Unlike Sen. Joe Manchin, D-W.Va., we didn’t know the late Robert C. Byrd. But we are political scientists who write and teach about Congress. That means we have read a lot about Sen. Byrd, D-W.Va., and are interested in his view of the filibuster more than a decade after his death.
Byrd was more than the longest-serving senator in history. Over the course of his career, including a decade as majority and minority leader, he became known as a champion of the Senate, an expert on its rules and even a noted historian. Few senators have ever been as keenly invested in the Senate as an institution.
Byrd viewed the filibuster as a key difference between the Senate and the House, a device slowing majorities from hasty action and even encouraging some compromises. In the weeks before his death in 2010, he found the strength to testify in person before a Senate committee considering the filibuster, where he warned against majority tyranny using a quote from James Madison.
But in the very next sentence in his written testimony, Byrd reminded senators that the “right” to filibuster is “not a right intended to be abused.” Indeed, he noted that, as majority leader, he had been forced to take some unprecedented actions against filibusters, including rule changes, when he judged that the other side was acting in bad faith.
He did not mention one of his more dramatic efforts to break a filibuster: instructing Capitol police to detain and physically carry Republican senators to the floor of the Senate when they scattered in an effort to deny a quorum and prevent a vote on a campaign finance bill in 1988.
If that story seems crazy, it is consistent with Byrd’s view that filibustering senators ought to do something. As Byrd wrote in his 2010 statement, “A true filibuster is a fight, not a threat or a bluff.” Hiding is not fighting.
Then again, neither is anything that passes as a filibuster today. Think about the successful Republican “filibuster” against the Jan. 6 commission. There were no long-winded speeches or any delay tactics. The whole event took place in a few hours, ending with the Senate voting 54-35 to establish the commission.
That vote failed because it did not reach the 60-vote threshold to end a filibuster. But there was neither a true filibuster nor barely the threat of one.
What has happened in the 11 years since Byrd died is that the potential of a filibuster has become so routine that filibusters are essentially assumed on pretty much every bill. That has meant that senators trying to legislate are left to break a potential filibuster on everything, creating the misimpression that Senate rules require 60 votes to pass a bill.
This is exactly the sort of situation that we feel confident saying would have offended Byrd’s sense of the Senate as an institution. In his speeches and writing, what made it the “world’s greatest deliberative body” was its members’ dedication to doing the people’s business, not political posturing. A Senate unwilling or unable to tackle the nation’s problems because it is perennially blocked by a minority of senators would be seen as an affront to the great senators of both parties with whom Byrd served.
But that does not mean we imagine that Byrd would have jettisoned the filibuster. We do think, however, he would have been interested in adjustments to the rules to make filibusters into the sort of fight they were supposed to be.
Here is one example of how that might be done, a proposal we first introduced in 2009. Rather than have 60 senators vote to end debate, make 41 senators vote to prolong it (and delay a vote on passage). This keeps the existing ratio in place but puts the burden on the senators who are filibustering a bill to fight to prevent the Senate from acting.
Byrd himself was a victim of the current system. Near the end of his life, he had to be brought to the Senate in a wheelchair to vote to end several filibusters. If the senators conducting those “filibusters” were present when he voted, it was pure coincidence, for their participation was not required.
Our proposal would still allow a committed and sizable minority of senators to stop legislation they cannot tolerate, but it would not allow them do so as spectators watching to see if the majority can stop them.
While there is no way for anyone to know for certain, this strikes us as exactly the sort of thing Byrd might have done were he confronted with a Senate paralyzed by threatened filibusters on practically every piece of legislation.