“Lincoln” and Parliamentary Procedure

The story is about the passage of the Thirteenth Amendment. Daniel Day-Lewis and Sally Field are astoundingly good as Abraham and Mary Lincoln. The supporting cast is superb. The writing is pitch-perfect, especially in the way it catches Lincoln’s use of Shakespeare and story-telling.

The questions at stake, and the positions and actions of the key players, are presented both compellingly and (so far as my knowledge of the period extends, which is not very far) with reasonable accuracy. The moment when Thaddeus Stevens has to choose between maintaining his dearest political principle and passing the damned bill is unforgettable. What’s not to like?

In my case, what wasn’t to like was the utter unrealism of the legislative scenes. The film shows Members addressing each other rather than the Speaker, using proper names rather than, e.g., “the gentleman from New York,” Members insulting each other in ways that would have led to their words being “taken down” (barring them from further debate for the day), Members making personally insulting references to the President (ditto), and motions being made and seconded, and then acted on as if agreed to, without either a vote or a unanimous-consent request. In a film about a piece of legislation, wasn’t the parliamentary part as well worth getting right as the clothing and the carriage design?

I don’t suppose one movie-goer in a hundred will know the difference, and perhaps some of those who know won’t mind. But the ritual of the House has its own rhythmic dignity*, and it’s a shame to see it misrepresented so badly.

[Was procedure then really the same as procedure now? Challenged on this point by a movie-going companion, I looked it up. Here’s the actual transcript of the final day’s debate from the Congressional Globe, the predecessor to the Congressional Record. Yes, it was “Mr. Speaker” and “the gentleman from Ohio.” What’s remarkable is how little the process has changed in a century in a half.]

Also remarkable is the fact that there were three votes that day, not one. The resolution having failed once to get the two-thirds vote required to send a Constitutional amendment to the states, it needed an additional parliamentary step to be voted on again: a “motion to reconsider” the previous vote, which must be offered by someone who voted “no” previously. (In this case, the sponsor, Mr. Ashley, had done so, precisely to retain the option to move to reconsider later.)

That motion to reconsider was itself subject to a “motion to lay on the table,” which would have killed the resolution. The motion to table failed, but only by 57-111-14, three votes short of two-thirds. Then there was a vote on the motion to reconsider itself, which passed 112-57-13, still two votes short of two-thirds.

Historically – but not in the film – a pro-slavery Representative then rose to a point of order, claiming that the two-thirds rule to applied the motion to reconsider because the underlying resolution needed a two-thirds vote, and that the motion had therefore failed. The Speaker ruled that the precedent of the House with respect to veto-override motions made the constitutionally-required super-majority applicable only on final passage and not on preliminary motions such as the previous question and reconsideration.

Then there was that final vote, the one shown in the film. One of the “nays” switched to “yea,” five abstainers voted “yea,” and Speaker Colfax cast his vote (rare, but not against the rules) which meant that the amendment passed by 119-56, 8 not voting. Three of the “ayes” voting “no,” or four of the abstainers doing so, would have been enough to switch the result.

In the film, one of the opponents makes an absurd objection to the Speaker’s casting his vote: not a very dramatic moment, even had it been real, because Colfax’s vote wasn’t needed to pass the resolution. But the film omits the two preliminary votes and the actual point of order. Including all three would have been overkill. But why not show the vote on the motion to reconsider, and then the point of order? Anyone keeping score in the Gallery – as Mary Lincoln is shown doing – would have known that the vote on that motion, if repeated on final passage, would have sent the amendment down, and that even with Colfax’s vote the proponents needed one switch from not voting or “nay” to “aye.”

I don’t know who was the first to switch, or what inducement or threat led him to do so, but that Member’s vote was the dramatic moment: not every bought vote stays bought, which presumably is why Lincoln & Co. made sure to have a few votes to spare in case of last-minute surprises.

So the filmmakers sacrificed both realism and drama to – what, precisely? I’m puzzled.

* Footnote In my misspent youth, I once saw Speaker McCormack take unanimous consent to the previous question, put the main motion, rule that the ayes had it on a voice vote, hear the motion to reconsider that vote and its second and the motion to table the motion to reconsider and its second, take the vote on the motion to table and find that the ayes had it (thus making it out of order to ask for reconsideration in the future), and bring the gavel down, all in one breath and without apparent hurry. At about the same age, I saw Brooks Robinson at third base. Both performances remain etched in my memory, though I couldn’t tell you what the bill was about or who won the ball game.

[Cross-posted at The Reality-based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.