By Kerry Picket & Quin Hillyer
Senate Republicans have cited West Virginia’s Democratic Sen. Robert Byrd as someone who has spoken forcefully against using the reconciliation tactic as a means to pass health care legislation through the Senate.
It should be noted that Sen. Byrd went after the Republicans in 2005 and compared their strategy to Nazi tactics (see video and transcript below) when Republicans considered using their majority power to halt an unprecedented filibuster mounted by the Democrats against President Bush’s judicial nominees. Democrats called it the “nuclear option” while Republicans argued that the Constitution only required members to “advise and consent” on the president’s nominations, with no provision for a super-majority, so Republicans called it instead the “constitutional option.”
The filibuster was only designed to block major pieces of legislation, so in effect, Senate Democrats broke Senate rules in using the filibuster to block Bush judicial nominees.The Republicans figured with their majority, they could use the tactic of approving judicial nominees with 50-plus votes through the chair of the Senate, Vice President Dick Cheney. He would come in and rule that the filibuster for judges is unconstitutional and any ruling of the chair is either passed or killed on a majority vote.The Democrats would have had no filibuster power with judicial nominees at that point. Use of the Constitutional Option was averted by the agreement of the so-called “gang of 14” to avoid filibusters of judicial nominees except in “extraordinary circumstances.”
Today, Democrats continue to threaten to use reconciliation as a means to pass health care legislation. Critics will argue it is a different from the events of 2005.
However, if it is considered Nazi tactics to kill filibusters against judicial nominations, on which filibusters had never been used before and where a completely independent branch of government was being held hostage by the filibuster, then isn’t it worse to kill filibusters that are being used in ways entirely consistent with two centuries of practice and precedent?
“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.
That is what the nuclear option seeks to do to rule XXII of the Standing Rules of the Senate. (Go back to the top of this file.)
I said to someone this morning who was shoveling snow in my area: What does nuclear option mean to you?
He answered: Do you mean with Iran?
The people generally don’t know what this is about. The nuclear option 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 handful of out-of-the-mainstream judges, some in the Senate are ready to callously incinerate each and every Senator’s right of extended debate. Note that I said each Senator. Note that I said every Senator. For the damage will devastate not just the minority party — believe me, hear me, and remember what I say — the damage will devastate not just the minority party, it will cripple the ability of each Member, every Member, to do what each Member was sent here to do — namely, represent the people of his or her State. Without the filibuster — it has a bad name, old man filibuster out there. Most people would be happy to say let’s do away with him. We ought to get rid of that fellow; he has been around too long. But someday that old man filibuster is going to help me, you, and every Senator in here at some time or other, when the rights of the people he or she represents are being violated or threatened. That Senator is then going to want to filibuster. He or she is going to want to stand on his or her feet as long as their brass lungs will carry their voice.
No longer. If the nuclear option is successful here, no longer will each Senator have that weapon with which to protect the people who sent him or her here. And the people finally are going to wake up to who did it. They are going to wake up to it sooner or later and ask: Who did this to us?
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 parties will be lost. Demands for hearings will languish. The President can simply rule. The President of the United States can simply rule by Executive order, if his party controls both Houses of Congress and majority rule reigns supreme. In such a world, the minority will be crushed, the power of dissenting views will be diminished, and freedom of speech will be 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. This is a question of freedom of speech. That is what we are talking about — freedom of speech. And the American spirit, that stubborn, feisty, contrarian, and glorious urge to loudly disagree, and proclaim, despite all opposition, what is honest, what is true, will be sorely manacled.
Yes, we believe in majority rule, but we thrive because the minority can challenge, agitate, and ask questions. 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, speak their own 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 principles upon which that Constitution rests.”