Stopping a Strike at the Heart of the Senate

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Sen.
Byrd delivered this speech on March 1, 2005. Since then, the Republicans
and shout radio have been calling for his head.

In
1939, one of the most famous American movies of all time, Mr.
Smith Goes to Washington
, hit the box office. Initially
received with a combination of lavish praise and angry blasts, the
film went on to win numerous awards, and to inspire millions around
the globe. The director, the legendary Frank Capra, in his autobiography

Frank Capra: The Name Above the Title
, cites this moving
review of the film, appearing in The Hollywood Reporter,
November 4, 1942:

Frank
Capra's Mr. Smith Goes to Washington, chosen by French Theaters
as the final English language film to be shown before the recent
Nazi-ordered countrywide ban on American and British films went
into effect, was roundly cheered…

Storms
of spontaneous applause broke out at the sequence when, under the
Abraham Lincoln monument in the Capital, the word, "Liberty,"
appeared on the screen and the Stars and Stripes began fluttering
over the head of the great Emancipator in the cause of liberty.

Similarly
cheers and acclamation punctuated the famous speech of the young
senator on man's rights and dignity. u2018It was… as though the joys,
suffering, love and hatred, the hopes and wishes of an entire people
who value freedom above everything, found expression for the last
time….

For
those who may not have seen it, "Mr. Smith" is the fictional
story of one young Senator's crusade against forces of corruption,
and his lengthy filibuster for the values he holds dear.

My,
how times have changed. These days Smith would be called "an
obstructionist." Rumor has it that there is a plot afoot in
the Senate to curtail the right of extended debate in this hallowed
chamber, not in accordance with its rules, mind you, but by fiat
from the Chair.

The
so-called "nuclear option" purports to be directed solely
at the Senate's advice and consent prerogatives regarding federal
judges. But, the claim that no right exists to filibuster judges
aims an arrow straight at the heart of the Senate's long tradition
of unlimited debate.

The
Framers of the Constitution envisioned the Senate as a kind of executive
council; a small body of legislators, featuring longer terms, designed
to insulate members from the passions of the day.

The
Senate was to serve as a "check" on the Executive Branch,
particularly in the areas of appointments and treaties, where, under
the Constitution, the Senate passes judgment absent the House of
Representatives. James Madison wanted to grant the Senate the power
to select judicial appointees with the Executive relegated to the
sidelines. But a compromise brought the present arrangement; appointees
selected by the Executive, with the advice and consent of the Senate.
Note that nowhere in the Constitution is a vote on appointments
mandated.

When
it comes to the Senate, numbers can deceive. The Senate was never
intended to be a majoritarian body. That was the role of the House
of Representatives, with its membership based on the populations
of states. The Great Compromise of July 16, 1787, satisfied the
need for smaller states to have equal status in one House of Congress:
the Senate.

The
Senate, with its two members per state, regardless of population
is, then, the forum of the states. Indeed, in the last Congress,
52 members, a majority, representing the 26 smallest states accounted
for just 17.06% of the U.S. population. In other words, a majority
in the Senate does not necessarily represent a majority of the population.
The Senate is intended for deliberation not point scoring. It is
a place designed from its inception, as expressive of minority views.
Even 60 Senators, the number required for cloture, would represent
just 24% of the population, if they happened to all hail from the
30 smallest states. Unfettered debate, the right to be heard at
length, is the means by which we perpetuate the equality of the
states.

In
fact, it was 1917, before any curtailing of debate was attempted,
which means that from 1806 to 1917, some 111 years, the Senate rejected
any limits to debate. Democracy flourished along with the filibuster.
The first actual cloture rule in 1917, was enacted in response to
a filibuster by those who opposed U.S. intervention in World War
I.

But,
even after its enactment, the Senate was slow to embrace cloture,
understanding the pitfalls of muzzling debate. In 1949, the 1917
cloture rule was modified to make cloture more difficult to invoke,
not less, mandating that the number needed to stop debate would
be not two-thirds of those present and voting, but two-thirds of
all Senators.

Indeed,
from 1919 to 1962, the Senate voted on cloture petitions only 27
times and invoked cloture just four times over those 43 years.

On
January 4, 1957, Senator William Ezra Jenner of Indiana spoke in
opposition to invoking cloture by majority vote. He stated with
conviction:

We
may have a duty to legislate, but we also have a duty to inform
and deliberate. In the past quarter century we have seen a phenomenal
growth in the power of the executive branch. If this continues at
such a fast pace, our system of checks and balances will be destroyed.
One of the main bulwarks against this growing power is free debate
in the Senate . . . So long as there is free debate, men of courage
and understanding will rise to defend against potential dictators.
. . The Senate today is one place where, no matter what else may
exist, there is still a chance to be heard, an opportunity to speak,
the duty to examine, and the obligation to protect. It is one of
the few refuges of democracy. Minorities have an illustrious past,
full of suffering, torture, smear, and even death. Jesus Christ
was killed by a majority; Columbus was smeared; and Christians have
been tortured. Had the United States Senate existed during those
trying times, I am sure these people would have found an advocate.
Nowhere else can any political, social, or religious group, finding
itself under sustained attack, receive a better refuge.

Senator
Jenner was right. The Senate was deliberately conceived to be what
he called a "better refuge," meaning one styled as guardian
of the rights of the minority.

The
Senate is the "watchdog" because majorities can be wrong,
and filibusters can highlight injustices. History is full of examples.

In
March 1911, Senator Robert Owen of Oklahoma filibustered the New
Mexico statehood bill, arguing that Arizona should also be allowed
to become a state. President Taft opposed the inclusion of Arizona's
statehood in the bill because Arizona's state constitution allowed
the recall of judges. Arizona attained statehood a year later, at
least in part because Senator Owen and the minority took time to
make their point the year before.

In
1914, a Republican minority led a 10-day filibuster of a bill that
would have appropriated more than $50,000,000 for rivers and harbors.
On an issue near and dear to the hearts of our current majority,
Republican opponents spoke until members of the Commerce Committee
agreed to cut the appropriations by more than half.

Perhaps
more directly relevant to our discussion of the "nuclear option"
are the seven days in 1937, from July 6 to 13 of that year, when
the Senate blocked Franklin Roosevelt's Supreme Court-packing plan.

Earlier
that year, in February 1937, FDR sent the Congress a bill drastically
reorganizing the judiciary. The Senate Judiciary Committee rejected
the bill, calling it " an invasion of judicial power such as
has never before been attempted in this country" and finding
it "essential to the continuance of our constitutional democracy
that the judiciary be completely independent of both the executive
and legislative branches of the Government." The committee
recommended the rejection of the court-packing bill, calling it
"a needless, futile, and utterly dangerous abandonment of constitutional
principle . . . without precedent and without justification."

What
followed was an extended debate on the Senate Floor lasting for
seven days until the Majority Leader, Joseph T. Robinson of Arkansas,
a supporter of the plan, suffered a heart attack and died on July
14. Eight days later, by a vote of 70 to 20, the Senate sent the
judicial reform bill back to committee, where FDR's controversial,
court-packing language was finally stripped. A determined, vocal
group of Senators properly prevented a powerful President from corrupting
our nation's judiciary.

Free
and open debate on the Senate floor ensures citizens a say in their
government. The American people are heard, through their Senator,
before their money is spent, before their civil liberties are curtailed,
or before a judicial nominee is confirmed for a lifetime appointment.
We are the guardians, the stewards, the protectors of our people.
Our voices are their voices.

If
we restrain debate on judges today, what will be next: the rights
of the elderly to receive social security; the rights of the handicapped
to be treated fairly; the rights of the poor to obtain a decent
education? Will all debate soon fall before majority rule?

Will
the majority someday trample on the rights of lumber companies to
harvest timber, or the rights of mining companies to mine silver,
coal, or iron ore? What about the rights of energy companies to
drill for new sources of oil and gas? How will the insurance, banking,
and securities industries fare when a majority can move against
their interests and prevail by a simple majority vote? What about
farmers who can be forced to lose their subsidies, or Western Senators
who will no longer be able to stop a majority determined to wrest
control of ranchers' precious water or grazing rights? With no right
of debate, what will forestall plain muscle and mob rule?

Many
times in our history we have taken up arms to protect a minority
against the tyrannical majority in other lands. We, unlike Nazi
Germany or Mussolini's Italy, have never stopped being a nation
of laws, not of men.

But
witness how men with motives and a majority can manipulate law to
cruel and unjust ends. Historian Alan Bullock writes that Hitler's
dictatorship rested on the constitutional foundation of a single
law, the Enabling Law. Hitler needed a two-thirds vote to pass that
law, and he cajoled his opposition in the Reichstag to support it.
Bullock writes that "Hitler was prepared to promise anything
to get his bill through, with the appearances of legality preserved
intact." And he succeeded.

Hitler's
originality lay in his realization that effective revolutions, in
modern conditions, are carried out with, and not against, the power
of the State: the correct order of events was first to secure access
to that power and then begin his revolution. Hitler never abandoned
the cloak of legality; he recognized the enormous psychological
value of having the law on his side. Instead, he turned the law
inside out and made illegality legal.

And
that is what the nuclear option seeks to do to Rule XXII of the
Standing Rules of the Senate.

It
seeks to alter the rules by sidestepping the rules, thus making
the impermissible the rule. Employing the "nuclear option,"
engaging a pernicious, procedural maneuver to serve immediate partisan
goals, risks violating our nation's core democratic values and poisoning
the Senate’s deliberative process.

For
the temporary gain of a hand-full of "out of the mainstream"
judges, some in the Senate are ready to callously incinerate each
Senator's right of extended debate. Note that I said each Senator.
For the damage will devastate not just the minority party. It will
cripple the ability of each member to do what each was sent here
to do – represent the people of his or her state. Without the
filibuster or the threat of extended debate, there exists no leverage
with which to bargain for the offering of an amendment. All force
to effect compromise between the two political parties is lost.
Demands for hearings can languish. The President can simply rule,
almost by Executive Order if his party controls both houses of Congress,
and Majority Rule reins supreme. In such a world, the Minority is
crushed; the power of dissenting views diminished; and freedom of
speech attenuated. The uniquely American concept of the independent
individual, asserting his or her own views, proclaiming personal
dignity through the courage of free speech will, forever, have been
blighted. And the American spirit, that stubborn, feisty, contrarian,
and glorious urge to loudly disagree, and proclaim, despite all
opposition, what is honest and true, will be sorely manacled.

Yes,
we believe in Majority rule, but we thrive because the minority
can challenge, agitate, and question. We must never become a nation
cowed by fear, sheeplike in our submission to the power of any majority
demanding absolute control.

Generations
of men and women have lived, fought and died for the right to map
their own destiny, think their own thoughts, and speak their minds.
If we start, here, in this Senate, to chip away at that essential
mark of freedom – here of all places, in a body designed to guarantee
the power of even a single individual through the device of extended
debate – we are on the road to refuting the Preamble to our own
Constitution and the very principles upon which it rests.

In
the eloquent, homespun words of that illustrious, obstructionist,
Senator Smith, " Liberty is too precious to get buried in books.
Men ought to hold it up in front of them every day of their lives,
and say, u2018I am free – to think – to speak. My ancestors
couldn't. I can. My children will."

Senator
Robert C. Byrd represents West Virginia.

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