Senator Byrd, the “Nuclear Option,” and the Fate of the Senate

By Ray Smock

The Senate just changed the interpretation of one of its rules (Rule XXII) to reduce the number of votes necessary to invoke cloture and end certain filibusters from a supermajority down to a simple majority of 51 votes. This rule change, a precedent rather than an actual change in the language of the rule, supposedly makes it easier for the Democratic majority in the Senate to confirm the president’s nominees for the federal bench and for executive branch positions requiring Senate confirmation. Rule XXII was not changed in regard to bills before the Senate or for voting on nominees to the Supreme Court.

The Senate website has information on the history of cloture and the filibuster.
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Senator Byrd’s name has come up frequently in the wake of the Senate’s action regarding Senate Rule XXII, citing his longstanding defense of minority rights and his earlier opposition to the so-called “Nuclear Option.”

Senator Byrd said if the Senate failed to guarantee minority rights including the right to filibuster and delay the business of the Senate, then the Senate would become just like the House, a chamber that runs by the numbers of majority rule. He knew well that rules changed or reinterpreted for the benefit of one party in the majority could backfire when the party majority in the Senate changed. Byrd often said that the role of the minority leader in the Senate was to run the minority but the roll of the majority leader was to run whole Senate, not just the majority.
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Just weeks before his death, Senator Byrd, in poor health and very frail, was wheeled into the hearing room of the Senate Committee on Rules and Administration, where Chairman Charles Schumer of New York was presiding. Senator Byrd made what turned out to be his final statement on the importance of maintaining the filibuster. This is what he said in the Senate hearing on May 19, 2010.

Senators voting, 2010

Senator Byrd’s Opening Statement
“The Filibuster And Its Consequences”

On September 30, 1788, Pennsylvania became the first state to elect its United States senators, one of whom was William Maclay.  In his 1789 journal Senator Maclay wrote, “I gave my opinion in plain language that the confidence of the people was departing from us, owing to our unreasonable delays. The design of the Virginians and of the South Carolina gentlemen was to talk away the time, so that we could not get the bill passed.”

Our Founding Fathers intended the Senate to be a continuing body that allows for open and unlimited debate and the protection of minority rights.  Senators have understood this since the Senate first convened.

In his notes of the Constitutional Convention on June 26, 1787, James Madison recorded that the ends to be served by the Senate were “first, to protect the people against their rulers, secondly, to protect the people against the transient impressions into which they themselves might be led… They themselves, as well as a numerous body of Representatives, were liable to err also, from fickleness and passion.  A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose against impetuous councils.”  That “fence” was the United States Senate.

The right to filibuster anchors this necessary fence.  But it is not a right intended to be abused.
During this 111th Congress in particular the minority has threatened to filibuster almost every matter proposed for Senate consideration.  I find this tactic contrary to each Senator’s duty to act in good faith.

I share the profound frustration of my constituents and colleagues as we confront this situation.  The challenges before our nation are far too grave, and too numerous, for the Senate to be rendered impotent to address them, and yet be derided for inaction by those causing the delay.
There are many suggestions as to what we should do.  I know what we must not do.

We must never, ever, tear down the only wall – the necessary fence – this nation has against the excesses of the Executive Branch and the resultant haste and tyranny of the majority.
The path to solving our problem lies in our thoroughly understanding it.  Does the difficulty reside in the construct of our rules or in the ease of circumventing them?

A true filibuster is a fight, not a threat or a bluff.  For most of the Senate’s history, Senators motivated to extend debate had to hold the floor as long as they were physically able. The Senate was either persuaded by the strength of their arguments or unconvinced by either their commitment or their stamina.  True filibusters were therefore less frequent, and more commonly discouraged, due to every Senator’s understanding that such undertakings required grueling personal sacrifice, exhausting preparation, and a willingness to be criticized for disrupting the nation’s business.

Now, unbelievably, just the whisper of opposition brings the “world’s greatest deliberative body” to a grinding halt.  Why?

Because this once highly respected institution has become overwhelmingly consumed by a fixation with money and media.

Gone are the days when Senators Richard Russell and Lyndon Johnson, and Speaker Sam Rayburn gathered routinely for working weekends and couldn’t wait to get back to their chambers on Monday morning.

Now every Senator spends hours every day, throughout the year and every year, raising funds for re-election and appearing before cameras and microphones.  Now the Senate often works three-day weeks, with frequent and extended recess periods, so Senators can rush home to fundraisers scheduled months in advance.
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Forceful confrontation to a threat to filibuster is undoubtedly the antidote to the malady.  Most recently, Senate Majority Leader Reid announced that the Senate would stay in session around-the-clock and take all procedural steps necessary to bring financial reform legislation before the Senate.  As preparations were made and cots rolled out, a deal was struck within hours and the threat of filibuster was withdrawn.

I heartily commend the Majority Leader for this progress, and I strongly caution my colleagues as some propose to alter the rules to severely limit the ability of a minority to conduct a filibuster.  I know what it is to be Majority Leader, and wake up on a Wednesday morning in November, and find yourself a Minority Leader.

I also know that current Senate Rules provide the means to break a filibuster.  I employed them in 1977 to end the post-cloture filibuster of natural gas deregulation legislation. This was the roughest filibuster I have experienced during my fifty-plus years in the Senate, and it produced the most-bitter feelings. Yet some important new precedents were established in dealing with post-cloture obstruction.  In 1987, I successfully used Rules 7 and 8 to make a non-debatable motion to proceed during the morning hour.  No leader has attempted this technique since, but this procedure could be and should be used.

Over the years, I have proposed a variety of improvements to Senate Rules to achieve a more sensible balance allowing the majority to function while still protecting minority rights. For example, I have supported eliminating debate on the motion to proceed to a matter (except for changes to Senate rules), or limiting debate to a reasonable time on such motions, with Senators retaining the right to unlimited debate on the matter once before the Senate.  I have authored several other proposals in the past, and I look forward to our committee work ahead as we carefully examine other suggested changes.  The Committee must, however, jealously guard against efforts to change or reinterpret the Senate rules by a simple majority, circumventing Rule XXII where a two-thirds majority is required.

As I have said before, the Senate has been the last fortress of minority rights and freedom of speech in this Republic for more than two centuries.  I pray that Senators will pause and reflect before ignoring that history and tradition in favor of the political priority of the moment.

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United States Capitol

Reporters have asked me about what Senator Byrd’s reaction would be to this change in how Rule XXII is interpreted, if he was still with us. Especially in light of the statements from some congressional scholars and many other observers that this rule change forever changes the Senate.

I have no way of knowing what Byrd’s reaction would be to events in 2013, three and a half years after his passing. This is why here at the Byrd Center for Legislative Studies we let the extensive record that Senator Byrd left us speak for itself whenever we can. We can point to what Senator Byrd actually said in the context of the time he said it.

But we are also mindful that as close followers and students of the United States Congress and the U.S. Constitution, we have an obligation to provide our own context for matters related to the history of the Senate that go beyond the context of Senator Byrd’s remarkable legacy.

In 2010, with almost his last breath, Senator Byrd opposed changing the cloture rule. Yet his statement recognized he had also been a Senate leader who did from time to time change the rules or the way they were used.

The one thing that Senator Byrd sought above all else was that the Senate should always strive for the goal of doing its business by consensus, which protects all Senators and best serves the goals of the national interest over party interest. This is the great historical precedent that should be paramount regardless of the rules, which do change from time to time, if not in actual language but in how they are interpreted or utilized in new ways. This is why Senator Byrd always passed along the lesson he learned from his teachers in the Senate, like Richard Russell of Georgia, that Senators needed to know the rules and the precedents if they wanted to be effective senators.

Striving for consensus often means unlimited debate and bending to the needs of the minority. The Senate was never meant to be a smaller version of the House of Representatives, where the majority can work its will without consideration of the minority. The House, too, runs best when it goes the extra mile to find bipartisanship, but the history of the House shows clearly how the majority does rule by sheer numbers most of the time.

The other aspect of the Senate’s conduct that was of most concern to Senator Byrd was that the Senate not give away its Constitutional powers to the Executive Branch. He fought long and hard to keep the Senate’s power in the Senate in an era that saw a growing “imperial presidency.”

In his book Losing America: Confronting a Reckless and Arrogant Presidency (2004) Senator Byrd told the story of his struggle to stop the headlong rush into the Iraq War. While the book is highly critical of the war policy of President George W. Bush, it is also a strong critique of the Senate for failing to fully debate our entrance into this war. No president, Byrd said, should have the power to declare war. That awesome responsibility rested with Congress, yet, as he said in one of his finest speeches, the Senate stood “passively mute.”

Earlier, Senator Byrd fought long and hard against the line-item veto which would allow a president to strike out parts of the appropriations bills approved by Congress. Byrd saw this as an erosion of the Congressional power of the purse in favor of the executive branch.

Changing the filibuster rule to make it easier for a president to get his nominees for the federal bench and executive positions approved is clearly another erosion of the prerogatives of the Senate in favor of the presidency. But there is nothing “nuclear” about this. It is not like a bomb going off; it is more like slow erosion.

Senator Byrd viewed the Senate as the vital and “necessary fence” that protected the nation from the excessive power that has over a long period of time gravitated steadily toward the White House. This is the part of his message that the Senate and the nation should not forget.

It is my opinion that it is too soon to tell if the change in the way Rule XXII is used to allow a simple majority vote on some categories of presidential nominees is the “Nuclear Option” touted in the media and among the critics of this change.

We always find popular shorthand language to describe political conduct. Once Watergate happened, any scandal or crisis in Washington had to have a “gate” as part of its name. The “Nuclear Option” became a dramatic phrase to suggest the extreme nature of changing this fundamental rule dealing with cloture, the way the Senate ends debate. “Nuclear” suggests laying waste to the Senate rules, not merely changing or reinterpreting them.

This hyperbole also suggests that the Senate itself will never be the same again. This may be the case. But just naming something “nuclear” does not make it so. The Senate of 2013 is not the Senate of 1789; it is not the Senate of 1917, when Rule XXII was adopted to stop eleven senators from filibustering Woodrow Wilson’s plan to arm merchant vessels during wartime.

The Senate must always be able to find a way to do its business even if some of those ways have fundamentally changed the institution over time. During the first 128 years of the Senate, it operated without any cloture rule. It operated on consensus of the members. Senators from both parties agreed to work together to get things done even when they had objections. This is the most fundamental level of compromise: A gentleman’s agreement.

But this is not the same country as it was in the past, and this is no time for nostalgia. No senator loved the Senate and its traditions and rules more than Senator Byrd did. But he also was called a dictator when he found it necessary to change the rules. The Senate must always be mindful of its past and one of its great strengths is its respect for the institution and its traditions and a respect and trust that all members of that body must have with one another to make the Senate work.
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The Senate can and will change its rules and how they are interpreted from time to time. In the end, however, there will never be a substitute for the simple trust that one senator must have with another, across party lines. A senator’s word, and his or her ability to keep that word, is worth all the rules ever written. Trust is the central ingredient that is in short supply right now. A lack of trust among senators could kill the Senate more quickly than any rule change.