Sen. Joseph Lieberman (D., Conn.) on Wednesday held a press conference to criticize Republican efforts to restore Senate tradition to the judicial confirmation process. But another proposal regarding Senate rules somehow escaped his ire, and has received scant attention despite the New York Times editorial board’s recently saying it would go “even further than the ‘nuclear option’ in eliminating the power of the filibuster.”
That proposal would amend Senate rules to end all
filibusters, not just those against judicial nominees. The proposal’s sponsor said that “the filibuster rules are unconstitutional” and was quoted as saying “the filibuster is nothing short of legislative piracy.” He announced his intent to end all filibusters with an unambiguous statement: “We cannot allow the filibuster to bring Congress to a grinding halt. So today I start a drive to do away with a dinosaur–the filibuster rule.”
Despite its support by several senior senators, you haven’t heard about this proposal in the MoveOn.org ads blasting Senate Republicans. And you probably haven’t heard about it from Senate Democrats who now give their full-throated support to filibusters against President Bush’s nominees. Why? Because the proposal wasn’t offered by Republicans; it was introduced in 1995 by senior Democrats, including Sens. Lieberman and Tom Harkin (D., Iowa). When it came to a vote, 19 Democrats, including leading blue-state senators such as Ted Kennedy and John Kerry, supported the measure.
Unlike the attempts by Democrats to end all filibusters, the effort by Senate Republicans is limited to the judicial confirmation process. As Senate Majority Leader Bill Frist said Tuesday: “If I must act to bring fairness back to the judicial nomination process, I will not act in any way to impact the rights of colleagues when it comes to legislation.”
Despite efforts by special-interest groups on the left and their champions in the Senate, there is nothing sacrosanct about the filibuster of nominees–regardless of the Mr. Smith Goes to Washington imagery Democrats now conjure in support of filibuster rules, the same rules they once called “legislative piracy.” Our founders did not use filibusters. In fact, for the first several Congresses (from 1789 to 1806), a majority of senators always had the power to bring debate to a close (cloture) by a majority vote.
Rules guaranteeing up-or-down majority votes and abolishing the filibuster in various contexts are commonplace in modern Congresses as well. In fact, there are at least 26 laws on the books today abrogating the filibuster. For example:
You cannot filibuster a federal budget resolution (Congressional Budget and Impoundment Control Act of 1974).
You cannot filibuster a resolution authorizing the use of force (War Powers Resolution).
You cannot filibuster international trade agreements (Bipartisan Trade Promotion Authority Act of 2002).
And as the minority leader, Sen. Harry Reid (D., Nev.), well knows, you cannot filibuster legislation under the Nuclear Waste Policy Act of 1982.
The vote on the Harkin proposal was not the only effort to reform Senate rules. It is important to note that in 1975 the Senate voted three times in support of the power of a Senate majority under Article I of the Constitution to change the rules. Those precedents forced the Senate to act and led to a major change in the cloture rule.
So the restoration of Senate rules and traditions for judicial nominees enjoys both historical support and Senate precedent. But the constitutional power of a majority of Senators to strengthen, improve, and reform Senate rules and procedures is also expressly stated in the Constitution, and was unanimously endorsed by the U.S. Supreme Court in United States v. Ballin.
In Ballin, the Court unanimously held that unless the Constitution expressly provides for a supermajority vote, the constitutional rule is majority vote. For example, the Constitution clearly states that each house of Congress “may determine the Rules of its Proceedings” (Article I, Section 5).
The truth is that throughout our nation’s more than 200-year history, the constitutional precedent and Senate tradition for confirming judges has been majority rule. Senators should have the right to restore that tradition. And Republican efforts to do so with the “Byrd Option”–named for Sen. Robert Byrd (D., W. Va.), who pioneered the procedure when he served as Senate majority leader–should not be demonized, particularly by those Senate Democrats who so tenaciously argued against filibusters under previous presidents.
Sen. Chuck Schumer (D., N.Y.) said recently that the current attempt to restore Senate rules on judicial nominations would turn the Senate into a “banana republic.” Given their attempts to end all filibusters in the past, at least 19 Democrats should take issue with that assertion.
–Sean Rushton is executive director of the Committee for Justice.