When Another Speaker Stood Firm Against Obstructionists in His Own Party | Commentary

Posted October 30, 2013 at 2:30pm

The spotlight remains on Speaker John A. Boehner. That’s true even if there’s a temporary debt ceiling deal or a longer-term bipartisan Senate plan. Sooner or later, the Ohio Republican must decide whether to move a budget bill unacceptable to the tea party wing of his caucus.

It is worth recalling, then, another crucial moment in U.S. history when the speaker of the House stood up to hard-liners in his own party and was widely heralded as a hero.

In early 1877, the nation was deadlocked over the Hayes-Tilden presidential election. Samuel Randall, a Pennsylvania Democrat loyal to New York’s Samuel Tilden, was speaker. Obstructionist Democrats, with whom Randall had been allied, wanted to delay the counting of the Electoral College votes as a way to install Tilden in office.

These hard-liners thought that if neither candidate was declared the winner by Inauguration Day, March 4, then the House could claim constitutional authority to pick the president.

Republicans, however, argued that the Constitution gave the Senate’s presiding officer, Thomas Ferry, the power to complete the Electoral College count. Because Ferry was a loyal Republican, he was ready to declare Rutherford B. Hayes elected.

The two chambers of Congress thought they had created a compromise as a way to break the impasse. They authorized an ad hoc Electoral Commission to adjudicate disputes when multiple documents claimed to be a state’s Electoral College votes. Taking up each state alphabetically, starting on Feb. 1, Congress used the commission for four states and got through South Carolina, supposedly the last disputed state, by the end of February.

But then came a surprise.

When it was Vermont’s turn, irreconcilable Democrats in the House suddenly claimed to possess a second set of Electoral College votes from the state. Ferry refused to recognize its validity and declared it untimely because it should have been placed before Congress at the beginning of the count on Feb. 1. Therefore, in Ferry’s view, there was no need to refer Vermont to the Electoral Commission, and thus no need to delay the count.

Congress, instead, could move on to Virginia and end with Wisconsin in time to swear in the new president.

The hard-liners in the House, however, wanted to reject Ferry’s ruling and halt the entire Electoral College counting procedure unless and until Vermont went to, and came back from, the Electoral Commission.

With March 4 looming ever closer, it looked like the hard-liners had concocted a way to keep the count from being completed, thereby triggering the House’s election of Tilden pursuant to its interpretation of the Constitution.

But Ferry and the Republicans would not budge from their opposite view. As the month of March began, there was the realistic risk of two separate inaugural ceremonies, one for Hayes and the other for Tilden. With two potential claimants to the authority of commander in chief, many observers perceived the nation at serious risk of a second civil war.

On March 1, the House met to consider Vermont. The hard-liners insisted on telling Ferry that he must reverse his ruling. But Randall announced that, as much as he disagreed with the merits of Ferry’s ruling, Ferry was entitled to make it and the House must acquiesce. The hard-liners were apoplectic. They demanded that the House vote on their position. Randall said no: Ferry’s ruling was final, and the House had no power to defeat it.

Randall then faced an incipient revolt from the obstructionists in his own party. Some say it was the House’s “stormiest session.” The New York Times reported that “ladies,” fearing violence, “left the galleries.” The Times of London added that some House members “grasped their revolvers.” Randall had to call out the sergeant-at-arms to restrain his fellow Democrats.

But Randall prevailed, the count continued and Hayes was sworn in on time.

Many credited Randall with single-handedly averting a major constitutional crisis. One student of the speakership wrote, “Randall reached a sublime height on that day when he put before himself the good of the country.” Other scholars concurred: “Calamity to the country might not have been averted” but for Randall’s “firmness and conscience.” A leading historian proclaimed that Randall “deserved the respect and admiration of the nation and the world” for defying his fellow Democrats.

Randall was also re-elected speaker. Although on March 1 he could not have been certain of this vindication within his own party, his fortitude that day ultimately did not harm him politically.

The parallels between Randall’s situation and Boehner’s are not exact. The current crisis concerns fiscal policy, not counting Electoral College votes. Still, Randall’s example is a useful reminder of how history rewards virtue, as we all await the ultimate resolution of Washington’s ferocious budget battles.

Edward B. Foley is a professor of law at Ohio State University, where he also directs its election law program.