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The post-Byrd Senate

Robert C. Byrd died last night. The Internet is filling with elegant obituaries, including this package at the Charleston Gazette and Joe Holley's recollection here at The Post. I won't try to match them.

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.

Thumbnail image for filibusters-1102.gif

In Byrd's day, the Senate had rules, but it functioned because of norms. Today, however, the norms have broken down and it's stopped functioning -- or at least functioning well -- because of rules. Eventually, change to the norms will lead to change in the rules. But we're in the lag time when the Senate hasn't caught up to its own reality yet. You see this in different generations of senators: Many of the freshmen and sophomores want to change the body's rules. Some of the elders, like Byrd, steadfastly resisted such reforms.

Byrd came from a time when mastery of the Senate came from understanding the rules and norms that made the Senate work. The body's next set of legends, however, will be the legislators who reform the rules and set the norms that make the body work again. Byrd wrote volumes one through four of the institution's story, but there are more volumes yet to be written.

Graph credit: Norm Ornstein/The American.

By Ezra Klein  |  June 28, 2010; 10:04 AM ET
Categories:  Senate  
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Comments

Well, it's also important to note that the rules have changed from Byrd's day, but that they'll continue changing as the makeup of the body and national politics change. The rules need to set some base line of functioning for cases, like today, when the members are diametrically opposed to each other, at least politically. The rules keep things moving, even at a slower pace, when relationships break down. Maybe some day the Senate will be a more collegial place again and will function above and beyond the baseline set by the rules, but we shouldn't have to endure a government that can't address the country's problems because we have rules set up to work when everyone likes each other.

Posted by: MosBen | June 28, 2010 10:12 AM | Report abuse

The Senate rules should be changed to make the body majoritarian - nothing less can be justified in a democratic society. Some rights for the minority, but not the ability to stop the work of the body.

But it won't happen, and not just because of screams of fascism from the Republicans.

The Dems will be eying how to prevent a far-right Republican majority, if that seems at all possible, from rolling us back to the 1920's or 1870-1890s.

Bad rules lead to perpetually bad rules. There are not the votes to make big changes in the US Senate rules in 2010-11.

Best analogy: the UK House of Lords for a very long time could prevent the House of Commons from quick-acting legislative remedies. Finally, in Tony Blair's early days the Commons had to threaten abolition of the Lords to get the Lords to agree to put aside their legislative delay/veto. The Lords are now the nice lapdogs of aristocratic discussion (with no major legislative role) that a democracy demands.

The US Senate has the protection of a Constitutional amendment process that is as broken as the Senate rules, so the Blair approach can't work here.

Just keep telling yourself that South Dakota should have the same voting weight as TX, CA or NY. You'll feel better.

Posted by: JimPortlandOR | June 28, 2010 10:30 AM | Report abuse

work, meaning rubber stamp the legislation that represents the will of your patrons at the White House. "If the rules are being abused, it does not follow.." He was of course right.

Posted by: truck1 | June 28, 2010 10:50 AM | Report abuse

Of course, some of us WANT the Senate Rules to be used to obstruct Obama and the Dems, until the People can course correct.

Posted by: JakeD2 | June 28, 2010 11:07 AM | Report abuse

Among the many remarkable attributes of Senator Byrd was his ability to acknowledge his youthful indiscretions -- membership in the KKK, for example -- and to apply the lessons he had learned, particularly the lessons regarding the role of unity and comity in leadership of a group. “A leadership role is different,” [Byrd] said, “and one does represent a broader constituency.”

Perhaps there is hope for the freshmen and sophomore Senators. Sophomoric foolishness -- be it KKK membership, participation in a silly electronic mailing list, or ill-conceived changes to the rules of the game -- need not be a bar to long-term success. The trick (if there is one) seems to be recognition of the fact that the Junior and Senior Senators might actually know something... might actually have some greater experience.

Posted by: rmgregory | June 28, 2010 11:10 AM | Report abuse

Thank you for posting the clip of Byrd's fiddle playing!

Posted by: jiji1 | June 28, 2010 11:27 AM | Report abuse

"Of course, some of us WANT the Senate Rules to be used to obstruct Obama and the Dems, until the People can course correct."

OK, assuming the hypothetical course correction, what would make it more democratically legitimate than the Dem victories in 2006 and 2008? Why should those majorities be able to work their will while the earlier ones weren't? I'm interested in a defense of that idea that doesn't boil down to "because I'll agree with the next one."

Posted by: zimbar | June 28, 2010 12:17 PM | Report abuse

It's an easy conjecture that the conduct of the Senate has evolved the way it has because of the long festering sore that was Bobbie Byrd.

Byrd was a one man army of cancer on liberty's body.

Posted by: msoja | June 28, 2010 2:32 PM | Report abuse

"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."

Republicans are full of it. The nomination of Abe Fortas was successfully filibustered in 1969. The reason that Republicans did not filibuster Clinton's appointees is that dozens of these appointments were never permitted by Orrin Hatch to reach the floor of the Senate (including the appointment of Elena Kagen).

Posted by: Vadranor | June 28, 2010 2:39 PM | Report abuse

zimbar (just saw your questions):

Assuming there was no electoral fraud in 2008, there is no difference in terms of democratically legitimate victories, and keep in mind that I was completely supportive of Dems in the earlier minority "gumming up the works" too (as long as they did so according to the Rules : )

Next question?

Posted by: JakeD2 | June 28, 2010 3:30 PM | Report abuse

JakeD2, consider 4 hypothetical nations.

In Donoth Ingland, one legislative house simply blocks all action because the minority has a veto. Elections don't matter.

In Majoristan, the majority party governs, and the voters can correct that at the polls in the next election.

In Cautionia, the majority party creates pilot programs, which are not full-scale but are not ideologically watered-down. If these programs work, they become popular enough to force general adoption.

In Brokeny, the minority party forces the majority to water down or abandon all its major objectives, then wins by calling their opponents ineffective.

Which one(s) does the US resemble the most right now? As much as you (and I too) wish this were a debate between Majoristan and Cautionia, it's just not.

Posted by: homunq | June 29, 2010 12:32 PM | Report abuse

Note that part of what preserved the norms was that senators had the spine to react to their violation. Most of the Senate's historical majorities - Republican or Democratic - would have dealt with such an obstructionist minority by now. Filibuster reform would be threatened, if not enacted: "If you don't play nice, we'll take away your toys." Only today's spineless Democrats could let this drag on so long.

Posted by: homunq | June 29, 2010 12:36 PM | Report abuse

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