Columnist and CNN host Robert Novak falsely claimed that a parliamentary maneuver by Sen. Robert Byrd (D-WV) in 1977 constitutes a precedent for the so-called “nuclear option,” an effort by Senate Republicans to abolish filibusters of judicial nominees by changing Senate rules using a controversial parliamentary technique. In fact, the example Novak cited of Byrd's “clear past use of parliamentary maneuver to force majority rule in the Senate” has little in common with the “nuclear option” that Republicans are currently contemplating.

In his April 21 nationally syndicated column, Novak cited a fall 2004 article by lawyers Martin Gold and Dimple Gupta published in the conservative Harvard Journal of Law and Public Policy in which the authors argue that actions by Byrd and other past majority leaders provide ample precedent for the “nuclear option.” Novak specifically mentioned a 1977 action by then-Senate Majority Leader Byrd in which Byrd “smashed a liberal filibuster against natural gas deregulation.” According to Gold and Gupta, Byrd “attempt[ed] to exercise a variant of the constitutional [”nuclear"] option" in order to break a filibuster. In fact, Byrd's 1977 action provides no precedent for the proposed “nuclear option.”

A standard filibuster occurs when senators exercise their full rights under Senate Standing Rule XXII, which requires a three-fifths majority (60 votes) to invoke cloture -- i.e., cut off debate -- on “any measure, motion, [or] other matter pending before the Senate.” By contrast, Byrd's action in 1977, as described by Gold and Gupta, was a successful attempt to break a post-cloture filibuster. By October 3, 1977, 60 senators had already voted for cloture on the deregulation measure, but Sens. Howard Metzenbaum (D-OH) and James Abourezk (D-SD) continued to extend debate “by proffering a slew of amendments without debating them (thus preserving their time for debate) and then forcing quorum calls and roll call votes for each proffered amendment” [p. 262-63].

In order to end the post-cloture filibuster, Byrd invoked Rule XXII, which states that "[n]o dilatory motion, or dilatory amendment, or amendment not germane shall be in order" after the Senate votes to invoke cloture. The precedent Byrd set was novel only because he interpreted Rule XXII to allow the chair of the Senate -- i.e., the vice president -- to rule the dilatory amendments out of order without first requiring a point of order from a senator on the floor.

In the case of 10 of President Bush's judicial nominees, the Republican leadership has been unable to amass the 60 votes required to invoke cloture and cut off Democratic filibusters. (Democrats have allowed votes on the vast majority of Bush's nominees, 205 of whom have been confirmed to date.) Indeed, Republican senators are currently considering the “nuclear option” precisely because they lack the 60 votes to invoke cloture on the initial filibuster.

The second difference between Byrd's actions and the present “nuclear option” is that while Byrd's action set a new precedent governing Senate procedure, this new procedure did not contradict the plain language of Rule XXII or any other standing rule, as the progressive advocacy group People for the American Way pointed out in its detailed response to Gold and Gupta's article. Gold and Gupta quote Byrd explaining his reasoning at the time: “I make the point that when the Senate is operating under cloture the Chair is required to take the initiative under Rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order.” By contrast, the "nuclear option" contemplates changing Senate rules by a simple, 51-vote majority. Such a rule change would directly contradict Rule XXII. The rule states that a three-fifths supermajority vote is required “to bring to a close the debate any measure, motion, [or] other matter pending before the Senate,” including judicial nominations, “except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting” [emphasis added].

The Harvard Journal of Law and Public Policy describes itself as “the nation's leading forum for conservative and libertarian legal scholarship.” Gold is a former floor adviser to Senate Majority Leader Bill Frist (R-TN), and Gupta is a former employee of the Bush Justice Department. A March 7 analysis by Jeffrey Toobin in The New Yorker noted that a draft of Gold and Gupta's article made the rounds of Senate Republicans at the end of 2004.