Gag rule

A gag rule is a rule that limits or forbids the raising, consideration or discussion of a particular topic by members of a legislative or decision-making body. Such rules are often criticized because they abridge freedom of speech, which is normally given extremely high value when exercised by members of legislative or decision-making bodies (see Parliamentary privilege and Congressional immunity). On the other hand, gag rules are typically defended on the ground that they help preserve consensus by placing potentially divisive controversies "off the table" of debate.

A present-day example can be found in the Dewan Negara (Senate) of Malaysia, which has a standing order prohibiting any member from proposing the repeal of those articles of the Malaysian Constitution that reserve certain privileges for Bumiputra (ethnic Malay) citizens.

A gag rule may be formally neutral, that is, forbidding discussions or arguments either for or against a particular policy. For example, William Laud, the Archbishop of Canterbury during the reign of King Charles I of England:

... forbade ministers to discuss the sublime mysteries associated with Calvin's doctrine of predestination. They could not preach it, nor could they preach against it. They could not mention it at all... For Laud, what was at stake was not so much the promotion of his own theological opinions as the suppression of the furor theologicus that had caused so much devastation in England and throughout Europe in the aftermath of the Reformation.

However, in practice, the effect of even an even-handed ban on advocating or opposing a particular policy will be to entrench the status quo.

Anti-slavery petitions in the United States Congress in 1831-1844

The gagging of anti-slavery petitions by Congress occurred from 1835 to 1844. Pro-slavery forces had prevented any discussion of slavery in Congress, so anti-slavery forces, starting in about 1831, had submitted petitions for the abolition of slavery, believing that since there was a right to petition the government as guaranteed in the First Amendment of the Constitution, such petitions, and thus slavery itself, would have to be discussed.

The pro-slavery forces responded with a series of gag rules that automatically "tabled" all such petitions, preventing them from being read or discussed.

The House passed the Pinckney Resolutions on May 26, 1836, the third of which was known from the beginning as the "gag rule" and passed with a vote of 117 to 68 (The first stated that Congress had no constitutional authority to interfere with slavery in the states and the second that it "ought not" do so in the District of Columbia.) From their inception, Representative (and former President) John Quincy Adams was a central figure in the opposition to the gag rules, which included the overwhelming majority of Northern Whigs. Since the original gag was a resolution, not a standing House Rule, it had to be renewed every session, and Adams and others had free rein until then. In January, 1837, the Pinckney Resolutions were substantially renewed, more than a month into the session. The pro-gag forces gradually succeeded in shortening the debate and tightening the gag. In December, 1837, the Congress passed the Patton Resolutions, introduced by J. M. Patton of Virginia. In December, 1838 the Congress passed the Atherton Gag, composed by Democratic States-Rights Congressman Atherton of New Hampshire, on the first petition day of the session.

In January, 1840, the House of Representatives passed the Twenty-first Rule, which greatly changed the nature of the fight - it prohibited even the reception of anti-slavery petitions and was a standing House rule. Before, the pro-slavery forces had to struggle to impose a gag before the anti-slavery forces got the floor. Now men like Adams or Slade were trying to revoke a standing rule. However, it had less support than the original Pinckney gag, passing only by 114 to 108, with substantial opposition among Northern Democrats and even some Southern Whigs, and with serious doubts about its constitutionality. Throughout the gag period, Adams' "superior talent in using and abusing parliamentary rules" and skill in baiting his enemies into making mistakes, enabled him to evade the rule. The gag was finally rescinded in December, 1844 by a vote of 108-80, all the Northern and 4 Southern Whigs voting for repeal, along with 78% of the Northern Democrats.

In the Senate in 1836, John C. Calhoun attempted to introduce a gag rule. The Senate rejected this proposal, but agreed on a method which, while technically not violating the right to petition, would achieve the same effect. If an anti-slavery petition was presented, the Senate would vote not on whether to accept the petition but on whether to consider the question of receiving the petition.

References

Richards, Leonard L (1986). The Life and Times of Congressman John Quincy Adams. Oxford: Oxford University Press.

Holmes, Stephen (1988). "Gag Rules, or the Politics of Omission." In Jon Elster and Rune Slagstad (eds) Constitutionalism and Democracy, pp 19-58.. Cambridge: Cambridge UP.: