by Ira Shapiro
An increasing partisan divide on the committee posed a more serious problem. The committee had traditionally been more liberal than the Senate as a whole, and it had been remarkably bipartisan, operating with a unified professional staff. Now, however, Dick Clark and Clifford Case were gone, and Baker and Percy seemed determined to make up for their votes for the Panama Canal treaties. For the first time, the Republicans pressed for, and secured, a separate minority staff. New to the committee, Jesse Helms seized upon a provision in the Senate rules by which a majority of the minority could demand a budget and office space. Over the objection of Jacob Javits, the ranking Republican, Helms prevailed. Although Javits kept his own staffer, Peter Lakeland, as the minority staff director, Helms and his conservative allies exercised more influence within the committee. Later in 1979, as the Foreign Relations Committee considered the SALT II treaties, the atmosphere was so adversarial as to remind observers of a court proceeding.
The 1980 presidential race heated up early. Eight Republican presidential hopefuls were moving around Washington in advance of Jimmy Carter’s State of the Union speech. Ronald Reagan led by a wide margin in the early going, but neither he nor any other Republican came close to Carter in the polls. On January 20, 1979, Carter led the former California governor 57–35, according to Gallup. However, those poll numbers would change dramatically within a short time, as the situation in Iran forced itself to center stage for Jimmy Carter, the Senate, and the American public.
On January 16, the shah of Iran bowed to what Robert Byrd had seen to be inevitable. He and his family boarded a Boeing 707, ostensibly for a vacation but never to return. On February 1, the Ayatollah Ruhollah Khomeini returned to Iran, ending fourteen years of exile in Turkey, Iraq, and France. His supporters greeted him with a tumultuous reception. By February 11, it was clear that the military would support the government run by Khomeini. The U.S. attaché in Tehran concluded his report for the day with the words, “Army surrenders; Khomeini wins. Destroying all classified.”
Neither the Carter administration nor the leading foreign policy experts in the Senate understood the intentions of Ayatollah Khomeini. But they were not the only ones. Even those closest to Khomeini, such as Abolhassan Bani-Sadr and Sadegh Ghorbzadeh, who would have key roles in the new government, completely misread their spiritual leader. Bani-Sadr expressed astonishment after the Ayatollah’s speech at the Cemetery of Martyrs on February 1, 1979: “It was the speech of a politician more than the speech of a religious leader.” As Carter historian Betty Glad has written, Khomeini’s goal was “to establish an Islamic Republic in which he retained final authority in both religious and political matters. The moderate politicians who had joined him in an anti-shah operation would last only as long as they served Khomeini’s political purposes.”
MORE THAN A YEAR had passed since the natural gas filibuster by Jim Abourezk and Howard Metzenbaum, but Byrd continued to brood about it. He passionately respected the Senate’s tradition of unlimited debate, but he had learned just how easily the Senate could become paralyzed. Byrd could not crush every filibuster by abusing the Senate rules and precedents; it would embitter the Senate and antagonize his colleagues. He needed to convince the Senate to change its rules so that filibusters would go back to being extraordinary—not everyday features of Senate life. In November and December 1978, Byrd spent many hours talking with the Senate parliamentarians, Murray Zweben and Robert Dove, assessing possible responses to the filibuster problem.
On January 15, Byrd went to the Senate floor to propose a sweeping set of changes to the filibuster rules. He had alerted the Senate two days earlier, outlining the proposals to the press. Now he spoke directly: “I dare to say that it cannot be challenged that I have stayed on the floor more than any other Senator since the first Senate met in 1789. I know pretty well what the Senate rules and precedents are. No man ever becomes a master of them. But I know something about them. Having been in the leadership for 12 years, I know what the difficulties are for having to lead the Senate.”
Byrd described the deteriorating situation, in terms that are strikingly similar to those used thirty years later as the Senate confronted paralysis in 2009: “The Senate is continually being faced with a filibuster threat. The mere threat of a filibuster, these days, is nearly as bad as the filibuster itself. We have seen, in the last 9 years since 1970, more filibusters than occurred in the previous 30 years.”
For many decades, he noted, there had been one or two filibusters per year. But, “we have reached the point now where every year we can expect 4, 5, 6 and as many as 10. . . . In 1975, there were 12 filibusters. We are becoming more and more the victim of this ingenious procedure that allows, first, a filibuster threat; second, the filibuster on the motion to proceed; third, the filibuster on the matter itself; and fourth, and finally, the most cataclysmic and divisive filibuster of all, the post-cloture filibuster.”
Byrd recalled the Abourezk and Metzenbaum filibuster in a defensive tone: “Some senators were outraged at the procedures that I used to save that bill. . . . This post-cloture filibuster is the kind of thing that creates ill feelings and deep divisions in the Senate. It is fractious; it fragments the Senate, it fragments the party on either side of the aisle.” And most important for Byrd, “It makes the Senate a spectacle before the nation. It is not in the national interest.”
He laid out a guiding principle that seemed like eminent common sense: “One filibuster is enough. If a minority of the Senate has enough votes, 41, to kill a bill, it should allow the bill to at least be brought up for debate on the merits.” He offered a set of rules changes to solve the problem. He proposed to end filibusters on motions to take up an issue by limiting debate on such procedural motions to thirty minutes. He proposed to end post-cloture filibusters by strictly limiting debate to one hundred hours once cloture had been invoked, including time for amendments and roll call votes, and allowing the one hundred hours to be reduced to as few as twelve with sixty votes. A motion to limit debate could not be offered until at least ten hours of debate had passed. Byrd’s package also included changes to allow sixty senators to limit amendments to those that were germane; allow a motion to suspend reading of the Senate journal to be passed without debate; and allow a simple majority to waive reading of an amendment or committee report if it is available in a printed form. But ending the ability to filibuster the motion to proceed and resort to the post-cloture filibuster constituted the heart of Byrd’s far-reaching proposals.
Byrd left no doubt of his determination to make changes. He even expressed a willingness to resort to what decades later would be called the “nuclear option,” the Senate’s right to change its rules by majority vote on the first day of a new Congress. “We are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.” Vice presidents of both parties (Nelson Rockefeller in 1975 and Walter Mondale in 1977) had made such rulings, angering many senators. Byrd admitted that he had not always supported those rulings but had come to see the wisdom of them. Yet he reassured his colleagues that he would not press for a vote until members of both parties had been given a chance to work out a resolution. He wanted to change the rules in an orderly fashion, after ample consideration and with a time agreement on debate. He would recess the Senate in order to preserve the fiction that it was still the opening legislative day when the Senate returned. Byrd closed with great emotion:If these post-cloture filibusters continue, the day will come when the majority of the Senate will rise up and will strike down that rule and will change it . . . I may not be around here when that happens, but a majority of the Senate and the Nation is not going to stand for government by post-cloture filibuster on the part of one, two, three or a small majority of the Senate, flaunting and defying the will and thwarting the will of the majority of senators who have voted to invoke cloture on a given matter.
Minority Leader Baker took the floor to respond. He complimented Byrd for visiting him to explain the propos
al, and noted that during the natural gas filibuster, the majority leader and the vice president had “managed to establish a line and series of precedents that created the possibility to at least accelerate the disposition of the controversy and conflict.”
Baker described the challenge with characteristic diplomacy: “How can we avoid reiterating an unfortunate precedent, meet the procedural challenge of these times, and promote the best interchange of ideas between us to create a new rules situation with which we all can live, whether we are in the majority or the minority, now and in the future?” Baker advised Byrd and the Senate that he was appointing an ad hoc committee to be chaired by Stevens, which would include Javits, Helms, Jim McClure, and John Chafee from Rhode Island, a group that spanned the full spectrum of the Senate Republicans, to study Byrd’s proposal and propose a Republican reaction.
More than two weeks later, the Senate remained on the first legislative day. Discussions had continued within the groups and between them, reaching a “concept” but no details. Traditionalists insisted that Byrd’s changes would wrest power away from the whole Senate, bestowing it on the leadership.
On February 7, another long day of talks failed to reach a compromise. Byrd indicated that he was prepared to force through changes with a simple majority; he issued the threat, in all likelihood, to bring things to a negotiated resolution. But the next day, Baker expressed optimism that a compromise would be reached as soon as the Senate returned from its Presidents Day recess.
Indeed, the Senate reached its resolution of changes in the filibuster rules. On February 22, by a vote of 78–16, the Senate voted to restrict the use of the post-cloture filibuster. Byrd did not get everything he had asked for. He had previously agreed to allow the post-cloture debate to be extended, not just limited, by sixty votes, and raised the floor of post-cloture filibuster debate, after sixty votes, to thirty hours rather than twelve. Republicans agreed to let the issue come to a vote only after Byrd agreed to drop his demand that sixty votes could limit post-cloture debate at all beyond the strict 100-hour limit (including amendments and roll-call votes). Byrd also agreed to give up his effort to limit filibusters on the motion to proceed, which had become known as the “pre-filibuster filibuster.”
After the vote, Byrd adjourned the Senate, rather than recessing it, to signal the end of the fight. It was no longer the first legislative day, removing the threat of changing the Senate rules by a majority.
The resolution represented the third time in history that the Senate had acted to make it easier to break a filibuster. The southern Democrats, who had used the filibuster in previous decades to thwart civil rights legislation, became supporters of Byrd’s initiative. They had always accepted cloture as final and believed the post-cloture filibuster threatened the Senate’s ability to function.
Baker’s sense of the Senate had proven unerring once again. The compromise tracked closely with his opening statement on January 15. The Senate recognized the need to rein in the post-cloture filibuster. The Senate could not accept a situation where Metzenbaum and Abourezk, or Helms and Hatch, could thwart the operation of the body. But the minority leader, and the minority party, was not going to accept a solution that allowed key decisions to be made by fewer than sixty senators. The Republicans were not willing to allow a unified Democratic majority—if such a thing were possible—to determine what legislation would be considered on the Senate floor.
The 1975 change in Rule XXII had established that sixty votes were required to cut off debate. It was a result that the Republicans could live with, particularly now that they had forty-one senators among their number. But they held firm on another very important issue: it would also require sixty votes to start debate, allowing a unified minority to filibuster the motion to proceed. Thirty years later, the Senate would struggle to overcome paralysis, and commentators would wonder when we became a country where the “minority rules.” The well-intentioned changes in 1975 and 1979 would have unanticipated effects as comity eroded.
CHINA HAD LOOMED LARGE in the minds of legislators for some time. In 1971, Richard Nixon had electrified the nation by revealing the secret talks between Henry Kissinger, his national security adviser, and the People’s Republic of China (PRC). Nixon’s visit to Peking in 1972 and his meeting with Mao had been a major historical event, capturing the fancy of Americans and people all around the world.
To most Americans, it made very little sense that the United States would have no relationship with a regime that had ruled the Chinese mainland since 1949 and represented 900 million people, one-fourth of the world’s population. But at the same time, strong support remained for the island of Formosa, later known as Taiwan, where the nationalist Chinese had fled from the Communists to build their own country. Full normalization of relations with Communist China had not moved forward because of the U.S. commitment to Taiwan. Nixon and the Chinese leaders had signed the Shanghai Communiqué, which deferred the problem of diplomatic relations and Taiwan for the sake of working together on the basis of common Sino-American strategic interests in Asian and world affairs, particularly a shared interest in checking Soviet expansionism.
Starting in 1972, Peking’s leaders were consistent in their demands that the United States withdraw military forces from Taiwan, break diplomatic relations with the government of Taiwan, and terminate the U.S.-Taiwan defense treaty. Only after these conditions were met could normal relations be established.
On December 15, 1978, the Carter administration announced that, in effect, these three conditions would be met. The mutual defense treaty would end in a year, though the United States would honor commitments already made to Taiwan for military equipment. Even after the defense treaty ended, the United States would continue to make available to Taiwan “selected defense weaponry” on a “restricted basis.”
A political firestorm swiftly ensued. Barry Goldwater, the father of the surging right wing of the party, called the move “one of the most cowardly acts ever performed by a President of the United States” and “a stab in the back” to Taiwan. Helms charged that Carter “proposes to sell Taiwan down the river . . . in order to involve the United States in a conflict between two communist regimes”—the People’s Republic of China and the Soviet Union.
Ronald Reagan’s presidential campaign, already gearing up for 1980, recognized a red-meat issue when it saw one. Reagan attacked the administration for having “abandoned Taiwan to the Red Chinese” providing yet another example of “Uncle Sam putting his tail between his legs and creeping away. . . . ” He also cabled an apology to the Taiwan government. Clearly, the Republicans saw the “sellout” of Taiwan as a rallying cry for their political base, continuing the themes of weakness and retreat that they had sounded during the Panama Canal fight.
A number of Senate Democrats expressed anger as well. Six months earlier, the Senate had voted 94–0 in a nonbinding resolution asking that Carter not alter the treaty’s status without “prior consultation” with Congress. John Glenn and Richard Stone of Florida, members of the Foreign Relations Committee, charged Carter with failing to meet the “prior consultation” obligation. “Calling a few of us in one hour before he goes on television doesn’t seem like much consultation,” Glenn snapped.
Carter could still count on at least some support. Byrd called normalization of relations “a natural and positive advancement . . . that will contribute to our national interest and aid the stability of world peace.” Kennedy, too, applauded the move, saying that “normal and enduring relations with 900 million people on the mainland” was fully compatible with “assuring the peace and prosperity of the people on Taiwan.” Church was delighted. He had criticized for years the “absurd” policy of viewing mainland China as a nonentity. He praised the administration for having finally brought “American policy into line with Asian realities.”
Baker, as always, would play a key role. His diplomatic instincts would again be in conflict with the prevailing anger in his party and his own hope
s of winning the Republican nomination. He had gone far out on a limb politically to help Carter on the Panama Canal treaties, but that had been a long process in which he had been given a central role and consulted constantly. On Taiwan, the White House had surprised him, adding an angry Senate to the right-wing rage in the country. Baker called Carter’s decision “a mistake” and said, “We owe the Taiwanese more than this.” He sent a telegram to the president urging him to delay beginning to dissolve the mutual defense treaty until the Senate reconvened in mid-January. Carter quickly and publicly rebuffed Baker’s request during an interview with Walter Cronkite—not the best way to deal with the minority leader who had been an indispensable ally.
A fierce battle seemed inevitable. On December 22, Goldwater and fourteen other conservative lawmakers had filed suit in U.S. District Court, contending that Carter had overstepped his authority in abrogating the pact. Calling it “one of the worst power grabs in history,” Goldwater contended that the president could not repeal a treaty, any more than he could repeal a law. The brief argued that the president had to seek Senate approval before abrogating a treaty, because the Senate had been a partner with him in ratifying the treaty. If Carter’s action stood, Goldwater argued, countries would have no faith in treaties with the United States because there was no assurance that a treaty will last “any longer than the whim of a single person who happens to sit in the Oval Office at any given moment of history.”
