Flashback

Will the Senate Sober Up?

The demands of the postwar world have transformed the Senate from an "exclusive club" into something like a convocation of princes from a hundred private fiefdoms. Therein lies the dilemma of Majority Leader Robert Byrd.

By From the February 1978 issue

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In his masterwork, The American Commonwealth, Lord Bryce wrote a century ago what remains a fair description of senators today:

[R]eviewing the whole hundred years' history of the Senate, the true explanation of its capacity is to be found in the superior attraction which it has for the ablest and most ambitious men … [But] a sort of Olympic dwelling place of statesmen and sages … it never was; and nobody would now so describe it. It is a company of shrewd and vigorous men who have fought their way to the front by the ordinary methods of American politics, and on many of whom the battle has left its stains.

Robert Byrd has known battle. Born into rural poverty, he was a store clerk and butcher, before opening his own shop after World War II. He eyed and won elective office for the first time in 1946, when he took a seat in the West Virginia House of Delegates. To the State Senate in 1950, Congress in 1952, to one of the state's two then-vacant U.S. Senate seats in 1958—it was an awesome climb from shopkeeper. Almost equally remarkable was his dogged pursuit of education. Byrd won his law degree in 1963, at the age of 45, after more than two decades of night college and night law classes.

By a combination of ability and diligence—and by attention to the mundane and tedious tasks of a shopkeeper—Byrd advanced from a leadership job of minor importance to a key role in national affairs. When Senate Democrats organized for the new session in January of 1967, Ted Kennedy's then-rising star was boosted by election to the Senate's number-two leadership post, Majority Whip. Byrd was elected to the comparatively insignificant number-three spot, Secretary of the Democratic Conference.

Majority Whip is a prestige job, but it is also something of a nuisance job—knowing which senators are in town, and when, holding off votes until this one's plane lands or that one returns from the White House. It was the burden of these trivial affairs, these daily nuisance-chores for colleagues, which Byrd offered to lift from Whip Kennedy's shoulders, an offer which Kennedy, mourning his last brother, accepted. And it was appreciation for these daily protections that provided the 31-24 margin by which Byrd, in a stunning victory in January 1972, stripped the Whip mantle from a post-Chappaquiddick Kennedy. A loss from which Kennedy's Senate career has never truly recovered, for Robert Byrd it was the big step up.

Byrd appeared by cast of mind and temperament the perfect Whip. He seemed well-suited to the daily chores of the Senate floor, and by exercising those responsibilities he freed the Majority Leader, Mike Mansfield, for other more interesting, and presumably more important, affairs. In fact, it was Byrd's attention to the practical duties of a Whip which served as the point of attack in the attempt by "liberal" senators to prevent his accession to the top post upon Mansfield's retirement. Byrd would be unable to lead the Senate properly, they argued, because he was a handyman, not an "issue-man." He lacked, as it were, the moral authority which comes to one who has exhibited a consistent attachment to liberal-progressive ideals.

The alternative was Hubert Humphrey, whose health was beginning to decline but whose ideological attachment was unquestionable. Yet the Humphrey effort never quite got off the ground, in spite of Senator Kennedy's success at persuading other contenders to withdraw and some agreement within the "liberal" bloc to back Humphrey. Partial agreement was not enough: When influential "liberals" such as Abraham Ribicoff refused to back off their previous commitments to Byrd, the Humphrey candidacy was finished.

So Robert Byrd assumed the office of Majority Leader. An intelligent, hard-working, canny man, he views his role as one of expediting Senate business. He tells freshmen senators what has been told freshmen for decades: that they have two types of colleagues, "work horses and show horses." It has never been in doubt which kind Byrd is, or considers himself to be.

Criticized in the early weeks of the Senate debate on energy for not pushing harder for the Carter program, Byrd responded, "I always feel it best for the Majority Leader to stay in the background, unless it is necessary for him to move forward." He defends Senate prerogative's against executive pressure, often asking that the Senate be allowed to "work its will." But he will also fight for his own prerogatives as Majority Leader. He is capable of being a "tough cookie," more willing to reward and punish than was Mansfield, although he seems not as harsh with those who cross him as was Lyndon Johnson. He knows the ins and outs of Senate procedure as well as anyone, and much better than most.

The ideological criticism remains, of course, that Byrd is, as one of his disapproving colleagues put it, like a "plumber"—not caring what is in the pipes as long as things keep moving. Depending on your view, that may not be such a bad thing. What does seem worrisome has been Byrd's noticeable lack of success at keeping the pipes clear whenever important issues were before the Senate. Several times in the past year, and to an ever increasing degree over the past several years, legislation has been stuck on the floor for days and the Senate held hostage by a handful of intransigents. Best publicized of these incidents was the two-week delay of the natural-gas-price bill carried on by Senators Abourezk and Metzenbaum last September.

To understand the significance of these stalls, consider how they differ from the "talkathons" of old. Indeed, they are not talkathons at all. They are shrewd attacks upon the weakest links in the chain of present-day Senate procedure. That means that in large part they are attacks on the power of the Majority Leader.

In the most passionate Senate debate of our time, the opponents of the 1964 civil rights bill by and large accepted defeat once a cloture motion to end their filibuster had passed. But when cloture was invoked on the central amendment to the gas bill, the filibuster had only just begun. Under Senate rules, amendments "at the desk" before cloture is invoked may be brought up for consideration after cloture. What are not allowed are "dilatory" motions and tactics—that is, purposely delaying the bill's passage.

That didn't stop Abourezk and Metzenbaum. Following the methods of Senator James Allen of Alabama, who over the past few years has perfected the procedural stall—and who, although an opponent of price controls, advised the duo throughout- Abourezk and Metzenbaum had 508 amendments filed at the desk by the time cloture passed. Since each amendment was itself debatable, the invoking of cloture became a meaningless exercise.

After two weeks as hostage of the intransigents, having used every weapon in his arsenal without success, Byrd reacted with a display of raw power. On Monday, October 3, after a parley with Vice President Mondale, Byrd requested a "ruling of the chair" from Mondale to the effect that it was within the power of "the chair" to rule out of order any amendment it deemed dilatory on its face. Mondale agreed, and when the ruling was appealed by the intransigents, a majority of senators—tired and frustrated after two weeks of non-debate—also agreed. Several hours passed. At four o'clock in the afternoon, Byrd took the floor and began to call up Metzenbaum's amendments. One after another, Byrd called them up and Mondale slapped them down. To screams of protest from others on the floor, Mondale cast a deaf ear, refusing to recognize anyone but Byrd—and thereby preventing any of his rulings from being appealed to the whole Senate. Within 20 minutes, the Byrd- Mondale combo had disposed of some 30 amendments; the intransigents buckled and agreed to allow final passage of the bill the next day. One abuse of the Senate's procedures had instigated another more stunning and dangerous.

This is just one instance of how the numerous Senate rules and traditions that protect minorities of Members and individual prerogatives are breaking down. Ultimately, the survival of those protections hinges upon the existence of some reasonable ethic of fair play, which prevents their tyrannical (and sometimes successful) use by zealots. Yet the very existence of such an ethic presupposes a body infused with enough sense of common purpose to sustain those standards. That does not mean an agreement on particular issues. It does mean there need exist a sense of membership strong enough to suppress the extravagances of ideology and the temptations of the nightly news—a sense the Senate now lacks.

For in this as in other visible ways, the Senate exhibits evermore distressing signs of suffering the thralls of institutional crisis. Expediting legislation, mediating successfully, passing bills—all these should be seen as a play within a play: important, perhaps even inciting, but always part of a larger whole. That whole is the preservation of a functioning institution for those who will come after. A sense of membership, and thus legislative efficacy, depends on the recognition of a shared responsibility in that enterprise.

This quagmire is not of Byrd's making. It has been developing for years, in large part from pressures on the Senate which have transformed it from an "exclusive club" into something like a convocation of princes from a hundred private fiefdoms. So what begins as an attempt to understand Robert Byrd, to assess his skills and techniques in office, becomes in the end an appraisal of the modern Senate's predicament.

Procedure is a bore. In the best of times, it is a map of a road driven a hundred times before. But procedure is also a necessity, for there are times when rules must substitute for comity, when rules and customs are the frail impediments to chaos. The sensible institution keeps them safe, a legacy from those who have travelled strange roads.

Unfortunately, meeting the demands, foreign and domestic, of the postwar world was a road no one had travelled. Within a decade of V-J Day older ways of thought and action were being called outmoded. By the time Lyndon Johnson became Majority Leader in January of 1955, judgments about the Senate's value as an institution were being merged, in the minds of many opinion-makers, with the question of whether the Senate was passing legislation that fit their notions, often worthy notions, of the kind of place America should be. With that, earlier conceptions of what good Senate leadership entailed also changed.

Last August 5, as the Senate was nearing its summer adjournment, Robert Byrd detailed its accomplishments over the previous seven months. He asked that a 36-page review of the Senate's activities be printed in the Congressional Record. In so doing, Byrd followed the well-marked path of Lyndon Johnson, the man most associated with "the modern Senate," and a man frequently attacked while Senate leader for not having passed more "liberal" legislation. Johnson's response was to list repeatedly the bills the Senate had passed up to that point in the session. Passing bills, winning approval for legislation which, although not enough for ideologues, could not have been passed without Lyndon Johnson—that is how he perceived his job, and how he won his reputation.

Yet, to make the Senate "perform," as it had at no time since the pre-Court-packing days of the New Deal, Johnson had to change the way it operated. In essence, if the Senate and its leader were going to be judged by whether agreeable legislation was passed, then the Senate's leader was going to make certain that in the mechanics of day-to-day procedure he had the power to lead.

In their perceptive analysis in Lyndon B. Johnson: The Exercise of Power, political columnists Rowland Evans and Robert Novak note Johnson's subtle but important alterations in Senate habits and procedures. By now they have become habits in their own right. They are Johnson's legacy of power to Robert Byrd, as well as the best illustration of how greatly the Senate has changed.

First of these is the frequent use of unanimous consent agreements. A procedural method of avoiding strict and time-consuming adherence to Senate rules, they say in effect, "if no one objects, let's do it this way." But Johnson utilized this old practice in tandem with the Majority Leader's power to schedule floor activity. So now, if all parties agree to time limits—and an effort to get them to agree is made on virtually every bill and amendment—the Majority Leader proposes a unanimous consent agreement which binds the Senate. The aim is to save time, but the effect is to rigidly structure debate. These agreements are the heart of Byrd's day-to-day technique. Like Johnson before him, and somewhat more than Mansfield, Byrd tries to keep floor activity within a strict framework—which prevents all but the rarest Senate debates from becoming exciting or instructive.

By alternating between periods of relative calm and frenetic floor activity (in which numerous unrelated bills were considered), Johnson gave senators little time to bone up on legislation from committees other than their own. Thus the average senator no longer has much inclination to ask serious questions, or indeed to be very interested in such bills at all. Byrd uses this technique, as did Mansfield, but recent innovations such as the new budget process (which requires extensive committee work early each session, followed by a crush of floor activity in April and May) also contribute to a pattern of on-again, off-again floor consideration. And as rapid-fire lawmaking hinders the ability of senators to discuss bills in depth, so late-night sessions, another Johnson first, dampen enthusiasm for the fray. As might be expected of a night-school veteran, Byrd uses such sessions frequently. In 1977, more than 20 percent of all Senate sessions ended after 8 p.m.

Johnson's other tinkering with Senate procedure is the simplest, yet it has had the most profound impact on the conduct of senators. Traditionally, quorum calls were used for just that—to determine if a quorum was present. But because they also suspend debate, they provided Johnson with a way to mediate disagreements "on the spot." Johnson would "suggest the absence of a quorum," summon opposing sides to the cloakroom, win some agreement or compromise, and then return to the floor. By unanimous consent the call of the quorum would be suspended, and the Senate back in business.

As late as the 1940s it was normal for as many as 50 senators to be seated on the Senate floor each day. Today, ten is unusual. Prior to Johnson, if some difficulty arose the Senate would "recess to an appointed hour"—perhaps 20 minutes, perhaps two hours. In any case, senators knew when to return. But delaying quorum calls, on-and-off, all day long, depending originally upon the needs of the Majority Leader (today upon the convenience of whoever is on the floor), robbed the average senator of his certainty of when floor activity would resume. Staying on the floor soon became a waste of his time—there was plenty to do back at the office. Today his office, not the Senate floor or anterooms, is the center of a senator's world.

Here, then, is Johnson's legacy as Majority Leader: By an extraordinary force of personality and by shrewd manipulation of procedures he gave the ship a throttle; to an extent only recently perceptible, he also shattered the hull.

Much as some may regret its passing, the Senate of old vanished with limited government. It would be easy to sentimentalize the loss, but more realistic to admit that, after all, the Websters, Clays, and Calhouns were always the exception. What can be said of the Senate these men knew, however, or indeed of that known by Vandenberg and Wagner and Norris and Taft, is that it had room for exceptional men. It was the center of their world, a place in which they could hope to influence their less gifted colleagues. That is no longer, or at least is much less, the case today.

The Senate has changed, as has the role of government in general and people's perceptions of it. Spurred by a vision of activist reform, goaded by a public taught to minimize the difficulties of representative government, the Senate and its Members learned to run a treadmill for favor. Practical, untheoretical men, leading active, often frenetic lives, senators allowed the institution in which they serve to slip into disrepair. It was, after all, what was being asked of them: to legislate, which meant to pass bills, not deliberate; to oversee a growing executive branch, which meant hiring thousands of aides to perform numerous legislative functions; to meet constituents and interest-group representatives, which meant less and less time for the Senate floor or for informal discussions with colleagues. By failing to judge which among its functions remained possible, and which, by the nature of the Senate's unique role in the national government, were most worthy of being maintained, the Senate has become a victim of the modern, massive government it helped to create. Over time, what had been a Senate of individuals has become a hundred individual senators.

Therein lies the dilemma of Robert Byrd. If he contents himself with the function of expediting Senate business, he remains prey to ideological diehards like Abourezk and Metzenbaum and to erratic gadflies like James Allen. He looks ridiculous, and the Senate incompetent, as time and again intransigents thrust at the underbelly of a body less and less protected by an ethic of accepted behavior, a body so atomized that a handful or fewer dare to thwart 90 colleagues or more. If Byrd attempts to remove the potential for abuse, either by setting new precedents or by passing new rules, he extends his own power as Majority Leader—and in so doing continues the process by which the Senate entered upon its present travails. It is attaching to a Majority Leader powers to overwhelm colleagues who disagree—and our habit of judging Senate leadership by whether those powers succeed in passing agreeable bills—which bears much of the blame for eroding standards of behavior, and which has unleashed the possibilities of free-for-all and reaction. It encourages disharmony and frustration among the serious, while affording the quirky the excuse that they have been "steamrollered" and put-upon.

In the end, the Majority Leader's power to hurry the ratification of popular opinion, like so much in "the modern Senate," is a repudiation of belief in the need for any Senate at all. For the Senate is the great "hedge on our bets," born of the realization that our opinions, like those of every public in history, can be wrong. That is a humble posture, as much betrayed by those who claim certain knowledge of the public good as by those who proclaim unswerving attachment to public desires.

His detractors scoff at the notion that Robert Byrd is more than a shallow, though canny, striver. Even if they are dead wrong, to expect him to refrain from using fully the weapons of his office—thus jeopardizing his public reputation—on the chance that it will result in some future good to the Senate seems a bit quixotic. We cannot expect such restraint unless there is first restored a public appreciation of the benefits of a healthy Senate: fewer slapdash laws which must be "patched up" year after year, a more thoughtful perspective on the long-range effects of government policies, a place where the ideas and aspirations of the nation can seriously be discussed. Until a greater public understanding returns, the Senate will remain in its present predicament. Few men can be lured to statesmanship when the reward is certain martyrdom.

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