The Last Great Senate

by Ira Shapiro

  It is possible to recognize the force of Nunn’s concerns without sharing his conclusion that Lance was mistreated. Ribicoff plainly had lapses of judgment, which he deeply regretted. Safire, who won the Pulitzer Prize for his columns, obviously relished the chance to hold the Carter White House to the same tough standards by which he thought Nixon had been crucified. Certainly, many reporters competed to bring out the story, hoping to become the next Woodward or Bernstein. Multiple agencies with jurisdiction over banking practices joined in as well, feeling obligated to get involved. Lance would not have been confirmed if all the facts had been known, but time did not permit a full investigation; the Senate wanted to follow tradition and allow the president the right to pick his full team.

  But none of these facts alters the fundamental problems: Lance’s improper banking practices and precarious financial situation and his failure to make full disclosure to Carter. Lance took advantage of his friendship with the president-elect and Carter’s own strong desire to have his friend in the cabinet. Lance should have never been nominated, and he certainly should have resigned in July. When the scope of the problems came to light, Ribicoff’s committee had no choice but to pursue them, which it did, thoroughly and transparently. It was Lance’s insistence on staying on to fight, and Carter’s unwillingness to remove his friend, that precipitated the media spectacle of the extended hearings and deepened the damage to Carter.

  Lance’s departure deprived Jimmy Carter of more than his closest adviser and best friend. The facts that emerged from the investigation of Lance made the Carter administration look newly tawdry, engaged in cronyism, self-dealing, and dirty tricks. In his memoirs, Carter wrote: “It is impossible to overestimate the damage inflicted on my administration by the charges leveled against Bert Lance.”

  The Lance experience brought about a major and lasting change in the relationship between the Senate and the executive branch. The powerful presumption that a president was entitled to the team that he wanted had blown up in the face of a Senate committee, and almost all the committees of the Senate changed their processes of investigating executive branch nominees so as to prevent the possibility that they would be similarly embarrassed. Every president after Carter would have at least one of his cabinet nominees rejected or withdrawn because of the newly vigilant Senate. Some improvement in the confirmation process was needed, but over time, the Senate’s handling of executive branch nominees would become both increasingly politicized, and delayed and diverted by issues that can only be described as trivial.

  But those consequences would be in the future. Now, in September 1977, having promised the American people a new standard of ethics, Carter had been hoisted on his own petard. The Senate had not always distinguished itself, but it had always proven capable of recovering. Less than a year into his presidency, it would remain to be seen if Carter could do the same.

  chapter 6

  THE LIBERAL FILIBUSTER

  SIX MONTHS AFTER JIMMY CARTER, IN A CARDIGAN, HAD GIVEN THE NATION the hard truth about America’s energy dependence, his energy plan emerged from the House of Representatives largely intact on August 5. Tip O’Neill’s ad hoc committee had done its work well, turning Carter’s ambitious program into legislation and enacting it in less than four months. Everyone knew that Senate passage would be more difficult. What no one anticipated was just how difficult it would be.

  Carter’s program was both complex and multifaceted. It sought to raise the price of energy to reduce consumption, while at the same time shielding consumers from most of the adverse effects of higher prices by returning the money to them through various rebates. One key provision imposed a wellhead tax on oil, designed to cut fuel consumption by lifting the price of U.S.-produced crude to the price of OPEC-produced oil. The House had agreed to Carter’s proposal to rebate the revenue raised from the tax to consumers. But it swiftly became clear that many senators, led by Russell Long, would not support a wellhead tax unless the revenues raised were returned to the oil and gas companies to fund additional energy production, either through increased drilling or the development of new sources, such as gasification of coal. This would pose a substantial problem, to be sure. But it would be an altogether different issue, however, that would ultimately take center stage and determine the fate of Carter’s energy plan.

  Natural gas pricing had been a contentious issue since 1954 when the Supreme Court had ruled that gas piped across state lines was subject to federal control. By 1977, with the price of producing gas steadily rising, artificial price ceilings had created a distorted “dual market.” The price of gas was so low in some regions that it was not worth shipping across state lines. Heavy gas-consuming northern states were subject to shortages, while gas-producing states like Texas paid bargain prices for intrastate gas.

  Carter proposed to end the dual market and control all new discoveries of natural gas (interstate and intrastate) at a higher price. This would apply to new wells found at least 2.5 miles from or 1,000 feet below existing reservoirs, so as to avoid producers merely digging new wells right next to the existing ones in order to exploit the higher prices.

  The Senate was traditionally a much friendlier forum for the oil and gas industry than the House. Producer interests had traditionally dominated the Finance Committee, causing despair and anger for great liberal senators of the 1950’s and 1960’s such as Paul Douglas (D-IL) and Albert Gore Sr. (D-TN). Although many things had changed about the Senate since the 1950’s, the basic orientation of the Finance Committee wasn’t one of them.

  The oil and gas industries were not impressed by Carter’s complex proposal. Any continuation of price controls on natural gas would put them at a disadvantage. They had a counter-proposal—one that could upset all of Carter’s carefully laid plans for energy policy. The Senate had endorsed complete deregulation of natural gas two years earlier, approving an amendment offered by Texas Democrat Lloyd Bentsen and Kansas Republican James Pearson. That remained the answer that the oil and gas industries wanted.

  Carter’s intense focus on energy had heightened public awareness about the magnitude of the energy problem and given his proposals some credibility. He could count on strong liberal support for continued price regulation, including Jackson, the chairman of the Energy Committee. As the time for Senate floor action approached, the advocates of deregulation seemed to have the upper hand by a narrow margin, but the ultimate outcome was truly too close to call.

  Byrd called up the energy legislation for Senate consideration on September 22. Fierce resistance from the oil and gas industries was to be expected. But Byrd and Carter would face an unprecedented problem from an unexpected corner. The next day, two of the Senate’s most liberal members, Democrats James Abourezk of South Dakota and Howard Metzenbaum of Ohio, announced their intention to filibuster to prevent a Senate vote in favor of deregulating natural gas.

  Abourezk and Metzenbaum had previously numbered among the Senate’s least consequential members. Just elected in 1976, Metzenbaum had made millions by building a successful parking garage empire and was now known principally for the visible animosity that characterized his relationship with John Glenn, Ohio’s other senator. Abourezk, elected in 1972, had already decided that the Senate was much too confining for a free spirit like his and had announced his intention not to seek reelection earlier that year. He was increasingly seen in western garb, rather than a business suit.

  The whole scenario seemed incongruous. The southern bloc filibustered; James Allen, Jesse Helms, and their fellow opponents to civil rights filibustered; liberals did not filibuster. In fact, the liberal senators had worked for years to make it easier to invoke cloture—cut off filibusters—and had finally succeeded in 1975, led by then-senator Walter Mondale, in reducing the number of senators needed to cut off debate from two-thirds of those “present and voting,” which could require as many as sixty-seven votes, to three-fifths of the Senate, sixty votes. Neither Abourezk nor Metzenbaum seemed to have the gravitas or th
e knowledge of the complex Senate rules needed to maintain a filibuster concerning legislation that was President Carter’s highest domestic priority.

  Byrd, Baker, and Jackson responded to Abourezk and Metzenbaum’s announcement by filing a cloture petition, signed by twenty senators, which would come to a vote on September 26. It seemed odd to file a cloture petition before a filibuster had even begun, but it had become a common tactic in dealing with Allen or Helms. Once cloture was invoked, debate would be limited to one hour per senator.

  Conventional wisdom held that only a parliamentary wizard like Allen could pose a real danger to a rule-master like Byrd. Yet a great myth about the Senate was about to be shattered.

  SENATE RULES WERE AND are arcane. The precedents can be mind-numbing in their complexity, to be sure. However, a few basic tenets could be easily grasped. Abourezk and Metzenbaum had learned that any amendment filed before a cloture petition would have to be considered and voted upon. Consequently, their staffs labored through the weekend to prepare more than 500 amendments which the senators filed before Byrd’s cloture petition.

  Abourezk and Metzenbaum did not feel like lonely soldiers when they began their filibuster. They rightly believed that their opposition to deregulation had the support of President Carter, the House, and a significant number of senators. Speaking at a rally in Virginia, President Carter had already affirmed that he would veto the Bentsen-Pearson bill if it reached his desk: “I hate to veto a bill that a Democratic Congress passes, but you can depend on it—I’ll protect your interests.” And so, on September 26, after the Senate voted to invoke cloture, the two senators began calling up their amendments, demanding fifteen-minute roll call votes on each of them, and frequently asking for quorum calls as well. Byrd’s fear of a paralyzed Senate seemed very real. And it would be a Senate paralyzed not by a substantial minority, but by two senators.

  When the Senate convened the next day, Byrd grimly noted that no progress had been made on the bill. He warned that he was prepared to keep the Senate in all night if the filibuster didn’t end. He also filed a motion to suspend the rules and bundle the 508 amendments together into one, which would require a two-thirds vote.

  Abourezk responded plaintively:We are acting in the tradition of the Senate. Are we here to follow rules or ask questions and act in the best interests of our constituents? Senate rules are devised to let one man object as long as he physically can. It is not very pleasant to be put in a position of protest. There are all kinds of peer pressures. I want to say to the leader and the membership that there are a number of us who feel the natural gas deregulation issue is the most important economic issue of the last three decades. I apologize to my colleagues for inconveniencing them. Someday perhaps you will have an issue that strikes you so hard you will want to do the same thing.

  In fact, Byrd was torn. He revered the Senate’s tradition of unlimited debate, but as the majority leader, he wanted the Senate to remain a strong and credible legislative body. That meant vigorous debate leading to action, within a reasonable period of time. He also knew that many senators, however aggravated by the current filibuster, agreed with Abourezk’s penetrating observation. They could envision a time that an issue would matter so much to them that they might resort to a filibuster. Consequently, they might balk if Byrd cut off debate prematurely.

  Instead of seeking to dismiss the amendments by bundling them, Byrd made good on his threat to keep the Senate in session through the night. The scene was sometimes humorous, painfully exhausting, and borderline surreal. Fritz Hollings walked on to the Senate floor in a bright green jogging suit, which he said made comfortable pajamas. Barry Goldwater padded around in stocking feet. Jackson was heard to mumble “excuse me” after bumping into a wall. Senators began joking that someone might die of exhaustion.

  Unlike earlier filibusters, when one senator or a handful held the floor all night, often reading hundreds of pages of legislation into the Congressional Record, this filibuster by amendment featured roll call votes throughout the night. Eighty-eight senators came to the floor to vote on one meaningless amendment at 2:15 a.m. A vote at 3:15 a.m. brought eighty-six senators to the floor. The Senate broke its all-time record by holding thirty-eight roll call votes during this session (which lasted thirty-seven hours). Muskie called the process “silly,” while Baker described it as “barbaric.” The senators’ anger, initially focused on Abourezk and Metzenbaum, was increasingly directed at the majority leader. Dale Bumpers sharply criticized Byrd’s tactics for dealing with the filibuster, saying “I don’t believe that we have to prove our masculinity to the American people.”

  Tempers began to fray. When Ted Stevens defended deregulation as “restoring the free enterprise system of the United States,” Hollings ripped into him, averring that “the issue is greed. The [energy industry] is like a sheepdog. . . . They have tasted blood.”

  At the night’s end, Byrd decided against extending the session to the next night as well, but advised senators to be prepared to work late and return early. Abourezk and Metzenbaum, challenging “the forces of deregulation,” said they were “fresh and prepared” to go another twenty-four hours. Even so, behind the scenes, things were moving in a more positive direction.

  Although the public face of a filibuster, or any extended debate, may seem to be of intractable conflict, in truth the maneuver prompts senators to search for common ground, even giving them a sense of where a majority can be gathered. What is happening on the Senate floor is thus much less important than the alternatives being drafted and redrafted in the cloakroom or around the leaders’ offices. September 28 saw that type of movement. Backstage, Byrd offered a compromise that raised the price ceiling still further, offering concessions to the oil industry, while stopping short of deregulation to please the liberals.

  Abourezk and Metzenbaum were satisfied. Though the price of gas would increase, it would remain controlled. Even so, the advocates of deregulation opposed the compromise. John Tower called it “a concession to the filibusterers.” And the deregulators weren’t finished yet.

  Undeterred, Bentsen and Pearson now circulated a revised version of their deregulation legislation, which would retain controls for two years, with a ceiling of $2.48, before deregulating. Byrd was frustrated: “We’ve debated this bill for nine days,” he snapped. “I’ve heard that the world was created in seven.”

  In agreeing to support Byrd’s compromise, Abourezk and Metzenbaum had left open the possibility of resuming their filibuster if a deregulation amendment passed. That position enraged Long. The Finance Committee chairman said he was willing to let the Senate choose between regulation and deregulation, but he would not accept a situation where one side could prevail with a majority, while the other would need a supermajority. “If the other side wants to be a poor loser,” Long said, “I’ll be a poor loser. I have as much capability as the average senator to engage in a filibuster.” No one doubted Long’s ability as a legislative strategist, his parliamentary expertise, or his commitment to deregulation. After a few encouraging hours, the situation already seemed to be slipping back toward paralysis again. That night, Jimmy Carter noted in his diary: “The influence of the oil and gas industry is unbelievable . . . Scoop Jackson and Bob Byrd are doing the best they can, but Russell Long and others plus the lobbyists are prevailing.”

  On September 30, in a critical test vote, the Senate refused, by a vote of 50–44, to table the deregulation legislation. In essence, Bentsen-Pearson seemed to maintain the support of the majority of the Senate. Neither the filibuster nor the intense lobbying by Byrd, Jackson, and the Carter administration had shifted many senators. Asked if the vote meant that the administration could not prevail in the Senate on this issue, Jackson acknowledged: “I don’t think we can.” Byrd spent the day in meetings with the various combatants, particularly Abourezk, Metzenbaum, and Long, trying in vain to get them to agree to an up or down vote. President Carter kept lobbying a handful of senators who were regarded as “
gettable,” but no one ever seemed to be gotten. The fate of the energy legislation was in serious doubt.

  By October 3, Byrd decided that the filibuster had to end. He thought the compromise he had offered was a good one, but it did not seem to command a majority of the Senate. He knew that the Senate—and its leader—was already being ridiculed in the press for its inability to complete action. Abourezk and Metzenbaum had said they would stop the filibuster if Carter requested it, and that was certainly a possible option. Although the White House opposed deregulation, at a certain point, the best strategy for Carter might be to have the Senate pass deregulation legislation, putting the issue into a conference with the House. But Byrd saw the prospect of White House intervention as undercutting his leadership. This was a Senate problem to be dealt with by the Senate leader. Byrd determined to take care of the filibuster his own way.

  In his arsenal of parliamentary tools, Byrd found only one: the right of the majority leader to obtain recognition from the chair before other senators. He could seek recognition of the chair, call up the remaining 300 amendments, and ask the chair to rule them dilatory and out of order. Byrd shared his plan with a small group of senators including Alan Cranston of California, the Democratic whip; Baker and Stevens, the Republican leaders; and Long and Wyoming Republican Clifford Hansen. All endorsed the strategy. The group also agreed that Vice President Walter Mondale should be in the chair, presiding over the Senate and making the rulings from a prepared script. It made sense; Mondale was not only vice president; he was a former senator, well liked and respected by his colleagues, and an avowed enemy of the filibuster. If the senators trusted anyone, it was Mondale.