Dems Deserve a Dose of

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April 12, 2005, 7:52PM

Dems' hypocrisy showing in 'nuclear option' tussle

'Byrd precedent' used to great effect in Senate

By RICHARD N. BOND

What do the deregulation of natural gas, the attachment of legislative amendments to appropriations bills, a defense authorization bill and the nomination of a U.S. ambassador to El Salvador have in common?

Answer: They all were resolved by a simple majority vote in the U.S. Senate under procedures altered by then-Majority Leader Robert Byrd, D-W.Va.

And now the crafty Byrd is rewriting history. He recently denounced Republican consideration of a parliamentary maneuver designed to clear the way for a simple majority vote on President George W. Bush's judicial nominees.

In blasting the GOP's so-called "nuclear option," Byrd invoked Hitler, Nazi Germany and Mussolini's Italy — drawing condemnation from Jewish leaders.

Beyond Byrd's rhetoric, now a staple among the Howard Dean-led Democrats, it is worth noting that Byrd is condemning Republicans for considering using a tactic that he himself used four times during his tenure as majority leader. And he is hardly alone in showing hypocrisy on the issue. Various other Democratic senators are now decrying potential tactics they have approved in the past.

The facts on Byrd's hypocrisy are made clear in a recently published article in the Harvard Journal of Law and Public Policy, "The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster."

In their analysis, authors Martin A. Gold and Dimple Gupta detail how Byrd, from 1979 to 1987, initiated four precedents that allowed a simple majority to change Senate procedures.

In 1977, Byrd cut off a filibuster led by two members of his own party, Sens. Howard Metzenbaum, D-Ohio, and James Abourezk, D-S.D., on a proposal to deregulate natural gas prices. He initiated a maneuver empowering the chair to disqualify amendments under certain circumstances. He then used his recognition rights to foreclose the possibility of appeal. Byrd created a precedent that enabled him to break the filibuster and used it with stunning force.

Two years later, Byrd again manipulated the Senate rules by establishing a precedent to curb the practice of adding legislative amendments to appropriation bills. Byrd's victim that time was Sen. William Armstrong, R-Colo., who had offered an amendment to raise a cap on military pay. In 1980, Byrd was back at it, changing Senate procedures to prevent a filibuster on a motion to consider the nomination of Robert E. White as ambassador to El Salvador. Republican Jesse Helms, R-N.C., was the target of Byrd's third tactic. His point of order against Byrd's maneuver was sustained by the chairman, but Byrd prevailed on a party-line 54-38 appeal.

Byrd's fourth change of Senate procedure came in 1987 against Sen. John Warner, R-Va., who was attempting to prevent a vote on a defense authorization bill. Byrd rolled over the GOP's delaying tactics by imposing new precedents through a slew of simple majority votes that ran almost entirely along party lines.

Byrd, who recently trumpeted "the Senate was never intended to be a majoritarian body," made the Senate just that on four occasions when it suited his ends.

Despite this record of using parliamentary weapons himself, Byrd proclaimed in his March 1 speech attacking Republicans for even considering similar tactics: "It seeks to alter the rules by sidestepping the rules, thus making the impermissible the rule." And, not to be outdone by Byrd in the halls of hypocrisy on the issue of rule changes is fellow Democrat Edward M. Kennedy, D-Mass., who, during a rule reform debate in 1975, voted three times to change the cloture rule by the very procedures he now denounces.

Ten years ago, a group of Democratic senators called for an end to the filibuster for any purpose, including legislation. Their proposal received 19 votes, all from their own party. Among those still serving who voted for that change are Kennedy, John Kerry of Massachusetts, Tom Harkin of Iowa, Joe Lieberman of Connecticut, Barbara Boxer of California, Frank Lautenberg of New Jersey, Paul Sarbanes of Maryland, Jeff Bingaman of New Mexico and Russ Feingold of Wisconsin.

New York's Sen. Charles Schumer, one of the Democrats' shrillest voices decrying Republican consideration of the "Byrd precedent," has argued that rules can be changed from one Senate to the next by simple majority vote.

Republicans should give Byrd and his fellow Democrats a taste of that same simple-majority medicine Byrd administered while his party controlled the Senate. But, instead of referring to the "nuclear option," Republicans ought to refer to the "Byrd precedent" as they move toward a simple majority vote on judicial nominees. And smile when they say it.

Bond, a former Republican national chairman, heads a Washington-based government-affairs firm.

http://www.chron.com/cs/CDA/ssistory.mpl/e...outlook/3131503