression formal rules changes that suppressed informal practices considered to be minority rights. Hence, the rule change prohibiting the practice of the disappearing quorum is included as a case of suppression. In such cases, an identifiable point of suppression is possible and is formally recognized by chamber members.

Evolving concepts of House and Senate minority rights to a conference report, for example, works to the advantage of any coalition or single member desiring to defeat a conference report. Political minority rights, in short, are also generally individual rights: the rule guaranteeing members five minutes to explain amendments in the Committee of the Whole protects the debate rights of either a single member or minority coalition favoring an amendment.9 Rules benefiting partisan minorities explicitly reserve a procedural advantage for the minority party, precluding members of the majority party from enjoying that right. For example, the 1970 rule change guaranteeing the minority party one-third of committee investigatory staff in the House explicitly benefited the partisan minority. Although a rule can secure an advantage exclusively for a party minority, any rule benefiting a political minority works to the advantage of partisan minorities as well. The Senate's Rule 22 is perhaps the clearest example. Under the rule, a sizeable minority party coalition can obstruct Senate floor action by preventing the majority party from invoking cloture. But a minority coalition composed of senators of both parties can also use Rule 22 to block action by a chamber majority. In both cases, the rights of the minority are being protected - although the composition of the minority differs in the two. Minority rights have been conferred exclusively on the minority party in the House on only a few instances. Indeed, only in the twentieth century have partisan minorities been explicitly guaranteed procedural rights under the rules of the House. Neither are those rights secure, as most of the partisan rights created in 1970 and 1974 were eliminated in 1971 and 1975. Creation of minority party rights is equally rare in the Senate as well. Only in 1970 as part of the Legislative Reorganization Act has the minority party been explicitly protected under the rules. Thus, it is relatively rare - as suggested by William Cockran in 1909 - that the majority party creates rights for the minority party that the majority cannot enjoy. Instead, minority rights have most often been structured to benefit any numerical minority within each chamber - even though the minority party is generally at the center of the fight for such rights. There are also several patterns in the timing of rights changes in the House and Senate that bear notice (Figures 2.1 and 2.2). First, minority rights have more often been suppressed than created in the House. Indeed in the nineteenth-century House, changes affecting minority rights predominantly restricted rights, with rights created less than 25 percent of the time. Moreover, in three of the four cases creating rights, other rights were simultaneously suppressed. Second, changes in minority rights in the House have been clustered in the twentieth century in two eras: during the Progressive 9

The political label is used to identify both individual and political minority rights.

25

26

1789

Minority rights, majority rule

1805

1821

1837

1853

1869

1885

1901

right suppressed - ^ -

1917

1933

1949

1965

1981

right created

Figure 2.1. Change in House minority rights.

1789

1805 1821 1837 1853 1869 1885 1901 1917 1933 1949 1965 1981 right suppressed ' y right created

/\ mixed change

Figure 2.2. Change in Senate minority rights. era prior to the emergence of the conservative coalition and following the diminution of the coalition's strength in the 1970s. Third, in almost half of the creation cases after 1900, newly acquired rights were immediately suppressed in the following Congress. It is much more difficult, however, to separate episodes of creation and suppression in the Senate. An extension of minority rights clearly occurred in 1806 and again in 1970 without concurrent restrictions on minority rights. But most other rules changes altering parliamentary rights in the Senate have limited some minority rights at the price of extending new ones as well.10 Such patterns have an important implication: the politics of creation and suppression are likely to be interwoven, making both parts necessary to construct a theory of procedural change. With an eye to such patterns in the nature of rights and the timing of their formal change, in the next section I explore a conceptual history of minority rights and discuss how changes in perceptions of rights have been linked to changes in partisan and institutional landscapes. Institutionalizing rights and parties in the House My definition of minority rights has suggested three broad, often overlapping ways of characterizing minority rights: individual, political, and partisan. The history of minority rights in the House is a story about their transformation from the first to the last. Conceived initially as rules protecting 10

These rules changes are designated "mixed" in Figure 2. 2. As explained in Chapter 7, most such rules changes at once extended and suppressed the minority's parliamentary rights.

Evolving concepts of House and Senate minority rights individuals in the early Congresses, minority rights by the beginning of the twentieth century had acquired a partisan cast. At the same time that this new perception of rights was emerging, the House itself was evolving from a chamber of "legislative egalitarianism" (Stewart 1992, 86) to one of highly partisan, majority rule: the role of party in structuring the agenda had became formalized in House rules. Although both individual and political minority rights persisted in House rules, the institutionalization of party rule by the early twentieth century fundamentally altered the politics of struggles over minority rights. Almost overnight, minority parties found themselves reacting to the transformation of the rules into a tool of the majority party. As a result, their procedural strategies evolved from simply exploiting existing individual and political minority rights to also fighting for new partisan minority rights. The result would be to further crystallize political parties as the central organizing principle in the House. To see more clearly the transformation of minority rights by the early 1900s, it is helpful to look at perceptions of rights before, during, and after the partisan period of the nineteenth century. Although there is considerable debate among historians about the appropriate manner for periodizing the past (see, for example, Shade 1981; McCormick 1986; Silbey 1986), the partisan landscape is often used to delineate congressional eras. For my purpose in highlighting change in minority rights in the House by the start of the twentieth century, I divide the history of procedural rights into three broad eras: the first, or pre-party, extends from 1789 to the 1830s; the partisan era follows, from the 1830s to the 1890s; and an era of declining parties takes root by the early twentieth century. Although these eras oversimplify the contours of partisan politics, they provide general guideposts for assessing members' perceptions of rights over time. The passing of antipartyism, 1789-1830 The antipathy of early Americans to political parties is well known. There was both a "fear of factions and parties" and a "strong, lingering suspicion of the arts of political management" (Silbey 199la:II). 11 As Thomas Jefferson wrote to a friend in 1789, "I never submitted the whole system of my opinion to the creed of any party of men whatever, in religion, in philosophy, in politics or in anything else, where I was capable of thinking for myself. . . . If I could not go to heaven but with a party, I would not go there at all."12 Members of Congress as well decried explicitly partisan organizations: "discard [from] your favor," advised John Stanly (Federalist-North 11 12

On antipartyism more generally, see Hofstadter 1969; Formisano 1974; Morgan 1988. Jefferson to Francis Hopkins, March 13, 1789, as cited in Silbey (199la: 15).

27

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Minority rights, majority rule

Carolina) "the applicant whose leading claim to their attention is that servility which peculiarly fits him for a party tool."13 Institutionally, the lack of an organized, partisan system was evident from the absence of formal party leaders and organization in either the House or Senate. Outside Congress, stable party organizations were few and the electorate was quite volatile, showing little loyalty to party labels (Formisano 1974; Silbey 1991a). The "essential characteristic of the era," summarizes Silbey, "was individualistic in political temperament, volatile in voting and result. Numerous person, local, and regional political factions vied for dominance across a broad landscape" (1991:16). Reflecting early elites' antipathy toward parties, the rules chosen by the first Congresses gave no formal recognition to the rights of political parties in the chamber. Instead, the first rules were largely rules of decorum, modeled on those of the British Parliament. Although there were a few limits placed on members' individual rights - no member could speak more than twice on the same question without approval of the House - the rules provided for a relatively fluid and unstructured legislative process. Indeed, the House was small enough with 65 members to function as a deliberative body, with no limit on the amount of time consumed by members in debate. Bills were considered in order of their introduction to avoid favoritism (Alexander 1916:182), and the House in its early years was able to dispose of all the business that came before it (Hinds 1907, 4:3056). In fact, it was over twenty years before the first significant debate restriction was adopted in 1811. In the meantime, leaders of the majority party had no recognized authority in the rules to structure the agenda as they saw fit. The pre-party era, however, was not devoid of partisan politics. "It was not that the deep sense of republican fragility or the persistent antipartyism weakened," argues Silbey, "only that now coordinated efforts to select candidates, manage campaigns, attract voters, and bring legislators under the discipline of a central organization . . . appeared on the scene" (199la: 14). The emergence of divisive policy issues appears in part to have sparked new efforts to organize across a growing nation. Indeed, policy cleavages within Congress on occasion precipitated "incipient party-like behavior," with Federalist and Republican parties emerging "under the stimulus of events, usually national and sometimes local" (Formisano 1974:67). Such nascent partisanship most often flared during foreign policy debates over relations with England and France - for example over the Alien and Sedition Acts in 1798 and over the War of 1812. Throughout the period from 1789 to the 1820s, in other words, antipartyism and bouts of partisanship coexisted: the period "possessed almost a split personality . . . intensely passionate in 13

"From John Stanly," May 10, 1810, in Cunningham (1978:730-1).

Evolving concepts of House and Senate minority rights

29

partisan convictions but inhibited by powerful antipartyism assumptions about the nature of politics and society" (Formisano 1983:6). It is the introduction of partisan politics to established ways of doing business in the early House that soon evoked discussions about the rights of the minority. As explored in detail in Chapter 3, the most intense such partisan moment occurred in debates during the buildup to the War of 1812 - precisely the point at which a restrictive "previous question motion" was adopted to give the majority a tool for closing debate. Many minority party Federalists protested the new rule on the grounds that it violated the rights of individuals within the chamber, regardless of party. As argued by Josiah Quincy (Federalist-North Carolina), "I have chosen to consider this subject in relation to the right of the wholy [sic] body, and of one of its individual members, rather than to that of a majority and a minority. The right to speak is an individual right" {Annals of Congress, 12 Cong. 1, December 23, 1811,573). But the impact of the rule change on the rights of minority coalitions within the chamber was not lost on minority Federalists: "It is your [majority] privilege to decide," argued William Gaston (F-North Carolina) a few years after the introduction of the previous question rule, "but the minority have a right to be heard" (Annals of Congress, 14 Cong. 1, January 16, 1816, 718). An attention to the rights of the majority appeared at this time as well: "The majority, being responsible for all measures adopted, ought not to be prevented from acting till too late by a determined opposition . . . if the minority infringes on the right of the majority to govern, there should be some rule to prevent the violation of the principles of the Government" (Annals of Congress, 11 Cong. 2, January 5, 1810, 1155). Even in a pre-party era, minority coalitions in the House were quick to recognize that their rights were potentially imperiled by the rise of partisanship within the chamber. Minority parties were also quick to learn that majority parties had their own normative and strategic interests in suppressing minority rights - as Republican majorities argued that they had a right to pursue their agenda expeditiously and efficiently. Indeed, when the victorious Republican coalition after the War of 1812 refused to give up the previous question tool for managing debate, defeated Federalists complained that "no majority should be trusted" with a rule that could be used for explicitly partisan purposes (Annals of Congress, 14 Cong. 1, January 16, 1816, 718). But Republicans under Speaker Henry Clay of Kentucky maintained that the majority party had the power and therefore the right to structure the agenda as it chose. By the time formal party organizations had begun to take root both inside and outside the House in the early 1830s, in other words, debate over the proper distribution of parliamentary rights between parties had already been broached. And the outbreak of deep partisan divi-

30

Minority rights, majority rule

sions by the 1830s only served to intensify procedural debates in the House - particularly as minority parties learned to exploit traditional individual rights to their advantage. Minority rights in a partisan era: 1830s-1890s Commenting on the Speaker's committee appointments at the opening of the 25th Congress in 1837, John Quincy Adams (Whig-Massachusetts) observed that the committees had been constituted with an eye to securing the Democratic administration's partisan agenda within Congress: "The party drill on both points, of slavery and Administration, is complete" (Adams [1874-1877] 1969, 9:370). What Adams observed was the launching of an era in which the "party, not the individual, was the key" (Silbey 1989:131). Indeed, by the early 1840s, party organizations had acquired "an unassailable command of. . . routine political life" (Formisano 1983:23). The nominating process and election activity became highly organized - with regular meetings of committees, conventions, and caucuses - and ran virtually throughout the year; newspapers became intensely partisan, detailing information about candidates, meetings, campaign events, party principles, policies, and strategies; and well-greased party organizations stimulated extremely high voter turnout, averaging 78 percent of those eligible in presidential elections between 1840 and 1892 (Silbey 1991a: chs. 3 and 8; Silbey 1991b). The partisan era, in short, brought with it an intense commitment to parties as the agent of politics and political change. As elaborated by Alexander Duncan (W-Ohio) on the floor of the House in 1840, Show me a man that belongs to no party [and] I will show you a man without principle. . . . Party is the salt of the nation. It establishes a watchfulness and wholesome guardianship over the institutions of our country; it checks and restrains the reckless ambition of those in office and never fails to expose the nonfeasance, misfeasance, or malfeasance of those in power.14

Moving from an elite-dominated political process to a system of mass participation, the transformation by the beginning of the partisan era reflected more than a shift in organizational means: it meant as well a "shift in values toward collectivities as the means of promoting and achieving political goals" (Silbey 199la:70). In such a political environment, we might expect there to be frequent demand by the minority party for carefully delineated minority party rights. With such strong policy differences between political parties, it would seem reasonable that minority party coalitions in the House would fight to obtain 14

As cited in Silbey (1991a:35).

Evolving concepts of House and Senate minority rights formal recognition and protection of their rights within chamber rules. No such institutionalization of minority party rights, however, occurred during the partisan era. Far from trying to secure new parliamentary rights, House minority parties instead concentrated on exploiting existing individual rights to deter and obstruct the majority. Sometimes, persistent obstructionism could prevent passage of preferred bills. More often, the minority party was successful in at least making itself sufficiently annoying to the majority to considerably delay the majority's pursuit of its agenda. The minority's preferred methods of obstructionism were several. As early as the 1830s, large minority parties discovered that they could prevent action by the majority party simply by being present, but refusing to vote. By resorting to a "disappearing quorum," the minority party could nullify votes by preventing the establishment of majority quorum. Adams's (WMassachusetts) recollection of a disappearing quorum in 1840 suggests how frustrating the minority could be to the majority - even without formal protection of their rights under the rules - by exploiting existing rules to their advantage: The count was again taken by tellers, and was ten ayes, eighty-five noes - all the opposition members forbearing to vote, and thus leaving the majority without a quorum. The committee were thus compelled to rise and report this fact to the House; and this first disclosed to both parties of the House the secret of the defensive strength of the minority - a strength the more impregnable as it consists in silence and precludes all disorder. The rage of the majority at this discovery was unbounded; but it was impotent. After various efforts to prove a quorum present by counting the members, all ineffectual, the committee rose and reported no quorum. Dromgoole, lisping drunk, moved a call of the House; Rice Garland, to adjourn. (Adams [1874-1877] 1969, 10:242)

By exploiting a traditional individual right - a member could not be counted as present for the purpose of establishing a quorum - large minority parties proved sufficiently obstructive to small majority parties unable to muster a majority quorum from within their own ranks. But small minority parties could be obstructive as well. For example, only one-third of the chamber was needed to block suspension of the rules - a procedure often relied upon by the majority party throughout the partisan period to secure consideration of favored bills on the House floor (Bach 1990). As explored in detail in Chapter 5, the need for a two-thirds majority to suspend the rules even often prevented the majority party at times from passing favored changes to House rules. Individual members also proved sufficiently vexing to the majority. Before debate limits were put into place in the 1840s, a single member could consume hours of debate time on the floor (prompting one majority party member to suggest that the plush seats of the House be replaced with the stark benches of the British House of

31

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Minority rights, majority rule

Commons so that members would be less willing to endure their colleagues' tirades).15 Offering motions to adjourn also proved a popular way to slow down legislative action. Minority party Democrats, for example, offered seventy-one dilatory motions in a single day in 1875 trying to obstruct passage of a rule change that would limit dilatory motions (see Chapter 5). Repeated calls of the roll would consume hours, causing particularly severe problems for majorities with a full legislative plate or for majorities at the end of a session. The conventional portrait of the nineteenth century as an intense partisan era, in other words, tends to obscure procedural details in the House. Despite a prolonged period of sharply divided political parties and highly cohesive partisan coalitions within both chambers, the majority party started the era with few procedural tools to manage and shape the agenda in their favor. Even with the near disappearance of the Democratic party from Congress immediately after the Civil War, the majority party was still confounded by minority party obstructionism - with a change in the rules governing dilatory motions even necessary to secure passage of the articles of impeachment against President Andrew Johnson. For most of the partisan period, as explored in Chapter 5, majority parties repeatedly struggled to prevent the minority party from exploiting traditional individual rights - eventually cracking down on most such abuse of inherited rules. Not surprisingly then, the rhetorical focus throughout much of the partisan era centered on the rights of the majority party to work its will. As argued in 1875 by Joseph Hawley (R-Connecticut) when the majority Republicans sought limits on dilatory motions, "we have shown that a system of rules has slowly grown up here, under which it is quite impossible for a clear and large majority of the House to carry out its will, if resisted by a determined minority" {CongressionalRecord, 43 Cong. 2, February 1, 1875, 900). Even Adams, who had voted against limiting individual rights when he served in either the majority or minority party, recognized the need to ensure action by a determined majority. Noting in his diary his frustration with Cave Johnson (D-Tennessee), Adams recollects that "Cave Johnson, now the nuisance of the House . . . complained piteously of the gag upon the minority. . . . I do not approve, and have voted against, the restrictions upon the freedom of debate; but when a tyrannical majority fall into a minority they cannot choose but to abuse the privilege of which they have deprived others" (Adams [1874-1877] 1969, 10:505). Speaker Thomas Reed would state the new philosophy of parliamentary rights most clearly: "The rights in question . . . [are] public rights of way, to be changed any time the majority deemed it to be for the good of the community. . . . Strictly speaking, they 15

Congressional Globe, 27 Cong. 1, June 1, 1841, 9. See Chapter 5.

Evolving concepts of House and Senate minority rights

33

[minority rights] are . . . bestowed not for the benefit of the minority, but solely for the benefit of the whole" (Reed 1892:10-12). As majority parties cracked down on minority exploitation of their traditional rights, minority parties seemed to recognize a current of change underway in the nature of chamber rules. Minority party members opposed suppression of their procedural rights not simply because such restrictions hampered their ability to check the majority party, but also because the rules changes often served explicitly partisan purposes. Several examples are illustrative here. Reflecting on the use of the previous question by a determined majority party to cut off debate at any time, George Briggs (WMassachusetts) argued that "as an engine of party despotism, it [the previous question] was the greatest scourge ever held over a deliberative body; and, if he knew himself, he had never consented to apply it" {Congressional Globe, 27 Cong. 1, June 15, 1841, 54). In opposing an amendment in 1880 to formally eliminate the practice of the disappearing quorum, minority member Omar Conger (R-Michigan) argued that the amendment "would be wrong in itself... it would be violently partisan. I have no fear that the fair-minded men of this House on either side will adopt so violent and partisan a measure" (CongressionalRecord, 46 Cong. 2, January 28, 1880, 577). And when majority party Republicans in 1882 proposed a limit on dilatory motions during contested election cases, Isaac Cox (D-New York) exclaimed on the floor: "I know that an invasion upon our modes of procedure here is coming. I am humiliated that this venerable code of rules to protect the minority and forward the general welfare should be eradicated ruthlessly for mere party purposes" (CongressionalRecord, 47 Cong. 1, May 29, 1882, 4318-19). Or, as concluded by Joseph Blackburn (D-Kentucky) during that same debate, "it is proposed to turn the American Congress, or this branch of it, without any limitation, without any restraint, over to be guided by a partisan majority" (4313). There is a certain irony to changes in the perception of rights during the partisan era. Despite Americans' commitment to political parties as proper and necessary instruments of forging national policy, there seems to have been little reverence for the concept of formally protecting minority rights at that time. As explored in detail in Chapter 5, majority parties trying to alter the rules to their advantage systematically suppressed most of the traditional individual rights claimed by the minority party. Indeed, when asked in 1890 about the rights of the minority party, legend tells it that Speaker Thomas Reed retorted that the only right of the minority party was "to draw its paycheck." Minority parties, watching majority parties take away rules the minority had adapted to serve their own political goals, repeatedly decried majority party efforts to institutionalize partisan majority rule in the House. Despite the dominance of all things partisan from the 1830s to

34

Minority rights, majority rule

the 1890s, institutional gains for partisan purposes were hotly contested by members on both sides of the congressional aisle. The emergence of partisan minority rights, 1890s to the present Only once the rules had been transformed into a tool of the majority party did members more often conceptualize rights as protections for political and partisan minorities. Rules changes in the nineteenth century that provided the majority party with easy means of setting the agenda, managing floor consideration of preferred bills, and controlling the amending process meant that minority party members had lost an array of parliamentary rights that had served their obstructionist aims quite well. Even Woodrow Wilson, writing a new preface to Congressional Government in 1900 recognized the changes that had occurred in the House since the original publication of his work in 1885: The power of the Speaker has of late years taken on new phases. He is now, more than ever, expected to guide and control the whole course of business in the House if not alone, at any rate through the . . . Committee on Rules. . . . That committee is expected . . . to look closely to the course of [the House's] business from day to day, make its programme, and virtually control its use of its time. . . . It is a private piece of party machinery within the single chamber for which it acts. (Wilson [1885] 1956:21)

Minority parties, understanding that the rules left them little chance to influence the shape of the agenda, soon began to look for ways to extract new parliamentary rights to protect their interests. At times, they succeeded in securing exclusively partisan minority rights - such as rules that guaranteed committee staff for the minority party. More often, their need for support from majority party members opposing their own leaders meant that new rights took the form of political minority rights - allowing any minority coalition within the chamber to benefit from them. Because of the institutional transformation of the House by the 1890s, minority rights after the partisan era began to serve a new purpose. Minority rights now came to be perceived as tools for loosening majority party control of the legislative process. Efforts to craft a discharge rule favorable to the minority party, to secure debate time for opponents of bills, to ban proxy voting in committee, and to guarantee the minority party a final motion to recommit a bill to committee - each of these targets of procedural reform were sought by the minority party to weaken the majority party's ability to manipulate committee and floor agendas. Whereas during the partisan era, minority parties were primarily focused on using existing individual rights to amend and obstruct majority party measures, by the early 1900s minority

Evolving concepts of House and Senate minority rights

35

parties sought new procedural rights to protect their partisan goals and dilute the newly partisan character of House rules. This new perception of minority rights can be seen in floor debate after 1900. Consider the 1909 case of Calendar Wednesday, a procedure that secured floor time for certain bills not otherwise privileged under the order of business. Having forced the adoption of Calendar Wednesday at the close of the 60th Congress, a cross-party coalition of minority-party Democrats and insurgent Progressive Republicans fought at the start of the 61st Congress in 1909 to require a two-thirds vote to set aside Calendar Wednesday. As John Fitzgerald (D-New York) argued on the floor: "I believe there should be a day in the House when bills can be considered without the interference of a partisan majority. If there be a great and urgent necessity for setting aside Calendar Wednesday, it would be easy to obtain a two-thirds vote for that purpose, and a partisan majority could not do it" {Congressional Record, 61 Cong. 1, March 15, 1909, 23). The Calendar Wednesday example is but one of several explored in Chapter 6 that show the perception of minority rights that emerged after the partisan era. Once partisan rule was institutionalized in House rules, minority rights came to be perceived as legitimate tools of the minority to dilute the partisan nature of the rules. Far from being inherent in the design of the House, the concept of formally protecting a majority party's right to rule and a partisan minority's right to object has clearly evolved with changes in partisan and institutional landscapes over time.

Conceptions of rights in the Senate Such a marked change in the nature of minority rights over time did not occur in the Senate. In fact, the delineation of partisan eras provides little analytical leverage for assessing the concept of Senate minority rights. Instead, elimination of the previous question rule in 1806 arguably created an institutional context in which a single idea of minority rights took root early on in the Senate. Without a previous question motion to force votes on the majority's agenda in the Senate, party-based majority rule was impossible. Consequently, minority parties had little reason to believe that their rights were being suppressed. Instead, the Senate developed a tradition in which both individual and political minority rights were accorded privileged status - a tradition that today has yielded a chamber of extreme individualism in contrast to the House's often extreme partisanship. It is important to recognize that the protection of minority rights was not inherent in the Constitutional design of the Senate. Nor were normative concerns paramount to senators in reforming chamber rules in 1806 to abolish the previous question motion. Rather, early procedural decisions in

36

Minority rights, majority rule

the Senate were made when extended debate posed little threat to majority agendas in the chamber. These early rules choices, however, locked in a distribution of parliamentary rights that later gave individuals and minority coalitions the power to block both partisan and bipartisan majorities seeking policy and procedural change alike. In this section, I look at these early procedural decisions - by the framers of the Constitution and by senators in 1806 - to show how such a nonpartisan concept of minority rights took root in the Senate. Later, in Chapter 7,1 explore why subsequent majorities were consistently frustrated in their efforts to measurably reallocate parliamentary rights in the Senate. Senate rules and framers' intent The Constitution in Article I, section 5, leaves to each chamber its choice of parliamentary rules: "each House may determine the rules of its proceedings." Although the framers set a handful of supermajority requirements to create an adequate check between institutions - such as requiring a twothirds vote of the Senate to ratify treaties and a two-thirds vote of both chambers to override a presidential veto - delegates to the Constitutional Convention appear to have devoted relatively little time on the matter of internal House and Senate procedure. After a draft of the Constitution was reported by committee at the Convention, delegates did debate two procedural questions pertaining to the size of procedural coalitions.16 First, Gouverneur Morris of Pennsylvania opposed requiring one-fifth of the chamber to demand that the yeas and nays be entered into the journal. Proposing instead that any individual should be able to make the request, Morris argued that "the small states may otherwise be under a disadvantage, and find it difficult to get a concurrence of one-fifth" (Farrand 1966, 2:255). Morris's proposal was defeated, as Nathaniel Ghorum - drawing from experience in the Massachusetts legislature - argued that such a rule would lead to "stuffing the journals with them [yeas and nays] on frivolous occasions" (Farrand 1966, 2:255).17 Second, the committee's draft was successfully amended to require a twothirds vote to expel a member from either house, with Madison arguing that the "right of expulsion was too important to be exercised by a bare majority of a quorum . . . [and] in emergencies of faction might be dangerously abused" (Farrand 1966, 2:254). Debate also occurred on requiring the jour16

17

In addition, a draft Constitution by Edmund Randolph included a provision to require a two-thirds vote to change chamber rules that would require voting by ballot, but the records of the convention suggest that the proposition was never considered (Farrand 1966, 2:139). Had Ghorum served instead in the 1970s, he might have made the same argument against the installation of electronic voting machines in the House.

Evolving concepts of House and Senate minority rights

37

nal to be published, on the making of a quorum, and the details of adjourning, but delegates do not appear to have considered procedural questions pertaining to the handling of substantive legislative business (Farrand 1966, 2:248-64). Although the Senate was intended to be a restraining check against popular majorities in the House, convention delegates passed up the opportunity to dictate a set of Senate procedures that would ensure the protection of minority interests.18 It seems reasonable to infer that the framers believed they had designed the Senate so that additional procedural tools would be unnecessary to protect its stabilizing role. Staggered six-year terms, equal representation by state, election by state legislatures, a higher age requirement - each of these features were to differentiate the House and Senate and to protect against tyrannous majorities. Procedural rules to protect chamber minorities, in other words, do not appear to have figured into delegates' decisions in designing a Senate resistant to popular and potentially dangerous majorities. The lack of attention to congressional rules, however, should not be taken as a sign that the delegates cared little about procedural matters. On the contrary, both Hamilton and Madison in The Federalist Papers warned against the dangers of minority rule. Madison's argument in Federalist No. 58 merits quoting at length: It has been said that more than a majority ought to have been required for a quorum, and in particular cases, if not in all, more than a majority for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would no longer be the majority that would rule; the power would be transferred to the minority. (Wills 1982, 298) Analyzing the defects of the government under the Articles of Confederation, Hamilton also argued that supermajorities were harmful to representative government. In assessing the rule of the Continental Congress that required a two-thirds vote of the states to pass certain categories of legislation (including revenue, spending, and military matters), Hamilton in Federalist No. 22 leaves no doubt that he had considered, and rejected, arguments in favor of supermajority requirements: To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is in its tendency to subject the sense 18

On the intended character and role of the Senate, see Madison's Federalist Nos. 62 and 63 and Hamilton's No. 66, in Gammon (1978) and Wills (1982).

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Minority rights, majority rule

of the greater number to that of the lesser number. . . . The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junto, to the regular deliberations and decisions of a respectable majority. (Wills 1982:107)

Both Madison and Hamilton seem to have believed that the structure of the Senate was sufficient for restraining passionate majorities and that supermajority voting requirements would be undesirable and unnecessary under the new Constitution. Supermajority voting rules might provide an extra dose of protection against rash decision making, Hamilton and Madison both suggested, but they would also exact a toll on the ability of a legislative majority to act - a toll that had proven particularly onerous to the Continental Congress (Jillson and Wilson 1994). The delegates certainly intended to fashion a Senate that proceeded "with more coolness, with more system, & with more wisdom, than the popular branch"19 - but they intended to do so without formally protecting the rights of Senate minorities. Roots of minority rights in the early Senate

Free to set their own rules of procedure, the first Senate did just as the House - adopting a short list of rules with few restrictions on its members' rights. Two of the rules addressed the issue of debate: no member could speak more than twice in any one debate on the same day (without leave of the Senate) and no motion could be debated until it was seconded by a majority. Given a membership of 32, daily attendance of less than half that, and a small workload, the problem of managing debate was less severe in the Senate than in the larger House (Swanstrom 1988:197): "two dozen gentlemen discussing a bill in conversational tones were no match for the gallery-minded oratory of the lower chamber." From Cooper's (1962) study of the use of the previous question motion in the early Senate before it was dropped from chamber rules, obstructionism does not appear to have posed much of a problem on the chamber floor.20 There is little evidence, for example, that presiding officers ever used their authority to call senators to order for speaking "tediously" or "superfluously" - a power they were granted under Jefferson's Manual of Senate procedure (compiled in 1801) (Cooper 1962:6). Senators did at times take advantage of the lax limits on debate to delay some controversial legislation. William Maclay (Anti-Administration-Pennsylvania) in the 1st 19 20

Madison, June 11, 1787, in Farrand (1966,1:151). The "previous question," as discussed in detail in Chapter 3, is a motion that asks "Shall the main question be now put?"

Evolving concepts of House and Senate minority rights Congress, for example, noted in his diary that the bill to select a permanent site for the capital elicited delaying tactics by opponents: "The Senate Met and every endeavor was used to waste time. . . . [The bill] brought on a lengthy debate . . . and lengthy speeches were made" (Bowling and Veit 1988, 9:157). Several months later when the Senate continued the debate, Maclay noted that "talk followed talk[,] it was evident, that they meant to spend the day" (Bowling and Veit 1988, 9:309). On balance, however, extended debate does not appear to have been a real threat to the pursuit of legislative business (Burdette 1940; Haynes 1960; Cooper 1962; Swanstrom 1988). It is in this context - with low levels of partisanship and a small workload (see Chapter 3) - that the Senate in 1806 eliminated the previous question motion from its standing rules. Several months earlier in March 1805, Vice President Aaron Burr in his last speech as president of the Senate had recommended to the Senate that it revise its standing rules, in particular advising that the previous question motion be abolished (Cooper 1962:4). From John Quincy Adams's account of his speech, "he said [it] had in the four years been only once taken, and that was upon an amendment. This was a proof that it could not be necessary, and all its purposes were certainly much better answered by the question of indefinite postponement" ([1874-1877] 1969,1:365). What is interesting about the 1806 incident is that the previous question motion had not yet developed into a tool for bringing an issue to a vote. Instead, the motion had exactly the opposite effect: the previous question motion was used to avoid a decision on an issue under debate (Cooper 1962). Senators seeking to postpone action on a particular measure for political or other reasons might resort to the previous question motion in order to avoid a vote. That is why Burr had argued that a motion for indefinite postponement would serve the same purpose as defeat of the previous question motion.21 In other words, when senators dropped the previous question motion from its rule book in 1806, they were not motivated by concerns about protecting minority rights of debate: they were simply pruning the standing rules of unnecessary rules.22 Had senators been motivated by a desire to protect minority rights, it is doubtful they would have proceeded 21

22

By defeating the motion "Shall the main question be now put?" the Senate in effect would agree not to take a vote on the pending matter. Similarly, by voting to postpone (indefinitely or otherwise) consideration of a bill, no further action could be taken at that time. But note, approval of the previous question motion did not necessarily mean that the Senate would then proceed to a vote on the main question. Adams makes no mention of the rule change in 1806, although he did note that another proposal provoked considerable debate and was rejected (Adams [1874-1877] 1969, 1:421). That rule change would have allowed the Senate to dissolve itself into a committee of the whole, with the President of the Senate appointing a chairman.

39

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Minority rights, majority rule

with some of the other rules changes they made that session. Indeed, in an attempt to speed up consideration of legislative business at the end of that Congress, a majority voted to suspend the rule requiring three readings of each bill.23 It was the previous question rule that the House revampedfiveyears later to provide a means of shutting off debate and forcing a vote on a pending question (see Chapter 3). And as argued above and in Chapter 5, majority parties in the House made ample - and generally successful - use of the previous question rule to fight a minority party intent on exploiting traditional individual rights. Minority rights gradually developed a partisan cast, as partisan majorities continued to shape the rules to their advantage and to the disadvantage of political and partisan minorities. In the Senate, without a previous question rule, individual and political minority rights flourished: there was simply no means short of unanimous consent to constrain any member seeking to amend legislation or to debate it indefinitely with an eye to its eventual demise. This early procedural decision in the Senate had lasting consequences for the concept of minority rights in the Senate. The right of unlimited debate an unintended consequence of the rule change in 1806 - was soon considered to be an inherent and original feature of the Senate. "With respect to debates," noted Thomas Hart Benton (D-Missouri) in 1841, "senators have a constitutional right to speak; and while they speak to the subject before the house there is no power any where to stop them. It is a constitutional right" (Congressional Globe, 27 Cong. 1, July 15, 1841, 204). A century later - after numerous efforts by partisan and bipartisan coalitions to significantly limit minority rights - a majority party senator could still characterize the Senate as a haven for individual rights: "what makes the Senate great is not the men who sit here. . . . It is the rules, the power that is not given to the majority," said John Stennis (D-Mississippi), himself a majority party Democrat (CongressionalRecord, 81 Cong. 1, March 1, 1949, 1655). Even under the current Senate Rule 22, which allows a three-fifths majority to end debate, the nonpartisan nature of minority rights persists. With Senate rules so widely extending parliamentary rights, minority rights are perceived in today's Senate as an essential part of the Senate's ability to slow down legislative activity within the federal system. "A majority of senators," argued Robert Byrd (D-West Virginia), " . . . may not truly represent majority sentiment in the country. Senators from a few of the 23

That vote yielded a near party-line split, with 83 percent of the majority DemocraticRepublicans voting yea and every Federalist voting nay (Inter-University Consortium for Political and Social Research [ICPSR] F. 6 00004, U.S. Congressional Roll-Call Voting Records, variable 97, 9 Cong. 2, March 3, 1807) - a partisan division suggesting the lack of any shared commitment to the rights of the minority.

Evolving concepts of House and Senate minority rights

41

more populous states may, in fact, represent a majority in the nation while numbering a minority of votes in the Senate, where all the states are equal" (Byrd 1991:162). Or conversely, the right of extended debate is defended as a "unique privilege that serves to aid small States from being trampled by the desires of larger States" (Senator Harry Reid, D-Nevada, Congressional Record, 104 Cong. 1, January 5, 1995, S435). In either case, minority rights in the Senate today are perceived as a means of protecting Senate minorities from "hasty and arbitrary action by a majority" - on the grounds that any such minority may actually represent a majority outside the chamber. Unlike minority rights in the House - which had acquired a partisan cast by the start of the twentieth century - Senate minority rights today retain the individualistic and nonpartisan hue they acquired early in the nineteenth century. Conclusion This brief conceptual history of minority rights confirms that a study of congressional minority rights ought to start with a broad definition of what constitutes procedural protections for the minority party. In the House, the very idea of minority rights as necessary protections for a partisan minority seems to have emerged only after majority rule was institutionalized at the close of the nineteenth century. But the rights of the minority became an issue to members of the House long before their rights gained formal recognition in chamber rules. Because early minority rights took the form of individual and political minority rights - types of rights that still remain on minority party procedural agendas - a study of the evolution of minority rights must look beyond rules that formally protect partisan minorities. In the Senate as well - where party-based majority rule has essentially never taken root - a broad approach to pinpointing minority rights is also critical as well. Because senators have never granted firm control of the agenda to majority party leaders, a perception of minority rights as rules critical for protecting partisan minorities has never developed in the Senate. Instead, the rights of the minority in today's Senate are quite similar to those of the First: the rules give ample protection to senators of either party to amend, delay, or obstruct the majority's agenda. Although the adoption of Rule 22 in the Senate in 1917 empowered a supermajority over individuals within the Senate (see Chapter 7), it is relatively rare that a majority party is large and cohesive enough to deprive a partisan minority of its rights on the floor - leaving ample protection for partisan and political minorities alike to frustrate the plans of chamber leaders. With this broad sketch of changes in the procedural landscapes of the House and Senate, I turn in the next chapters to empirical tests of the parti-

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Minority rights, majority rule

san theory. I start in Chapter 3 with a more careful look at the origin of institutional differences between the two chambers - assessing the relevance of partisanship to early procedural choices in the House and Senate. Once nascent partisanship came to be overlaid on the initial procedural practices of the House, traditional ways of doing business proved inadequate for Republican majorities anxious to secure their legislative goals. The result - in the form of the previous question motion in the House - would have lasting procedural effects long after the passing of the Republican coalition.

Procedural choice in the early Congress: The case of the "previous question55

In a letter to constituents printed in the Norfolk Gazette and Public Ledger on June 8, 1810, John Stanly (Federalist-North Carolina) made special note of a failed attempt to alter the rules of the House of Representatives to empower the majority party: If the arguments of the minority did not correspond with the feelings or the interest of the majority, and the majority therefore wished to smother debate, they might under this proposed rule without any regard to the desires of those members who wished to speak, call the "Previous Question", put an end to all debate . . . and

obtain a decision on the measure proposed, instantly, without amendment or further de-

bate. . . . This attempt to smite the minority with a political lock-jaw, was not carried into effect. . . the lips of the minority escaped the Padlock for the Session.1 Although the majority failed to adopt a rule to cut off debate at the opening of the 1 lth Congress, a previous question motion empowering the majority to control debate was enacted into the rules of the House at the start of the 12th Congress in 1811. That rule change was the first significant and successful effort by a House majority to alter formal chamber rules to suppress the minority's right to be heard on the chamber floor.2 When the House adopted the previous question rule in 1811, it followed the Senate's rejection of such a rule just a few years earlier in 1806. In a housekeeping move to clean up their book of rules, senators eliminated the motion for the previous question on the grounds that it was rarely resorted to and therefore of dubious use to chamber majorities. Because the House and Senate reached such different conclusions in the same period about the same rule, adoption of the previous question rule in 1811 provides an appropriate window for testing the partisan theory. If short-term concerns about partisan advantage - rather than broader institutional concerns or longer-term partisan calculations - underlie members' procedural choices, 1 2

"From John Stanly," May 10, 1810, in Cunningham (1978:728-9). As the only means Housefloormajorities have for cutting off debate, approval of the previous question motion orders the House to vote immediately on the pending question. 43

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Minority rights, majority rule

certain patterns should emerge in the House. There should, to start, be no relationship between adoption of the previous question rule and levels of legislative activity. Instead, there should be a partisan, policy-related purpose to the majority's choice of rules. A rise in minority party obstructionism should increase the majority party's perceived need for procedural change and lead to highly partisan differences over procedural and policy matters alike. Even before looking at the origins of the previous question rule, the comments of John Stanly should suggest to us the limits of traditional explanations of congressional change in studying procedural rights. As noted in Chapter 1, conventional accounts of the House's institutional development suggest that constraints posed by an increasing workload and size necessitated changes in its internal organization (Polsby 1968; Davidson and Oleszek 1977; Stewart 1992). Historians have also pointed to the House's frustration with maverick representatives on the floor (McConachie 1898; Alexander 1916). Yet, the report of John Stanly to his constituents suggests that these conventional themes about the trend toward majoritarian rule in the House understate the influence of partisanship in dictating procedural choice. I argue in this chapter that adoption of the previous question rule in the House did indeed reflect partisan politics in the House: the emergence of polarized coalitions during the buildup to the War of 1812 ultimately drove highly partisan procedural choices on the House floor. In the Senate, where partisan divisions appear to have been more muted, no such political lockjaw was placed on the minority. Understanding the adoption of the previous question motion is prerequisite to explaining the institutional development of the House. Although it is universally recognized that the modern House is a strongly partisan and majoritarian institution, we know little about the factors driving the House to develop that defining characteristic. We do know, however, that the emergence of a majoritarian chamber by the end of the nineteenth century was contingent upon the majority's ability to force votes on proposed rules changes concentrating power in majority hands. Without a previous question rule, a simple majority has no such power to direct the course of institutional change. Thus, the majoritarian character of the House, with its strict limits on minority participation, is a byproduct of rules made possible by the previous question motion. Indeed, the experience of the Senate - having eliminated the previous question motion in 1806 - makes clear the critical nature of the previous question for shaping institutional development. Because rules changes in the Senate may be subject to afilibuster,simple partisan majorities are unable to alter the rules to enhance their procedural advantages on thefloor.The result is a chamber thatfiercelyprotects the rights of minorities, in contrast to the House, where partisan majorities can poten-

Procedural choice in the early Congress tially shape policy outcomes as they please. Thus, efforts to explain the evolution of parliamentary rights in Congress arguably must start by assessing the origins of the previous question motion. Alternative explanations of early procedural choice Understanding the dynamics of suppression in a young legislature requires a familiarity with the procedural landscape of the early Congresses. Unlike the modern House, or even the chambers of the late nineteenth century, the early House was essentially uninstitutionalized (Cooper [1960] 1988; Polsby 1968). Only a handful of standing committees had been established by 1800, and committees did not have the right to report measures to the floor at any time. No formal party leadership structure existed, and the use of restrictive rules to control the floor agenda was nearly a century away. Although by the 1820s referral of bills to standing committees would become far more routine, during the first few Congresses House practices still reflected what Cooper ([I960] 1988) calls Jeffersonian attitudes toward the legislative process: subjects were debated on the floor in the Committee of the Whole before being sent to ad hoc select committees for drafting as a bill. Indeed, because committee members quite often consisted of members favorable to the issues they reviewed (Harlow 1917; Cooper [1960] 1988), the floor often provided a minority with its only opportunity to dissent from a prevailing majority position.3 Such arrangements, however, were ill-suited for a chamber experiencing an increase in the size and complexity of its agenda. The Jeffersonian system of floor deliberation and select committees too often left the chamber without a suitable means of securing information and obtaining policy expertise (Cooper [1960] 1988). Furthermore, without either a formal order of business, a means of controlling the floor agenda, or a willingness to empower standing committees, the House was susceptible to time pressures created on the floor by increases in the size and complexity of its workload (Cooper and Young 1989).4 Increases in the size of the membership further exacerbated logistical and time constraints, with more members meaning more work and a larger agenda. Such changes in the scope of a chamber agenda are likely to have an im3

4

To be sure, by 1811 the House was moving away from its reliance on the Committee of the Whole, as routine matters were reported by bill from select committees before being first considered on the floor (Cooper [1960] 1988:29). Still, standing committees at that time only received for consideration under half of all bills considered by the House (Gamm and Shepsle 1989:47). Even efforts to elect committees by ballot on the floor were defeated in both the 9th and 10th Congresses (1805-1809) due to concerns about the amount of time such elections would consume (Cooper [1960] 1988:35).

45

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Minority rights, majority rule

portant consequence for an underdeveloped legislative body. Increasing the value of time for members of the institution, they create a demand for a division of labor to provide expertise and efficiency to the chamber. As time grows more scarce, legislative goals of a majority coalition and of individual members will be constrained. Inevitably, without a means for controlling the floor agenda, some things important to the majority or to individual members will go undone. Under these conditions, a majority will successfully achieve its policy preferences only if it can alter institutional structures to better manage the increased demands faced by the chamber. I would expect then that in face of mounting workload, majority members might be willing to cede their rights of debate to ensure time for action on legislation important to their coalition - leading to the following relationship: Workload hypothesis: The majority party will suppress minority rights when increases in the level of demands on the chamber measurably increase the value of time for the majority.

As suggested in Chapter 1, however, there is cause to be skeptical about the workload hypothesis. After all, a previous question rule can potentially be used to limit the procedural rights of majority party members as well. A tool for restricting chamber debate, in other words, might be acceptable to the majority party only if it found itself unable to enact legislation on which its members held intense and cohesive preferences. This suggests that a set of conditions other than increasing legislative activity might be associated with restrictions on procedural rights. We might instead expect to find changes in parliamentary rights when the majority party is deterred from achieving its preferred outcomes. Of particular importance would be the presence of an obstructionist, minority party coalition that prevents the majority party from passing measures it deems important.5 As seen in the modern Senate, an obstructing coalition in a chamber with few means of cutting off debate can prevent a majority from taking a vote on preferred measures. Obstructionism, however, is only an attractive strategy if the minority's policy preferences differ substantially from those of the majority. Unless there are clear differences between the two factions, majority party members may be hesitant to foreclose their own future opportunities to obstruct.6 Furthermore, obstructing groups are particularly troublesome for the majority party if both the majority and minority are highly cohesive on pending policy questions: the more cohesive the 5 6

See Dion (1991) for a formal treatment of the relationship between minority party obstructionism and majority pursuit of a policy agenda in the partisan period, 1830s-1890s. Indeed, the resilience of the filibuster in the Senate suggests that in an institution where floor deliberation is valued, both majority and minority members will be reluctant to cede parliamentary rights (Fenno 1989; Smith 1989).

Procedural choice in the early Congress

47

minority party, the more durable and threatening minority obstruction will likely be. Delay or defeat of legislation by obstructive groups is not likely to spur calls for procedural change if the majority party is factionalized over policy. Thus, although scarcity of time may increase the opportunity to obstruct, time pressures by themselves do not produce polarized voting alignments. Consequently, a rule empowering a majority to cut off debate might be important only in the presence of a particular pattern of preference alignments and an obstructing coalition. A majority party might then be expected to choose restrictive procedures under the following set of conditions: Partisan hypothesis: The majority party will suppress minority rights when both majority and minority party preferences are highly cohesive and when the two parties are polarized over policy, encouraging the minority to adopt a strategy of obstruction. Of course, if preference alignments and workload vary independently, they might both have influenced members' decisions regarding the previous question rule. Developments affecting both might have shaped procedural choices concerning the previous question. Alternatively, as suggested in Chapter 1, it may be that the majority party's willingness to restrict minority rights in 1811 simply reflected its anticipation of remaining in the majority in the coming years. As explored below, such a calculation might have been perfectly reasonable for the majority Republicans facing a small and dwindling Federalist coalition in the House. In the remainder of this chapter, I assess the relative influence of these partisan and nonpartisan factors in driving the first suppression of minority rights in the early House. Contrary to conventional themes that link the development of majoritarian rule in the House to expanding workload and individual obstructionists, the findings here suggest that the emerging partisan character of voting alignments in the early House had an immediate and direct impact on the course of congressional development. Characterizing the early Congress To assess the relevance of partisan and institutional factors on early procedural decisions, I first face the task of characterizing the political and environmental contexts of the early House and Senate. There are numerous caveats to consider in trying to operationalize the worlds inside and outside of the first Congresses. On the institutional front, the variety of measures of legislative activity available for the modern Congress did not exist for the early Congresses. On the partisan front, a robust party system did not develop inside or outside of Congress until the mid-nineteenth century.

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Minority rights, majority rule

On the procedural front, newly formed precedents - as well as formal rules - played a role in managing floor debate. But to test for the effects of partisanship and legislative business on procedural choices, I need to have reasonably robust measures of both. In this section, I discuss a strategy for measuring workload and partisan features of the early Congresses. Workload and time demands

Tapping workload in the early Congresses poses several measurement problems. First, although the contemporary Congressional Record chronicles levels of legislative activity down to minutes in session for each chamber, no such records are available for the period before 1945. Second, no single measure of legislative activity fully captures the scope of legislative demands. Given these difficulties, I use several measures of congressional activity to characterize the level of demands on the House chamber between the 1st (1789-1791) and 17th (1821-1823) Congresses. These variables are intended to capture changes in the number of pending issues (bills introduced), the amount of legislative business completed (bills passed by the full chamber), and the amount of time consumed by the chamber's agenda (days in session).7 Partisanship

As argued by Silbey (1989), Formisano (1974; 1983), and others, political historians have largely overestimated the extent of institutionalized partisan activities before the 1830s. The Federalist and Republican coalitions of the early Congresses accordingly should not be considered fully developed political parties. In contrast to the Whigs and Democrats of the 1830s and 1840s, Federalists and Republicans did not develop comparable electoral machines, legislative organizations, or partisan adherents. Federalists and Republicans did engage in considerable electoral campaigning, but Formisano (1983:35) argues that it is a mistake to confuse passionate partisan emotion with party structure. Still, although there were no durable national or regional party organizations prior to the 1830s, scholars of the period have argued that policy cleavages in state and national legislatures did on occasion precipitate "incipient party-like behavior," with Federalist and Republican parties emerging "under the stimulus of events, usually national and sometimes local" (Formisano 1974:67).8 The most important such events included debates over rela7 8

Collection of data is discussed in Appendix 2. See also Aldrich and Grant (1993) on the ideological character of Federalist and antiFederalist coalitions in the First Congress and on the relationship of those coalitions to party development.

Procedural choice in the early Congress tions with England, with partisanship flaring between the 5th and 7th Congresses around the Jay Treaty and Alien and Sedition Acts and again between the 11th and 13th Congresses around the War of 1812 (Hoadley 1980; Formisano 1983). Thus, although the coalitions of the early Congresses may have been no more than "proto-parties," Federalist and Republican coalitions clearly can be identified prior to their demise in the 1830s; absence of party structure does not necessarily mean the absence of partisan conflict in Congress. Still, although I use the term "parties" to study the behavior of coalitions in the early Congresses, I make no assumptions about the structure of organized parties outside the chamber at that time. To measure the behavior of majority and minority party coalitions, I use several measures pioneered by Rice (1928) that are based on recorded rollcall votes on the House floor. These measures (see Appendix 3) tap levels of intraparty cohesiveness (Rice cohesion scores) and the extent of differences between the two parties (Rice party difference scores). Policy context

Partisan coalitions in the early period tended to rise and fall with changes in the congressional agenda. For the early period, foreign policy issues were paramount in polarizing Federalist and Republican coalitions, with the War of 1812 the dominant event around the time of changes in the previous question rule. Accounts of the period (see, for example, Formisano 1974 and Varg 1983) imply that political, economic, and military events associated with the war extended from roughly 1810 to 1814. Because the War of 1812 was the major policy battle fought around the time of the adoption of the previous question rule, it is helpful to delineate three general policy periods at that time: the prewar period that stretched from the 1st through 11th Congresses (1789-1809), the war period that lasted from the 11th through 13th (1809-1815), and the postwar period that followed. In assessing changing levels of partisanship and workload later in this chapter, I consider each in light of these three policy periods. Procedural context

When the previous question rule was adopted by the 12th Congress, several changes had already been made in House procedure. The original House rules had in fact included a form of the previous question motion. On the demand offivemembers, the motion could be raised "Shall the main question be now put?" However, the motion was not a device for cutting off debate. Instead, it was understood as a means of putting offundesired decisions (Cooper 1962:4). If the motion was defeated, the House proceeded to other business for the day (Hinds 1907, 5:5445). If the motion was ap-

49

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Minority rights, majority rule

proved, the effect was not cloture: debate on the main question could simply continue (Hinds 1907, 5:5445).9 That interpretation of the previous question defined the first procedural context for the House, lasting from the 1st through 10th Congresses. In that 10th Congress in 1807, the House overturned a ruling by Speaker Varnum (R-Massachusetts), who had held that approval of the previous question cut off all debate and brought the House to an immediate vote on pending business.10 In overturning the Speaker's ruling, the House in a bipartisan vote of 103-14 rejected the attempt to suppress minority rights of debate. Near the close of the 11th Congress in February 1811, however, Speaker Varnum was called on again to interpret the effect of the previous question motion. This time, following the procedural precedent affirmed in the previous Congress, Varnum ruled that the right of debate could not be curtailed. The House, however, reversed itself and overruled the Speaker in a largely party-line vote 66-13. Hence, the procedural context changed: approval of the previous question was now considered to suppress debate and to bring the pending matter to a vote. Thus, when the new previous question rule was formally adopted as part of the standing rules in the 12th Congress in December 1811, members were acting under a procedural context shaped just months before. I return in detail to these votes below. Manipulating the rules to pursue a war I take several approaches to decipher the politics of the previous question rule. First, I analyze the relationship between changes in partisan and environmental contexts and change in the previous question rule. If the adoption of the rule change followed marked increases in legislative activity, there would be good reason to believe that suppression of minority rights reflects changed institutional demands. But, if the rule change followed noticeable increases in party differences and minority party obstructionism, restrictive rules changes might more accurately reflect shifting partisan alignments. Second, I examine voting alignments on floor votes concerning the use of the previous question motion, looking for evidence of party-based differences over the rule change. Third, I assess the correlation of expressed preferences on procedural votes with policy choices made at the same time. If Indeed, as argued by Cooper (1962), the original previous question motion was poorly designed for use as a cloture mechanism. Neither defeat nor approval of the motion brought the House to a vote on the pending matter. The use of the motion in the House reflects its concurrent use in the early Senate, as explored in Chapter 2. Although Varnum's ruling was unprecedented in the House, a form of the previous question rule had been used in the Continental Congress prior to 1780 that also appears to have led to an immediate vote on the main question (Cooper 1962:9n).

Procedural choice in the early Congress

51

275

220

55

7

8

9

10

number of public bills introduced

•

number of public bills passed

x

11

12

13

14

15

16 17

number of private bills introduced number of private bills passed

Figure 3.1. House workload, 1789-1823. Source: House Journal, lst-17th Congresses. majority parties alter the rules to serve their policy goals, a strong relationship between policy and procedural choices should emerge in the early Congresses. Throughout this more quantitative look at the politics of the previous question rule, I also pay attention to hints from members themselves about the relevance of future, partisan parliamentary needs to their immediate procedural choices. The impact of legislative business

The data in Figure 3.1 provide a first test of the hypothesis that increases in workload spurred changes in the previous question rule. Figure 3.1 shows changes in levels of bill introduction and bill passage activity in the first 17 Congresses (1789-1823). Evident in the figure are marked increases for each measure of congressional activity during the war period.11 The data suggest that aggregated across the three war Congresses, the level of de11

The difference in mean number of public and private bills introduced in the prewar and war periods is statistically significant at p < .001 and the difference in mean number of private bills passed in the two periods is statistically significant at p < .01. The difference in mean number of public bills passed in the two periods is not statistically significant.

Minority rights, majority rule

52

4

5

6

—

7

8 6 10 11 12 13 14 15 16 17 Congress

number of days in session

Figure 3.2. Time consumed by the House agenda, 1789-1823. Source: Congressional Directory, 103rd Congress.

mands experienced by House members did indeed increase as changes were made in House rules. Also, the number of days in session peaked in the 12th and 13th Congresses before dipping considerably after the war (Figure 3.2). This last variable suggests that increases in legislative activity during the war period required the House to spend more time addressing the expanded agenda it faced. Focusing on the mean increase across the war period, however, obscures the relationship between workload changes and the timing of procedural change. As noted above, the use of the previous question motion as a cloture mechanism was first established by overturning a ruling of the Speaker at the close of the 1 lth Congress, with the formal rule change following at the start of the 12th Congress. The variables for each Congress are calculated from data for the entire Congress. Thus, if increases in legislative activity led to restrictive procedural choices at the end of the 11th Congress and the start of the 12th, there would need to be measurable increases in the variables between the 10th and 11th Congresses. In Figure 3.1, however, the increase in legislative activity between the 10th and 1 lth Congresses is only moderate. In contrast, a sharp increase in public bills introduced and passed had occurred by the end of the 12th Congress - an increase in legislative business that, while possibly anticipated, could not yet have been ex-

Procedural choice in the early Congress

53

Majority cohesion —•w— Minority cohesion

Figure 3.3. Partisan cohesion in the House, 1789-1823. Source: See Appendix 3. perienced at the opening of the 12th Congress. Further, the amount of time in session actually declined slightly in the 11th Congress, before jumping by the end of the 12th. These trends suggest that striking increases in the size and scope of the legislative agenda had not yet occurred when changes to the previous question were adopted in the 11th and 12th Congresses.12 Marked increases in congressional activity appear to have followed, not preceded, changes in the previous question rule during the war period. The data therefore give little support for a theory of institutional change that links growing workload and time constraints to the adoption of restrictive rules. The impact ofpartisanship

To test the partisan hypothesis - whether partisan preference alignments co-vary with restrictive procedural choices - I assess several measures of partisanship for the early Congresses. Consider first trends in party cohesion (Figure 3.3). Minority cohesion was consistently higher than majority 12

But note, members several years earlier had complained about time constraints on the floor in rejecting balloting for committee appointments, and the number of new standing committees increased during the period (McConachie 1898; Gamm and Shepsle 1989).

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Minority rights, majority rule

cohesion throughout the early Congresses, although the two series roughly varied together. Further, mean minority cohesion rose from a Rice score of 72 to 84 between the prewar and war periods, falling to 44 after the war; mean majority cohesion also eased after the war, dropping from an average Rice score of 58 to 29.13 These trends hold up well when I look directly at party cohesion in the 1 lth Congress. Assessing their party's internal cohesion at the close of the 11th Congress, members of both the majority and minority would have found that their party's cohesiveness had increased since the previous Congress. In short, the trends suggest that majority Republicans during the period of rules changes faced highly cohesive minorities. Clearly, holding twothirds of chamber seats in the 1 lth Congress and three-fourths of seats in the 12th Congress, the majority party during the war period was not threatened by a loss of a working majority. Thus, the first condition regarding preference alignments is satisfied: individual members of the majority are likely to limit their own procedural rights when they belong to a cohesive coalition and face a cohesive opposition.14 Two coalitions, however, can be internally cohesive without having any sizeable gulf between them. Hence, we also need to assess the distance between majority and minority parties. Figure 3.4 shows partisan differences over the early Congresses. Rising from an average Rice score of 45 to 63, mean partisan differences markedly increased between the prewar and war periods, and subsequently plummeted to 22 after the war.15 These trends are also reflected in the change in mean party difference between the 10th and 11th Congresses: partisan differences surged significantly during the 1 lth Congress. Majority members at the close of the 1 lth Congress clearly would have identified their relationship with the minority as intensely polarized. Although partisan differences remained steady across the 11th and 12th Congresses, at the start of the 12th Congress returning members would already have experienced the highly divisive politics of just months before. Although the data thus far strongly indicate the coincidence of polarized 13

14

15

Differences in mean minority cohesion between the prewar and war, and between war and postwar, periods are statistically significant at p < .01. The fall in mean majority cohesion after the war period is statistically significant at p < .01. The prewar period is considered here as the 8th through 10th Congresses. Cohesion during the longer prewar period (1st through 10th Congresses) varies with intense partisan debate over relations with England and France in the late 1790s (Hoadley 1980; Formisano 1983), making the shorter prewar period a better comparison. As seen in Figure 3.3, similarly high levels of minority cohesion appeared between the 5th and 7th Congresses as well. Below, I address important procedural differences between the two periods. Mean partisan differences between the prewar and war, war and postwar, and prewar and postwar periods are statistically significant at p < .01.

Procedural choice in the early Congress

7

& § 1011 Congress

55

12

13

14

15

16

f7

• Mean party difference

Figure 3.4. Partisan differences in the House, 1789-1823. Source: See Appendix 3. voting alignments and restrictive procedural choice, no such procedural change occurred in the 5th Congress (1797-1799), when partisan conflict over relations with Britain and France and the Alien and Sedition Acts under a Federalist majority peaked. As seen in Figures 3.3 and 3.4, partisan cohesion and differences jumped sharply in the 5th Congress, as well as in the 11th. In addition, as noted earlier, the number of days in session and bills passed also rose during the foreign policy conflicts of the 5th Congress. No change in members' procedural rights occurred at that time, however. Indeed, during the fight in the 1 lth Congress over changes to the previous question rule, Timothy Pitkin (F-Connecticut) raised this question as well: "'Why has it so happened that this necessity [for debate limits] has never existed until the last session of Congress? Was it then for the first time, that a division of sentiment appeared on thisfloor?Were not parties arrayed against each other in . . . 1798-9 on the question of a war with France?'" {Annals of Congress, 11 Cong. 3, December 23, 1811, 580). Although the Annals infer that no one responded to Pitkin, several differences between the 5th and 1 lth Congresses suggest an answer to his question. Despite similarly high levels of intraparty cohesion and interparty differences, floor proceedings in each period were significantly different. Consider overall levels of floor activity in the 1st through 17th Congresses

Minority rights, majority rule

56

previous question altered

50

1

2

3

4

5

6

7

8

9 10 11 i2 13 14 15 16 17

Number of recorded floor votes

Figure 3.5. Levels of House floor activity, 1789-1823. Source: ICPSR File 00004, lst-17th Congresses.

(Figure 3.5). As measured by the total number of recorded floor votes, far more time was consumed by recorded roll calls during the War of 1812 period than during the Congress that passed the Alien and Sedition Acts.16 Partisan differences in the war period appear to have had a different procedural impact than they did during the 5th Congress. Indeed, the data suggest that the majority would have been far more taxed in pursuing its floor agenda in the later period. The total number offloorvotes, of course, does not provide much insight into the nature of minority floor strategy. One relevant element offloorproceedings would be the amount of time consumed by purely obstructive motions by the minority. If much of the increase in floor voting activity during the war period was consumed by purely obstructive motions, there would be a strong incentive for the majority to choose restrictive floor rules at that time. Obstructive floor motions (as measured by dilatory motions to adjourn) did indeed peak in the 11th Congress, reaching almost fifteen perTotal number of recorded floor votes are counted from the ICPSR code books for each Congress (Inter-University Consortium for Political and Social Research [ICPSR] F. 6 00004).

Procedural choice in the early Congress

57

0.16

Congress

13

14

15

16

17

Percentage obstructive floor motions

Figure 3.6. Obstructive Housefloormotions, 1789-1823. Source: ICPSR File 00004, lst-17th Congresses. cent of all floor votes (Figure 3.6).17 In contrast, in the 5th Congress, barely one percent of voting was consumed by such obstructionism. Aggregate partisan measures then tend to obscure procedural differences between the two periods. Indices of partisan and procedural trends together suggest that the most severe threat to the majority in the 11th Congress was an obstructing and time-consuming minority. Despite the similarity of partisan trends in the 5th and 11th Congresses, the minority appears to have chosen a far more obstructive strategy in the 1 lth Congress - leading the majority to curtail minority procedural rights during the height of debate over the war. Indeed, such an interpretation focusing on floor conflict, rather than on levels of floor activity, is reflected in Cooper's (1962:1 On) portrayal of the night the Speaker was overruled in 1811: "the nearness of the end of the session, and Prior to the limits on dilatory motions made in the late nineteenth century, motions to adjourn were routinely used by the minority to prevent the majority from taking further action on its agenda. In counting motions to adjourn from the ICPSR code books, I exclude motions to set a future time of adjournment, since these motions were often used by the majority as a scheduling tool.

58

Minority rights, majority rule

the series of abuses the House had sustained combined to exhaust even its great capacity for patience." Choosing war and choosing rules

Although aggregate measures suggest a high correlation between partisan preferences and rights suppression, a closer look at the procedural votes cast sheds some light on the relationship between preference alignments and procedural choice. The partisan hypothesis suggests that majority members would vote for restrictive procedures under conditions in which they found themselves unable to secure favored policy outcomes. I would expect then in the 1 lth and 12th Congresses, when members voted to suppress minority rights, to find procedural choices highly correlated with policy choices made concurrently. In this section, I focus on three procedural votes affecting the previous question from the 10th through 12th Congresses. 10th Congress. The vote in 1807 overturning the Speaker's interpretation of the previous question rule confirmed the House's opposition to imposing debate limits on its members. On that vote, every minority Federalist voting and 85 percent of majority Republicans voting opposed debate limits. When the vote on the previous question was taken, the pending issue was whether to refer the Philadelphia Memorial to the Committee of the Whole - a petition from Philadelphia merchants calling for repeal of a commercial nonimportation act. Those favoring referral wanted to repeal trade restrictions against England; those opposed to referral favored keeping restrictions in place (Annals of Congress, 10 Cong. 1, December 15, 1807, 1178-88). On the vote, 95 percent of Federalists supported referral and two-thirds of Republicans were opposed. Cross-tabulating all members' positions across the two votes shows that 90 percent of those voting to sustain the Speaker and suppress debate also voted against referring the repeal petition (left side of Table 3.1). However, those voting to overrule the Speaker and protect debate split evenly across the policy question. Focusing only on Republicans' positions across the two votes (right side of Table 3.1), 89 percent of those favoring debate limits opposed referral, whereas 62 percent of those opposed to debate limits also opposed referral. A test of independence for the two votes fails to show a statistically significant relationship. The pattern of votes across the two questions suggests that in the prewar period the relationship between procedure and policy preferences was imperfect. For the minority, policy preferences were almost uniformly aligned with procedural choice. Fearing that debate limits would cost them their chance at promoting their policy interests - interests narrowly aligned with the British - Federalists saw procedural rights as necessary to fighting for

Procedural choice in the early Congress

59

Table 3.1. Voting to sustain the Speaker's ruling on the previous question motion by voting to refer a petition to repeal trade restrictionsy 10th Congress, 1807

Sustain Speaker*

Vote Yes No

All members Refer petition"

Majority members Refer petition

Yes No 1(10%) 9(90%) 45(51%) 44(49%)

Yes 1(11%) 26(38%)

No 8(89%) 43(62%)

a

A yes vote is in favor of lifting trade restrictions against Britain; a no vote is opposed (ICPSR variable 32) b A yes vote is in favor of using the previous question motion to suppress debate; a no vote is in favor of protecting extended debate (ICPSR variable 30). Note: Table shows count (row percentage). All members: Pearson's r = -.24, Chisquare significant at p < .01; majority members: Chi-square not significant. their policy preferences. For the majority Republicans, however, the connection is less clear. Intense policy interests clearly shaped procedural choices for a minority of the majority. The relationship of policy to procedural interests for the rest of the majority, however, is much weaker - suggesting that those members probably lacked a strong enough policy stake in the pending issue to manipulate the rules to their advantage. With a divided majority, many majority members were also likely to be unwilling to limit their own future opportunities for dissent.18 Such an interpretation is supported by the relatively low level of party differences for the 10th Congress and the prewar period. In a period of less intense partisanship, majority members appear to have been more willing to protect the rights of the minority. 11th Congress. When partisanship heats up in the buildup to war, we should expect a tighter correlation between procedural and policy choices. Indeed, it is precisely party interests to which John Stanly (F-North Carolina) called his constituents' attention in the 1 lth Congress: "Dominance of party spirit . . . rejects every proposition coming from the minority in Congress. . . . The existence of this baleful party jealousy is strikingly obvious."19 With seven days left at the close of the 11th Congress, majority Republicans 18

19

Note also that the motion appealing the Speaker was made by John Randolph (R-Virginia). Given that he was ideologically closer to the Federalists, his position opposing debate limits might have spurred some fellow Republicans to oppose his motion. "From John Stanly," May 10, 1810, in Cunningham (1978:730).

60

Minority rights, majority rule Table 3.2. Voting to sustain the Speaker's ruling on the previous question motion by voting for passage of a trade embargo billy 11th Congress, 1811 All members Trade embargo billa

Vote Yes No Sustain Yes 1(9%) 10(91%) Speaker1' No 63 (98%) 1 (2%)

Minority members Trade embargo bill

Majority members Trade embargo bill

Yes 0 (0%) 0 (0%)

Yes No 1(25%) 3 (75%) 63 (98%) 1 (2%)

No 7 (100%) 0 (0%)

a

ICPSR variable 270. *A yes vote is in favor of protecting extended debate; a no vote is in favor of using the previous question motion to suppress debate (ICPSR variable 269). Note: Table shows count (row percentage). All members: Pearson's r = -.89, Chisquare significant at p < .001; Majority members: Pearson's r = -.73, Chi-square significant at p < .001.

feared they would lose their fight to pass an embargo bill restricting commerce with Britain. Recounting the event after the war, William Gaston (F-North Carolina) noted that a night session was held to finish completion of the bill; unless the majority found a way to limit minority obstructionism, the bill would fail (Annals of Congress, 14 Cong. 1, January 19, 1816, 713). This time, the majority overruled the Speaker's ruling on the previous question motion, setting the precedent that approval of the previous question brought an immediate vote on the main question. A vote to interdict commerce with Britain soon followed and passed. On the procedural vote, all minority Federalists voted to sustain the Speaker and protect extended debate; 93 percent of Republicans voted to overrule the Speaker and revise the previous question to suppress debate. On the policy vote that followed, all Federalists voted against the bill, and 93 percent of Republicans voted in favor. Cross-tabulating the two votes for all members (left side of Table 3.2) shows that members' procedural choices were nearly perfectly aligned with their policy preferences. All minority Federalists opposed debate limits and opposed the embargo bill (middle of Table 3.2); 98 percent of Republicans favoring debate limits also favored the bill (right side of Table 3.2). Facing a cohesive minority in a period of increasing partisan differences, majority policy preferences dictated the course of procedural outcomes.20 20

Rates of abstention on the procedural and policy votes, however, were 77% and 78% respectively for the minority, but only 22% and 24% for the majority. In comparison to the previous votes that day (on which minority abstention averaged 36%), there appears to have been

Procedural choice in the early Congress

61

Interestingly, the shift among Republicans from the 10th to 11th Congresses was due to both a conversion of returning members and the infusion of new ones. Of the 26 newly elected Republicans in the 1 lth Congress who cast a procedural vote, 25 supported suppressing debate. Of the 38 returning Republicans who cast the procedural votes in both Congresses, thirty converted from opposing to supporting suppression. Increased Republican unity - stemming from both new and old members - thus contributed to the party's conversion on the previous question, further supporting the partisan hypothesis. 12th Congress, The new use of the previous question was formally adopted into House rules at the start of the 12th Congress in December 1811. The only recorded roll call was on an amendment to weaken the rule by guaranteeing every member a chance to speak on the floor after approval of the previous question. The expected partisan division over the amendment prevailed, with all minority Federalists in favor and 94 percent of majority Republicans opposed. As in the previous Congress, members' views about procedural rights reflected their views about policy. Voting to declare war against England in June 1812, members divided along partisan lines, with every Federalist opposing war and 84 percent of Republicans in favor. Cross-tabulating the policy and procedural votes highlights the correlation between the two choices, with a test of independence rejected (Table 3.3). Again, procedural choices reflected preference alignments at the height of debate over going to war. A comparison with the Senate The conventional wisdom about the development of the House and Senate is, of course, a comparative argument: a swiftly growing House required restrictive rules, while the smaller size and agenda of the Senate fostered unlimited debate in the Senate. Indeed, in the 9th Congress in 1806, the Senate eliminated the previous question motion from its rules. Although the rule had not been used to limit debate, its relatively infrequent use apparently led the Senate to drop it during a general housekeeping of its rules (Cooper 1962). Thus, just as the House was moving to restrict debate, the some nonrandomly distributed abstention. However, given that the procedural challenge occurred after 2 A.M. and appears to have been unexpected by the minority (Alexander 1916, 186), it seems reasonable that minority voting was so low. The majority, in contrast, had a much greater incentive to be present to ensure passage of the heretofore obstructed war measure, as suggested later by Representative Gaston. When the minority challenged the new interpretation of the previous question rule several days later, minority and majority abstention were similar at 31% and 27% respectively.

62

Minority rights, majority rule Table 3.3. Voting to weaken the previous question motion by voting to declare war against Britain, 12th Congress, 1812 All members Declare war against Britain*

Weaken previous question*

Vote Yes No

Yes

No

3 (12%) 23 (89%) 60 (86%) 10 (14%)

a ICPSR variable 224 *A yes vote is in favor of weakening the previous question rule to protect extended debate; a no vote is in favor of using the previous question motion to suppress debate (ICPSR variable 38). Note: Table shows count (row percentage). All members: Pearson's r = -.69, Chisquare significant at p < .001.

Senate had already eliminated its only potential means for bringing debate to a close. The divergent paths taken by the House and Senate provide an additional arena for assessing the link between policy and procedural preferences. If emerging partisanship shaped the timing and choice of restrictive rules in the House, the Senate's move to eliminate debate restrictions might also have been driven by a particular configuration of policy preferences. First, I would expect that low levels of partisan differences prevailed when the Senate eliminated the previous question. Second, I would expect that preferences during the period were less sharply polarized in the Senate than in the House. If debate over policy was much less intense in the Senate, there would be fewer incentives for the minority to obstruct and little reason for the majority to re-adopt a previous question rule. In theory then, preferences would dictate one procedural avenue for the House and another for the Senate. Before examining Senate voting alignments, I first assess legislative activity in the two chambers by comparing the number of public bills originating in and passed by each chamber.21 House workload clearly outpaced the Senate's for the first 14 Congresses (1789-1817) (Figure 3.7). Indeed, by the 9th Congress, when the previous question motion was dropped from Senate rules, House legislative activity over the previous eight Congresses had exceeded Senate activity by on average nearly three to one. When the House altered the previous question rule in the 1 lth Congress, Senate activity had 21

All bills considered in the House are distinguished by origin in the indices to the House Journal.

Procedural choice in the early Congress

63

160 140

^100 15 |

80

"I

Q.

r

2 60 I 40 z 20

11 1

1

2

3

4

5

1 ]_

6

7

8

9

10

Congress

| H House originated workload I

11

12

13 14

J

15

1

16 17

Senate originated workload

Figure 3.7. Comparison of House and Senate workload, 1789-1823. Source: House Journal, lst-17th Congresses.

increased markedly, but House activity continued to exceed the Senate's for the rest of the war Congresses.22 I now consider voting alignments in the Senate during the war period, comparing House and Senate party difference scores (Figure 3.8).23 When the Senate eliminated the previous question motion in 1806, partisan differences were muted, having declined precipitously since the foreign policy crises at the end of Federalist rule in the late 1790s. Coupled with relatively low demands on the Senate, low partisan differences likely fostered little need for managing the flow of debate. Moreover, partisanship remained relatively muted through much of the ensuing war period. Not until the 13th Congress in 1813 did differences between majority and minority party coalitions rise. Still, the mean party difference during the war period remained just below fifty percent. Thus, Senate coalitions did not appear to diverge strongly over wartime policy, arguably making readoption of a previous question rule unnecessary in the Senate. Indeed, as noted by Cooper 22 23

The data confirm general assessments of early Senate activity (see for example Stewart 1992:86). Senate Rice party difference scores were calculated by the author from ICPSR roll-call data, based on party affiliations reported in Martis (1989). Roll-call data for the 8th Congress are indefinitely unavailable from ICPSR.

Minority rights, majority rule

64

House previous question altered

Senate previous question eliminated

TTTTi

7

8 § Tbil Congress House

1 2 1 3 1 4 1 5 1 6 1 7

- Senate

Figure 3.8. Comparison of House and Senate partisan differences, 1789-1823. Source: See text. Eighth Senate data indefinitely unavailable from ICPSR.

(1962:9), "it may well be argued that it would have taken at least as severe a set of experiences as the House underwent before the Senate would have allowed cloture to be imposed on its minorities." Although it is likely that a much smaller Senate membership also reduced demand for managing the flow of Senate business, preference alignments appear to have helped launch the two chambers down separate procedural paths. In fact, the Senate's early procedural decision had lasting consequences. With the previous question eliminated, the impact of any subsequent increases in Senate partisanship would in theory be strongly diluted: a simple though cohesive majority would no longer be able to suppress minority rights. Indeed, as explored in Chapter 7, senators later in the nineteenth century defeated several efforts to create a previous question rule or alternative rules to end debate, thereby forestalling any restrictions on minority rights until another world war in 1917. In sum, it seems difficult to account for early institutional change in either chamber without recognizing the influence of partisan alignments and inherited rules. Procedural politics in the aftermath of war Conventional explanations of early debate limits in the House portray rules changes as widely accepted, rational responses to an expanding workload

Procedural choice in the early Congress

65

and membership and to occasional maverick obstructionists. Yet, members of the House did not share such a view. In 1816, after conflict over the war had disappeared, William Gaston (F-North Carolina) proposed on the floor to drop the previous question motion from House rules. Arguing that the passing of wartime partisanship eliminated the need for restrictive rules, Gaston urged his colleagues to restore the rights of the minority: In the bustle of incessant action, in the animated contests of parties, goading and goaded by each other, in the paroxysms of political fever, these principles [of the minority's right to be heard] will be forgotten. It is prudence, it is duty, to avail ourselves of a season when passion is lulled and reason is free to act, when the preternatural excitement has abated; to review past errors and guard against their recurrence. The rule in question ought not to exist. No majority should be trusted with it. (Annals of Congress, 14 Cong. 1, January 16, 1816, 718) Gaston suggested that members were well aware of the link between policy and procedural choice. According to the minority, democratic institutional norms were threatened by the emergence of partisanship during the war period. 24 But Speaker Henry Clay (DR-Kentucky) disagreed - defending the previous question partly because "the majority had the power to make [it], and therefore were right in making [it]" and partly because "the public interest required it . . . [and] the abuse of debate rendered it expedient" {Annals of Congress, 698-9). Another argument made by Gaston deserves brief notice as well. Gaston had urged the majority to eliminate debate limits because at this moment no one can confidently pronounce whether before this Congress closes he will be found among the majority or minority of the House. . . . The victims of oppression should disdain to become its instruments; the possessors of arbitrary power know not how soon they may be compelled to feel its injustice. {Annals of Congress, 718)

Gaston, in other words, was appealing to his Republican colleagues to consider their future parliamentary needs should they lose control of the House. But Gaston's argument was not likely to convince Clay's majority to give up the previous question rule. The Federalist party held only 35 percent of chamber seats, and within a few years had all but disappeared, making it improbable that the Republicans would lose control of the chamber. Given such an imbalance between the two parties, adoption of the previous question rule provides only a limited test of the relevance of future party needs to immediate procedural choices.25 In the end. Clay and his party majority 24

25

The impact of bitter partisanship was evident to members of the majority as well, as noted by Representative Israel Pickens (R-North Carolina) in a letter to constituents: "The political division among us . . . still continues to weaken the public energies" (Cunningham 1978:860). I conduct a more systematic test of that hypothesis in the next chapter.

66

Minority rights, majority rule

prevailed. Not only did the Republicans refuse to relent on the previous question rule, but - as shown in detail by Gamm and Shepsle (1989) - Clay continued to build a system of standing committees to hold together the Republican coalition after the war. Changes in rules allocating parliamentary rights thus appear to reflect partisan calculations by the majority party. For the early House, such calculations demanded suppression of the minority when partisanship and obstruction peaked - even in a period before organized parties were established. Most importantly, procedural choices in the early House and Senate outlasted the preference alignments that first shaped them. With low levels of party conflict after the war, majority members should have had little incentive to oppose minority efforts to eliminate the previous question rule. Yet, preference effects in House and Senate rules were durable, suggesting that preferences can change without a corresponding shift in procedural outcomes. Such durability of institutional arrangements is important. Long before party-based rules appeared in the chamber, partisanship shaped a central aspect of House procedure. Indeed, as shown in detail in the coming chapters, the ability of future partisan majorities to alter other rules to their advantage hinged on prior changes to the previous question in a pre-party era. Although partisan majorities in the nineteenth century may have felt vulnerable to obstructing minorities, those majorities benefited from procedural legacies written into House rules. Preference effects in Senate rules, of course, had a very different impact. Far from institutionalizing majority rule, they entrenched the rights of minorities long after the original set of preferences prevailed in the Senate. Having eliminated a potential means of cutting off debate, it took over a century until extraordinary circumstances in 1917 helped provoke the Senate to alter its rules. Although institutional choices may appear susceptible to the majority-rule instability experienced over policy choices (Riker 1980), inherited rules arguably alter the character of subsequent procedural battles. The previous question case then has some initial, interesting implications for the study of minority rights. First, it suggests the power of a partisan account of procedural change, even in a nominally pre-party era. Changes in the level of demands on the House and Senate seem to have been only remotely related to the choice of restrictive rules. Instead, changes in the partisan character of voting alignments appear to have shaped early procedural choices. In the next chapter, I subject this initial finding to a more systematic, statistical test, assessing patterns fostering both the suppression and creation of minority rights. Second, the aftermath of the adoption of the previous question suggests that there are lasting preference effects in both House and Senate rules.

Procedural choice in the early Congress Procedural choices made for partisan reasons persisted long after the original partisan motivation had passed; as shown in the next chapters, choices made in the 12th Congress about the previous question rule continued to affect deliberations over policy and procedure in the following decades. Subsequent procedural choices then were driven not simply by contemporary preferences, but also by rules selected and maintained by majorities in the pre-party era. "The particular sequence of events," in other words, "is consequential. . . . What outcome occurs depends upon the historical path" (Aldrich 1994:229-30). Assessing both the quantitative and qualitative contours of that historical path in the House is my focus in the following three chapters.

67

Allocating minority rights in the House, 1789-1990

Adopting a previous question rule in 1811 did not endow House majority parties with firm procedural control over the chamber's business. Despite the potential power afforded by the previous question motion to House majorities, majority parties in the nineteenth century continued to face minorities that were successfully exploiting traditional individual rights. Not surprisingly, those majorities continued to struggle to alter chamber rules in their favor. Even once majority party control of the agenda had crystallized toward the close of the nineteenth century with the adoption of Reed's rules, minority parties still at times succeeded in using existing rules to their advantage. But when minority parties succeeded in gaining new parliamentary rights after 1900, they were usually met by majority parties equally intent on cementing their procedural control. The distribution of procedural rights, in other words, continued to evolve well after the procedural gains of 1811 - sometimes favoring the majority and at other times favoring the minority. In this chapter, I explore patterns of change in House minority rights between 1789 and 1990. Testing the three broad alternative explanations of change in minority rights sketched in Chapter 1, I present statistical evidence from the course of congressional history to bolster my claims about the partisan basis of procedural choice. I find that short-term partisan goals - constrained by inherited rules - shape both the suppression and creation of rights for political and partisan minorities. Collective institutional concerns and longer-term calculations about future parliamentary needs, in contrast, have little impact on changes in minority rights. In other words, the politics of the previous question rule in the early 1800s recurred throughout the course of congressional history. In allocating rights to the minority, partisan advantage - rather than collective institutional concerns - continued to shape members' procedural choices long after the War of 1812. 68

Allocating minority rights in the House

69

Alternative explanations of change From the case of the previous question, several hints emerge about the shape of procedural reform in the House. First, changes in legislative activity are a potential influence on members' views about parliamentary rights. Although increased workload in the House does not appear to have been a factor in the revision of the previous question, the legislative workload in the early 1800s was decidedly smaller than it would be later in the century. Looking simply at the sheer number of public laws enacted, in the 12th Congress (1811-1813) a total of 170 public laws were passed - nearly double the level from the previous Congress; in the 51st Congress (18891891), 611 public laws were enacted. Increased legislative activity - placing pressures on egalitarian features of the House - might in other words still influence members' choices over rules. Without limits on members' rights, legislation important to the majority might otherwise go undone. Thus, the finding that legislative activity seemed unrelated to early procedural choices might simply be an artifact of the early congressional period. Later, with a broader and more rapid expansion of the agenda, members might be more willing to restrict procedural rights because of the press of chamber business. There might in fact be quite a strong relationship between workload and minority rights: Workload hypothesis (suppression): The majority party is more likely to suppress minority rights when increases in the level of demands on the chamber increase the value of time for the majority. As suggested in Chapter 1, the easing of legislative demands might also alter calculations about parliamentary rights. Minority party members seeking wider participation or resources on the floor or in committee would be likely to be more successful when the press of business reduced the majority's incentive to tightly structure the legislative process. Under such conditions, the majority party would be able to extend such parliamentary rights knowing that their own policy agenda would not suffer from the change. Such a relationship between external demands and internal rules would lead to the following expectation: Workload hypothesis (creation): The majority party is more likely to create minority rights when workload and resulting time pressures on the chamber decrease. The previous question case suggests, however, that emphasizing nonpartisan factors underestimates the importance of more strategic, partisan concerns of a frustrated majority party. Not only did obstructionist behavior by the minority make legislating difficult for the majority in 1811, but obstruc-

70

Minority rights, majority rule

tionism continued to plague subsequent majority parties. The previous question rule, it would turn out, still left numerous forms of obstructionism possible. As explored in Chapter 5, minority parties in the nineteenth century continued to exploit both the size of their ranks and numerous procedural tools to frustrate the majority party. The minority even learned how to temper the effects of the previous question rule - for example, forcing time-consuming quorum calls before and after the motion for the previous question. Partisan need for restrictive rules changes therefore potentially continued to motivate majority parties to alter the rules to their advantage. If a party's need for restrictions rises as factions become more obstructive, minority party behavior might be closely related to the majority's procedural choices. Thus, Partisan needs hypothesis (suppression): The higher the level of minority obstruc-

tionism, the more likely the majority party will suppress minority rights.

A need for procedural change is not, of course, necessarily sufficient to obtain it. As suggested in the case of the previous question, equally important would be a party's capacity to obtain it. In the 10th Congress, after all, majority party Republicans were still divided over the proper course of policy toward the British. Only in the next two Congresses (with the conversion of many returning Republicans and the arrival of more hawkish Republicans) was the majority party able to agree to and formalize a more stringent interpretation of the previous question motion. A majority party sufficiently united on a legislative agenda then is likely to underlie restrictive rules changes. If members of the majority party believed that their own political goals would be best served by challenging the majority party leadership, it is unlikely that they would be willing to institutionally advantage their party over all other coalitions in the chamber. After all, as explained in Chapter 2, minority rights have rarely been crafted for the explicit use of minority party members. Because factions within the majority party can potentially exploit such parliamentary rights, majority party members have an incentive to protect a wide distribution of rights if they disagree with their fellow partisans. Furthermore, because minority parties are not likely to support rules changes that limit their own procedural rights, the majority party would have to find support for restrictive rules changes solely within its partisan contingent. Thus, I would expect sufficient partisan capacity - in addition to pressing partisan need - to be necessary to alter minority rights. This claim suggests the following relationship: Partisan capacity hypothesis (suppression): The stronger the majority party rela-

tive to the minority party, the more likely the majority party will suppress minority rights.

Allocating minority rights in the House

71

Recalling Figure 1.1, partisan capacity is likely to influence the creation of minority rights as well. The weaker the majority party and the stronger the minority party, the more likely a cross-party coalition will emerge as a central player in the House. Under such conditions it would be easiest to attract majority members to the cross-party group. Such a coalition, in fact, might pursue the creation of new parliamentary rights to ensure that any common policy interests earn a place on the congressional agenda. The strength of the minority party under such conditions is key to the procedural outcome. The stronger the minority party, the fewer the number of majority party members needed to form a winning coalition and the more likely a crossparty coalition might succeed in adopting new procedural rules. Alternatively, a minority coalition within the majority party might grant procedural concessions to the minority party to buy their support for other initiatives. In either case, relative partisan capacity would play a role in reinforcing minority rights, leading to the following expectation: Partisan capacity hypothesis (creation): The weaker the majority party relative

to the minority party, the more likely a cross-party coalition will create new minority rights.

Both the partisan needs/capacity and workload explanations received an initial test with the 1811 previous question case. That case, however, provided only limited perspective on the third alternative suggested in the first chapter: future parliamentary needs might shape immediate choices over chamber rules. Although the Republican majority might have agreed to the rule change in 1811 because it discounted its chances of becoming the minority, obstructionism was clearly the dominant factor leading the majority to reinterpret the previous question. Still, more than a single case is needed to assess the influence of future parliamentary needs on procedural choice. Calculations about future parliamentary needs might in fact be more persuasive to the majority under different conditions. Under lower levels of minority obstructionism, majority party members might still seek restrictive rules changes if they believed there was little chance of losing control of the chamber. Or, if minority status were imminent for the majority party, its members might proceed to prepare for their parliamentary future by extending new minority rights - even in face of obstructive behavior by the minority party. Calculations of longer-term parliamentary needs, in other words, might still influence procedural decisions. Such influence might work in two ways. First, Party competition hypothesis (suppression): The majority party is more likely to suppress minority rights when it discounts its chances of losing majority control.

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Minority rights, majority rule

And second. Party competition hypothesis (creation): The majority party is more likely to cre-

ate minority rights when it anticipates losing control of the chamber.

Three broad alternatives then provide a framework for assessing procedural change after the early Congresses. Short-term partisan advantage, changes in legislative activity, and longer-term calculations about procedural needs, of course, might vary independently. Variation across all three factors might influence the probability of changes in House minority rights. My goal is to assess the relative influence of each of these variables in explaining the suppression and creation of minority rights across the history of the House. Contrary to conventional expectations about the impact of workload and changing party control on procedural change, the findings here will suggest the influence of partisan politics in structuring change in minority rights. Characterizing congressional contexts over time Changes in the procedural context over the course of congressional history make it inappropriate to model the entire span of House history in the same way. Because minority parties alter their procedural strategies to take advantage of changing rules and political conditions, the particular form of minority obstructionism changes over time as well. Inherited rules, in other words, make possible certain types of obstructive activity while foreclosing others. To appropriately assess the influence of minority obstructionism and other factors on rights suppression, I divide House history into two periods intended to capture a major shift in ways of conducting chamber business. The first period lasts from 1789 through the re-adoption of Reed's rules in 1894 (lst-53rd Congresses); the second period stretches from 1895 to 1990 (54th-101st Congresses).1 During the first period, House majority parties gradually accrued a set of rules ensuring majority party control of the legislative process. Indeed, throughout much of the period, House rules served the minority party's interests. Majority parties generally needed a two-thirds majority to obtain consideration of favored bills; minority parties persistently exploited traditional individual rights to offer dilatory motions; and minority parties often refused to vote, thereby preventing action on legislation preferred by the majority (Garfield 1981,3:17-18; Bach 1990; Dion 1

As explained in detail in Chapter 5, Reed's rules, originally adopted under Speaker Thomas Reed (R-Maine) by the 51st Congress (1889-1891) and re-adopted by a Democratic majority in the 53rd Congress (1893-1895), ended a century of minority obstructionism (Follett 1902, Chiu 1928, Dion 1991). Reed's rules also capped a century of incremental restrictions on minority rights. Cooper and Young (1989) and Bach (1990) note the significance of Reed's rules as a turning point in the procedural development of the House.

Allocating minority rights in the House 1991). By the beginning of the second period in 1895, the majority party had gained firm procedural control over the chamber's legislative agenda control rarely challenged in the twentieth century. To test the hypotheses of rights creation and suppression, I construct several independent variables to tap the conditions underlying changes in minority rights and then statistically model the factors influencing changes in minority rights over time. A few comments on the difficulties of measuring congressional contexts are warranted first. Workload

As explained in the last chapter, measuring congressional workload over time poses several challenges. Not only do we lack good statistics on the shape of the congressional agenda before 1945, but no single measure of legislative business can accurately tap the scope of legislative demands. Given these difficulties, I instead assemble several proximate and correlated measures of workload and perform a principal components analysis to extract a general "workload" factor from the variables for each period.2 These measures are intended to capture the level of demands generated by the membership, the scope of the congressional agenda, and the amount of time consumed by that agenda. Based on the workload hypotheses, I would expect increases in workload to increase the chances of suppression and decrease the likelihood of creation. Change in party control

The hypotheses of future needs assume that members of the majority party are reasonably able to calculate their electoral prospects in the coming election. Thus to test for the effects of expected change in party control on procedural change, I code for each Congress whether the majority party lost control of the House in the following election.31 would expect change in party control to increase the chances of creation and to dampen the probability of suppression. 2 3

Explanation of the factor analysis and the mix of variables used appears in Appendix 2. Change in party control is coded as 1, 0 otherwise. Such a measure, of course, taps actual rather than expected - change in party control. There is no easy way to measure whether or not a party anticipates retaining control of the chamber in the following Congress. Some anticipated possible changes do not occur, and some actual changes are unexpected (as in the 1994 midterm House elections). Of course, if a Congress meets in a lame-duck session after the November elections (as it routinely did before ratification of the Twentieth Amendment in 1933), the two parties already know their respective positions in the coming Congress. To test the validity of the measure, several alternative variables tapping gain and loss of chamber seats in preceding and succeeding elections were tried; none yielded statistically significant results.

73

74

Minority rights, majority rule

Partisan needs

To tap a majority party's need for a procedural fix to its legislative problems, I need a measure of minority party obstructionism. No single measure, however, captures minority obstructionism across House history. Instead, I use several different variables to measure obstructive activity within the two periods described above. For the period 1789 to 1894, minority parties persistently used dilatory motions to obstruct the majority's efforts to pass its favored legislation. In particular, minority parties resorted to using motions to adjourn to delay and frustrate the majority. Thus, I use the percentage of floor votes in each Congress consumed by motions to adjourn to tap levels of minority obstructionism.4 Because over a third of the suppression cases occurred at the opening of a new Congress, I lag the level of obstructive motions by one Congress. The use of a lagged measure then tests for whether the majority party acts to redress obstruction experienced in the previous Congress.5 Even if a rule change does not occur at the start of a new Congress, lagged obstruction still taps recent minority party floor tactics and the array of existing rules. The higher the percentage of obstructive floor motions, the more likely is the majority party to suppress rights in the following Congress. No single measure accurately taps minority obstructionism in the period after 1895. Instead, I construct several measures to tap reported sources of minority obstructionism. As suggested by the incidence of changes in the discharge rule in the early twentieth century, minority party use of the discharge rule motivated majority members to repeatedly revise the discharge rule in that period in an effort to limit its use by the minority party (Hasbrouck 1927, Beth 1990).6 Indeed, after a century of restrictive rules changes, the majority party had all but sealed access to the floor agenda from the minority party - leaving the committee discharge process as one of the few means available to the minority to challenge majority agenda control. Thus, to measure activity by the minority deemed obstructive by the majority, I use the total number of discharge petitions filed in the House, 4

5

6

Motions to adjourn were routinely used by the minority party to prevent the majority from taking further action on its agenda (see, for example, Garfield 1981, 3:18). Numbers of motions to adjourn appear in Inter-University Consortium for Political and Social Research (ICPSR) U.S. Congressional Roll-Call Voting Records, lst-53rd Congresses (File 00004). In counting motions to adjourn from ICPSR codebooks, I exclude motions to set a future time of adjournment, since these motions were often used by the majority party as a scheduling tool. Even if party control of the chamber has switched between the two Congresses, the lagged obstruction measure still taps the extent to which the new majority party is likely to face obstruction by the new minority party. But see Hasbrouck (1927:142-5), who notes some majority abuse of the discharge rule in 1910 in an effort to prevent the minority from using its newly acquired procedural right.

Allocating minority rights in the House

75

lagged by one Congress.7 The higher the level of discharge efforts, the more likely that minority rights will be suppressed. As another proximate measure of minority obstructionism, I use the total number of recorded floor votes in each Congress, again lagged by one Congress. Limits on members' rights to request recorded votes and to offer amendments were clearly motivated by majority party frustration with the increase and type of minority-sponsored amendments in the 1970s (Bach and Smith 1988; Smith 1989). The higher the number of recorded votes, the more likely that minority rights will be suppressed. Because accounts of the modern period also suggest that newly created minority rights were often retracted in the following Congress (see Hasbrouck 1927; Davidson and Oleszek 1977), I use a dummy variable to indicate whether or not a minority right was created in the prior Congress.8 If a minority right has just been created, the majority party's motivation to retract the concession is arguably highest when it seeks to change the rules at the opening of the next Congress. Partisan capacity

Party capacity for creating a winning coalition - in other words, party strength - can be considered a function of a party's relative size and its cohesiveness. A large party that is incohesive may be no stronger than a small party that is tightly cohesive. Thus, to measure majority and minority party strength over time, I interact each party's percentage share of chamber seats with its Rice cohesion score (the time series of party strength appears in Appendix 3, Figure A3.1).9 To relate majority and minority party strength in each Congress, I use the difference in majority and minority party strength. The larger the difference in party strength, the more likely that minority rights will be suppressed; the smaller the difference, the more likely rights will be created. Patterns of suppression in the House Looking first at simple bivariate relationships during the first period (17891894), the conditions fostering suppression of rights lend initial support 7

8 9

Data appear in Beth (1990). Prior to the creation of the discharge rule in the 61st Congress (1910), I code each Congress as 0. For the 61st through 67th Congresses, I use the number of discharge motions, rather than petitions,filed(since the discharge petition was not created until the 68th Congress). Although early changes in the discharge rule affected the ease with which members couldfiledischarge motions and petitions, the number of discharge motions and petitions filed still serves the general purpose of measuring efforts to circumvent chamber committees and party leaders. The variable is coded 1 if a right was created, 0 otherwise. The choice of partisan measures is discussed in Appendix 3.

Minority rights, majority rule

76

Table 4.1. Conditions fostering suppression of minority rights, 1789-1894

Hypothesis

Variable

Partisan capacity

Difference in majority and minority party strength

Partisan need

% obstructive floor motions (lagged)

Workload

Workload factor score

Party Change in party control competition in following Congress

Mean, suppression Congresses (w=10)

Mean, nonsuppression Congresses (w=41)

Difference in means 0

15.45

8.70

6.75"

13.30

6.10 b

7.2"*

.70 .50

-.20 .25C

.90*" .25

"Statistical significance (one-tailed test): ** p < .01, *** p < .001 *n=40 (excludes 1st Congress) c n=40 (excludes 18th Congress due to discontinuity in chamber parties; see Martis 1989)

for both workload and partisan preference hypotheses (Table 4.1). Minority rights are more likely to be suppressed under conditions of higher workload, higher majority party advantage in strength over the minority, and higher levels of minority party obstructionism.10 Contrary to the party competition hypothesis, however, subsequent change in party control does not dampen the suppression of minority rights. In fact, although the difference is statistically insignificant, minority rights are more likely to be suppressed prior to a switch in party control than when the majority retains its control of the chamber. Thus, a rise in legislative activity, as well as increases in the majority party's perceived need and actual capacity for procedural change, appear to have statistically significant separate effects on the likelihood of suppression. Judging from bivariate tests, suppression in the second period appears to occur under slightly different conditions (Table 4.2). High partisan capacity and partisan need are still strongly related to the suppression of minority rights. The relationship between legislative activity and suppression, however, is weaker than in the first period: workload is not statistically higher in 10

I report one-tailed significance tests throughout because there are clear expectations about the direction of effects.

Allocating minority rights in the House

11

Table 4.2. Conditions fostering suppression of minority rights, 1895-1990

Hypothesis

Variable

Partisan capacity strength

Difference in majority and minority party

Partisan need

Number of recorded votes (lagged)

Mean, Mean, suppression nonsuppression Congresses Congresses Difference" («=37) (»=9) 19.50

13.00

656

290*

Discharge motions filed (lagged)

37

17C

Newly acquired minority right

.44

.08

Workload

Workload factor score

.22

-.10

Party competition

Change in party control in following Congress

0.00

.19

6.50*

366*

20

.36*

.32 .19**

"Statistical significance (one-tailed test): * p < . 0 5 , * * p < . 0 1 6

n=36 (missing data for 79th Congress) *tt=36 (missing data for 101st Congress)

Congresses with restrictive rules changes than in those without. There is, however, some support for the party competition hypothesis: majority parties retaining control of the chamber in the second period are more likely to suppress minority rights. To make sense of the relative influence of these partisan and nonpartisan factors on rules changes in both periods, I turn to multivariate tests of the politics of rights suppression. Predicting suppression, 1789-1894

A maximum likelihood model of suppression in the eighteenth and nineteenth centuries confirms the importance of partisan need and capacity in shaping procedural choice (Table 4.3). n In a model assessing the impact 11

Because the dependent variable is dichotomous, ordinary least squares regression is inappropriate (Aldrich and Nelson 1984). Coefficients in a maximum likelihood model are esti-

Minority rights, majority rule

78

Table 4.3. Minority rights suppression, 1789-1894 (Maximum likelihood logit model) Change in x (from, to)

Hypothesis

Variable

Coefficient1

Partisan capacity

Difference in majority and minority party strength

.16* (.07)

(1.95, 18.0