Tuesday, May 13, 2003

The only time in history the Senate changed its rules using the “nuclear option,” many feared the parliamentary maneuvers could be employed again far into the future to quash the minority.

Today, more than 25 years later, the option is seriously being considered.

Republicans are so angry about Democratic filibusters against two of President Bush’s judicial nominees that they are considering going for the constitutional end-run. It allows a simple majority of senators, 51, to change rules to make it easier to end filibusters conducted by the minority.

Now, 60 votes are needed to invoke cloture and end a filibuster. Republicans want to change that requirement to a simple majority.

“There are a number of people interested in using the parliamentary procedure,” said Majority Leader Bill Frist, Tennessee Republican.

If Mr. Frist and his fellow Republicans use the option, they can thank some of the very Democrats leading today’s filibusters for paving the way 25 years ago.

Sen. Patrick J. Leahy, Vermont Democrat and ranking member of the Judiciary Committee, and Sen. Edward M. Kennedy, Massachusetts Democrat and influential member of the committee, were among those who voted in 1975 to force changes to Senate rules with a majority vote.

At issue in 1975 was a growing consensus in the Senate that a 67-vote requirement for breaking filibusters was too onerous. Democrats reduced that requirement to 60 using the bare-majority nuclear option.

“We cannot allow a minority, a small group of members, to grab the Senate by the throat and hold it there,” Senate Majority Leader Mike Mansfield, Montana Democrat, said at the time.

But when senators thought up the nuclear option, many supporters — including Robert C. Byrd, West Virginia Democrat — backed away, hoping instead to find a more proper way to make the changes.

In the years leading up to the 1975 vote, Mr. Byrd cautioned his colleagues in the Democratic majority: “The day may come, although I hope it will not be in my time, when we will be in the minority and it will take only 51 senators from the other side of the aisle to stop debate immediately, without one word, on some matter which we may consider vital to our states or to the nation.”

By February of 1975, frustration about the filibusters had grown so intense that a majority of senators, mostly Democrats, favored using the nuclear option. They pointed to Article 1, Section 5 of the Constitution, which reads, “Each House may determine the rules of its proceedings.”

So in a series of votes on complex parliamentary procedures in the winter and spring of 1975, the Senate established its right to set and alter the rules of the Senate with a simple majority vote, free from the threat of filibusters.

In the end, the requirement to break filibusters was lowered to 60 votes.

In addition to Mr. Leahy, Mr. Kennedy and Mr. Byrd, Sen. Joseph R. Biden, Delaware Democrat, and Daniel K. Inouye, Hawaii Democrat, also supported the change.

But it didn’t come without a cost.

Bob Dove, who was assistant Senate parliamentarian at the time, called it an “ugly, ugly scene.”

As the crucial votes were taken, Sen. James B. Allen, Alabama Democrat, rose to speak. Vice President Nelson A. Rockefeller, who came over to the Senate to preside over the contentious proceedings, repeatedly ignored Mr. Allen from the chair.

“What is this? Is this still the Senate of the United States,” asked Sen. Russell Long, Louisiana Democrat, who died last week. “Is this the place that I wanted to serve from the days I sat there in that gallery and was 12 years old? Or is this some place where we are going to rule by the rule of might makes right?”

In the past several months, the idea of using the procedure has gained momentum with Democrats conducting simultaneous filibusters on two of Mr. Bush’s nominees — Washington lawyer Miguel Estrada, nominated to the U.S. Circuit Court of Appeals for the District of Columbia, and Texas Supreme Court Justice Priscilla Owen, nominated to the 5th U.S. Circuit Court of Appeals.

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