SHEETS PULLED OFF BYRD:
BYRD WP OP-ED: Factually inaccurate, inconsistent with his voting record
-------------------------------------------------------------------------------
U.S. Sen. Robert Byrd (D-W.Va.) had an op-ed in the Washington Post today (‘Nuking’ Free Speech, arguing against the current Senate proposal to restore the rights of the majority and end the unprecedented filibusters against the President’s Judicial nominees. But his arguments were both factually wrong, and historically inconsistent with his own voting record.
Sen. Byrd said that restoring Senate tradition “could rob a senator of the right to speak out against an overreaching executive branch or a wrongheaded policy. It could destroy the Senate's very essence -- the constitutional privilege of free speech and debate.” But history—and Sen. Byrd’s own actions—prove otherwise.
In fact, Sen. Byrd is often credited with pioneering the Senate procedure he now derides as a denial of free speech and a threat to our liberties. Recall that it was Sen. Byrd who led the charge to establish new Senate precedents in 1977, 1979, 1980, and 1987 - including a number of precedents that were designed specifically to stop filibusters and other delay tactics that were previously authorized under Senate rules or prior precedents:
In 1977, Senator Byrd led the establishment of a new precedent in order to break a post-cloture filibuster on a natural gas deregulation bill, stating:
“I make 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." That precedent contravened prior precedent, which would have required the Chair to await a point of order from the floor.
In 1979, Senator Byrd led the establishment of a new precedent that allowed the Chair to rule on questions of germaneness raised during the consideration of appropriations bills - notwithstanding Senate Rule XVI, which states that all questions of germaneness on appropriations bills must be decided by the full Senate.
In 1980, Senator Byrd led the establishment of a new precedent to require an immediate vote, without debate, on any motion to go into executive session to consider a particular nomination. His new precedent was specifically designed, in his words, to "deal with a filibuster on the motion to proceed" to a nomination. Previously, a motion to proceed to a particular nomination was debatable. The new precedent was sustained by a vote of 54-38, and yet the precedent did not “rob a senator of the right to speak out against an overreaching executive branch,” as Sen. Byrd claimed in his op-ed.
In 1987, Senator Byrd caused establishment of a new precedent declaring that certain tactics were to be construed as dilatory during roll call votes and therefore always out of order no matter what - even though the text of the Senate rules had clearly authorized such tactics. Previously, dilatory tactics were out of order only after cloture had been invoked.
And in 1975, the Senate voted three times (51-42, 48-40, and 46-43) in support of the power of a Senate majority under Article I to change the rules. Those precedents forced the Senate to act and led to a major change in the cloture rule.
The Constitution and the U.S. Supreme Court:
* Article I, Section 5 of the Constitution clearly states that "[e]ach House may determine the Rules of its Proceedings."
* The U.S. Supreme Court has unanimously held that, unless the Constitution expressly provides for a supermajority vote, the constitutional rule is majority vote. [See United States v. Ballin (1892).]
As Sen. Byrd must surely know after decades in the Senate, a majority of Senators has also always possessed the constitutional power to establish new Senate precedents - including precedents that reverse prior precedents, and precedents that contravene the text of the standing rules of the Senate. And I think he was very clear in 1979 when he claimed exactly the opposite of what he averred in today’s op-ed:
“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.”
--U.S. Sen. Robert Byrd, Jan. 15, 1979
Sen. Byrd also claimed in the second graf that “President Bush has renominated 20 men and women to the federal bench, seven of whom the Senate rejected last year.” That charge, though, is simply inaccurate. NONE of President Bush’s judicial nominees have “been turned down in the Senate.” None. The nominees were denied a vote altogether—despite the fact that they all had (and have) bipartisan majority support. ALL would be confirmed if a partisan minority of the Senate would allow an up-or-down vote.
cornyn.senate.gov |
