The Purpose and Powers of the Senate, Part XXXXVIII: “As Long as We Take Up These Extraneous Matters We Can Not Do a Thing for the Distress of the Country”

    The exact means by which Prohibition would end was most definitely on the minds of the lawmakers of the 72^nd Congress who assembled for their lame-duck session in late November of 1932. Either they could proceed to other business and allow the overwhelmingly pro-repeal 73^rd Congress to address the fate of the 18^th Amendment however its members saw fit, or they could cobble together some kind of workable coalition and fashion a package of reforms that would please the sitting Wets without necessarily sidelining the remaining Drys. Unsurprisingly, it took little time for the leadership in both chambers to conclude that the latter course was preferable. This still didn’t clear the way for a speedy resolution, however, as the aforementioned Speaker Garner was very soon to learn. An avowed Wet, Garner was understandably eager to proceed to a vote on some manner of reform proposal as soon as the House was fully assembled. He accordingly chose to dispense with standard procedure – by which terms the Speaker did not actively propose legislation – and put forward his own version of a repeal bill on November 29^th. Unfortunately, in evident response to the Speaker’s enthusiasm, the proposal in question was rejected by the House Judiciary Committee by a vote of 13-6. The bill itself still made it to the House floor, but Democratic whips predicted a final tally of only 275 in favor, twelve votes short of the required two-thirds majority. In fact, the vote on December 6^th turned up an even worse result, with the “ayes” clocking in at only 272. Almost eighty former Drys had opted to change their tune and vote for repeal, but to no avail. Garner’s response to this rejection of his uncommon expression of initiative was to declare that the Prohibition issue was dead as far as the 72^nd Congress was concerned. Certain of his colleagues in the House later avowed that this was not for any lack of basic agreement. As Pennsylvania Republican James M. Beck (1861-1936) notably observed, House members at that time were less inclined to reject a repeal motion out of hand as they were affronted by Garner’s apparent attempt to badger them into action.    

    In any case, the House reacted to this rapid rejection of a wholesale repeal bill by then shifting its attention to a series of bills intended to amend the terms of the Volstead Act so as to allow for the sale and manufacture of low-alcohol bear and wine. It was a consolation, to be sure; an attempt to scrape up some kind of achievement from amidst the wreckage of a more ambitious proposal. But whereas Garner was perhaps too ready to abandon his desired objective after a single – admittedly bitter – rebuke, certain of his colleagues in the Senate were not so ready to give up hope. Indeed, the very next day, on December 6^th, 1932, Republican Senator John J. Blaine of Wisconsin (1876-1934) introduced the text of a joint resolution which would have modified the 18^th Amendment so as to allow individual states to determine whether or not to prohibit the manufacture and sale of intoxicating beverages within their respective jurisdictions. Initially a straight copy of the earlier Bingham proposal, the Blaine proposal was subsequently amended during its passage through the Senate Judiciary Committee and favorably reported out to the Senate floor on January 5^th, 1933. Thus altered, the proposal amendment would now grant Congress the concurrent power – alongside that of the states – to regulate or prohibit the consumption of intoxicating beverage in certain specific venues while also explicitly calling for ratification by the legislatures of the various states. As this represented a significant alteration to the terms originally proposed by Senator Bingham back in December of 1931 – particularly as it left the final fate of any repeal attempt in the hands of the generally Dry-supporting state assemblies – many Wets in the Senate understandably cried foul. Notwithstanding these objections, however, the resolution proceeded to the Senate floor. At which point, on February 14^th, the inevitable finally occurred: a group of the Senate’s remaining Drys began a filibuster of the draft amendment.

    In fairness, the term “group” is something of a misnomer in this instance. In point of fact, the filibuster was sustained by a single Senator, one Morris Sheppard of Texas (1875-1941). Something of a progressive – albeit one who still believed in racial segregation – Sheppard had either authored or supported many notable pieces of legislation during his thirty years of service in Congress between 1902 and the first months of 1933, including child labor laws, antitrust laws, and laws which extended the electoral franchise. Perhaps most notable of all, however, was his status as one of the most fervent Drys in the whole of the United States Congress. Not only had he authored or co-authored a series of laws which, between 1913 and 1916, laid the groundwork for Prohibition, but he personally introduced the Senate resolution which eventually became the 18^th Amendment in 1917 and helped to draft the enforcing Volstead Act in 1919. Prohibition, one might reasonably conclude, was very close to Sheppard’s heart. And as it appeared as though said policy was on the brink of being dismantled, the Senator from Texas quite understandably sprang into action to save it. His weapon of choice being the filibuster – the purpose of which is to hold the floor until such time as the legislation being debated is withdrawn or two-thirds of those assembled vote for cloture – Sheppard was in need of some manner of material to read aloud. Ultimately, he settled upon a report on the work of the League of Nations conducted between July 24^th and September 30^th, 1922, a document simultaneously so irrelevant to those assembled – the United States having neglected even to join the League – and so mind-numbingly bureaucratic as to drive even the most unimaginative Senator into a state of boredom-induced unconsciousness. “I feel justified in fighting this motion with every weapon at my command,” Sheppard stated at the time, whereupon he proceeded with his soporific recitation.

    What followed was an oration which lasted nearly eight hours in total, and during which time Senator Shepperd politely but firmly rejected all requests that he stand down. When asked by New Hampshire Republican – and Senate President pro tempore – George H. Moses (1869-1944), for example, why he insisted on reading the entire League report into the record at 10:00 pm on a Tuesday, Sheppard simply responded that if he opted not to continue, the chamber would go into recess until the following day. When Moses then asked why Sheppard could not continue with whatever he was doing the following day, Sheppard’s similarly taciturn response was to declare that, “I wish to finish to-night, if I can.” Sometime later, after a further exchange between Sheppard and Moses – the latter of whom, as a former ambassador stationed in Greece and Montenegro, seemed to delight in asking very specific questions about the activities of the League in those nations – the Senator from Texas then yielded for a question from Maryland Democrat Millard Tydings (1890-1961). Evidently somewhat less amused by Sheppard’s “learned disquisition” than his colleague from New Hampshire, Tydings then proceeded to rather pointedly remind his fellow partisan from Texas of the stakes which he believed the American republic was then facing. “We have only 16 legislative days left of this Congress [,]” he avowed,

That there are 12,000,000 people out of employment, 5,000 banks have failed, there is economic chaos from one end of the Nation to the other, and as long as we take up these extraneous matters we can not do a thing for the distress of the country.

When Sheppard responded to this very trenchant observation by once more simply asserting that, “The country will also be frightfully injured if the liquor traffic is ever restored [,]” Tydings sought a second opportunity to speak, during which time he made his point more forcefully still. While the Senator from Maryland was, by his own admission, struck by the, “Sincerity and idealistic motives of the Senator from Texas [,]” he nevertheless felt the need to point out,

This is not a question of whether we shall have liquor or no. liquor. This is a question as to whether or not the American people have a right to pass upon the form of government under which they live. They can either adopt it or reject it; but the Senator from Texas, by the very long oration he is delivering – which has now gone on for an hour and a half and promises to go for at least another hour and a half – is denying to the people of America the right to alter or amend the form of government under which they live.

Perhaps unsurprisingly, Sheppard remained unmoved. “This motion [,]” he said, “is a step toward the return of the liquor traffic. I am fighting it at every step, and I feel justified in doing so.”

    Such was the essential dynamic of the next several hours. Time and again, Sheppard’s colleagues sought to challenges his conviction to both stand in the way of the business of Congress and obstruct the process by which the American people altered their system of government, and on each and every such occasion, Sheppard firmly declined to be budged. By his own admission, while,

Ordinarily, I am in favor of the submission of any question when a substantial number of the people desire the question submitted […] National prohibition […] was adopted by the States in 1920, only 13 years ago. Powerful wet minorities have not permitted it to have a fair trial. That is why I am not in favor of submitting now the question of its repeal. It would be unfair to prohibition and to the people to submit the question at this time.

Evidently, it was up to the Senator from Texas to decide whether it was entirely “fair” of the American people to change their minds on certain policy matters. If it had been twenty years instead of thirteen since the enactment of Prohibition, would he have been as adamant that the regime had not been granted its due? Given the man’s obvious sense of hubris, one fairly wonders whether any length of time would have satisfied him. Plain and simple, he was in favor of Prohibition, and was willing to stand in the way of his countrymen indefinitely unless they gave way to his views on the matter. This obstinance, particularly in the face of an ongoing economic crisis that continually demanded to be addressed, was doubtless infuriating to many of Sheppard’s colleagues in the Senate. And, quite predictably, this is what led to his ultimate undoing.

    Indeed, perhaps more galling than Sheppard’s desire to prevent a vote on Blaine’s aforementioned resolution was his insistence, when confronted, that he was doing nothing of the sort. Consider, to that end, the following exchange. Over eight hours into his intentionally obfuscatory oration, Senator Sheppard was asked pointedly by South Carolina Democrat James F. Byrnes (1882-1972) when, in his opinion, “the United States Senate will vote on the Blaine resolution?” When Sheppard answered – with characteristic reserve – that he was sure, “it will vote some time tomorrow [,]” Byrnes responded by seeking further assurance that Sheppard would not seek to delay that outcome as well. “As far as the Senator from Texas is concerned,” he said, addressing the chair in accordance with parliamentary procedure, “will he say that he will not seek to prevent a vote on the resolution to-morrow?” Notwithstanding his actions during the eight hours immediately preceding, Sheppard flatly replied that, “I am not seeking to prevent a vote.” When Senator Byrnes then pressed further, in effect seeking a promise from his colleague from Texas that, “after this night he will do nothing to prevent a vote [,]” Sheppard once more responded with outright denial. “I am not making an effort now to prevent a vote [,]” he said. “I am simply making a speech on a very important subject.” This, recall, was in spite of the fact that Sheppard had said some hours previously on the subject of the pending resolution that, “I am fighting it at every step, and I feel justified in doing so.” Such blatant insincerity – combined with the damage which he was willfully doing to the ability of the Unitec States Congress to address the nation’s ailing economic condition – was evidently too much for his colleagues to bear any longer. After a little more pointed badgering by the aforementioned Senator Moses, Sheppard was finally forced to acknowledge that the chamber had turned decisively against him. Asked, once more, to answer a series of deliberately obscure and technical questions by the former diplomat from New Hampshire, the Senator from Texas surrendered the floor and allowed Oregon Republican Charles McNary (1874-1944) to ask the unanimous consent of those present to schedule a vote on the Blaine resolution for one o’clock the following afternoon. Hearing no objections, the chair ruled that it was so ordered. The way forward was finally clear.

    Over the next two days, the Senate accordingly proceeded to a substantial discussion of the merits of Senator Blaine’s proposal. Several amendments were put forward, some successful, some not. Arkansas Democrat Joseph Robinson (1872-1937), for one, pointedly requested that the section of Blaine’s draft resolution requiring that the proposed amendment be considered by the legislatures of the various states be replaced by a clause which returned said responsibility to conventions specially summoned for that purpose. After a lengthy debate – during which the assembled Senators discussed both the legal implications and the practical concerns inherent in such an untested approach to ratification – a vote was finally held and the motion was carried, 45-15. Shortly thereafter, Robinson then moved for a second amendment which would have stripped out the section of the original Blaine proposal providing for concurrent authority on the part of the federal government and the states to regulate the sale and consumption of intoxicating beverages. Such overlapping responsibility, a number of Senators observed accordingly, was sure to prove unsustainable if ever tested in the slightest, particularly as it would offer the sanction of the Constitution to potentially contradictory statutes. In consequence of such arguments – and by a narrow margin of 33-32 – this amendment was carried as well. The appropriate details having thus been settled, the full resolution was at last put to a vote on February 16^th, 1933.

    This being the United States Senate, of course – in which every member tends to think themselves not only a great orator but one of the universe’s supreme arbiters of what is right and what is wrong – the assembled lawmakers could not simply proceed to the business at hand. First, every Senator who cared to do so had to add to the record an excerpt of their personal philosophy concerning the 18^th Amendment, Prohibition, saloons, and the general state of American public morality as of the early 1930s. Once this far from insignificant task had been accomplished, those few remaining Senators who were somehow still convinced that they might carry the day rather than their colleague Mr. Blaine then had to attempt to rally their fellow legislators around some manner of alternate or modified proposal. In this instance, it was Virginia Democrat Carter Glass (1858-1946) who came forward with the most substantial substitution, offering to put in place of Blaine’s Senate Resolution 211 his own Senate Resolution 202. Under the terms thereof, the 18^th Amendment would be still repealed, but the consumption of intoxicating beverages on the same premises where they were sold would be prohibited and Congress and the states would exercise concurrent authority over the enforcement of the same. Effectively an attempt by Glass to both reverse the previous day’s deletion of the “concurrent authority” clause of Blaine’s original proposal and prevent the reemergence of the neighborhood saloons whose ubiquity during the previous century had so animated temperance activists in the first place, this eleventh-hour attempt at a rather clumsy bait and switch ultimately went down to failure by a margin of 46-38.

    Following a further failed attempt by Pennsylvania Republican David Reed (1880-1953) to once more reinstate the “concurrent authority” clause, the vote on Senate Resolution 211 was then, at long last, called. The roll was heard, the yeas and nays were recorded, and the final count was announced. One week after it was reported out of committee and two days after Senator Sheppard’s attempted filibuster, the Senate had finally voted to adopt a resolution which would, if approved by the American people, bring about the repeal of the 18^th Amendment. The tally of votes, as recorded, was 63-23, five more than was necessary to reach the required two-thirds threshold. In a final send-off to the proposal – and a more than fitting coda to the events of the 14^th – Massachusetts Democrat David Walsh (1872-1947) then sought to add to the record a of encomium of sorts to the aforementioned Senator Sheppard. Though he had spent the better part of an entire working day attempting to stop his colleagues from submitting the repeal of the 18^th Amendment to the wisdom of the American people, Walsh attempted to remind his compatriots that in 1917, when the resolution that went on to become the 18^th Amendment was under debate in the Senate, Sheppard had famously declared that, 

The Members of Congress who will not vote for the submission of a constitutional amendment to the decision of the States, where it belongs, unless he personally believes it should become a part of the Constitution, usurps the function of the States, arrogates to himself and the Federal Government a prerogative that belongs to the States, and violates the very essence of their sovereignty.

When, at that moment, Sheppard reentered the Senate chamber, however, his response to having his own words spoken back to him could not reasonably be describes as being particularly gracious. Though his filibuster had been defeated, and though the relevant resolution had been overwhelmingly approved, the gentleman from Texas remained self-righteous to the last. “I referred to the statement to which he alluded in my speech on January 16 last, the thirteenth anniversary of prohibition,” he declared,  

And said that I did not believe that statement a precedent for action under the present circumstances. I do not believe that prohibition has had a fair trial and I do not think it should be submitted at this time. It would be unfair both to prohibition and to the people to do so.

Such is the nature, it would seem, of the Senate and of Senators. Everyone believes themselves the sole judge of right and wrong and everyone will seek to affirm this fact even in the face of defeat.   

    There remained, of course, the little matter of obtaining the approval of the House. Fortunately, the progress of Senate Resolution 211 was being closely watched by the legislators working at the other side of the Capitol. Indeed, the Democratic leadership had been poised to spring into action for some days prior to the February 16^th. To that end, House Majority Leader Henry T. Rainey (1860-1934) and the newly re-energized Speaker Garner had between them already agreed to pursue a suspension of the rules in order to secure as speedy a vote as possible. When, on February 20^th, Rainey asked for his suspension, Garner accordingly granted it, thereby limiting debate on the measure to a total of twenty minutes. This having been accomplished, a vote was quickly held and the resolution was resoundingly adopted, 289-121. The Secretary of State, one Henry L. Stimson (1867-1950), thereafter acknowledged receipt of the proposed amendment and swiftly set about advising the states of the need to ready conventions for the purpose of ratification. Less than two weeks later, the 72^nd Congress adjourned for the last time, having completed the task which many of its leaders had initially thought impossible. Both chambers had voted, in the face of delays, obstacles, and reverses, to submit a constitutional amendment to the American people proposing the repeal of Prohibition. And so, for the first time ever, as the spring of 1933 began in earnest, these same people began to assemble so as to make their voices heard.