Appropriations question?  Visit the Committee website.

E-mail
Senator Byrd

Leadership.      Character.      Commitment.

The News organizations seeking more information should call Senator Byrd's Communications Office at 202-224-3904.  To hear portions of many of Senator Byrd's speeches, visit the Radio page.  Also, high-resolution photographs are available from many events.

Remarks by Senator Byrd

Delivered on April 25, 2005

Upholding the Tradition of Freedom of Speech

Senator Byrd participated in a forum discussion at the Center for American Progress on the dangers of the "nuclear option" to end freedom of speech in the Senate. In the coming days, the Senate Republican majority may attempt to use the sheer force of numbers to break Senate rules and end freedom of speech on judicial nominees.

"That 150 lawyers should do business together (in the U.S. Congress) ought not to be expected." Those are the words of Thomas Jefferson.

Now comes the so-called Nuclear Option, or Constitutional Option to prove him right. This poisoned pill, euphemistically designated "the nuclear option," has been around a long time -- since 1917, in fact, the year the cloture rule was adopted by the U.S. Senate. It required no genius of Brobdingnagian proportions to conjure up this witch's brew. All that it takes is (1) to have the chair wired; (2) to have a majority of 51 votes to back the chair's ruling; and (3) a determined ruthlessness to execute the power grab.

Over the 88 years since 1917, however, no White House and no party in control of the Senate has ever resorted to the use of this draconian weapon in order to achieve its goal. Until now. Why now? It is because a determined minority in the Senate has refused to confirm 10 of 215 nominees to federal judgeships submitted by President George Bush during this first term as President. Since his reelection, President Bush has resubmitted 7 of the 10 nominees who failed of confirmation in his first term. Hence, a heavy-handed move is about to be made to change the rules by disregarding the standing rules of the Senate that have governed freedom of speech and debate in the Senate for over 200 years. The filibuster must go, they say.

Obstructive tactics in a legislative forum, although not always known as filibusters, are of ancient origin. Plutarch reported that, while Caesar was on sojourn in Spain, the election of Consuls was approaching. "He applied to the Senate for permission to stand candidate," but Cato strongly opposed his request and "attempted to prevent his success by gaining time; with which view he spun at the debate till it was too late to conclude upon anything that day." Hey, the filibuster has only been around 2,064 years, since circa 59 B.C.!

Filibusters were also a problem in the British Parliament. In 19th century England, even the members of the cabinet accepted the tactics of obstruction as an appropriate weapon to defeat House of Commons' initiatives that were not acceptable to the government. In this country, experience with protracted debate began early. In the first session of the First Congress, for example, there was a lengthy discussion regarding the permanent site for the location of the Capitol. Fisher Ames, a member of the House from Massachusetts, complained that "the minority . . . . makes every exertion to . . . delay the business." Senator William Maclay of Pennsylvania complained that "every endeavour was used to waste time, . . ." Long speeches and other obstructionist tactics were more characteristic of the House than of the senate in the early years.

There have been successful filibusters that have benefited the country. For example, in March 1911, Senator Owen of Oklahoma filibustered a measure granting statehood to New Mexico, arguing that Arizona should also be a state. President Taft opposed the inclusion of Arizona's statehood because a provision of Arizona's state constitution permitted the recall of judges. Arizona later attained statehood, at least in part because senators took time to make the case the year before. Another example occurred in July 1937, when a Senate filibuster blocked FDR's Supreme Court-packing plan until public opinion turned against the plan.

Freedom of speech and debate is enshrined in Article I, Section 6, of the U.S. Constitution. The roots run deep. Before the British Parliament would proclaim William III and Mary as king and queen of England, they were required to swear allegiance to the British Declaration of Rights, which they did on February 13, 1689. They were then declared joint sovereigns by the House of Commons. The declaration was converted into the English Bill of Rights by statute on December 16, 1689, the 9th Article of which guarantees freedom of speech and debate in Parliament in words similar to those in our own Constitution, Article I, Section 6.

So now, for the first time in the 217 years since 1789, the tradition of freedom of speech and debate in the Senate is under a serious threat of extinction by the majority party through resort to the nuclear option.

Marty Gold, deservedly respected for his knowledge of the Senate rules and precedents, and 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 3/5s vote of all Senators duly chosen and sworn as required by Paragraph 2 of Senate Rule XXII. Their claims are false. Utterly 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 cockeyed comparisons that fail to withstand even the slightest intellectual scrutiny. My detailed response to these false claims and allegations appears in the March 20, 2005, edition of the Congressional Record. But, 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 it 1977, not in 1979, not in 1980, not in 1987 -- the dates cited by critics as grounds for the nuclear option. 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.

Now why can't reasonable Senators on both sides of the aisle act in the best interests of the Senate, the Constitution, and the country by working together to find a way to avoid this procedural Armageddon? President Gerald Ford always said that he believed in friendly compromise and called compromise "the oil that makes governments go."

When I was a mere lad in southern West Virginia, I once accidentally threw a wooden airplane I had crafted through the glass of a window in a neighbor's house. The neighbor's name was Mr. Arch Smith. He was angry, and I was scared. Into the house I went to plead with Mr. Smith not to tell my dad. I knew that a belt thrashing awaited me if he did. I promised to pay Mr. Smith .35 cents for the windowpane if he would stay mum about the accident. I would raise the .35 cents by running errands for a friendly lady next door. We struck a deal. We compromised. And my dad never learned of the incident until after I had paid my debt. That compromise saved me a licking, and paid for Mr. Smith's broken window. The sweet art of compromise solved our dispute.

Of course, the Senate itself is the result of a compromise which solved a dispute. The Senate answered the plea of the smaller states for equality and a forum where they could have equal representation and minority views could be heard. Because of that famous action, the Great Compromise of July 16, 1787, the Senate and the House balance each other, reflecting majority rule and minority rights like halves of the same apple in our Republic, and achieving a delicate balance - - a finely tuned, exquisitely honed accommodation of tensions which has endured for over 200 years. To paraphrase the words of James Madison, the Republic has been structured to, "guard against the cabals of a few . . .," as well as against the "confusion of a multitude. . . ."

But, how each House of Congress would maintain that balance was left to the discretion of the two bodies. Article I, Section 5, of the Constitution reads, "Each House [of the Congress] may determine the Rules of its Proceedings." Clearly, the Senate and the House are empowered by those words in our national charter to set the rules which govern their proceedings, and enable each body to best perform its Constitutional functions. This of course includes Senate rules governing debate and the procedures for changing its rules. And let's not forget the precedents. Disraeli said, "a precedent embalms a principle. . . a principle that has been acted upon and recognized by those who preceeded us."

The Constitution, under Article II, Section 2, also requires a President to submit his selection of Federal judges, members of his own cabinet, and certain other high-ranking officials to the Senate for its "advice and consent." The Framers allowed the Executive only to propose. It was left to the Senate to dispose. There is no stipulation in the Constitution as to how the Senate is to express its advice or give its consent. President Bush incorrectly maintains that each nominee for a federal judgeship is entitled to an up or down vote. The Constitution doesn't say that. It doesn't even say that there has to be a vote with respect to the giving of "its consent." The Senate can refuse to confirm a nominee simply by saying nothing and doing nothing. In Section 2, Article II, it says, ". . . and by and with the advice and consent of the Senate, [He] shall appoint ambassadors . . . Judges of the Supreme Court, and all other Officers of the United States . . . ."

Just as in Article I concerning the setting of Senate rules, Article II allows the Senate the freedom to determine how it will use its advice and consent powers. The choice of the Senate as the single entity to work with the President on the selection of life-tenured federal judges seems to strongly indicate the Framer's desire for scrutiny by the House of Congress uniquely designed for the protection of minority views. The Framers could have selected the majoritarian House of Representatives for such a duty. They did not. In fact, they totally excluded the House. They made a conscious decision to delegate the "advice and consent" function to the United States Senate.

But, suppose the President's party controls the Senate, and therefore controls the votes of a majority in the Senate? Where then, is the check on Presidential power? The filibuster is the minority's strongest tool in providing the Constitutional curb on raw Presidential power when it comes to nominations and the federal courts. Of course, the President's party could occupy 60 seats in the Senate, and that would be enough to break any filibuster except when amending the rules. But, 60 votes is a high threshold, and does provide an effective check on the abuse of power. Why would we ever want to eliminate this important check on Presidential power? Haven't we always had a healthy suspicion of too much power in the hands of a King or any President regardless of party affiliation?

The filibuster is the final bulwark preventing a President from stacking the courts (as FDR tried to do in 1937) if his political party holds a majority in the Senate. Without the ability by a minority to defeat cloture by a supermajority vote, that slim wall holding back the waters of destruction of a fair and independent judiciary, ruptures. Other liberties enumerated in the bill of rights can then also be washed away by a President who stacks the courts to reflect a political agenda. Freedom of speech, freedom of religion, all could be gone, wiped out by a partisan court, beholden to one man: the President.

The threat of the so-called "nuclear option" puts us on a dangerous course. Yet, incredibly, today we stand right on the brink, maybe only days away, from destroying the checks and balances of our Constitution. What has happened to the quality of leadership in this country that would allow us to even consider provoking a Constitutional crisis of such major proportions? Where is the gentle art of compromise? Edmund Burke said, "All government - - indeed, every human benefit and enjoyment, every virtue and every prudent act - - is founded on compromise and barter." As I have said earlier, the nuclear option has been around for years. It could have been employed at anytime. Yet, no leader of either party chose to go down that path because the consequences are so dire. Why have we arrived at such a dangerous impasse?

Reaction to recent decisions handed down by Federal Courts has fueled the drive towards this act of self destruction. Many citizens, religious people, angered by a feeling of years of exclusion from our political process, are deeply frustrated. I am in sympathy with such feelings. I do not agree with many of the decisions which have come from the courts concerning prayer in school, and prohibitions on the public display of religious items.

For example, relating to freedom of religion, Article I states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . ." In my opinion, the courts have not given equal weight to both of these clauses but have stressed the first clause while not giving enough weight to the second clause "or prohibiting the free exercise thereof; . . . ." I have always believed that this country was founded by men and women of strong faith, and that their intent was not to suppress religion in the life of our nation, but to ensure that the government favored no one religion over another.

I understand the extreme anger of many good people who decry the nature of our popular culture, with its overt emphasis on sex, violence, profanity, and materialism. They have every right to seek some sort of remedy. But these frustrations, as great as they are, must not be allowed to destroy crucial institutional mechanisms which protect minority rights, and curb the power of an overreaching President. Yet, that is exactly what is about to happen, with this very misdirected attack on the filibuster.

The outlook for compromise is dim. The debate has reached a fever pitch and political polarization is at levels I have never seen. Democrats have overreached. Republicans have overreacted. And the White House has poured salt in the wound by sending the same contentious nominations right back to the Senate as if there were not a country full of qualified and talented judges from which to choose. Our two great political parties are not having a national debate. We are simply shouting at each other.

I have heard statements of late which cause me to shudder - - such things as, "Democrats hate America," or "Democrats hate people of faith," or "Republicans want to eliminate separation of Church and State." Thinking Americans would ordinarily shun such extreme and ridiculous rhetoric. Yet, vituperation and extremism continue to rage on all sides. There have even been overt attempts to physically threaten and intimidate Federal judges. When the nation becomes this divided, when the spin becomes this mean, the destruction of basic principles which have been our guide for more than two centuries looms straight ahead. Moreover, the trashing and trampling of comity leaves ugly scars sure to fester and linger. How can we recover from the venom spewed by this dangerous political ploy and get on with the people's business, especially if the nuclear trigger is actually pulled?

At such times as these, the character of the leaders of this country is sorely tested. Our best leaders search for ways to avert such crises, not ways to accelerate the plunge towards the brink. Overheated partisan rhetoric is always available, although these days it seems to come especially cheap, but the great majority of our people want a healthy two-party system and leaders who know how to work together, despite serious differences.

The current uproar serves only to underscore the mounting number of problems not being addressed by this government. Over forty five million persons in our country, some 15% of our population cannot afford health care insurance. Our infant mortality rate is the second highest of the major industrialized countries of the world. Our deficits are skyrocketing. Poverty in these United States is rising, with 34 million people or 12.4% of the population living below the poverty line. Our veterans lack adequate medical care after they have risked life and limb for all of us. Our education system produces 8th graders ranked 19th out of 38 countries in the world in math, and 12th graders ranked 19th out of 21 countries in both math and science. Yet, we debate and seek solutions to none of these critical problems, and instead focus all energy on the frenzy over the selection of judges, and seek as an antidote to our frustration, the preposterous solution of permanently crippling freedom of speech and debate and the right of a minority to dissent in the United States Senate.

It is very important to remember that the Senate has formalized ways of considering changes to our rules. Changes require 67 votes to curtail a filibuster of rules changes. If this nuclear option is employed in the way most frequently discussed, i.e. a ruling from the chair that a supermajority requirement for cloture on a filibuster in respect to amending the rules is unconstitutional, if sustained by 51 votes, cloture will require only a simple majority vote with respect to federal judgeships. There is nothing, then, except good sense, which seems to be in very short supply, to prevent majority cloture of any filibuster on any measure or matter, whether on the legislative or the executive calendar. Think of that! Rules going back for over 200 years and beyond, with roots in the early British Parliament, can be swept away by a simple majority vote. Because of demagoguery, lack of leadership, raw ambition, hysteria, and a state of brutal political warfare that wants no truce and brooks no peacemakers, we may destroy the U.S. Senate, leaving in our wake a President able to select and intimidate the courts like a King, and a system of government finally and irretrievably lost in a last pathetic footnote to Ben Franklin's rejoinder for the ages, "a Republic, if you can keep it." This is scary!

I suspect that at least part of what all of this dangerous sound and fury is about can be explained by the advanced ages of several Supreme Court Justices, and rumors of the Chief Justice's coming retirement due to ill health. The White House does not want a filibuster in the Senate to derail a future choice for the Supreme Court.

Let me step into the brink and propose something that might calm some waters. In the 105th Congress, Senator Arlen Specter and I introduced S. Res. 146, a bill which would establish an advisory role for the Senate in the selection of Supreme Court Justices. Except for a very limited "floating" of names shortly before the President sends up a nomination for the Supreme Court, no one gets to weigh in on the choices until after they are made. As in so many instances in Washington, broad consultation is nonexistent. In the case of potential occupants for the Federal Bench, that is a recipe for instant polarization before hearings on nominees are even held. Everyone quickly takes sides, and the steam mounts like in an overheated pressure cooker until the lid is about to blow off.

Therein lies the source of some of the fighting over the make-up of the Courts - - no prior consultation, so, in effect, no "advice" independent of the White House. Our bill aims to release some of that steam in this way. The Senate Judiciary Committee would establish a pool of possible Supreme Court nominees for the President to consider, based on suggestions from Federal and State judges, distinguished lawyers, law professors, and others with a similar level of insight into the suitability of individuals for appointment to the Supreme Court.

Such a pool would fulfill the Senate's "advice" function under Article II, Section 2. In other words, everyone could get their "oar" into the prospective judicial waters. The President would of course be free to ignore the pool if he chose to do so. But, the "advice" required by the Constitution would be formally available, and the President would know that the individuals in the pool had received a bipartisan nod from the Senate Committee required to do the vetting. Such a pool might even be expanded to include all nominees for our federal judiciary.

Perhaps letting the Senate in on the judicial "take off" as well as the landing can help in the future to heal some of the anger which dominates the discussion of the Federal Courts these days.

But for now, like many of you, I simply hope and pray that cooler heads will prevail, and compromise (that fading art) will prevent us from heading over the cliff. There are, at least some efforts in that direction, but time is very short. In just a few days we may see the unbelievable come to pass -- one man, the President, able to select the third, unelected branch of government, including the court of last resort, the Supreme Court; the Senate of the United States relegated to a second House of Representatives with six year terms; free speech and unfettered debate rejected; and the Constitutional checks and balances in sad and sorry tatters. Shame! What a shame!

In closing, let us remember the words spoken by Vice President Aaron Burr in 1805 when he addressed the Senate for the last time:

This House is a sanctuary; a citadel of law, of order, and of liberty; and it is here - - it is here, in this exalted refuge; here, if anywhere, will resistance be made to the storms of political phrensy and the silent arts of corruption; and if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor.

Ladies and gentlemen, the clock is running and the hour of fulfillment of Vice President Burr's prophesy is virtually at hand.

###