The most prolific user of the Constitutional Option is Sen. Robert Byrd (D-WV).
A Brief History of the Use of the Constitutional Option
The Constitutional Option is nothing new. Senators have used it or tried to use it a number of times over the years. Here are a few examples…
May 17, 2005
- In 1917, Sen. Thomas J. Walsh (D-MT) argued that a majority of senators had the constitutional authority to change the Senate’s rules, regardless of the rules’ requirement that two-thirds of Senators agree to a rules change. In an effort to overcome a filibuster of a bill strongly favored by President Wilson, Walsh began the process of changing Senate rules to ban all filibusters. This threat led to a compromise that allowed consideration of the bill in question and gave birth to the cloture rule.
- In 1953, Sen. Clinton P. Anderson (D-NM) began a series of attempts to overcome Southern Democrats’ filibusters of civil rights legislation. His efforts relied on the Constitutional Option. Like Sen. Walsh in 1917, Sen. Anderson argued that a majority of Senators were entitled to make changes to the Senate rules. In 1953 and again in 1957 and 1959, Sen. Anderson’s effort was defeated because he was unable to convince a majority to support his position. Nevertheless, in 1957, Vice President Richard Nixon, acting in his capacity as the Senate’s presiding officer, issued a non-binding advisory opinion in support of the Constitutional Option. As a result, two years later, Senate Majority Leader Lyndon Johnson gave in and brokered a compromise.
- In 1969, Senate liberals, still smarting from the filibuster’s use against civil rights legislation, once again took up the Constitutional Option. And once again, the Senate’s presiding officer -- this time, Vice President Hubert Humphrey -- supported it. But when Humphrey’s ruling was appealed, a majority voted to reject it.
- In 1975, Sens. Walter Mondale (D-MN) and James Pearson (R-KS), taking up the anti-filibuster mantle from civil rights advocates, pressed the Constitutional Option once again. And again, Vice President Nelson Rockefeller ruled in favor of it. But this time, a majority of senators supported his ruling. Similar majorities supported the Constitutional Option on two additional occasions in 1975. After three defeats, Senate leaders were forced to soften the filibuster rule. As a part of this compromise, however, the three precedent-setting votes in support of the Constitutional Option were reversed.
- The most prolific user of the Constitutional Option is Sen. Robert Byrd (D-WV). In 1977, as Majority Leader, he invoked the Constitutional Option and, with only majority support, altered Senate rules to end a Republican filibuster of a bill to deregulate natural gas prices.
- In 1979, Majority Leader Byrd broke a filibuster related to annual appropriations bills by threatening to force a rules change with a simple majority vote.
- In 1980, Majority Leader Byrd used a majority vote, cast along party lines, to change the Senate procedures governing the consideration of executive nominees.
- In 1987, Sen. Byrd once again invoked the Constitutional Option to force a Senate rules change in order to overcome the minority’s effort to delay passage of a Defense authorization bill.