ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Two days ago, Senator Robert Byrd of West Virginia delivered a major statement to the Senate regarding filibusters of judicial nominations. The following text is copied from the Congressional Record.

IN DEFENSE OF SENATE TRADITION

Mr. BYRD. Mr. President, opponents of free speech and debate claim that, during my tenure as majority leader in the United States Senate, I established precedents that now justify a proposal for a misguided attempt to end debate on a judicial nomination by a simple majority vote, rather than by a three-fifths vote of all Senators duly chosen and sworn as required by paragraph two of Senate rule XXII. Their claims are false.

Proponents of the so-called nuclear option cite several instances in which they inaccurately allege that I ``blazed a procedural path'' toward an inappropriate change in Senate rules. They are dead wrong. Dead wrong. They draw analogies where none exist and create cock-eyed comparisons that fail to withstand even the slightest intellectual scrutiny.

Simply put, no action of mine ever denied a minority of the Senate a right to full debate on the final disposition of a measure or matter pending before the Senate. Not in 1977, not in 1979, not in 1980, or in 1987--the dates cited by critics as grounds for the nuclear option. The Congressional Research Service confirms that only six amendments have been adopted since the cloture rule was enacted in 1917, and "each of these changes was made within the framework of the existing or 'entrenched' rules of the Senate, including rule XXII.''

In none of the instances cited by those who threaten to invoke the nuclear option did my participation in any action deny the minority in the Senate, regardless of party, its right to debate the real matter at hand.

Let us examine each of these so-called precedents in greater detail.

October 3, 1977--Enforcing Senate Rule XXII Against Improper Post-Cloture Delay: In 1977, the Senate invoked cloture on S. 2104, described as "a bill to establish a comprehensive natural gas policy.'' Shortly thereafter, two Senators began a postcloture ``filibuster by amendment,'' after a supermajority of the Senate had already chosen to invoke cloture (under the Senate rules) and had made clear its desire to bring debate on the bill to close. Though the Senate had voted to invoke cloture by an overwhelming vote of 77 to 17, two Senators nonetheless continued to offer amendments, to request quorum calls, and to offer amendments to amendments to preserve and extend time on the bill post-cloture. Their efforts, as confirmed by the Chair, ran directly contrary to the purpose of rule XXII, which is to limit debate.

The tactics employed were sufficiently egregious that the Senate spent 13 days and 1 night debating the bill, which included 121 rollcalls and 34 live quorums. Cloture having been invoked by an overwhelming vote, I then made the point of order 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.

Critics have alleged that my actions in this instance "cut off debate'' and somehow constitute a precedent for ending a filibuster of a judicial nominee by 51 votes before cloture has been invoked. But that argument is erroneous.

The Senate was operating postcloture. The Senate had voted 77 to 17 to end debate. I didn't do that; the Senate took that action.

If anything, my actions clarified that rule XXII means what it says. The text of rule XXII provides explicitly that, once cloture is invoked, ``no dilatory motion, or dilatory amendment, or amendment not germane shall be in order.'' Therefore, once Members have voted to invoke cloture, dilatory amendments or actions are simply out of order. Senators still retain their hour of postcloture debate. Senators still have the right of appeal.

Some have falsely alleged that I even acted to impede debate on that appeal, but they are mistaken yet again: Under the provisions of rule XXII, appeals from rulings of the Chair were not and are not debatable postcloture.

Nothing that was done in 1977 changed rule XXII or sent a shock wave through the Senate. Nothing that was done restricted the right of Senators to wage a filibuster against a nominee or legislation before cloture is invoked. No action taken affected the fundamental right of Senators to debate the natural gas deregulation bill; they had already debated the bill and, of their own volition, had decided to end their debate by an overwhelming vote. Instead, I sought to end dilatory tactics postcloture, when such tactics were, and remain today, prohibited by the plain text of paragraph two of rule XXII. I simply sought a ruling from the Chair to enforce Senate rule XXII.

In fact, when, in 1977, my point of order was sustained, the Chair in so doing noted that the point of order was consistent with the purpose of rule XXII, which "is to require action by the Senate on a pending measure following cloture within a period of reasonable dispatch.'' When the Chair's ruling in support of my point of order was thereafter appealed, that appeal was tabled in the Senate by another overwhelming vote of 79 to 14.

No Member of the minority in the Senate lost his right to debate the natural gas deregulation bill. Their ability to debate the bill was not tampered with or impeded in any way. Each Senator retained the right to debate, under the Senate rules, the bill both precloture and in the hour that was provided to each Senator under rule XXII postcloture.

Thus, contrary to current assertions, in 1977, a strong, bipartisan, supermajority of the Senate, supported by, among others, Minority Leader Howard Baker and myself, endorsed this necessary effort to halt postcloture dilatory tactics consistent with Rule XXII of the Standing Rules of the Senate. That is completely unlike the so-called nuclear option that is currently being discussed by some in the Senate. I sought to enforce rule XXII; not to destroy it.

January 15, 1979--Enforcing Rule XXII Against Improper Post-Cloture Delay: At the beginning of the new Congress in 1979, I, as Senate majority leader, introduced a resolution to make various changes to Senate rule XXII, the bulk of which addressed circumstances postcloture. Recently, on March 10, 2005, a Senator spoke on the Senate floor and stated that this resolution serves as a precedent for the nuclear option. However, my resolution served to enforce rule XXII, not to destroy it. My introduction of S. Res. 9 was influenced by the postcloture dilatory tactics that were suffered by the Senate during its consideration of the natural gas deregulation bill during the preceding Congress.

My efforts in that regard were supported, on a bipartisan basis, by Minority Leader Howard Baker who stated in response to my introduction of S. Res. 9:

I point out, as I am sure most of our colleagues are aware and will recall, that in the case of the most recent post-cloture filibuster, it was the majority leader and the minority leader, with the distinguished occupant of the chair, the Vice President, in the chair at the time, who managed to establish a line and series of precedents that created the possibility to at least accelerate the disposition of the controversy and conflict.

The point of the matter is that this is not, nor has it been, a matter that is purely partisan in its character.......

He added:

I share with the majority leader the belief that the post-cloture filibuster, a creature of fairly young age and recent development, is one that the Senate has not focused on adequately. I am prepared to do that and I want to do that.

As the minority leader in the Senate recognized at the time, the text of rule XXII provides explicitly that, once cloture is invoked, "no dilatory motion, or dilatory amendment, or amendment not germane shall be in order.'' Therefore, once Members vote to invoke cloture, dilatory amendments or actions are impermissible. No proposal of mine in 1979 restricted the right of Senators to filibuster a nominee or a piece of legislation prior to the invocation of cloture, consistent with Rule XXII of the Standing Rules of the Senate. And the position I took at the time enjoyed support on both sides of the aisle.

November 9, 1979--Strengthening Rule XVI Against Legislation on Appropriations Bills: Opponents of free speech and debate in the Senate cite a third event as a supposed basis for their proposed ``nuclear option.'' In November 1979, during consideration of a Department of Defense Appropriations bill, Senator Stennis raised a point of order that an amendment to change the rate of pay for military personnel, which had been offered by Senator Armstrong, constituted legislation on an appropriations bill and was therefore out of order under the express terms of Senate rule XVI. Legislative amendments to appropriations bills violate Senate rule XVI. However, by precedent, the "defense of germaneness'' arose. According to this practice, which evolved outside the text of rule XVI, if the House has acted first to "open the door'' to legislate on an appropriations measure, a Senator could respond with a legislative amendment, provided that it is germane to some House legislative language. If a point of order were made that an amendment constituted legislation, a ruling by the Chair on that question would be preempted by a vote on the germaneness of the amendment to the House language. This practice was justified only if the House had included legislative language in its bill. But this practice made a mockery of the rule if the House had not included any legislative language.

When Senator Stennis raised the point of order that the Armstrong amendment constituted legislation on an appropriations bill, Senator Armstrong asserted the defense of germaneness, meaning that his amendment was germane because it was relevant to the House bill. At that point, I made the following point of order:

I make the point of order that this is a misuse of the precedents of the Senate, since there is no House language to which this amendment could be germane and that, therefore, the Chair is required to rule on the point of order as to its being legislation on an appropriation bill and cannot submit this question of germaneness to the Senate.

I was concerned that, as a threshold matter, the amendment should not be considered because there was no House language to which the proposed amendment could possibly be germane. The Chair noted that while this was a case of first impression, my point was "well taken,'' and he sustained my point of order. Senator Armstrong then appealed the ruling of the Chair, and I moved to table that appeal. My motion was adopted by the Senate.

Critics claim that my actions in this instance were contrary to the plain language of rule XVI, because rule XVI at paragraph four states, "all questions of relevancy of amendments under this rule, when raised, shall be submitted to the Senate and be decided without debate.'' But their assertion that I acted in a manner contrary to rule XVI is false.

My point of order went not to the issue of legislating on an appropriations bill, but to a different issue: The concept of "defense of germaneness.'' Nowhere in rule XVI is there a reference to the concept of ``defense of germaneness.'' The source and subsequent application of defense of germaneness and its threshold test is not rooted in any Senate rule. Instead, it dates back to a precedent, which is identified by Riddick's Senate Procedure as a "theory,'' which was "enunciated'' by Vice President Marshall in 1916, that, "Notwithstanding the rule of the Senate ..... when the House of Representatives opens the door and proceeds to enter upon a field of general legislation ..... the Chair is going to rule, but of course the Senate can reverse the ruling of the Chair, that the House having opened the door the Senate of the United States can walk through the door and pursue the field.''

Second, my efforts were to avoid the misuse of precedent and thereby enforce the express provisions of Senate rule XVI, which prohibits legislation on an appropriations bill. It is only by precedent that germaneness justified a legislative amendment on an appropriations bill, and only if the House opened the door. My goal was to preserve proper precedent and strengthen rule XVI; not to weaken it, as the nuclear option would do to rule XXII. My actions did not establish any precedent to destroy the right of extended debate in the Senate. In fact, the Senate's action affected only the ability to offer certain amendments to particular legislation, and, even then, the Senate minority's rights to appeal a ruling of the Chair were fully preserved.

March 5, 1980--Enhancing the Right of Debate of Nominations on the Executive Calendar: Critics of extended debate also reference a motion I made in 1980 to proceed directly to a nomination on the Executive Calendar. They claim that this created a precedent making a motion to proceed to any nomination on the Executive Calendar nondebatable. It did no such thing.

At the time, a nondebatable motion to go into executive session automatically put the Senate on the first treaty on the Executive Calendar. This meant that moving to the Executive Calendar required consideration of treaties before nominations, simply because the Senate's Executive Calendar prints both treaties and nominations in the order in which they are reported out of their respective committees of jurisdiction, and treaties are then printed in the first section of the Calendar.

But the placement of treaties and nominations on the Senate Calendar was not and is not based on any great precedent or legal requirement that would elevate treaties to a position of prominence greater than nominations. Instead, the placement of treaties and nominations on the Senate Executive Calendar is simply the result of a clerical printing convention. There has never been a logical reason for the Senate to distinguish between a motion to proceed to a nomination and a motion to proceed to the first treaty. Because there is no substantive reason that the Senate should have to go to treaties before being able to consider a nomination, it seemed logical that the Senate should be able to proceed directly to a nomination on the Executive Calendar.

My motion to proceed directly to the first nomination, rather than a treaty, did not inhibit or frustrate Senate debate in any way. The Chair explicitly confirmed that it did not contravene any precedent or Standing Rule of the Senate. Moreover, it also did not restrict the ability of the Senate to filibuster the nomination itself. In fact, disposition of the nomination remained, as it is today, fully debatable in several respects. A nomination remains fully debatable when it comes before the Senate, and motions to proceed from one nomination to another are also fully debatable when the Senate is in executive session.

May 13, 1987--Enforcing Rule IV Against Improper Debate of a Motion To Approve the Journal: In 1987, a Republican minority led a filibuster seeking to prevent the Senate from considering a defense authorization bill. Prior to moving to the bill, I sought unanimous consent that the Journal of the preceding day "be approved to date,'' a routine request in the course of Senate business. The Journal is the official record of the proceedings of the Senate, and under Senate rule IV, the Journal of the preceding day must be read following the prayer by the Chaplain unless, by nondebatable motion, the reading of the Journal is waived.

In this instance, Senator Dole objected to my request that the Journal be approved by unanimous consent, and the question of whether the Journal should be approved was put to a vote. Under Senate rule XII, if a Senator declines to vote during a rollcall, he or she must, at the time his or her name is called, give a reason for not voting. In an unusual occurrence, Senator Warner advised the Chair that he "decline[d] to vote for the reason that I have not read the Journal.'' Rule XII requires that if a Senator declines to vote, the Presiding Officer must put a nondebatable question to the Senate on whether it is "permissible for the Senator to decline his right to vote on the issue.''

The Chair called for the vote to determine whether Senator Warner should be excused from voting on the Journal. However, before that vote was completed, Senator Dan Quayle stated that he, too, declined to vote, because he said, "I do not believe a Senator should be compelled to vote.'' The Chair asked the clerk to call the roll on whether to excuse Senator Quayle from voting, when Senator Symms stated that he, too, declined to vote for the same reason. At this point, there were four Senate votes pending. if additional Senators in the Chamber similarly chose to decline to vote, seriatim, the process could have continued forever.

Recognizing that, just a bit over a year previously, the Senate had deliberately amended rule IV to make the motion to approve the Journal a nondebatable motion, I made a point of order that the requests of the Senators to decline to vote were not in order. I stated:

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, to announce the vote on the motion to approve the Journal.

Through a series of subsequent motions and votes, I prevailed in rectifying what I observed at the time was an extraordinary situation illustrated by a series of, in essence, "votes within a vote.''

Contrary to erroneous allegations by some, my actions in this regard did not set a precedent that "changed Senate procedure to run contrary to the plain text of a Standing Senate Rule.'' In fact, the action I took achieved exactly the opposite result: It ensured that Senate procedure would conform more closely to both the intent and the plain text of Senate rule IV.

At the time, one Senator mistakenly stated that the Chair could not entertain a unanimous consent request to suspend the application of rule XII in this instance. But that is an incorrect understanding by a Senator who was referring to rule XII, paragraph 1--where Senators cannot seek to be added to a vote that they missed, and the Chair may not do it or entertain a request to do so, a rule that was not in question and has always been strictly enforced by the Chair--not rule XII, paragraph 2, which was in dispute at the time.

Again, the actions I took were to enforce both rules IV and XII. Should I, instead, have endorsed a procedure whereby one Senator after another could simply decline to vote and put each Senator's reasons for declining to vote to another vote? Should Senators have been permitted, one after another, to decline to vote, then force a vote on each one's reason for not voting, on what is a nondebatable question in a nondebatable posture? Had I not raised a point of order against this abusive practice, it could have been used in innumerable future circumstances, and the Senate would not be able to complete a vote on any measure or matter, ever. It would, again, have made a mockery of the Senate's rules. Keep in mind that, if the tactic were ever legitimized, it could be employed to prevent a judicial nominee from ever receiving a vote.

It should be further noted that the point of order I made applies only to proceedings on motions to approve the Journal. Both the Presiding Officer and I confirmed this specifically in response to a question from Senator Alan Simpson. As I then stated:

where Senators decline to vote on other rollcall votes in other situations--this point of order does not go to those. This point of order only goes to the unusual situation, the extraordinary circumstances, in which the Senate found itself today, when it was trying to act on a motion to approve the Journal to date, and when three Senators in succession stood to say, "Mr. President, I decline to vote on this rollcall for the following reasons.''

Elsewhere, I also expressly stated that, "for the legislative history,'' the precedential value of my point of order was "confined only to that situation in which the Senate is trying to complete a vote on a motion to approve the Journal to date ..... It is confined to that very narrow purpose.''

The Senate's decision on that day was fully consistent with the text of rules IV and XII, which provides expressly that the question of whether a Senator could decline to vote, "shall be decided without debate.'' The decision, once again, further enforced the existing rules of the Senate. This stands in stark contrast to the proposed nuclear option, which would contravene, by a simple majority vote, the express text of rule XXII, which applies to "any measure, motion, or other matter pending before the Senate,'' and which requires an affirmative vote of three-fifths of the Senators duly chosen and sworn.

Let me state, once again, that no action of mine cited by the proponents of the nuclear options has ever denied a minority in the Senate its right to full debate on the final disposition of a measure or matter pending before the Senate.

The steps discussed here have all gone toward strengthening or enforcing Senate rules, or clarifying the application of Senate precedents--not undermining them. 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 movement.