Historical comparisons are a tricky business, and wrong examples teach dangerous lessons. Take loose comparisons between this government shutdown and the previous 17. Nate Silver and others suggest that this shutdown will not harm the Republican Party because the last one cost them only two house seats. More controversially, the sheer number of previous shutdowns legitimates this one as a political tactic. If there were 17 recently, what makes one more so awful?
This shutdown has no precedent in living memory. Our recent ones concerned budget disputes, new legislation, or substantive restrictions on the allocation of money. Now, Republicans seek to repeal a statute, a statute that has been exhaustively legitimated through all political channels, including a Supreme Court ruling, two presidential campaigns, and 41 failed repeal attempts by House Republicans. To understand our current crisis, we must travel back more than a century. In 1879, the Democrats threatened to defund the federal government unless Republican President Rutherford B. Hayes repealed laws protecting the right of freed slaves to vote against the use of terror and violence by groups like the Ku Klux Klan. The Democrats’ threats backfired, and Republicans swept to victory in election of 1880. The parallel should serve as a warning to today’s conservative obstructionists that their tactics are self-defeating and illegitimate.
Like health care today, in 1879 the issue at stake was subject to ferocious public contestation. The Enforcement Acts had put teeth in the 15th Amendment, which guaranteed that the right to vote would not be denied on the basis of race. The Acts made it a federal crime to use force, bribery or intimidation to interfere with voting. More radically, it empowered the President to employ federal marshals to investigate violations and to dispatch troops to keep order at the polls. In the 1870s, President Ulysses Grant used this new authority several times, most notably to dismantle the Klan.
The reception of Obamacare and the Enforcement Acts is strikingly similar. Both laws split a polarized nation along partisan lines with its opponents claiming the law trampled upon state rights and the Constitution. In both cases, sustained opposition and poor execution shook the nation’s confidence in the law.
After winning both Houses of Congress in the midterm elections of 1878, Democrats pledged to shutdown the government unless Hayes would accept the repeal of the Enforcement Acts. Although they had sufficient numbers to pass a repeal through Congress, they lacked the two-thirds majority necessary to override Hayes’ veto. To circumvent Hayes, Democrats attached the repeal as riders to key Appropriation Acts. Between April 29, 1879 and June 15, 1880, Hayes issued seven vetoes.
The threat to defund the government shifted the public focus from the substantive issue of Reconstruction to the tactical one of using appropriation riders to overturn established laws. Hayes claimed that the matter was simply one of fair play, “the controversy is in no sense partisan and is not a question of race or color.” This was ground on which Hayes could win. The “Battle of the Riders,” as it came to be known, rejuvenated an ailing Republican party. Before Radical Republicans had called for Hayes to be “driven over, neck, heels, and boots,” but now Republican clubs across the nation fired thirty-eight-gun salutes to the President.
After Hayes’ seven vetoes, Democrats relented and passed clean appropriations bills. They included a face-saving measure to repeal the meaningless test oath, which required jurors to swear allegiance to the Union. The substance of the Enforcement Acts escaped unscathed. Whereas Republicans once dreaded the 1880 election, they now powered through to win the Presidency, retake the House, and tie with Republicans for control of the Senate.
Even as debt negotiations begin, House Republicans still maintain the government will remain shuttered unless Obamacare is delayed for one year. The Enforcement Acts controversy offers three lessons for our current predicament. First, the House Republicans’ stand is self-defeating. As with the Enforcement Acts, our “Battle of the Riders” has shifted attention from the substance of the Obamacare to the tactics used to repeal it. Republicans have lost a key opportunity to call attention to the poor rollout of the law and united the Democratic Party against their intransigence.
Second, Democrats must offer Republicans some face-saving measures to end this mess. In politics, the temptation to humiliate your opponents is strong, but this would be an egregious mistake. Just as Hayes accepted the repeal of the juror test oath, Obama must offer some symbolic gesture to provide Republicans cover.
Lastly, it is illegitimate to use budget brinksmanship to repeal a statute that was the central issue of multiple elections. The last time this happened, Democrats threatened a shutdown so that states’ rights could trump the meaning of the Civil War and the right to vote. The similarities between the tactics of those Southern Democrats and today’s House Republicans are haunting. Today’s conservatives should learn from history, and stop repeating it.
Joshua Braver is the co-director of the Yale Colloquium on Representative Government. He holds a J.D. from Yale Law School and a masters degree from Yale Political Science.
