People for the American Way, a principal instigator of the judicial filibusters that have shattered Senate traditions, has attacked proposals to restore those traditions through exercise of the Constitutional option. The PFAW diatribe follows closely on threats to shut the Senate down if the Constitutional option is used to reform Senate procedures.

The Historic Context for the Recent Unpleasantness

This subject is immensely important. It concerns whether filibusters will be used to impede an up or down vote on judges. It addresses whether a 215 year Senate tradition of not filibustering judges will be discarded or restored. It regards the relationships of the Senate to the Presidency and to courts and, to be sure, relationships within the Senate itself.

In the 108th Congress, the minority party successfully filibustered ten of President Bush's judicial nominees and threatened filibusters against six others. Two hundred year-long Senate traditions against floor filibusters of judicial nominees were broken.

The traditional definition of a filibuster involves tactics by the minority to prevent a majority from taking a floor vote. Although filibusters of judicial nominees were attempted on rare occasions in previous years, they were not orchestrated by party leadership and did not prevail. Instead, a bipartisan supermajority of Senators stepped in and prevented Senate practices from being abused to the detriment of the confirmation process. Thus, prior to the 108th Congress, no judicial nomination with clear majority support ever died by filibuster.

Due to these recent filibusters, venerable traditions were undone. These traditions were important not because they were longstanding, but because they served to support the principle that filibusters would not impede the exercise of Article II confirmation powers and that a majority of Senators could vote to confirm or reject a nominee brought to the floor. In turn, another important Constitutional principle was served: that of checks and balances between the Executive and Legislative Branches.

The obstructionist tactics disturb two centuries of Senate tradition in which floor filibusters were not used to impede the duty to advise and consent. For 70% of the twentieth century, the same party controlled the White House and the Senate, but the minority party leadership exercised restraint and refused to filibuster judicial nominees. That restraint, exercised by diverse minorities under Leaders such as Dirksen (R-IL), Baker (R-TN), Byrd (D-WV), and Dole (R-KS), has vanished and been replaced by a blockade of the confirmation process and a tyranny by the minority.

Some have argued that if judicial filibusters are ended, the Senate will turn into a rubber stamp or a banana republic. That is quite a conclusion to draw. Judicial filibusters were unknown for more than two centuries. Was the Senate a banana republic for all that time? Is filibustering nominees and denying the full Senate a confirmation vote the way the Senate can avoid being a rubber stamp?

To require an extra-constitutional threshold of 60 votes for confirmation disturbs a fundamental balance between the Executive and the Senate and creates a strong potential for excess by the minority. A minority may hold hostage the nomination process, threatening to filibuster any appointment that does not meet particular ideological or litmus tests. The concept that a duly elected Executive shall nominate, subject to majority consent and general political accountability, will be turned on its head by allowing the minority a filibuster-veto in the confirmation process, and the principle of checks and balances will be damaged.

Evidence of this damage already exists. Contending that the nominees filibustered in the last Congress were rejected, Democrats complain that President Bush has resubmitted some of them. Democrats have publicly advised him to withdraw these nominees, even though the only thing that was rejected was the right of the full Senate to vote and each of the resubmitted nominees could be confirmed if a vote were taken. Some Democrats have even speculated that, in the last Congress, they filibustered too infrequently and, going forward, they refuse to promise they will not filibuster fresh nominees. They seek a filibuster-veto over the nomination and confirmation process, putting a twist on advice and consent that is unknown in Senate history.

The Constitutional Option: A Possible Antidote

These recent tactics prompted discussion about forestalling future judicial filibusters through changes to Senate procedure. Consideration is being given to exercise of the Constitutional option, dubbed by some of its opponents as the "nuclear" option, in which the Senate's constitutional power to govern itself would be used to change the text of Senate rules or create new precedents.

Article I, Section 5 of the Constitution accords the Senate the power to make procedures to govern itself. The 109th Congress can avail itself of this power just as readily as the first Congress did. Broadly speaking, the constitutional option has two variants. The first variant is a change in Senate rules notwithstanding procedures that carryover from a prior Congress that purport to impose procedural barriers to rules amendments. The second variant is adjustment to Senate precedents, such changes not being subject to carryover procedures at all. Very briefly, each variant will be discussed in turn.

The Constitutional Option and Rules Changes

Prior to 1917, legislative filibusters reigned supreme, with no capacity in Senate rules to control them. In 1917, fed up with threatened or actual filibusters that blocked establishment of a cloture rule, Senator Thomas J. Walsh (D-MT) exercised the constitutional option to propose imposing general parliamentary law while the Senate adopted new rules. Use of general parliamentary law would give proponents of a cloture rule access to debate-ending procedures, so that the rules change could not be filibustered. In that climate, the first cloture rule was quickly adopted. Having achieved his end, Walsh did not need to press the matter further.

Beginning in 1953, and frustrated with the use of the filibuster to impede civil rights legislation, Senator Clinton Anderson (D-NM) and allies, including John F. Kennedy (D-MA), Hubert Humphrey (D-MN) and Mike Mansfield (D-MT), agitated for cloture reform via the Constitutional option. Their resort to the Constitutional option met with little initial success, gaining only 21 votes. Four years later, with no reform in sight, they were back and this time secured 38 votes. Their momentum was further fueled by the 1958 election, which brought to the Senate many new supporters of filibuster reform. Faced with the certainty that Anderson would mount his effort again, Majority Leader Johnson acted in 1959 to preempt that reform with a more modest reform of his own. Closely allied in those years with reform opponents, Johnson was extremely unlikely to propose any amendments to the cloture rule but for the credible threat that reform would come via the Constitutional option.

In 1975, Senators Walter Mondale (D-MN) and James Pearson (R-KS) took up the cause of reform. They proposed changing Senate rules via the constitutional option. By this time, Senator Mansfield had switched sides and so offered three separate tabling motions against Mondale-Pearson procedures. After each of these motions failed, the Democratic Leadership offered a compromise reform package that satisfied many reform advocates and was therefore adopted. There is no evidence this reform package would have been proposed, but for the Senate's clear willingness to choose the constitutional option over no reform at all.

In 1979, Majority Leader Robert Byrd (D-WV) proposed a rules change to curtail the phenomenon of the "post-cloture" filibuster that had evolved since 1975. He expressly threatened use of the constitutional option unless the minority entered into a time agreement concerning his reforms. On January 15, 1979, Byrd said: "So, I say to Senators again that the time has come to change the rules. I want to change them in an orderly fashion. I want a time agreement. But, barring that, if I have to be forced into a corner to try for a majority vote, I will do it because I am going to do my duty as I see my duty, whether I win or lose."

A time agreement was reached, providing that if a vote on cloture reform did not occur by February 22, 1979, Byrd would press reforms by the constitutional option. After debate and amendment, the rules reform was adopted on February 22.

In summary: PFAW makes much of the fact that changes to the text of Senate rules have ultimately occurred through the regular order. But that conclusion misreads history and is far too simplistic. On four important occasions the credible and looming threat of the constitutional option resulted in rules changes that almost certainly would not have happened otherwise. Although the regular order was the device ultimately used to make formal amendments, a willingness to use the Constitutional option was the critical action-forcing mechanism to produce change.

The Constitutional Option and Precedents

The second use of the Constitutional option is change of Senate procedures by precedent. The Senate establishes precedents throughout the session as an exercise in self-governance. Four precedents, established during Senator Byrd's tenure as Majority Leader, illustrate how precedents alter Senate procedure and have been used to affect minority rights and tactics.

The example most closely related to the judicial filibusters is the precedent of April 5, 1980 that ended debate entirely on a motion to proceed to a nomination or treaty. On that day, over the objections of the minority and on appeal from the ruling of the Chair, Senator Byrd established that a non-debatable motion to proceed to Executive Session could thereafter specify the business to be addressed. Without Senator Byrd's new procedure, a motion to reach a particular nomination would have to be made once the Senate was in Executive Session, would have been debatable and could have been filibustered.

People for the American Way tries to minimize the significance of this precedent, as if it were merely a detail in streamlining the scheduling of Senate business. What would they say if the precedent were extended, to eliminate debate on the motion to proceed to legislative business? Would they defend that as a scheduling detail, and be satisfied that debate remained possible on a bill itself? To the contrary, they would vigorously protest that minority debate rights were being destroyed. So let us recognize the 1980 precedent for what it was - an effort to curtail debate rights that a minority might theoretically find valuable. There is no point in glossing it over.

The three remaining examples all restricted minority operations and strategy in use at the time the precedents were made. These included:

1977 - empowering the Chair post-cloture to rule amendments out of order without need for a point of order from the floor. At that time, this meant precluding the reading of amendments, which had to precede making a point of order and which reading could only be waived by unanimous consent. Reading lengthy amendments as a post-cloture filibuster tactic was ended.

1979 - empowering the Chair to refuse to submit for Senate determination certain questions as to whether amendments to appropriations bills were germane. Senate Rule XVI expressly states that all such questions must be submitted.

1987 - empowering the Chair to declare dilatory a Senator's refusal to vote on a motion to approve the Journal. Never before had tactics been ruled out of order as dilatory before cloture had been invoked. A Senator's ability to explain his reasons for not voting was also limited.

One can go through a range of legalistic gyrations, trying to explain or distinguish away these precedents. Regardless of the reasons these precedents were made, they stand for one thing: the Senate used of Constitutional power to make precedents that affected procedural rights used by Senate minorities.

Implications for the Legislative Filibuster

Some have argued that filibuster abuse with respect to judges must be tolerated because acting against judicial filibusters necessarily means the end of legislative filibusters. This is a scare tactic, based on faulty logic.

There is absolutely no evidence that any Senator, Republican or Democrat, is prepared to disturb the 30 year consensus that has existed on the legislative filibuster. In 1975, the requirement for cloture was set at 60 votes. Since then, only one effort has been made to adjust it. In 1995, Senators Harkin and Lieberman proposed a system of declining cloture balances until, on the fourth cloture vote, 51 would be needed. The proposal would have applied to all debate. Although in the majority, Republicans opposed this limitation on minority rights. They were joined by the Democratic Leadership. The proposal got 19 votes, all on the Democratic side. Nine Democrats still serving voted for it, including some who now vigorously protest limiting filibusters on judges. This vote, and the three decade absence of any other actions against legislative filibusters, strongly demonstrates that there is neither impetus nor will in the Senate to attack the right to filibuster legislation.

One can always invoke a "slippery slope" argument to justify doing nothing about pending problems. Such an argument is particularly inapposite here. The Senate conducts legislative and executive business on separate tracks, following certain distinctive procedures on each track. Again, to illustrate, free debate is possible on a motion to proceed to legislation, but a motion to proceed to a nomination is non-debatable.

Action on judicial filibusters will create one more distinction between legislative and executive procedures, but there is no reason to believe it will spill over to undermine support for permitting legislative filibusters.

The Failure of Self-Restraint

For more than two centuries, two great Senate traditions comfortably coexisted: A general respect for the filibuster and a consensus that a majority of Senators could exercise their obligation to advise and consent on a Presidential nomination. Thus, just as Democratic Senators resoundingly rejected efforts by some Democrat-allied activist groups to filibuster Clarence Thomas's nomination to the Supreme Court, so did Republicans overwhelmingly refuse to filibuster the nominations of highly controversial nominees of President Clinton.

By reason of the judicial filibusters launched during the last Congress, these two great traditions no longer coexist, they collide. Either the power to advise and consent will give way to the filibuster or the filibuster will give way to advice and consent.

It is, of course, better for the Senate to resolve this dilemma by compromise and some form of mutual self-restraint. But if compromise fails and the filibusters persist, they represent a direct challenge to the traditional application of the advice and consent power. The majority may acquiesce to this approach, giving primacy to the filibuster, with significant implications for Constitutional checks and balances, or it may seek change via exercise of its constitutional power over Senate procedure. Error processing SSI file