Robert C. Byrd on cloture and the filibuster

Byrd’s opinions relating to the filibuster ultimately derived from his understanding of the Senate’s role in the American system of government.  He fully endorsed the opinion that “the Senate is the proverbial saucer intended to cool the cup of coffee from the House”, claiming that only “as long as the Senate retains the power to amend and the power of unlimited debate, the liberties of the people will remain secure.”[1] 

To Byrd, filibusters were a feature, not a bug.  He argued that "We ought to forget about streamlining... the Senate was not meant to be streamlined" [2], and approvingly quoted Adlai Stevenson’s assertion from his farewell address that “Great evils often result from hasty legislation; rarely from the delay which follows full discussion and deliberation”[3].  He complained of new Senators lacking institutional patriotism, “coming over here from the House of Representatives and immediately trying to make this a second House of Representatives”.[4]

Yet, Byrd was very much aware that there were limits to the burdens imposed by the filibuster which would be tolerated – and therefore careful to ensure that it did not impose them.  In his career, particularly as majority leader, he was a leading advocate of reform when the filibuster threatened to mutate from a guarantor of comity and the rights of sizeable minorities, to an instrument for obstruction and extortion by a few.  In this, he was clearly an heir to the tradition of Southern Senators who believed that in order for the filibuster to be respected on matters of great significance, it must be exercised with restraint at other times. 

The clearest example of this, was his move to break the 1977 Metzenbaum-Abourezk post-cloture filibuster on natural gas legislation[5], which “tied up the senate for 13 days and 1 night”.  Drawing a fresh interpretation of Rule XXII, Byrd called on the presiding officer, Vice President Mondale, to rule 30 amendments out of order without points of order even being raised by a Senator on the floor.  This was done, and the amendments disposed of within the course of a few minutes, even though Byrd agreed with Metzenbaum and Abourezk on the substance of the issue[6].

Byrd saw his opposition to the postcloture filibuster, to a large extent, as a defense of the integrity of the filibuster as a whole.  Moving to limit amendment activity post-cloture in 1979, he argued: “I believe the time has come for the Senate to modify Senate rule XXII. At the present time, there is no Senate rule XXII, for all intents and purposes. Cloture may be invoked on a matter and, after having been invoked by 60 Senators-a constitutional three-fifths-that matter may be drawn out interminably by a single Senator, by two or three Senators, or by a larger group of Senators… Three-fifths of the Senators who vote in a given instance to invoke cloture are entitled to fair play”.[7]  Similarly, in 1987, he sought to prevent dilatory tactics being employed in approval of the Senate Journal,[8]  and in 1975 sponsored changes to Rule XXII, reducing the threshold for cloture from two-thirds of Senators “present and voting,” to three-fifths of Senators “duly chosen and sworn”.[9]

While defending the right of a substantial minority of Senators to block legislation, or to continue debate indefinitely, Byrd had little sympathy for dilatory tactics intended to prevent the initiation of debate.   He has argued that “One filibuster is enough.  If a minority of the Senate has enough votes, 41, to kill a bill it should allow the bill to at least be brought up for debate on the merits.”[10]  Indeed, he was a strong advocate of certain scheduling tactics to evade filibusters on the Motion to Proceed, such as using Rule VII (“that a motion to proceed to take up a matter other than a rules change during the first 2 hours of a new legislative day shall be determined without debate”)[11] and the use of executive sessions on nominations to make the initiation of debate free from dilatory tactics.  As a consequence of his actions in 1980[12], the motion to proceed with considerations of nominations is no longer debatable.  He has also advocated making the motion to proceed generally nondebatable.[13] 

It would therefore be unfair to suggest that Robert Byrd saw the principle of “unlimited debate” purely as a ruse to shift the decisive pivot from the 51st to 60th Senator, or to enhance the capacity of members to achieve legislative gridlock through dilatory tactics.  His use of, and references to, the filibuster represent an underling belief that extended and high-profile legislative debate allows a minority of legislators within Congress the chance to rouse a latent majority in the nation, and over time the opportunity them to bear on their colleagues.   

Byrd was therefore critical of attempts by the majority leaders to use their powers to curtail or evade substantive debate.  He therefore opposed the recent practice of majority leaders to swiftly file for cloture while filling the amendment tree[14].  In 2007, similar concerns for extended debate led him to author a change to Rule XXVIII, to make it more difficult to include new matter that had not been debated in either house of Congress in a conference report, by requiring sixty votes.[15]

Byrd therefore drew a distinction between support for the filibuster on matters of substance “in the most extraordinary circumstances”,[16] and opposition to it on procedural on minor matters.  Rather than presenting an elevated form of debate for the nation’s consideration, Byrd saw substanceless filibusters, such as the postcloture filibuster as creating “ill feelings and deep divisions in the Senate” and making “the Senate a spectacle before the Nation”.[17]

For this reason, he was frequently concerned with trivial use of the filibuster, which may have jeopardized its ability to fulfill this essential function.  Specifically, in recent years Byrd complained about the willingness of Senate Majority Leaders to honor holds, advising the incoming Republican majority to wield more procedural control over the chamber: "I never tolerated a hold; I never allowed any hold to keep me from attempting to take up a measure… I hope the Republican leader will resort to rule VIII once in a while, if for nothing else but to recall to all of us that it is in the rule book."[18]   Yet, since Byrd has left the position (and since the 1988 campaign finance filibuster), none of his successors have been willing to force members to follow through their threats to carry out filibusters.  He recently lamented: “Senators are obliged to exercise their best judgment when invoking their right to extended debate. They also should be obliged to actually filibuster, that is go to the Floor and talk, instead of finding less strenuous ways to accomplish the same end. If the rules are abused, and Senators exhaust the patience of their colleagues, such actions can invite draconian measures”.[19]

Byrd was initially an opponent of attempts to appeal to the chair and a simple Senate majority to “reform by ruling”, yet arguably employed the practice in 1977, 1978, and 1987.  As a result, in 2005, Mitch McConnell tried to rechristen the Nuclear Option the “Byrd Option”.[20]  Yet, Byrd argued that year that “We were talking about the nuclear option, so-called constitutional option. There is nothing in the Constitution about it. It is an unconstitutional option.”[21]

In summary, Byrd’s view was essentially that: “The filibuster is a device by which a single Senator can bring the Senate to a halt if that Senator believes his cause is just.   But our partisan warfare has often transformed this unique, fundamental Senate tool into a political weapon which has been abused. As a result, there have lately been efforts to abolish it. If this should ever happen, a vital and historic protection of the liberties of the American people will be lost, and the Senate will cease to function as the one institution that has provided protection for the views and the prerogatives of a minority”.[22]  Although Byrd later disavowed his 14-hour filibuster against the 1964 Civil Rights Act, his justification of the filibuster as necessary for rearguard efforts on matters of high importance would suggest that efforts of that type (if not precise substance) remained the archetype of his concerns.

[1] Remarks at orientation of new Senators in 1996, widely, yet imprecisely cited.

[2] Cong Rec: 4-Jan-1995, p44

[3] Cong Rec: 2-Oct-1992, p30315

[4] Cong Rec: 4-Jan-1995, p41

[5] Cong Rec: 8-Feb-1979, p2132

[6] Cong Rec: 2-Oct-1992

[7] Cong Rec: 15-Jan-1979, p143

[8] Cong Rec: 13-May-1987, p12259

[9] Byrd Statement to Senate Committee on Rules and Administration: 22-Apr-2010

[10] Cong Rec: 15-Jan-1979, p143

[11] Cong Rec: 4-Jan-1995, p39

[12] Cong Rec: 5 Mar-1980, p4731

[13] Cong Rec: 28-Apr-1993

[14] Cong Rec: 18 Nov 2002

[15] Byrd Statement to Senate Committee on Rules and Administration: 22-Apr-2010

[16] Byrd Statement to Senate Committee on Rules and Administration: 22-Apr-2010

[17] Cong Rec: 15-Jan-1979, p143

[18] Cong Rec: 4-Jan-1995, p41

[19] Byrd Statement to Senate Committee on Rules and Administration: 22-Apr-2010

[20] Cong Rec: 23-May-2005: p10823

[21] Cong Rec: 12-Dec-2005

[22] Cong Rec: 6-Jan-2009

The History of Reconciliation and the Byrd Rule

Reconciliation originated with the 1974 Congressional Budget and Impoundment Control Act – initially to facilitate deficit-reduction, by allowing points of order to be called to restrict revenues and spending.   In 1975, Russell Long realized that it could be used to limit debate on and restrict amendments to tax legislation from his committee.[1]  From 1980, reconciliation bills increasingly included non deficit-reduction items, such as those violating jurisdictions of other committees, increasing spending or reducing revenues.[2]

In 1981, a contested ruling by parliamentarian Bob Dove permitted the new GOP majority to push through a springtime reconciliation bill to cut $35 billion from the budget. That action ran counter to the early design of the Budget Act, which contemplated reconciliation as a year-end process allowed only after Congress adopted a second budget resolution.[3]

On June 22 1981, the Senate agreed with majority leader Baker and minority leader Byrd to strike extraneous matters from S.1377 the year’s Omnibus Reconciliation Act.  Baker feared that allowing such extraneous provisions to be included in a reconciliation bill “would evade the letter and spirit of rule XXII” and “create an unacceptable degree of tension between the Budget Act and the remainder of Senate procedures and practice."[4]

The Byrd rule originated on October 24, 1985, when Senator Robert C. Byrd, offered Amendment No. 878 (as modified) to S.1730, the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985.  The 1985 reconciliation bill, Byrd argued, included 122 extraneous provisions.  He charged reconciliation was a “Pandora’s Box”, and a threat to “the deliberative process in this US Senate”.[5]  The Senate adopted the amendment by a vote of 96-0.  On December 19, 1985, the Senate adopted a resolution that extended the application of portions of the statutory provision to conference reports and amendments between the two Houses.[6]

On Oct 13, 1989, the Senate adopted an amendment, sponsored by the leadership of both parties, which went further than the Byrd Rule in its definition of extraneousness, and sought to combat the tactical use of reconciliation to restrict debate. Mitchell asserted repeatedly: “The purpose of the reconciliation process is to reduce the deficit.” He argued that “the reconciliation process has in recent years gone awry.  The special procedures included in the Budget Act as a way of facilitating deficit reduction items became a magnet to other legislation which is unrelated to the objective of reducing the deficit.” Senator Byrd argued: “A reconciliation bill is a super gag rule, the foremost ever created by this institution.  Normal cloture is but an infinite speck on the distant horizon when compared with a reconciliation bill… a super, super, colossally super, gag rule”.[7]

The Byrd rule was formalized as part of the 1990 bipartisan budget deal, and incorporated it  into the CBA of 1974 as Section 313 (2 U.S.C. 644).[8]

In 1993, when Clinton and Mitchell wanted to use reconciliation to pass healthcare reform, Byrd declared it out of bounds, and the parliamentarian agreed.[9]

In 1993, the reconciliation process faced its biggest challenge.  As the deficit reduction bill headed to conference with the House, Senator Domenici unveiled a list of nearly 200 provisions in the House-passed bill that, he said, would trigger parliamentary objections if they were included in the final version.[10]  Representative John Dingell protested that reconciliation “made the Senate parliamentarian more powerful than the Speaker of the House."[11]  Dan Rostenkowski fumed after over 80 pages of statutory language with broad bipartisan support were stripped out of a Medicare title.[12]  In December 1993, Martin Olav Sabo, chairman of the House Budget Committee complained that the Byrd rule greatly distorted the balance of power between the two bodies and that strict enforcement of the Byrd rule “requires that too much power be delegated to unelected employees of the Congress.”  He denounced the bar against including authorizations savings in reconciliation, the forcing of piecemeal legislation, incentives to use counterproductive drafting techniques to mitigate effects, and a bar against provisions achieving savings or promoting efficiency when the Congressional Budget Office was unable to assign particular savings to them.  The Joint Committee on the Organization of Congress was directed to make recommendations on changes in the budget process .  The 103rd Congress saw 3 bills moved to more clearly delineate the Byrd rules.  Yet, none of these managed to pass.[13]

Richard May, Republican staff director of the House Budget Committee during the 1995 budget debate called the Byrd Rule a "very convenient excuse" used by senators who oppose a House-passed proposal. May alleged that "the interpretation of the Byrd Rule would change, depending on what the issue was."[14]

On 21 May 1996, Minority Leader Daschle raised a point of order challenging an attempt by the Republican majority to pass a trio of reconciliation bills, one of which would have cut taxes but would not have contributed to deficit reduction.  Democrats were concerned that this was an attempt to use reconciliation to pass legislation that normally would require 60 votes, and that it would establish a precedent that would open the floodgates for the majority to circumvent filibusters on a vast array of legislation. Following the advice of parliamentarian Robert Dove, the presiding officer, James Inhofe (R–OK), rejected the point of order.  Daschle appealed the ruling and after extended debate, the chair's ruling was upheld on a strict party-line vote, 53–47.[15]  Yet, the upshot of Daschle's maneuver -- bringing a vote on a procedural question – was precisely to cement the precedent (that reconciliation could be used to cut taxes) he was trying to stop.  However, in this 1996 debate, Daschle also got the parliamentarian to rule that tax cuts moved under reconciliation protections could not last beyond the time frame of the budget resolution, unless they were offset in some way.[16]

Democrats were furious at Dove – Jim Exon (D-NE), then the Budget Committee's ranking Democrat, arguing: “Today's parliamentarian rules in favor of the people who appointed him.” [17]  Dove later had a change of heart and grew to believe that it was inappropriate to use reconciliation to cut taxes.

Republicans have argued that in 1997, reconciliation was used to protect a deficit-reduction package backed by President Bill Clinton that included permanent tax cuts. But Democrats responded that this legislation was a legitimate use of reconciliation because it also called for offsetting tax increases and spending cuts, and because its overall aim was to reduce the deficit.[18]

Budget resolutions for FY2000 and FY2001 were the first to recommend substantial reductions in revenue through the reconciliation process without offsetting savings to be achieved in spending programs.  Democrats did not contest the use of reconciliation for tax cut bills in 1999 and 2000.[19]  In 2001, Democrats did not challenge the use of reconciliation to pass the first round of President Bush's tax cuts with less than 60 votes, even though parliamentarian Dove had since disavowed his 1996 decision. Democrats believed that Republicans, given their intensity concerning the tax cuts, would again use a ruling from the chair to establish another precedent that would further limit minority rights.[20]

Rick Santorum argued that "the suggestion that you can use reconciliation to raise taxes but not cut taxes doesn't make a whole lot of sense."  Robert Byrd argued that this use of the reconciliation process to cut taxes, was an inversion of its original intent – to reduce the deficit.[21]  In the 110th Congress, the House and Senate adopted rules changes barring the consideration of legislation under reconciliation that would lead to deficit increases.[22]


[1] Robert Dove at Mar 12, 2010 American Enterprise Institute discussion on "Use of Senate Filibuster" http://www.c-spanvideo.org/program/id/220941 at approximately 0:51:30 to 0:52:30
[2] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[3] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[4] Budget Process Law Annotated – 1993 edition, William Dauster, pp229-246.
[5] 131 Cong. Rec. 28968 (1985), Senate - Thursday, October 24, 1985
[6] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[7] Budget Process Law Annotated – 1993 edition, William Dauster, pp229-246.
[8] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[9] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[10] "Running up against the Byrd Rule", September 4, 1993, Richard E. Cohen, The National Journal, Vol. 25, No. 36; Pg. 2151
[11] "Running up against the Byrd Rule", September 4, 1993, Richard E. Cohen, The National Journal, Vol. 25, No. 36; Pg. 2151
[12] "The Octopus That Might Eat Congress" by David Baumann, The National Journal, May 14, 2005
[13] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[14] "The Octopus That Might Eat Congress" by David Baumann, The National Journal, May 14, 2005
[15] "Legislative Obstructionism," Annual Review of Political Science Vol. 13: 297-319 (May 2010), Gregory Wawro and Eric Shickler.
[16] Parks, Daniel J. "Byrd Seeks a Way to Stop Tax Bill From Passing by Simple Majority Vote." CQ Weekly Online (March 10, 2001)
[17] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[18] Parks, Daniel J. "Byrd Seeks a Way to Stop Tax Bill From Passing by Simple Majority Vote." CQ Weekly Online (March 10, 2001)
[19] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[20] "Legislative Obstructionism," Annual Review of Political Science Vol. 13: 297-319 (May 2010), Gregory Wawro and Eric Shickler.
[21] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[22] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf