Break Out The Pocket Constitutions: Robert Byrd 1917-2010

Josh Green at The Atlantic:

In his later years, Sen. Robert Byrd, who died this morning, was often viewed–not without some justification–as a self-important windbag who embodied all that was wrong with the fusty and sclerotic institution that he served and worshiped. His 2005 memoir was, to be blunt, absolutely terrible and thoroughly unilluminating–quite a feat given the book’s length of 832 pages. I mentioned in an earlier post that Byrd was the subject of an Atlantic Monthly cover story in 1975 titled “The Man Who Runs The Senate.” The piece, by Sanford J. Ungar, captures Byrd at the peak of his career. He was gearing up to run to for president in 1976. He did not become president, of course, and went on (and on and on) to have an influential career in the Senate. But he was never again thought of as “presidential material.” The Atlantic piece captures the Robert Byrd currently being memorialized as a powerful force, historic figure, etc. You can read it here.

Robert Costa at The Corner:

For a decade, Robert Byrd enrolled in night law-school classes, first as a congressman, and then as a senator. Finally, in 1963, he received his law degree, cum laude, from American University. President Kennedy, his “old colleague,” was there to congratulate him, as AU’s commencement speaker.

[…]

According to the Washington Post, Senator Byrd was the only member of Congress to put himself through law school while in office. R.I.P.

David Boaz at Cato:

Senator Robert C. Byrd, who died today at age 92, had a long and varied career. Unlike most senators, Senator Byrd remembered that the Constitution delegates the power to make law and the power to make war to Congress, not the president. He often held up the Cato Institute’s pocket edition of the Constitution as he made that vital point in Senate debate. I have several emails from colleagues over the years reading “Senator Byrd is waving the Cato Constitution on the Senate floor right now.” Alas, if he really took the Constitution seriously, he would have realized that the limited powers it gives the federal government wouldn’t include many of the New Deal and Great Society programs that opened up whole new vistas for pork in West Virginia.

[…]

To purchase copies of the Cato pocket edition of the Constitution, which also includes the Declaration of Independence and an introduction by Roger Pilon, click here.

Let us hope that some other senator takes up Senator Byrd’s vigilance about the powers of Congress and the imperial presidency.

Nick Gillespie at Reason:

The cheap shot against Byrd is that he was back in the day an Exalted Cyclops of the Ku Klux Klan and writing letters as late as 1946 that “The Klan is needed today as never before and I am anxious to see its rebirth here in West Virginia and in every state in the nation.” I consider it a cheap shot because he did apologize for and disown his participation in the group. Better late than never, I suppose, even if it does make you wonder about all those politicians of his generation, even ones from the Deep South, who never felt a need to recruit for the KKK and never prattled on about “white niggers” like some back-country Norman Mailer.

But it’s Byrd’s status as the Babe Ruth of pork-barrel spending and taxpayer-funded narcissism that is his real legacy and the one we should never forget or forgive. Here lies a man who pushed his home state to build a statue of him in defiance of a rule that such honorees be dead for 50 years.

John Walker at Firedoglake:

Robert Byrd was in the Senate in 1975 when the number of votes needed for cloture was dropped from 67 to 60. Two years later, in an attempt to circumvent cloture, Senators Howard Metzenbaum (D-OH) and James Abourezk (D-SD) performed a post-cloture filibuster (PDF). They did this by offering a slew of amendments without debate, forcing a roll-call vote for each. Now elevated to Senate Majority Leader, Byrd decided he’d had enough, and he created a plan to destroy the possibility of a post-cloture filibuster by changing Senate precedent. With the help of then-Vice President Walter Mondale, Byrd raised a point of order to require the chair to rule all post-cloture dilatory amendments out of order. When Metzenbaum and Abourezk lost their appeal of the chair’s ruling, Byrd used the new precedent to rule all of their amendments out of order. With this he created the precedent that a bill, after securing the needed cloture vote, could not be stopped.

Just one year later, Byrd set in motion another plan to change how the Senate was run to get around a filibuster, this time of a nominee. Byrd was afraid that the nominee would face a double filibuster: the motion to proceed to executive session and then the motion to proceed to the first nominee. So when the moment came, Byrd offered a motion to proceed to executive session to consider the first nominee. This was declared a violation of Senate precedent, but Byrd won a simple majority appeal of the ruling by a 54-38 vote and in effect changed how the Senate operated.

Similarly, in 1979, Byrd faced the possibility of a filibuster of several of his proposed rule changes at the beginning of a new Congress. He stated clearly that he believed in the right of a simple majority of Senators to change the rules as Congress began its session. The threat, while never executed, helped Byrd enact many changes to Senate rules.

What’s the relevance of these instances? They show that the Senate’s rules and precedents are not fixed in stone since the birth of the Republic. They are modified and changed, often in a blunt manner, by the majority of members who serve in the chamber. Even Byrd, the man who was seen as the great defender of Senate tradition, did not hesitate to use a simple majority vote to change the rules and precedents so the chamber could do its actual work of governing. Byrd defended the rules of the Senate, but he rewrote, exploited and officially ignored those rules when it fit his needs.

Ezra Klein:

Instead, I want to talk about the Senate that Byrd leaves behind. Byrd was, famously, a master of the body’s arcane rules. He wrote a four-volume history of the institution. At a recent lecture on the history of the Senate, the speaker said that there were only ever two people in the room who knew what was going on: The parliamentarian and Robert Byrd.

This was a skill born of necessity. Byrd didn’t have the back-slapping bonhomie that sped the rise of most of the body’s famed members. “Dour and aloof,” writes Holley, “a socially awkward outsider in the clubby confines of the Senate, Mr. Byrd relied not on personality but on dogged attention to detail to succeed on Capitol Hill.” That attention to detail eventually got him elected party whip, and then majority leader. Sen. Howard Baker, who led the Republicans when Byrd led the Democrats, once told me that he cut a deal with Byrd on his first day in office. If you never use the rules to surprise me, he told Byrd, I’ll never use them to surprise you. Byrd thought it over till the afternoon. Then he agreed.

The deal held. That was the nature of the Senate in Byrd’s day: It was thick with rules that could be used to tie the institution in knots, but those rules were governed by norms that were used to keep the institution functioning. It was this tradition that led Byrd to write a letter opposing filibuster reform earlier this year. “If the Senate rules are being abused,” he wrote, “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.” In other words, the Senate needed to reestablish its norms, not change its rules.

But the situation is too far gone for all that. The Senate is now a place of blanket holds and routine filibusters and anonymous obstruction and party-line votes. The thing about norms is that once broken, they’re generally dead forever. Republicans tell the story of Trent Lott and Orrin Hatch explaining to their colleagues that judicial filibusters simply weren’t done, only to see Democrats filibuster Miguel Estrada. Now Republicans filibuster judicial nominees constantly. Conversely, Democrats tell the story of George W. Bush using the budget reconciliation process to pass tax cuts — the first time the mechanism had ever been used to increase the deficit. That left them cold to Republican cries that the process was limited in design and couldn’t be used to finish health-care reform.

Nate Silver:

UPDATE: 11:50 AM. I’m now hearing from a well-placed source that the Secretary of State’s office is very likely to interpret the law as requiring a special election in 2012, rather than in November, because the candidate filing period for this year has already passed and because there is a court precedent on the books which supported this interpretation.

If this scenario comes to transpire, there would actually be both a special election and a general election on the ballot in November 2012 — although the winner of the special election would only serve during the lame duck period between the elections and when the new Congress convened in January, 2013.

The West Virginia Secretary of State will hold a press conference at 4:30 today at which an official decision is announced.

ORIGINAL STORY: 9:16 AM. I just got off the phone with Jake Glance, the Public Affairs and Communications officer for West Virginia Secretary of State Natalie E. Tennant.

Glance told me that no decision has been made yet on when a special election would be held to replace Robert Byrd, who passed away early this morning. Various interpretations of the law might require the special election to be held this November — or not until November, 2012, when Byrd’s term was set to expire anyway.

“There are a lot of sections on state code that apply to this kind of thing and we’re examining each one of them and we’ll be making an announcement soon,” Glance told me. “We just need to make sure that what we say fits this specific situation.”

Glance added that it had been a difficult day at the office. “It’s really difficult to imagine this state without Robert Byrd,” he said. “Everything has his name on it out of appreciation for what he did.”

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