This year's midsession
Senate flip from Republican to Democratic control, prompted by Sen.
Jim Jeffords' (I-Vt.) now famous defection, is not unprecedented.
Instead, it is but the latest example of today's sharp partisan wars
that prompt comparisons with the politics of post-Civil War America.
The parade of parallels is already long. The last Senate
presidential impeachment trial before Bill Clinton's was 1868's
against Andrew Johnson, based on charges tied to the Tenure in
Office Act but rooted in resentment over Johnson's pro-Southern
views on Reconstruction. The last instances of a president taking
office despite losing the popular vote came in 1876 (Rutherford
Hayes over Samuel Tilden) and 1888 (Benjamin Harrison over Grover
Cleveland), with the drawn-out 1876 contest being the last true
"constitutional crisis." As for the last Senate spilt evenly along
party lines, that would be the 47th, elected in 1880 with 37
Republicans, 37 Democrats and two Independents, one leaning to each
party.
The Senate's 1881 tie set the stage for not one but three
turnovers in partisan control that year. That year the chamber
itself was in many ways a far cry from today's. Senators were
elected by state legislatures rather than voters, a truism until
1913. Senate staff clerks numbered in the handfuls rather than the
thousands. A Member's office space was his desktop in the Senate
chamber. During recesses or adjournments, Senators felt free to
light cigars, put their feet on their desks or spit tobacco while
milling about. Each committee had a room in the Capitol, and the
majority party usually allowed the minority to have control of one
committee just to give them a place to meet.
Politically, Capitol Hill in 1881 was schizophrenic, torn between
gentlemanly veneers of the Victorian era and deep hatreds born of
Civil War, Reconstruction and brute clashes for power. The
Republican Party, which controlled the White House for a record 24
consecutive years during this period, was fractured by a bitter
internal feud between "Stalwarts" and "Half-Breeds," led by Sens.
Roscoe Conkling (R-N.Y.) and James Blaine (R-Maine). James Garfield,
himself a Civil War general and 18-year Capitol Hill veteran, had
been the Republicans' dark horse compromise presidential candidate
in 1880, nominated by a deadlocked convention after 36 ballots (a
GOP record that still stands), presaging one of the closest popular
vote counts until 2000.
The initial Senate flip that year came in the session's first
days. Democrats had controlled Congress the year before; for
Republicans now to take control, they needed their 37 votes along
with those of Independent "Readjuster" William Mahone (I-Va.) and
Vice President Chester Alan Arthur as tiebreaker to pass an
organizing resolution. Unfortunately for them, on the first day the
votes weren't there. Garfield had appointed three Republican
Senators to his Cabinet, including Blaine for secretary of state,
and a fourth had died.
The Democrats, instead of waiting for state legislatures to meet
and replace the missing Members, pushed ahead and took charge. They
voted to put their party in control of the Senate, assigned
themselves committee chairmanships and hired staff clerks (one per
committee, serving the chairmen) and officers.
This takeover, though, was symbolic at best. Within five days
Republican state legislatures had replenished the Senatorial ranks,
and the Senate Republicans, now at full strength, called for a new
vote. This time they won. Democrats complained that Arthur shouldn't
intervene on an "internal" Congressional matter, but they were
powerless to stop him. The Republicans immediately replaced the
Democratic committee chairmen and clerks with their own. To avoid a
Democratic filibuster on the turn-around, they agreed to let two
Democratic Senate officers keep their jobs.
The only real drama that day was over whether Sen. Mahone, the
"Readjuster" from Virginia and a former Confederate officer, might
defect and join fellow Southerners in the solid anti-Reconstruction
Democratic South. He declined.
The next two turnovers, though, were less benign. Garfield's
opening months as president witnessed an ugly war over patronage
within Republican ranks. Garfield nominated a rival to Conkling for
control of the patronage-rich New York Customhouse, directly
challenging "Senatorial courtesy" in appointments. Conkling, backed
by a clique of state party bosses, reacted bitterly and blocked
every Garfield nomination. Democrats enjoyed the show as even Arthur
(himself a Conkling disciple) sided against his own president.
Garfield ultimately won this test of wills, however, causing
Conkling and Sen. Tom Platt (R-N.Y.) both to resign in protest. As a
parting shot, Conkling blocked Senate leaders' choice for a
President Pro Tempore from the party's moderate wing, leaving the
office vacant. By then, the House had also adjourned sine die,
without a permanent Speaker.
Then disaster struck: On July 3 a deranged, "disappointed office
seeker" pumped two bullets into Garfield's back at the Washington,
D.C., railway depot.
"I am a Stalwart of the Stalwarts. Arthur will be president,"
pronounced Charles Guiteau as police led him away. Garfield clung to
life until September, when Arthur indeed became president - with no
one set to replace him should the unthinkable happen again.
Democrats smelled an opportunity - use the confusion in
Republican ranks to make one of their own the Senate President, now
next in line for the White House.
At the special Senate session called to address the situation in
October 1881, Democrats initially outnumbered Republicans by three
votes due to Republican vacancies (the Conkling and Platt
resignations plus another death). State legislatures had already
chosen replacements, but a Senate President would first have to be
selected to swear them in. By then, even with the chamber tied
again, Republicans no longer had a vice president to tip the balance
in their favor.
Many were appalled that Democrats would exploit the president's
murder for political advantage, but their maneuvers were clearly
allowed under the rules. When the Senate met in October, Democrats
immediately moved to elect Sen. Thomas Bayard (D-Del.), a longtime
partisan, as President Pro Tempore. Republicans objected, but were
simply voted down.
This coup too, however, would be short-lived. Within two days,
with the three new GOP Senators now in place, Republicans found a
defector - Independent David Davis, a former Supreme Court justice
and Illinois law colleague of Abraham Lincoln. Davis had voted with
the Democrats until then, but he did not like how things had been
handled and wasn't shy about his own ambitions. Republican leaders
took the hint and moved to nominate him as President Pro Tempore,
overturning the vote from two days earlier. Davis, turning a deaf
ear to Democratic colleagues, agreed to let his name be put forward.
With Davis and Bayard both abstaining on the pivotal vote,
Republicans carried the day.
Bayard stepped down with "apparent good humor," noted a New York
Times reporter, and resumed his seat on the Senate floor.
By then, after years of partisan warfare that culminated in the
murder of a popular new president, the public's patience with
Washington politics had reached the breaking point. Arthur lasted
only one term in the Oval Office; Conkling was virtually banished
from public life. Davis retired from the Senate the following year.
But during that term, Arthur and his Congressional colleagues did
manage to rise above their quarrels and enact one enduring legacy to
address a broken system that still stands today as a fixture of
modern government: the Pendleton Civil Service Act of 1883, which
limited patronage spoils in federal appointments. Back then, it was
considered as fundamental and controversial as the McCain-Feingold
campaign finance reform bill is today.
This raises a question: Will that be the final parallel between
politics today at the turn of the new millennium and those of the
Gilded Age a century ago - the adoption of civil service reform then
and of campaign finance reform now?
Stay tuned.
Kenneth Ackerman, who practices law at Olsson, Frank and
Weeda, P.C., has served as senior counsel to the Senate Governmental
Affairs (1975-1981) and Agriculture, Nutrition and Forestry
(1988-1993) committees.
