- The Washington Times - Monday, May 16, 2005

Senate Majority Leader Bill Frist is preparing to use a majority vote to initiate a change in Senate rules. The effect will be to prevent Senate Democrats from resuming their unprecedented, systematic filibuster campaign. Amid all of the screeching from Senate Democrats, it is worth recalling the words of Sen. Robert Byrd, who lectured his colleagues on the Senate floor: “The Constitution in Article I, Section 5,” then-Majority Leader Byrd said in October 1979, “says that each House shall determine the rules of its proceedings.” It is also worth noting that the filibuster is never mentioned in the Constitution.

As Martin Gold and Dimple Gupta meticulously detail in their 68-page article, “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster,” which appeared in a recent Harvard Journal of Law & Public Policy, Mr. Byrd was both instrumental and indispensable in amending Senate rules with simple-majority votes on at least four occasions.

• In 1977, in opposition to a proposal to deregulate natural-gas prices, Democrats Howard Metzenbaum and James Abourezk prepared to exploit a loophole, the so-called post-cloture filibuster. Mr. Byrd went into action. Despite being criticized by Mr. Abourezk for attempting “to change the entire rules of the Senate during the heat of a debate … on a majority vote,” Mr. Byrd did just that. As Mr. Gold and Ms. Gupta concluded, “The result was that a majority of senators had succeeded in altering Senate procedures without changing the text of a Standing Senate Rule.”

• In 1979, Mr. Byrd broke a filibuster by threatening to force a rules change with a simple-majority vote, arguing that “the first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time.” Mr. Byrd declared “my belief” in “upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress.” Irrespective of the super-majority rules adopted by previous Congresses, Mr. Byrd asserted, “This Congress is not obliged to be bound by the dead hand of the past.”

• In 1980, Mr. Byrd, after being overruled by the presiding officer, used a party-line, majority vote (54-38) to change Senate procedure for the consideration of an executive nomination. By effectively ruling that motions to proceed to nominations would no longer be subject to debate, as they were in the past, the rules were changed and a new precedent was established by a simple-majority vote.

• In 1987, Mr. Byrd used a series of party-line, simple-majority votes “in establishing three precedents that radically changed voting procedures under [Senate] Rule XII,” Mr. Gold and Ms. Gupta document in their Harvard article. “[A] Byrd precedent once again changed Senate procedure to run contrary to the plain text of a Standing Senate Rule,” the authors demonstrated.

By the actions and the logic of none other than Mr. Byrd, if the 96th Congress in 1979 was “not obliged to be bound by the dead hand of the past,” then neither is the 109th Congress in 2005.

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