Czar Reed and the House rule that ended the disappearing quorum

Solve this riddle, and it is not a joke: two hundred people sit in a room, every one of them awake, breathing and plainly present, and according to the official record nobody is there. The chairman asks the secretary to find out whether a majority is present, and the secretary reads every name aloud. Not one person answers. The meeting cannot proceed. Everyone goes home, and the business of the nation waits for another day.

That is not a riddle. That was the United States House of Representatives in the 1880s. A member could sit at his desk, stay silent when his name was called, and be recorded as absent, and that silence was a legitimate weapon of war. It was called the disappearing quorum, and it took a sharp-tongued Republican from Maine to end it. His enemies called him a czar. History has been kinder, and so will I, with a few honest reservations.

What a quorum is and why the Constitution wants one

Start with the text. Article I, Section 5 says that a majority of each House "shall constitute a Quorum to do Business," but that a smaller number may adjourn from day to day and may be authorized to compel the attendance of absent members. The same section says each House may determine the rules of its proceedings. Put those two clauses next to each other and you have the whole drama of this post.

The reason for a quorum is sound. You do not want a handful of members who happen to be sitting in the chamber at midnight passing laws for the whole country. The Constitution says business requires a majority present. In a House of 435 seats, all filled, that majority is 218. (435 divided by two is 217.5, and you cannot have half a member, so the number rounds up to 218. Vacancies lower the number, because the count is of the members actually serving.)

But the Constitution says nothing about how you determine who is present. That silence is where the trouble came from.

The trick: present, but not voting

The old practice had a loophole large enough to drive a Congress through. When a vote was taken, the clerk called the names, and the journal recorded those who answered "yea" or "nay." If the recorded total fell short of a quorum, the House could not act, even if a hundred more members were sitting in plain view. The minority party only had to refuse to answer. The majority could not pass the bill, and it could not even force the members to be present, because they were present.

Nobody invented this as a grand strategy. It grew out of habit. But by the 1880s both parties had used it, and the minority used it as a matter of routine. The majority of the day had to bring in every one of its own members, including the sick and the traveling, to produce a quorum entirely from its own side. A narrow majority could be defeated by one bad winter of flu.

Let me give you the fair, strong version of why members defended the practice. This is the steelman, and it is not stupid.

1. The minority has few weapons. In a body that decides by majority vote, the party that lost the election has the right to be heard, and delay is how it makes itself heard.
2. Deliberation is a good. A rushed bill is often a bad bill. Making the majority work for every vote forces compromise.
3. Today's majority is tomorrow's minority. The party that cheers a rule when it holds the gavel will curse the same rule after the next election.

All three points have real force, and I will say so plainly: they are the arguments that conservatives make about the Senate filibuster, and there is an honest case for them. Our piece on Why the Filibuster Is the Best Friend a Minority Party Ever Had makes exactly that case. So why did Reed win the argument in the House? Hold that question. First, the ruling.

January 29, 1890: the ruling

Thomas Brackett Reed of Portland, Maine, was Speaker of the House in the 51st Congress. Republicans had won the House and the White House in 1888 (Benjamin Harrison took the presidency), but the margin in the House was thin, and Reed knew the minority could shut down the majority's agenda just by sitting still.

On January 29, 1890, the House was working through a contested-election case from West Virginia, usually cited as Smith v. Jackson. The Democrats did what they had done before. They sat silent as the roll was called. The Republican side delivered its votes, but the total fell short of a quorum on the recorded names. Under the old practice, the House would be stuck.

Reed did something simple. He began to count the members he could see. He directed the clerk to note the names of members who were present and not voting, and then he announced that a quorum was present. Democrats exploded. Members shouted that the Speaker was creating a quorum out of thin air. Some tried to leave the chamber to break the quorum by walking out, and accounts of the day describe the doors being locked to keep them in. Charles Crisp of Georgia, the Democratic leader and a future Speaker himself, challenged the ruling on the floor, and after days of fury the House sustained Reed.

Here is the thing I want you to notice. Reed's reasoning was not an invention from the clouds. It was a plain observation: if a member is in the chamber, he is present. The Constitution asks whether a majority is present. It does not ask whether a majority is answering. A man who has chosen to be in the room, and who has chosen not to speak, is nevertheless in the room.

The Reed Rules

A ruling is one thing. A rule is another. In February 1890 the House adopted a new code of procedure, known to history as the Reed Rules. The key provisions were these:

• Members present in the chamber and not voting could be counted by the Speaker to make a quorum.
• The Speaker could refuse to recognize motions that were plainly dilatory, meaning motions made only to waste time.
• The quorum in the Committee of the Whole, the working form the House takes to debate bills, was set at 100 rather than a majority of the House.

(The date usually given for adoption is February 14, 1890. Check the House Journal if you need to cite it exactly.)

Notice what these rules do not do. They do not take a single vote away from the minority. They do not stop a member from speaking in debate. They do not prevent amendments within the rules. They stop one tactic: using silence and parliamentary stalling to prevent the House from ever reaching a vote. The minority can still argue, still offer its alternatives, still vote no, still go to the voters. What it cannot do is hold the chamber hostage by pretending not to exist.

The cry of "czar"

Democrats had a nickname ready within days, and the cartoonists of the 1890s had a field day: Czar Reed, a Russian autocrat in a Maine suit. Newspapers loved it. Reed was big, sarcastic, and not shy about enjoying a fight. He did not help his case with his sense of humor, which could cut.

Now, I am going to defend Reed, but I will not pretend the objection was frivolous. Here is the strongest version of the case against him: a Speaker with the power to decide who is "present" has a great deal of power. The Speaker could in theory abuse it. The rule was adopted by a partisan majority over loud objection. And a rule that works against your opponents today works against you when the other party controls the House. All of that is true.

Here is the answer, in numbered points.

1. The House voted for it. A czar does not submit his rules to a vote of the assembly. The House itself, by majority vote, adopted the Reed Rules, which is exactly what Article I, Section 5 authorizes: each House determines its own rules.
2. The rule respects the text. The Constitution requires a majority to be present. It does not tell the House how to establish presence, and counting the people in the room is a more faithful reading than pretending they are not there.
3. The rule makes the majority accountable. If the majority governs badly, the voters know whom to blame, because the minority could not have stopped it. Under the old way, a party could win an election, fail to pass its program, and blame the other side's silence. Majority rule means majority responsibility.
4. The other party came around. This is my favorite part. Democrats took the House back after the 1890 elections, and within a few years a Democratic Speaker, Crisp himself, the man who had led the howling, was counting members present to make a quorum. The party that screamed "czar" learned that a House that cannot act is not a House.

That last point is the proof. When two parties agree on a rule after they have swapped places, the rule is probably not a partisan trick.

United States v. Ballin and the courts

Rules made by the House could still be challenged in court, and a challenge came. The Tariff Act of 1890, the McKinley Tariff, had been passed using the counted quorum. An importer named Ballin, whose goods were hit by the new duties, argued that the law was void because the House had not really had a constitutional quorum on the vote. In United States v. Ballin (1892), the Supreme Court rejected the argument. Justice Brewer wrote for the Court that the Constitution requires a majority to be present and leaves the method of determining presence to the House itself. The House may set its own rules, the Court said, so long as the rules do not ignore constitutional restraints or violate fundamental rights, and so long as there is a reasonable relation between the method chosen and the result sought.

That is a conservative result in the best sense. The Court did not invent a new power for itself. It did not appoint itself referee of the House's internal procedure. It said the Constitution committed this question to the House, and it stayed out. Our piece on Marbury v. Madison and the Power the Supreme Court Gave Itself in 1803 tells the other side of that story: the Court at its most ambitious. In Ballin, the Court was at its most modest, and the country was better for it.

Reed after the rules: a man of principle

Reed's career did not end with the quorum. He served again as Speaker from 1895 to 1899, after the Democratic interlude of 1891 to 1895, and he was a serious candidate for the Republican presidential nomination in 1896. He lost that nomination to William McKinley, whose managers had the better organization and, as it turned out, the better message for the moment. You can read how that campaign went in McKinley and Bryan in 1896 Compared as Two Ways to Run for President.

The part of Reed's life that strikes me most is how it ended. In 1898 the country went to war with Spain, and the peace that followed raised a hard question: would the United States keep the Philippines? Reed, a Republican Speaker in a Republican Congress under a Republican President, opposed taking the islands. He saw it as a break with the American tradition of governing only people who would someday be fellow citizens. The party went the other way, the Treaty of Paris was ratified in 1899, and Reed resigned from the House that same year and went to practice law in New York. He died in 1902.

I find that admirable. The man who was called a czar for insisting on majority rule resigned rather than serve in a majority whose course he thought was wrong. Whatever you think of the Philippine question, that is not how a power-hungry man behaves. He had plenty of power. He gave it up for a principle. Compare that with our own day, when a member who disagrees with his party's direction mostly writes a sharp press release.

What it means for the modern House

So what is the lesson for a Republican reader, and for any citizen who follows the House?

First, a legislative body that cannot reach a vote cannot govern. A tactic that blocks every vote, rather than defeating a particular bill, shuts down self-government itself. That is different from opposing a bill. Opposing a bill is democracy. Preventing the vote is something else.

Second, the quorum rule is still on the books and still matters. Members can demand a quorum call, and the leadership must deliver a majority present. The House does not run on Reed's methods with the Speaker acting alone; its rules have been refined by many Houses since, and the current text is on the House's own website. Read the standing rules, and read the rules adopted at the start of each Congress. Those are the real constitution of the chamber.

Third, factions inside a majority have leverage that has nothing to do with disappearing. When the majority is narrow, a small bloc can decide whether a rule passes or fails. That is a legitimate power, and the voters should judge it by what the bloc wins and what it costs. We discuss related dynamics on the Republican Party page and in What the Minority Party in Congress Can Still Do When It Doesn't Run the Floor, which asks what tools remain when you have lost the majority. Hardliners should remember Reed's lesson from both sides: the rule that lets you force a vote today is the rule that lets the other side force one on you tomorrow.

Fourth, keep the factual claim apart from the value claim. The fact is that the counting rule is constitutional and was upheld in 1892. The value claim is whether it was wise. I think it was, because a free people should be able to see who voted for what. A bill that dies in a silent room has no author. A bill that dies on a recorded vote has names attached to it. For another view of how a measure actually travels through the House, see How a Bill Really Becomes Law, Including the Steps Schoolhouse Rock Skipped.

For the rule-makers of any party, the lesson from the 51st Congress is the one that Republicans have to relearn in every generation: you will not always hold the gavel. Write the rules you can live with when you don't. Reed's counting rule passes that test, since it was kept by the very men who denounced it. Many a clever procedural weapon fails it.

The bottom line

• A quorum is a majority present, 218 in a full House of 435. Reed's 1890 ruling said that members in the room count as present, and that is the sensible reading of Article I, Section 5.
• The Reed Rules did not silence the minority. They ended one tactic, the vanishing act, and left debate, amendment and the recorded no vote intact.
• The Supreme Court upheld the method in United States v. Ballin in 1892 and left the House's rules to the House. That is judicial modesty, and conservatives should applaud it.
• Before you cheer or curse any procedural trick, ask whether you would accept it when the other party holds the gavel. Reed's rule was kept by the people who first called him a czar.
• Read the House's own rules and the journal of any vote you care about. They are public, and they decide more outcomes than speeches do.