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Statement of U.S. Senator Robert C. Byrd

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Statement of U.S. Senator Robert C. Byrd (D-W.Va.)

Senate Committee on Rules and Administration

"Examining the Filibuster:

History of the Filibuster 1789 -- 2008."

Mr. Chairman,

I have long revered the rules and precedents of this body, but I have also championed reforms when I thought them necessary. In 1975 as Senate Majority Whip, I sponsored changes to Rule XXII, reducing the threshold for cloture from two-thirds of Senators "present and voting," to three-fifths of Senators "duly chosen and sworn." In 1979 as Senate Majority Leader, I sponsored additional changes to clarify the intent of Rule XXII, and to eliminate post-cloture filibusters. In 1986 as Senate Minority Leader, I sponsored further changes, reducing post-cloture debate from 100 hours to 30 hours. In 2007, I authored a change to Rule XXVIII, to make it more difficult to include new matter that had not been debated in either house of Congress in a conference report, by requiring sixty votes.

I have tried to achieve these ends by working within the Senate rules. I am not for circumventing the rules, nor am I for changing the rules as an option of first resort. Having served in the Senate for more than fifty years, and served in both the majority and minority, I know that majorities change. Senators who advocate for rule changes today may have to live under those changes in the minority tomorrow. We should remain open to changes in the Senate rules, but not to the detriment of the institution's character or purpose.

The filibuster is a powerful tool, and it ought to be invoked only in the most extraordinary circumstances. Senators, to a degree, have abused their right to debate, objecting to routine business and exhausting the patience of their colleagues. But before we get all steamed up, demanding radical changes to the Senate rules, let's read the rules and make sure we understand what we are talking about.

In recent months, we have seen measures introduced in the U.S. Senate -- one to gradually reduce the threshold for cloture to a simple majority, and another to require the Senate to adopt its rules anew at the beginning of each Congress. There is also the procedural gambit advocated by some, to have the Vice President assume the chair, and to have a majority codify his ruling to do away with the filibuster. These are not new proposals, and the arguments for them are as old as the cloture rule.

It does not take much imagination to decry long-winded speeches and obstruction and advocate for changes to the rules. It does take time and experience to understand the rules and how they bolster the historical significance of the Senate.

I oppose cloture by a simple majority, because I believe it would immediately destroy the uniqueness of this institution. In the hands of a tyrannical majority and leadership, that kind of emasculation of the cloture rule would mean that minority rights would cease to exist in the U.S. Senate.

The U.S. Senate is not the U.S. House of Representatives, and was never intended to function like the House. The Senate is a forum of the states, where regardless of size or population all states have an equal voice. One must also realize that a majority of states may not actually represent a majority of opinion in the country. In the Senate, states like West Virginia are equal to states like California, Texas, and New York. Yet, without the protection of unlimited debate, small states like West Virginia might be trampled underfoot.

Take away the right of unlimited speech by the representatives of the people, and one tampers with the fundamental checks and balances forged by the framers.

I hope Senators will take a moment to recall why the devices of extended debate and amendments are so important to our freedoms. The Senate is the only place in government where the rights of a numerical minority are so protected. Majorities change with elections. A minority can be right, and minority views can certainly improve legislation. As U.S. Senator George Hoar explained in his 1897 article, "Has the Senate Degenerated?" the Constitution's Framers intentionally designed the Senate to be a deliberative forum in which "the sober second thought of the people might find expression."

During my tenure in Congress, I have witnessed bitter fights over Vietnam and McCarthyism. In the decades before that, I remember Senators denouncing the New Deal as socialism and communism. Bitter partisan periods in our history are nothing new.

If something seems wrong with the Senate from time to time, we, the members, might try looking in the mirror. Additional efforts toward civility and patience, and accommodation on both sides, may do us more lasting good than any actual change in the rules. There is no challenge we must confront that dwarfs the challenges our predecessors faced. If they found a way forward without damaging the Senate's ultimate purpose, I am confident that we can too.

If the Senate rules are being abused, it does not necessarily follow that the solution is to change the rules. Senators are obliged to exercise their best judgment when invoking their right to extended debate. They also should be obliged to actually filibuster, that is go to the Floor and talk, instead of finding less strenuous ways to accomplish the same end. If the rules are abused, and Senators exhaust the patience of their colleagues, such actions can invite draconian measures. But those measures themselves can, in the long run, be as detrimental to the role of the institution and to the rights of the American people as the abuse of the rules.

Extended deliberation and debate -- when employed judiciously -- protect every Senator, and the interests of their constituency, and are essential to the protection of the liberties of a free people.


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