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Remarks by Senator Byrd

Delivered on May 19, 2005

A Brief History of the Filibuster

Senator Byrd delivered these remarks in the Senate as the debate on the “nuclear option” continued. To learn more about the history of the filibuster, read this chapter from "The Senate: 1789-1989."

Today I wish to speak about the history of freedom of speech in the Senate, about the cloture rule which, when invoked, limits debate, a bit about the background here that might help all Senators if they care to read or listen, and the people out there who are listening, help them to understand a little more about what this is all about. It is a matter of very great interest to the country and to the Republicans and to Democrats and to independents, to people from all walks of life. It is in that spirit that I seek to talk just a little while about this subject which is of great concern. I hope to have more to say on another day, but today I will limit myself to talking about the background, what this is all about, and the history that brings us to where we are today.

In recognition that the duty imposed on the president faithfully to execute the laws requires persons sympathetic to this programs, the Senate traditionally has given the president great leeway in choosing his policymaking subordinates, especially those in cabinet and subcabinet positions. The Senate has more or less uniformly followed this practice, as a matter of grace and in the spirit of cooperation, to ensure that the executive branch functions as a team in implementing and enforcing the laws.

What has been the fairly general practice with respect to the appointment of executive branch policymakers, however, has not applied to judicial nominations, and arguments to the contrary are at odds with the separation of powers doctrine, common sense, and history. The Constitution establishes a Supreme Court and gives Congress power in its discretion to constitute inferior federal tribunals; nowhere in the blueprint of our government is it hinted that the high court or any other federal court is the president’s court. Similarly, nothing in the Constitution suggests that either the justices or judges should be the president’s men. In fact, the Constitution refutes this notion by granting federal judges lifetime tenure and making their compensation inviolable.

The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. Can a rubber stamp be “a vital check against tyranny?” If the framers had intended the Senate simply to endorse the president’s selection, the Senate could have been left out of the process altogether. Clearly the men who met at Philadelphia nearly 219 years ago had in mind a more substantive role for the Senate.

The Senate has more than once flexed its political muscles to reject a presidential nominee – including the rejection or withdrawal of fifteen cabinet nominations and twenty-six Supreme Court nominations. Confirmation power is one of the major constitutional provisions that separates the Senate from the House. It has been the subject of numerous articles, books. novels, and even motion pictures.

As early as Henry IV (1399-1413), English parliaments effectively controlled the king’s royal council and household. Several officials of Henry IV’s household were dismissed at the insistence of the Commons. Both the household officials and the members of “the great and continual council” were named in Parliament.

The Senate routinely debated nominations in closed session.

John Tyler was the first vice president to become president on the death of the incumbent. Early in his administration, Tyler broke with Whig majority in the Senate, which thereafter frustrated his efforts to appoint his own supporters to office. Nothing in the Senate’s history has matched the spectacle that occurred on March 3, 1843, the last day of the Senate’s session, when Tyler came to the Capitol to sign legislation and to submit last-minute nominations.

Tyler nominated Caleb Cushing to be secretary of the treasury not once but three times that night, and each time the Senate rejected Cushing by an even larger margin than before, the votes being, as recorded in the Senate Executive Journal, 19 to 27, 10 to 27, and 2 to 29. Three times, Tyler nominated Henry A. Wise to be minister to France, and Wise, too, was thrice rejected. Senator Thomas Hart Benton reported that “nominations and rejections flew backwards and forwards as in a game of shuttlecock.” In all, the Senate turned down four of Tyler’s cabinet nominees – in addition to Cushing, David Henshaw as secretary of the navy, James M. Porter as secretary of war, and James S. Green as secretary of the treasury – and four of his nominees to the Supreme Court – John C. Spencer, Reuben H. Walworth, Edward King, and John M. Read – a record of rejection unmatched by any other president.

“History,” wrote the poet Byron, “with all her volumes vast, hath but one page.” We should do well, then, to look backward into the past where we shall find that due diligence by the Senate in fulfilling its “advice and consent: responsibility in the appointment process has been, in Hamilton’s words, “an efficacious source of stability” in the government of the Republic.

In his Manual of Parliamentary Practice, Thomas Jefferson quoted “Mr. Onslow, the ablest among the Speakers of the House Commons” as follows:

“It was a maxim he had often heard when he was a young man, from old and experienced Members, that nothing tended more to throw power into the hands of administration, and those who acted with the majority of the House of Commons, than a neglect of, or departure from, the rules of proceeding; that these forms, as instituted by our ancestors, operated as a check and control on the actions of the majority, and that they were, in many instances, a shelter and protection to the minority, against the attempts of power.”

Jefferson himself wrote that whether the rules of a legislative body ...

“....be in all cases the most rational or not is really not so great importance. It is much more material that there should be a rule to go by than what that rule is; that there may be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members. It is very material that order, decency and regularity be preserved in a dignified public body.”

All legislative bodies need rules to follow if they are to transact business in an orderly fashion and if they are to operate fairly, efficiently, and expeditiously.

On April 7, 1789, the day after a quorum of senators had appeared, a special committee was created to “prepare a system of rules for conducting business.” The committee consisted of Senators Oliver Ellsworth of Connecticut, Richard Henry Lee of Virginia, Caleb Strong of Massachusetts, William Maclay of Pennsylvania, and Richard Bassett of Delaware. All five of these committee members were lawyers. Each had served in his state legislature, the procedures of which were indebted to colonial and English experience. Two had served in the Continental Congress, which was also indebted to colonial and English precedents, and three had participated in the Constitutional Convention, whose members had created the Senate.

Obstructive tactics in a legislative forum, although not always known as filibusters, are of ancient origin. Plutarch reported that, when Caesar returned to Rome after a sojourn in Spain, his arrival happened at the time of the election of consuls. “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 out the debate till it was too late to conclude upon any thing that day.”

Filibusters were also a problem in the British Parliament. In nineteenth-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 for the capital. Fisher Ames, a member of the House from Massachusetts, complained that “the minority...make 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. But the House, on February 27, 1811, “decided...that after previous question was decided in the affirmative, the main question should not be debated.”

The practice of limiting debate dates to 1604 when Sir Henry Vane first introduced the idea in the British Parliament. Known in parliamentary procedure as the “previous question,” it is described in Section XXXIV of Jefferson’s Manual of Parliamentary Practice as follows: “When any question is before the House, any Member may move a previous question, ‘Whether that question (called the main question) shall now be put?’ If it pass in the affirmative, then the main questions is to be put immediately, and no many may speak any thing further to it, either to add or alter.”

The Journals of the Continental Congress record that the previous questions was used in 1778. Section 10 of the rules of the Continental Congress read, “While a question is before the House, no motion shall be received, unless for an amendment, for the previous question, to postpone the consideration of the main question, or to commit it.”

The rules adopted by the United States Senate in April 1789 included a motion “for the previous question.” According to historian George H. Haynes, when vice President Aaron Burr delivered his farewell address to the Senate in march 1805, he “recommended the discarding of the previous question,” because, in the preceding four years during which he had presided over the Senate, it had “been taken but once, and then upon an amendment.” When the rules were codified in 1806, reference to the previous question was omitted, since it had been used only ten times during the years from 1789 to 1806, and it has never been restored.”

Henry Clay, in 1841, proposed the introduction of the “previous question” but abandoned the idea in the face of opposition. When the Oregon bill was being considered in 1846, a unanimous consent agreement was used as a way to limit debate by setting a date for a vote.

When Senator Stephen Douglas proposed permitting the use of the “previous question” in 1850, the idea encountered substantial opposition and was dropped.

An effort to reinstitute the “previous question,” on March 19, 1873, failed by a vote of 25 to 30.

The final impetus for a cloture rule came as a result of a 1917 filibuster – one of the most famous in the Senate annals – against an administration measure permitting the arming of American merchant vessels for the duration of the World War.

On February 26, President Wilson appeared before a joint session to request legislation authorizing the arming of merchant ships.

The President announced that the rules of the Senate would have to be revised before he would call a special session of the entire Congress to deal with the war emergency, “the fate of the unlimited debate was sealed.”

The principal responsibility for the cloture resolution rested with the new Democratic majority leader, Thomas Martin of Virginia. Under his guidance, a bipartisan committee of the Senate’s leaders drew up a proposal providing that a vote by two-thirds of those present and voting could invoke cloture on a pending measure.

By a vote of 76 to 3, on March 8, 1917, after only six hours of debate, the Senate adopted its first cloture rule.

In 1949, President Harry S. Truman sought to clear the way for a broad civil rights program, and his first step was to push for liberalization of the cloture rule. His efforts produced a bitter battle at the beginning of the Eighty-first Congress.

The Senate adopted a compromise measure that proved to be less usable than the one it replaced. It required that two-thirds of the entire Senate vote for cloture, rather than two-thirds of those present and voting. The new rule differed from the old in that it allowed cloture to operate on any pending business or motion with the exception of debate on motions. This meant that future efforts to change the cloture rule would themselves be subject to extended debate without benefit of the cloture provision.

At the beginning of the Eighty-sixth Congress, Senator Majority Leader Johnson offered, and the Senate adopted by a 72 to 22 roll-call vote, a resolution to amend Senate Rule XXII. Approved on January 12, 1959, after four days of debate, the resolution permitted two-thirds of the senators present and voting to close debate, even on proposals for rules changes. It also added to Rule XXII, “The rules of the Senate shall continue from one congress to the next Congress unless they are changed as provided in these rules.”

On February 28, 1975, I introduced a resolution providing that debate in the Senate be closed by a vote of “three-fifths of the senators duly chosen and sworn,” except in the case of a measure or motion to change the rules of the Senate, when a two-thirds vote of “senators present and voting” would be required to close debate.

On March 7, 1975, the Senate adopted my substitute providing that three-fifths of all senators chosen and sworn could invoke cloture. This provision applied to all measures except those amending the rules of the Senate, which still required a two-thirds vote of the senators present and voting.

Four years later, on February 22, 1979, the Senate agreed to a resolution I introduced establishing a cap of one hundred hours of consideration once cloture had been invoked on a measure.

Under the resolution, each senator would be entitled to one hour of time. Senators could yield their time to the majority or minority floor managers of the bill, or to the majority or minority leaders. Except by unanimous consent, none of the designated four senators could have more than two additional hours yielded to him or her. These senators, in turn, could yield their time to other senators. If all available time expired a senator who had not yielded time, and who had not yet spoken on the matter on which cloture had been invoked, could be recognized for ten minutes for the sole purpose of debate.

The 1979 resolution made in order only those first degree amendments submitted by 1pm of the day following submission of a cloture motion, with second degree amendments in order only if submitted in writing one hour prior to the beginning of the cloture vote.

The substitute amendment contained the current overall limitation of “thirty hours of consideration” after cloture has been invoked.

That bring us to where we are today. I thought that it would be good to review a brief history of the filibuster in the debate on cloture and the nuclear option. That’s where we are. We need this basis to have a better understanding of where we go from here.

So that brings us up to the present day rules with reference to debate and limitation of debate in the Senate, the current cloture rule. That puts us where we are now, and I thought it would be well just to review briefly the history of unlimited debate in the Senate and then the cloture rule limiting debate -- the cloture rule as initially adopted requiring two-thirds of those present and voting; and then in 1949, two-thirds of those elected and sworn; in 1959, two-thirds of those present and voting; and then again in 1975, three-fifths of those Members elected and sworn, that is where we are -- so that we might have this basis for a better understanding of where we go from here.

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