Many reports on the late Robert Byrd’s long career as a US Senator are pointing out that Byrd literally wrote the book on Senate rules and history. And while it is true that Byrd did write the quintessential four-part history of the chamber, his real importance comes from the fact that it was Byrd himself who rewrote Senate rules and precedent.
Robert Byrd was in the Senate in 1975 when the number of votes needed for cloture was dropped from 67 to 60. Two years later, in an attempt to circumvent cloture, Senators Howard Metzenbaum (D-OH) and James Abourezk (D-SD) performed a post-cloture filibuster (PDF). They did this by offering a slew of amendments without debate, forcing a roll-call vote for each. Now elevated to Senate Majority Leader, Byrd decided he’d had enough, and he created a plan to destroy the possibility of a post-cloture filibuster by changing Senate precedent. With the help of then-Vice President Walter Mondale, Byrd raised a point of order to require the chair to rule all post-cloture dilatory amendments out of order. When Metzenbaum and Abourezk lost their appeal of the chair’s ruling, Byrd used the new precedent to rule all of their amendments out of order. With this he created the precedent that a bill, after securing the needed cloture vote, could not be stopped.
Just one year later, Byrd set in motion another plan to change how the Senate was run to get around a filibuster, this time of a nominee. Byrd was afraid that the nominee would face a double filibuster: the motion to proceed to executive session and then the motion to proceed to the first nominee. So when the moment came, Byrd offered a motion to proceed to executive session to consider the first nominee. This was declared a violation of Senate precedent, but Byrd won a simple majority appeal of the ruling by a 54-38 vote and in effect changed how the Senate operated.
Similarly, in 1979, Byrd faced the possibility of a filibuster of several of his proposed rule changes at the beginning of a new Congress. He stated clearly that he believed in the right of a simple majority of Senators to change the rules as Congress began its session. The threat, while never executed, helped Byrd enact many changes to Senate rules.
What’s the relevance of these instances? They show that the Senate’s rules and precedents are not fixed in stone since the birth of the Republic. They are modified and changed, often in a blunt manner, by the majority of members who serve in the chamber. Even Byrd, the man who was seen as the great defender of Senate tradition, did not hesitate to use a simple majority vote to change the rules and precedents so the chamber could do its actual work of governing. Byrd defended the rules of the Senate, but he rewrote, exploited and officially ignored those rules when it fit his needs.
I hope reporters and elected officials recall this part of Byrd’s history in the Senate and his showdown with Metzenbaum and Abourezk. As we watch the Senate become an ineffectual forum crippled by the ridiculous exploitation of its rules, remember that a majority of senators can put a stop to the nonsense if they want to. The Senate does not exist to protect its rules, traditions and precedents. The rules and precedents should only facilitate the Senate’s ability to execute its real, constitutionally prescribed duties. When and if the rules get in the way of that, they need to change.




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Beautifully and very clearly written. Thank you.
thank you Watou
Mastering the rules and their sub-text does seem to be a reasonable way to use the rules to get things done.
Hey Harry Reid? You might want to pay attention to this.
It certainly highlights the old maxim “Always know the rules.” You can’t safely ignore or change that which you do not understand, and the rules often have built-in ways of side-stepping the problems that they are imposing on you or your intentions.
Thanks for this, Jon. I expect that the same people who want to pretend that only George W. Bush can ever use reconciliation for anything will be glossing over this part of Senate history.
The Senate is just like the House in that the Supreme Court said the rules are basically what ever the majority says they are. The majority just likes playing weird games too much and its individual members are too drunk on their power granted by the Senate’s silly rules to act like it though.
Yes, but when a Senator who represents fewer than 1/306th of the national population (whether Murkowski, or Inhofe, or Ben Nelson) uses the filibuster to screw the other 306,000,000 of us, it is beyond time for the filibuster to go the way of the horse and buggy.
Beautiful post.
Thank you.
Well it is good to see Nancy Pelosi call for filibuster elimination. She should be by the founders intent the 2nd most powerful person in American. Now because of the broken Senate her power is about the same as some junior members of the extreme minority party in the Senate.
Byrd was a smart dude and unlike most, willing to express genuine emotion on issues that meant much to him. But his passing should also highlight the problem of “lifetime” appointments to the Senate. Byrd has essentially been a place keeper for the last 2-3 years. Despite his best efforts, West Virginia remains a backwater where most have failed to achieve enlightened attitudes about race and other cultural issues that Byrd accomplished. The Senate has become the place where great ideas die. I’m beginning to wonder if it has outlived its usefulness.
Yes, indeed!
Jon, the procedure Byrd used to get rid of the post-cloture PDF, is equivalently to “the nuclear option” for getting rid of the filibuster.
I’m hoping that statehood for PR, DC, and Samoa might help a bit as well.
Just one year later, Byrd set in motion another plan to change how the Senate was run to get around a filibuster, this time of a nominee… Byrd offered a motion to proceed to executive session to consider the first nominee. This was declared a violation of Senate precedent, but Byrd won a simple majority appeal of the ruling by a 54-38 vote and in effect changed how the Senate operated.
Great piece Jon. This line above makes me wonder why any President whose party controls the Senate puts up with filibuster of nominations. Since Byrd’s interpretation of Senate rules won a majority vote, it created a binding precedent on the chair unless 60 votes are there to reverse. Reid would only need to hold 41 Democrats to get an up or down vote on a nomination. Sadly even that may be beyond Reid’s abilities.
More and more I think Obama had one chance to get everything he needed in his first term in a one shot mega bill immediately after inauguration day (a la FDR’s banking bill). Stimulus, banking reform, healthcare, carbon tax, campaign finance reform, basically his entire first term agenda. No need to reinvent the wheel, in every case there were existing bills offered in previous Congresses that could simply be pasted together. Threaten the nuclear option if the Republicans tried to filibuster and proimse to disown and find a primary challenger for any Democrat who voted against. Take the pain early. Break arms to get the bill through the first week and he could spend the rest of his first term doing photo ops and, oh I don’t know, cleaning up the Department of Interior.
Of course, that’s just the alien space bats talking. It would be completely out of character for Obama, his M.O. is to make unilateral concessions to Republicans on everything from the stimulus bill last winter to the finreg bill this month– and then get few or no Republican votes in the trade. Ultimately, the problem with the Senate lies at the other end of Pennsylvania Avenue.
And if the Democrats really need more senators- they should encourage California to divide itself into 4 states along the boundary lines of the US District Courts (well, maybe throw Riverside County into the Southern District).
http://www.caed.uscourts.gov/caed/images/caed/carolmap.gif