Update [2005-5-14 19:46:1 by Armando]: From the diaries by Armando. I just am sick of hearing this falsehood repeated and hope this ends it once and for all here at dailykos.
There's a persistent misunderstanding in certain circles about the nuclear option, that is, the schoolyard taunt that, "they started it."
Underlying the charge: Senator Byrd, in his capacity as Majority Leader, "has used parliamentary tactics and majority votes to accomplish procedural rule changes."
What such charges fail to note, in each of the examples cited, is that the changes were always executed by means well within the contemplation of Senate rules and not, as the execution of the nuclear option requires, in contravention of them.
One
poor soul at dKos
keeps demanding answers to these charges -- answers to which he'd be entitled but for his rather unfortunate insistence on resorting to
racial epithets when he finds himself in contentious disagreements.
Although this comment has been twice hidden, I revive them here to lay out the charges as listed:
In 1977, Byrd Broke A Filibuster Using A Simple Majority Of Senators. "In 1977, Byrd led a Senate majority in setting a precedent to address a loophole that then existed in Rule XXII's cloture device--the post-cloture filibuster. . . . The result was that a majority of Senators had succeeded in altering Senate procedures without changing the text of a Standing Senate Rule. . . . Byrd called up thirty-three amendments in succession, foreclosing all appeals along the way, and the filibuster was broken." (Martin B. Gold & Dimple Gupta, "The Constitutional Option To Change Senate Rules And Procedures: A Majoritarian Means To Over Come The Filibuster," Harvard Journal of Law & Public Policy, 2004, pp. 2262-64) (internal citations omitted)
In 1979, Byrd Broke A Filibuster By Threatening To Change The Rules, Arguing "This Congress Is Not Obliged To Be Bound By The Dead Hand Of The Past" And That Senate "Rules Have Been Changed From Time To Time." "In 1979, faced with a potential filibuster on his rules-change proposal, Senator Robert C. Byrd (D-WV) raised the possibility that the U.S. Constitution provides the majority with a method for overriding the Senate's cloture rule:
The Constitution in article I, section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.
. . .
The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time . . . . So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . . It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.
[I]t is my belief--which has been supported by rulings of Vice Presidents of both parties and by votes of the Senate--in essence upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress.
In 1980, Byrd Changed Senate Procedure For The Consideration Of Executive Nominations. "In March 1980, Byrd led the Senate Democrats in changing the Senate's procedures for the consideration of nominations. The Senate's Executive Calendar lists both treaties and nominations, in that sequence. Prior to March 1980, it had `been determined by a precedent that a motion to go into executive session, being nondebatable, [would] automatically put the Senate on the first treaty.' . . . On March 5, 1980, Byrd offered a motion [to enter executive session and proceed directly to the nomination of Robert White as Ambassador to El Salvador] . . . Senator Jesse Helms (R-NC) raised a point of order against the motion . . . . The Presiding Officer immediately sustained Helms's point of order: Under the rule . . . only a motion to go into executive session is in order. Byrd appealed the ruling, arguing that there was no logical reason for the Senate to distinguish between a motion to proceed to the first nomination and a motion to proceed to the first treaty. . . . That same day, the Senate rejected the ruling of the Chair by 38-54, almost completely on party lines. Due to Byrd's new precedent, motions to proceed to nominations are no longer debatable. (Martin B. Gold & Dimple Gupta, "The Constitutional Option To Change Senate Rules And Procedures: A Majoritarian Means To Over Come The Filibuster," Harvard Journal of Law & Public Policy, 2004, pp. 265-67)(emphasis added and internal citations omitted)
In 1987, Byrd Changed Senate Procedure "Contrary To The Plain Text Of A Standing Senate Rule." "In 1987, a Byrd precedent once again changed Senate procedure to run contrary to the plain text of a Standing Senate Rule. . . . Through a series of votes that ran almost entirely along party lines, Byrd succeeded in establishing three precedents that radically changed voting procedures under Rule XII." (Martin B. Gold & Dimple Gupta, "The Constitutional Option To Change Senate Rules And Procedures: A Majoritarian Means To Over Come The Filibuster," Harvard Journal of Law & Public Policy, 2004, pp. 267-68) (internal citations omitted)
What's the key to this one? It's not what the commenter provides us with, it's what he doesn't. You'll notice, of course, the extensive use of ellipses in the quotation. What's missing? I'll begin by reprinting the entirety of the cited section of the Gold/Gupta article (PDF), bolding the sections we were provided with. Why those parts? Because it's easier than bolding what was left out:
"In 1977, Byrd led a Senate majority in setting a precedent to address a loophole that then existed in Rule XXII's cloture device--the post-cloture filibuster. Senators Howard Metzenbaum (D-OH) and James Abourezk (D-SD) had set out to filibuster a proposal to deregulate natural gas prices. The Senate had invoked cloture, triggering Rule XXII's provisions limiting each Senator to one hour of debate and prohibiting any "dilatory amendment, or amendment not germane," but to no avail. Metzenbaum and Abourezk circumvented these limits by proffering a slew of amendments without debating them (thus preserving their time for debate) and then forcing quorum calls and roll call votes for each proffered amendment. Further, making points of order against the amendments would not save time or avert these filibusters by roll call. Although a point of order, if decided by the Chair, was not debatable, an appeal from the Chair's ruling was debatable. Under the Senate's rules, the minority could appeal the Chair's ruling on the point of order, debate the appeal, and thereby continue their delaying tactics. If a motion were made to table the appeal, Metzenbaum and Abourezk would secure a roll call vote on the tabling motion. The result was that by October 3, 1977, the Senate had spent "13 days and 1 night" debating the natural gas bill, which included "121 rollcalls" and "34 live quorums."
That day, Byrd set in motion a two-part plan to end this postcloture filibuster. First, he sought partially to reverse the Senate procedure requiring the Chair to wait for a point of order before ruling on a procedural defect:
I make the point that when the Senate is operating under cloture the Chair is required to take the initiative under rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order.
The Vice President sustained Byrd's point of order:
[T]he point of order is well taken. The Chair will take the initiative to rule out of order dilatory amendments which, under cloture, are not in order ... . and which on their face are out of order[.]
Abourezk criticized Byrd for attempting "to change the entire rules of the Senate during the heat of a debate ... on a majority vote" (that is, for attempting to exercise a variant of the constitutional option [Ed. note: not an accurate characterization]) and appealed the ruling. Byrd responded with a tabling motion, which carried 79-14. The result was that a majority of Senators had succeeded in altering Senate procedures without changing the text of a Standing Senate Rule. Armed with this new precedent, Byrd began calling up procedurally defective amendments filed by Abourezk and Metzenbaum. The Chair then ruled each amendment out of order without waiting for a Senator to raise a point of order against his ruling. Despite Byrd's assurances to Senators Howard Baker (R-TN), Edmund Muskie (D-ME), and Abourezk that the right to appeal would remain untouched if his point of order were sustained, Byrd exercised his Majority Leader's right of preferential recognition to call up the next amendment before Abourezk could appeal, thus mooting the possibility that Abourezk could appeal the earlier ruling. Byrd called up thirty-three amendments in succession, foreclosing all appeals along the way, and the filibuster was broken."
What does it mean?
The upshot is this: The 1977 filibuster had already been broken by the time Byrd executed his maneuver. Metzenbaum and Abourezk simply refused to acknowledge that fact. Rule XXII , as it stood before Byrd set this precedent, already made Metzenbaum and Abourezk's amendments out of order. Cloture had already been invoked under the existing rules, and Byrd's maneuver clarified the question of whether or not it would have teeth, that is, whether or not the chair was empowered to actually enforce the rule of its own volition, or whether it had to wait for another Senator to point out what everyone who could read the rule already knew: that the amendments were dilatory and out of order.
Note also that Byrd's tabling of Abourezk's appeal of the chair's ruling succeeded by a vote of 79-14, well in excess of the 2/3 majority needed to change Senate rules.
1979
I'll bold the key stuff for you, so that when I refer you to the rebuttal I've already given to this part, you'll understand where I'm coming from:
"In 1979, faced with a potential filibuster on his rules-change proposal, Senator Robert C. Byrd (D-WV) raised the possibility that the U.S. Constitution provides the majority with a method for overriding the Senate's cloture rule:
The Constitution in article I, section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.
. . .
The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time . . . . So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . . It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.
[I]t is my belief--which has been supported by rulings of Vice Presidents of both parties and by votes of the Senate--in essence upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress.
I now refer you to this rebuttal, posted here, plus Parts Four and Five of my nuclear option series at The Next Hurrah. They'll take you through the importance of timing with respect to previous Vice Presidential rulings on the appropriateness of rules changes by simple majority. In short, this is a highly questionable doctrine as it is, but even accepting it for the sake of argument, the precedent is clear: this is something permissible only at the beginning of a new Congress. Which is not where we are now.
1980
"In March 1980, Byrd led the Senate Democrats in changing the Senate's procedures for the consideration of nominations. The Senate's Executive Calendar lists both treaties and nominations, in that sequence. Prior to March 1980, it had `been determined by a precedent that a motion to go into executive session, being nondebatable, [would] automatically put the Senate on the first treaty.' . . . On March 5, 1980, Byrd offered a motion [to enter executive session and proceed directly to the nomination of Robert White as Ambassador to El Salvador] . . . Senator Jesse Helms (R-NC) raised a point of order against the motion . . . . The Presiding Officer immediately sustained Helms's point of order: Under the rule . . . only a motion to go into executive session is in order. Byrd appealed the ruling, arguing that there was no logical reason for the Senate to distinguish between a motion to proceed to the first nomination and a motion to proceed to the first treaty. . . . That same day, the Senate rejected the ruling of the Chair by 38-54, almost completely on party lines. Due to Byrd's new precedent, motions to proceed to nominations are no longer debatable.
What does it mean?
Here we have an example of pure Senatorial hardball. Pure both in the sense that it shows the extent to which a majority may exercise its power, as well as in the sense that it was executed entirely within the contemplation of the existing rules, breaking none.
The Senate rules have always contemplated that a majority may overrule or sustain the opinion of the chair at its election, and thereby set a precedent. The same prerogative is indisputably available to today's Republican majority.
But here's the key difference between this example and the one planned for the execution of the nuclear option: In 1980, when Byrd proposed a reading of Rule XXII that appeared to violate its meaning, the chair, advised by the Parliamentarian, rejected Byrd's point of order. A majority thereafter reversed the ruling of the chair, establishing its preferred precedent. The nuclear option, however, depends on the chair ignoring the advice of the Parliamentarian, and ruling contrary to established precedent.
This is crucial. If the chair were to rule in concordance with precedent in the execution of the nuclear option, as it did in 1980, it would be Frist and the Republicans appealing the ruling, and Reid moving to table the appeal. Were the Republicans then able to defeat the motion to table (by majority vote), the appeal would then be debatable, and thus subject to filibuster, bringing the nucleo-cons back to square one. It is therefore critical to the success of the nuclear option that the Senate's presiding officer do the dirty work of the majority for it, and break the rules from the chair, quite unlike the 1980 example.
1987
Here, I'll begin by adding back what's missing, bolding only what was provided in the excerpt, as before, and simply ask, Is this something the Republicans are proud of, and really thought that the spirit of the rules would be undermined by eliminating?:
"In 1987, a Byrd precedent once again changed Senate procedure to run contrary to the plain text of a Standing Senate Rule. A Republican minority had launched a campaign of delay to prevent the Senate
from taking up a Defense authorization bill. The minority invoked Senate Rule XII, which requires that during a roll call, if a Senator declines to vote on a call of his or her name, that Senator must give reason for doing so and the Presiding Officer must put a nondebatable question to the Senate on whether the Senator shall be excused from voting. During a roll call on a Byrd motion to approve the Journal, Senator John Warner (R-VA) declined to vote, explaining that he had "not read the Journal." In accordance with Rule XII, the Presiding Officer then initiated a vote to determine if Senator Warner should be excused. Before a vote could be announced, Senator Dan Quayle (R-IN) declined to vote on whether Warner should be excused. A vote followed on whether to excuse Quayle, during which Senator Steve Symms (R-ID) declined to vote. At that moment, four votes were stacked: the vote on Senator Byrd's original motion to approve the Journal; within it, the vote on whether Warner should be excused; within that vote, a vote on whether Quayle should be excused; and within that vote, a vote on whether Senator Symms should be excused. The tactic could be employed endlessly.
Byrd countered with a point of order. He posited that during a roll call on a motion to approve the Journal, repeated requests by Senators to be excused from voting were dilatory and out of order:
Mr. President, I make a point of order that the request of the Senator to be excused from voting is for the purpose of delaying the conclusion of the vote that the Journal be approved to date; that in amending rule IV, the Senate intended that a majority of the Senate could resolve the question of the reading of the Journal; I make my point of order that a request of a Senator to be excused from voting on a motion to approve the Journal is, therefore, out of order and that the Chair proceed immediately, without further delay ... .
Through a series of votes that ran almost entirely along party lines, Byrd succeeded in establishing three precedents that radically changed voting procedures under Rule XII." Prior to that day, dilatory actions were deemed out of order only after cloture had been invoked. Although cloture had not been invoked on the pending measure, Byrd's new precedents established:
First, a point of order may be made during a rollcall vote on, or subsumed by a vote on, a motion to approve the Journal that repeated requests by Senators to be excused from voting on any such vote is out of order as dilatory.
Second, repeated requests by Senators to be excused from voting on a vote on, or subsumed by a vote on, a motion to approve the Journal, when they are obviously done for the purpose of delaying the announcement of the vote on the motion to approve the Journal, are out of order.
Third, a Senator has a limited right to explain his reasons for declining to vote, but may not go on "forever" stating his reasons for not voting.
Although the precedents were technically limited to proceedings on a motion to approve the Journal, Senator Alan Simpson (R-WY) argued that their reach was far broader. He noted that Rule XII barred all motions and unanimous-consent requests to suspend its provisions. Simpson pointed out that the Senate had, in establishing three precedents that contradicted Rule XII, violated this provision. This, he explained, set a precedent that "a simple majority" could constrain debate even when the Standing Rules appeared to prohibit such an outcome.
Power play? Sure. Sustained by the vote of a simple majority? Sure. Available to be reversed by the current GOP majority? Absolutely, though I note there's been no rush to do so, despite Senator Simpson's objections. But an appropriate example illustrating that hypocrisy on procedural rules is a partisan trait? Nobody but a fool would believe that. Which is perhaps why it's such a popular belief among those who read only the most favorable excerpts from such a shaky article.
Conclusion
At bottom, the 1987 example is no different from the 1980 example, in that it was executed entirely within the acknowledged framework of the rules, whereas the nuclear option depends on convincing the supposed arbiter of the rules to cheat on the majority's behalf.
And that's what separates all of Byrd's maneuvers from the nuclear option. Byrd played hardball, but he never asked the Vice President to cheat and do his dirty work for him. When Byrd ran the Senate, Senators had to shoulder that burden directly.
