June 21, 2001
History Shows That This Year’s Senate Flip Isn’t Really Unprecedented

By Kenneth Ackerman
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.