Senator Robert Byrd of West Virginia passed away early this morning. He will be remembered for many things, some good and some bad. He was the longest-serving Senator in American history, having served over 51 years. He was a staunch institutional defender of Congress in an age of Presidential supremancy, perhaps the last true Whig. And he is the last of the old-line southern Democrats, a once-upon-a-time member of the Klan and active participant in the filibuster against the civil rights act in 1964 (Byrd has long since renounced — and apologized for — both things).
Byrd was larger than life in both West Virginia — where seemingly everything is named after him — and in the Senate, where he was revered by many and considered the eminent historian and proceduralist by most. His 4-volume work, The Senate: 1789–1989: Addresses on the History of the Senate, is an important piece of Senate scholarship, and his knowledge and use of arcane Senate floor procedure is rather legendary on the Hill. He was tenacious in his fight for resources for West Virginia, but also willing to cede power when his time had passed (he voluntarily gave up the Appropriations Committee gavel in 2009).
It is a shame that Byrd will leave the Senate via casket instead of retirement. One of the grandest of all Senate traditions is the farewell address, given by departing longtime Senators in the days or weeks before their retirement. Often stretching on for several hours, they are usually funny, insightful, and endearing speeches, even when given by less accomplished Senators of weaker speaking ability. Byrd’s would have undoubtedly been masterful, had he been able to deliver it in good health. I imagine it would have started with an exposition of the Senate he found upon arrival in 1959, found its intellectual legs in defending Senate procedure against its modern crits, climaxed with a stirring indictment of Presidential power and a recaptulation of Congressional supremacy, and finished as a love letter to the institution and its people. If the speech is written and sitting in some desk in the Russel building, I hope that someone has the authority to make it public.
Byrd will live on in the Senate in many ways, and not just because additional portraits of him will occupy the walls of the Capitol. It is highly probable, for instance, that the Byrd rule —which bars non-germane legislation in reconciliation language — will become an increasingly important obstacle for the majority if supermajoritarian rules continue to stuructre regular order in the Senate. And in a chamber of colorful nicknames for procedural events and tactics (vote-a-rama; clay pigeon; filibuster), perhaps my favorite is “Byrd bath.”
In order to comply with the Byrd rule, the majority needs to make sure that it’s reconciliation langauge does not contain any items that would fall under a point of order raising the rule; if they do not, then the minority could trap them by not raising the point of order until the conference report returned from the House/Senate conference. A point of order striking a piece of a conference report would automatically sink the entire legislation, requiring pretty much a complete restart. To avoid this, the majority works closely with the parliamentarian prior to brining reconciliation language to the floor. They go through the legislation line by line, scrubbing it for any possible language that might not pass the Byrd rule. This process of scrubbing the legislation is known as a “Byrd bath.” As in, We should be ready to go the floor with it on Wednesday; they’re hoping to finish the Byrd bath late Tuesday night.
God bless, Senator Byrd. And may the ship sail strong without you.