Comparing Attempts to Limit Filibusters to Tactics Used by Hitler

Senator Robert Byrd (D-WVA) on the floor of the Senate (3-1-05):

... Rumor has it that there is a plot afoot to curtail the right of extended debate in this hallowed Chamber, not in accordance with its rules, mind you, but by fiat from the Chair--fiat from the Chair.

The so-called nuclear option--hear me--the so-called nuclear option-- this morning I asked a man, What does nuclear option mean to you? He said: Oh, you mean with Iran? I was at the hospital a few days ago with my wife, and I asked a doctor, What does the nuclear option mean to you? He said: Well, that sounds like we're getting ready to drop some device, some atomic device on North Korea.

Well, the so-called nuclear option purports to be directed solely at the Senate's advice and consent prerogatives regarding Federal judges. But the claim that no right exists to filibuster judges aims an arrow straight at the heart of the Senate's long tradition of unlimited debate....

Unfettered debate, the right to be heard at length, is the means by which we perpetuate the equality of the States. In fact, it was 1917, before any curtailing of debate was attempted, which means that from 1789 to 1917, there were 129 years; in other words, it means also that from 1806 to 1917, some 111 years, the Senate rejected any limits to debate. Democracy flourished along with the filibuster. The first actual cloture rule in 1917 was enacted in response to a filibuster by those people who opposed the arming of merchant ships. Some might say they opposed U.S. intervention in World War I, but to narrow it down, they opposed the arming of merchant ships.

But even after its enactment, the Senate was slow to embrace cloture, understanding the pitfalls of muzzling debate. In 1949, the 1917 cloture rule was modified to make cloture more difficult to invoke, not less, mandating that the number needed to stop debate would be not two- thirds of those present and voting but two-thirds of all Senators elected and sworn. Indeed, from 1919 to 1962, the Senate voted on cloture petitions only 27 times and invoked cloture just 4 times over those 43 years....

Many times in our history we have taken up arms to protect a minority against the tyrannical majority in other lands. We, unlike Nazi Germany or Mussolini's Italy, have never stopped being a nation of laws, not of men. But witness how men with motives and a majority can manipulate law to cruel and unjust ends. Historian Alan Bullock writes that Hitler's dictatorship rested on the constitutional foundation of a single law, the Enabling Law. Hitler needed a two-thirds vote to pass that law, and he cajoled his opposition in the Reichstag to support it. Bullock writes that ``Hitler was prepared to promise anything to get his bill through, with the appearances of legality preserved intact.'' And he succeeded.

Hitler's originality lay in his realization that effective revolutions, in modern conditions, are carried out with, and not against, the power of the State: the correct order of events was first to secure access to that power and then begin his revolution. Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal.

That is what the nuclear option seeks to do to rule XXII of the Standing Rules of the Senate....

In response to Byrd's remarks, according to a report by the Associated Press, a Jewish Republican group accused Sen. Byrd of making an"inappropriate and reprehensible" comparison:

Byrd spokesman Tom Gavin denied that Byrd, D-W.Va., had compared Republicans to Hitler. He said that instead, the reference to Nazis in a Senate speech on Tuesday was meant to underscore that the past should not be ignored."Terrible chapters of history ought never be repeated," Gavin said."All one needs to do is to look at history to see how dangerous it is to curb the rights of the minority."

Abraham H. Foxman, national director of the Anti-Defamation League, said Byrd's remarks showed"a profound lack of understanding as to who Hitler was" and that the senator should apologize to the American people. He called the comparison"hideous, outrageous and offensive."

"With his knowledge of history and his own personal background as a KKK member, he should be ashamed for implying that his political opponents are using Nazi tactics," said Matt Brooks, executive director of the Republican Jewish Coalition.

Byrd has repeatedly apologized for his Klan membership. Now 87 and the Senate's longest-serving member at 47 years, he prides himself on his knowledge of history and makes historical references frequently during debates.

Brooks also attacked as"disgusting" Byrd's remark that"some in the Senate are ready to callously incinerate" senators' rights to filibuster. The comment came amid several references by Byrd to the"nuclear option."

"There is no excuse for raising the specter of the Holocaust crematoria in a discussion of the Senate filibuster," Brooks said.