Wednesday, April 26, 2017

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

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