Monday, January 23, 2006

Gold and Gupta: Creation of the Filibuster

A. The “Dignified Senate”
The possibility that a minority of Senators could hold unlimited debate on a topic against the majority’s will was unknown to the first Senate. The original Senate Rules — then only twenty in number — allowed a Senator to make a motion “for the previous question.” This motion permitted a simple majority of Senators to halt debate on a pending issue:
The previous question being moved and seconded, the question for the chair shall be: “Shall the main question now be put?” and if the nays prevail, the main question shall not then be put.

This motion was a well entrenched tradition among legislatures of the time: It had been recognized by the British parliament since 1604, by the Continental Congress, and by the House of Representatives, which still observes it to this day. Today, the previous question motion is generally understood as a method for cloture; that is how it functions in the House of Representatives and the British Parliament where, if passed, it stops debate and forces “an immediate, final vote” on the pending proposal. How the motion functioned in the early years of the U.S. Senate is the subject of dispute. Some have argued that the motion served as an early cloture device, allowing “a majority of Senators present” to end “instantly” all debate and force a vote. Others have argued that it was used as a mechanism to delay consideration and not as a cloture device. As Senator Clifford P. Case (R-NJ) explained, the evidence is inconclusive for the simple reason that neither the concept nor the practice of filibustering to prevent majority rule existed in the early U.S. Senate:
The fact is that so-called unlimited debate in the Senate is a myth. History shows clearly that up to the time of the Civil War majority of the Senate, under its rules and precedents, and under the dignity of its customs, did have the authority to, and for the most part effectively did, limit debate and prevent filibusters . . . . There may be exceptions, but the truly representative picture of the Senate before the Civil War, as shown by our historical records, is that the body observed dignity and restraint in debate, and did not consider talking to consume time a parliamentary instrument appropriate for the Senate . . . . [T]he filibuster as a device, not merely to delay, but to prevent, action is a modern institution which has no support or sanction in early Senate history and practice.” So strong was this tradition of a “dignified Senate,” that there were no filibusters until the late 1830s.

B. The Inadvertent Creation of the Opportunity To Filibuster It was against this backdrop of limited debate that Vice President Aaron Burr, in 1806, approached the previous question motion. 1806 marked the first re-codification of the Standing Rules of the Senate. As then-Senator John Quincy Adams reported, Burr advised that the motion for the previous question was of no use and should be dropped:
[Burr] mentioned one or two rules which appeared to him to need a revisal, and recommended the abolition of that respecting the previous question, which he said had in the four years been only once taken, and that upon an amendment. This was proof that it could not be necessary, and all its purposes were certainly much better answered by the question of indefinite postponement.”

The Senate followed this advice but failed to impose any other device by which debate might be restricted. Thus, by sheer oversight in 1806, the Senate opened itself to the possibility of filibuster.

C. The First Filibusters
With no previous question motion available, a minority could hold unlimited debate and prevent a vote on any debatable proposition. It was not until the late 1830s, however, that a group of Senators attempted to do so.

Disputes over the Bank of the United States brought on two of the earliest filibusters. In 1834, the Senate had formally censured President Andrew Jackson for withdrawing federal deposits from the Bank of the United States. Jackson’s supporters were unrelenting in their efforts to erase the censure, and between 1835 and 1837, six state legislatures replaced their Senators with men who promised to remove it. In 1837, a group of Jacksonian Senators moved to expunge the censure from the Senate Journal. “Opponents talked and talked.” “It was evident that consumption of time, delay and adjournment, was their plan,” Senator Thomas H. Benton (D-MO)
reported. In response, Jackson’s supporters prepared for a long night, “fortif[ying] themselves with an ample supply, ready in a nearby committee room, of cold hams, turkeys, beef, pickles, wines, and cups of hot coffee.” The filibuster was short lived: Near midnight the opposition gave way, the Senate passed the expunging
resolution 24-19, and the anti-Jackson Senators stormed out of the Senate before the expunging could be completed.

Whether it was a sense of the dignity of the Senate or sheer exhaustion that ended the 1837 filibuster, by 1841, the tolerance for unlimited debate had declined and the Senate began a long history of attempting filibuster reform. On June 21, 1841, Whig Senator Henry Clay (W-KY) reported a Fiscal Bank Bill to the Senate, designed to
establish the National Bank that Andrew Jackson had thwarted. When Senator John Calhoun (D-SC) made it clear that the Democratic minority would not be rushed, Clay called for a revival of the previous question motion “to allow a majority to control the business of the Senate.” When Senator William King (D-AL) asked if Clay planned to introduce a gag measure, Clay retorted, “I will, sir; I will.” King made clear his intention to filibuster such a proposal: “I tell the Senator, then, that he may make his arrangements at his boarding house for the winter.” At the insistence of his own party, which feared that a “gag measure” would lead to a break down in
relations, Clay stood down. Clay agreed to compromise, and the bill passed the Senate on July 28.

The practice of filibustering grew in the last half of the 19th century. Four times Senators unsuccessfully attempted filibuster reform—in 1850, 1873, and 1883 by moving to add a previous question motion to the Standing Rules, and in 1890 by attempting to create a cloture precedent through majority vote. It was not until
1917 that the Senate adopted a cloture rule.

Gold and Gupta: Senate Debate Procedures

Senate procedure is built upon three main pillars. First are the Standing Rules of the Senate. Currently, there are forty-three rules: thirty-three governing procedure and ten governing ethics. In theory, these rules may be adopted or amended by a simple majority of Senators acting through a Senate resolution. In practice, however,
under the current Standing Rules, a change requires the consent of two-thirds of Senators present—the number needed to end a filibuster on a rules change. The second pillar of Senate procedure consists of those procedures written into statutes to govern the consideration of subsequent legislation. The 1974 Budget Act, for example, specifies certain fast-track procedures the Senate must follow when considering budget resolutions and reconciliation bills and for thirty years has set
the terms for floor consideration of such vehicles. The third pillar includes Senate precedents. A precedent is set when (i) the Presiding Officer of the Senate rules on a point of order which the Senate may or may not affirm if an appeal is taken, (ii) a majority of the Senate addresses a point of order submitted to it by the Presiding Officer, or (iii) the Presiding Officer of the Senate issues an advisory response to
a Senator’s parliamentary inquiry. Under Article I, Section 3 of the U.S. Constitution, “the Vice President of the United States shall be President of the Senate” and act as Presiding Officer (or Senate Chair). In the Vice President’s place, the Senate elects a President pro tempore to act as the Presiding Officer.13 In practice, the Chair is occupied by an acting President pro tempore who rotates on an hourly basis.

Senate procedures arising from these sources may be modified by Orders. Such Orders are often situational, limited only to the measure or matter before the Senate at a given moment. For example, the Senate may adopt a unanimous consent Order limiting debate on a pending amendment to two hours per side. Occasionally, the Senate
will establish a Standing Order which, like a Standing Rule or precedent, remains in effect until the Senate revokes it or it expires under its own terms. A Standing Order may be adopted by a unanimous consent agreement or by a majority vote if the Standing Order is adopted by Senate resolution or is added to a pending bill.
Generally, the Senate operates on the principle of unfettered debate. In fact, for 111 years, the Senate rules provided no limit on debate. A Senator could speak for as long as he wished on nearly any topic he chose, and the majority had no recourse to stop him. This led to the “filibuster,” a device to delay Senate business in order to prevent legislation from ever coming to a vote, or to convince unwilling Senators to vote for amendments as a price for ending the filibuster and preserving time for debate on other bills they deem more important. Today, Senate procedure provides four methods for curtailing debate: tabling of motions, unanimous consent agreements, statutory provisions, and cloture. A motion to table operates to halt debate but also kills the underlying proposition. A bill manager will often offer a motion to table in order to defeat a proposal to add a hostile amendment. The motion is non-debatable—the Senate must take an immediate vote on it—and it serves as a final disposition of the underlying question. Accordingly, a tabling motion is an effective tool for ending debate only on propositions the mover opposes.

Under a unanimous consent order, Senators agree to impose new procedures—sometimes including debate limitations—in lieu of customary procedures. In such a case, the agreement typically provides that the time for debate be evenly divided between two
opposing sides and be under the control of specified Senators. Once entered, a unanimous consent agreement can only be changed by a subsequent unanimous consent agreement. However, a single Senator can block the agreement, because unanimous consent orders are often unavailable to restrict debate.

A third method to curtail debate is found in certain rulemaking statutes. The 1974 Budget Act, for example, includes procedures that operate akin to a unanimous consent agreement to limit debate on matters specified by the Budget Act.

When a Senator does not wish to kill the underlying proposition and neither statutory provisions nor unanimous consent are available to constrain debate, Rule XXII provides “cloture” to restrict debate. The first step is for at least sixteen Senators to sign a cloture motion. After a required intervening day of session, the Senate holds a quorum call one hour after convening and then votes on the cloture
motion. Sixty votes (three-fifths of all Senators duly chosen and sworn) are needed to invoke cloture, unless the proposal is to change the Senate rules, in which case the votes of two-thirds of Senators present are needed. If cloture fails, other cloture votes may be taken, as there is no restriction on the number or frequency of cloture motions that may be presented. If the cloture vote succeeds, a new set of procedures takes effect, including a one-hour-per-Senator limit on debate, an overall thirty-hour cap on consideration of the clotured item, and other rules serving to streamline floor consideration.

Gold and Gupta: Introduction

In the United States Senate, the majority has the power to decide what will be debated, but the minority can often determine whether that debate will ever end in a final vote. No one questions that a majority of a quorum can exercise the rulemaking power. But, for almost any debatable proposition, forty-one members can prevent the
Senate from taking a final vote, even though as many as fifty-nine Senators support the proposition. In addition, the Senate cloture rule provides that for any change to the Senate rules (including the rules governing debate), one-third of members present and voting plus one can prevent the Senate from resolving a filibuster and taking a vote.

And Senate Rule V declares that these rules are perpetual: “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”(3) At issue is whether the Senate cloture rule is carried over from one Congress to the next by Rule V and binds successor majorities. If so, the conclusion would seem to be that absent a change of heart among a sufficient minority, even a substantial majority is helpless to overcome a filibuster on a rules change.

But what if the current Senate cloture rule is not binding? In 1979, faced with a potential filibuster on his rules-change proposal, Senator Robert C. Byrd (D-WV) raised the possibility that the U.S. Constitution provides the majority with a method for overriding the Senate’s cloture rule:
The Constitution in article I, section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.
* * *
The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time. . .
* * *
. . So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . .
* * *
It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.

[I]t is my belief—which has been supported by rulings of Vice Presidents of both parties and by votes of the Senate—in essence upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress.(4)

Byrd made clear that if his rules-change proposal were filibustered, he would invoke the Senate’s powers under the U.S. Constitution to force a vote.(5) Byrd never carried out his threat to use the “constitutional option.” He never had to. His threat to use it was enough to break the opposition and secure a vote on his rules-change proposal.(6)

Byrd has not been alone, either in his views or his tactics. The constitutional option has been endorsed, explicitly or implicitly, by three U.S. Vice Presidents and three times, by the Senate itself. Moreover, on three occasions prior to 1979, a majority had used the threat of the constitutional option to force a formal change to the Senate Standing Rules.

Senator Thomas J. Walsh (D-MT) first advocated using the constitutional option in 1917.(7) Like Byrd, Walsh reasoned that a newly commenced Senate may disregard the rules established by a prior Senate, including the rules governing filibusters, and adopt new rules in their stead.(8) During this process, Walsh explained, the Senate would revert to the powers set forth in the U.S. Constitution and rely upon traditional parliamentary procedures, which contain procedural mechanisms to control filibusters.(9) Like Byrd’s opponents, Walsh’s opponents gave way once they realized that Walsh potentially had enough votes to carry out his plan, resulting in the Senate adopting its first formal rule limiting debate.(10) Similarly, in 1959, after over a dozen civil rights bills had been defeated by filibusters, and in 1975, after nearly two decades of ruleschange attempts were thwarted, the minority gave way and agreed to amend the Senate cloture rule once it became apparent that a majority of the Senate was prepared to carry out the constitutional option. On all four occasions--1917, 1959, 1975, and 1979--the rules changes may never have been adopted but for the prospect that theconstitutional option would be exercised.

Moreover, the historical record demonstrates that the use of the constitutional option is not limited to formal amendments of the Senate Standing Rules. Periodically, a majority has exercised the Senate’s constitutional rulemaking power to establish new precedents altering Senate procedure. For example, a majority has established precedents to limit members’ capacity to offer dilatory amendments, to propose legislative amendments to appropriations bills, to debate motions to proceed to nominations, and to use dilatory tactics to disrupt roll call votes. Likewise, a current majority could exercise the constitutional option to set a precedent altering the Senate’s procedures governing debate. A Senator could allow debate to proceed for an extended period of time and then raise a point of order that debate had continued long enough, that any further debate would be dilatory, and that a vote must be taken within a designated time frame. The Presiding Officer could rule in favor of the point of order, and a majority could table any appeal from his ruling. This would establish a precedent limiting the length of time for debate that would bind all future Senates (until the precedent were overturned by majority vote or unanimous consent).

Finally, the Senate could adopt a Standing Order altering the Senate’s procedures, including the procedures governing debate. Standing Orders are not incorporated into the text of the Standing Rules, but nonetheless bind the Senate. For example, in December 2000, the Senate adopted a standing order limiting members’ ability to filibuster conference reports. The order provided that members could no longer demand the reading of conference reports that were available in writing. Similarly, a current Senate could adopt a Standing Order having the effect of limiting time for debate.

These three exercises of the rulemaking power are not mutually exclusive. To facilitate a formal amendment to the Standing Rules or the adoption of a Standing Order, a majority may seek favorable rulings from the Presiding Officer to override any filibusters. This Article sets forth the history of the constitutional option.

Part I provides a brief overview of the Senate rules governing debate. Part II details the history of the filibuster. It begins with the first Senate, where there was no concept of a minority engaging in unlimited debate, next details how the possibility for filibuster was inadvertently created, and last provides an overview of the filibuster’s early use. Parts III, IV, and V of this Article relate the use of the constitutional option as a response to the filibuster. Part III details past proposals to use the constitutional option to accomplish a formal rule change.

It begins with the 1917 Senate special session in which Senator Walsh first proposed the constitutional option on the Senate floor and the Senate adopted its first rule for cloture of debate; it next details the 1950s debates between Senator Richard B. Russell (D-GA) and Senator Paul H. Douglas (D-IL), which culminated in then-Senator Lyndon B. Johnson’s 1959 compromise two-thirds cloture rule; and it last relates the 1960s and 1970s procedural battles that led to the establishment of the present three-fifths cloture rule in 1975.

Part IV explains how the constitutional power has been and could again be invoked to allow a majority to establish a new Senate precedent on ending filibusters. And Part V explains how a past majority has used Standing Orders to alter the Senate’s application of its rules and precedents governing conference reports, and how a future majority could use Standing Orders to alter the Senate’s application of its rules and precedents governing filibusters.

Gold and Gupta: Table of Contents

A. The “Dignified Senate”
B. The Inadvertent Creation of the Opportunity To Filibuster
C. The First Filibusters
A. The Senate Adopts a Formal Cloture Rule (1917)
1. The “Willful Eleven”
2. The Constitutional Option Is Introduced
3. Cloture Established
B. The Vandenberg Ruling and Wherry Amendment: Cloture Broadened But Made More Difficult (1948-1949)
C. The Return to Cloture by Two-Thirds Present (1953-1959)
1. The Civil Rights “Gravedigger”
2. The Constitutional Option Is Re-Introduced (1953)
3. Nixon’s Advisory Opinion (1957)
4. The Constitutional Option Preempted: The Leadership Pushes Through a Compromise(1959)
D. Three-Fifths Cloture Reform (1960-1975)
1. The “Biannual Ritual” Continues (1961-1971)
2. The Leadership Forges a Three-Fifths Compromise (1975)
E. The Constitutional Option: An Action-Forcing Mechanism
A. A Plan of Action
B. The Plan in Action
1. An 1890 Variant of the Constitutional Option by Precedent
2. Later Models To Change Senate Procedures by Precedent: Four Examples
a) A Precedent To End Post-Cloture Filibusters (1977)
b) A Precedent Limiting Amendments to Appropriations Bills (1979)
c) A Precedent Governing Consideration of Nominations (1980)
d) Precedents Concerning Rule XII’s Voting Procedures (1987)

The Constitutional Option: A Series

The following are links to five posts that discuss the Constitutional option, otherwise known as the Byrd option or the nuclear option to end Judicial Filibusters.

Introduction to the Constitutional Option

The Senate's Right to Set Procedural Rules

The Senate's Use of the Constitutinal Option

The Judicial Filibuster and the Constitutional Option

The Constitutional Option: Senator Kyl

Sunday, January 22, 2006

The Constitutional Option: Senator Kyl

United States Senator Jon Kyl (Republican - Arizona) makes a speech on the Senate floor on the issue of Judicial Filibusters and the Constitutional Option:

What I want to talk about today is a very simple and yet a very momentous question. Does the Senate have the power to govern itself? Specifically, can a majority of the Senate establish how we are governed? I have heard a lot of careless talk over the last few months and days. Some have charged the Senate will soon break the rules to change the rules and destroy the Senate as we know it. Some Senators claim the Senate is about to abdicate all constitutional responsibility, is becoming a rubberstamp. Others raise the specter of lawlessness and banana republics. Worst of all, Senators speak figuratively of detonating nuclear bombs and shutting down the Senate's business.
This kind of hysteria does a tremendous disservice not only to the Senate but to our Nation as a whole. Not only are the claims blatantly false, but they add to the already unacceptable level of incivility in our political affairs. It is often said we should disagree without being disagreeable. That is a sentiment with which I wholeheartedly concur. A good first step would be for my colleagues to stop making outrageous claims that Republicans want to destroy this institution.

The reality is the Senate is now engaged in a historic debate and, I believe, a historic effort to protect constitutional prerogatives and the proper checks and balances between the branches of our Government.

Republicans seek to right a wrong that has undermined 214 years of tradition--wise, carefully thought out tradition. The fact that the Senate rules theoretically allowed the filibuster of judicial nominations, but were never used to that end, is an important indicator of what is right and why the precedent of allowing up-or-down votes is so well established. It is that precedent that has been attacked and which we seek to restore.

Fortunately, the Senate is not powerless to prevent a minority from running roughshod over its traditions. It has the power--indeed, I would say the obligation--to govern itself. As I will demonstrate today, that power to govern itself easily extends to the device that has come to be known as the constitutional option.

The Constitution is clear about the scope of the Senate's power to govern itself. Article I, section 5, clause 2 of the Constitution states that each House may determine the rules of its proceedings.

The Supreme Court of the United States has rarely interpreted this clause, but one case is important for our purposes, the case of the United States v. Ballin, a case decided in 1892. That case dealt with the power of the majority of the House of Representatives to make rules, and it contains two holdings that bear on our situation today.

First, the Supreme Court held that the powers delegated to the House or the Senate through article I, section 5, clause 2 are powers held by a simple majority of the quorum. The Constitution states that a majority of Members constitutes a quorum, and the Supreme Court, therefore, held that ``when a majority are present the house is in a position to do business.''

The Supreme Court continued:

All that the Constitution requires is the presence of a majority.

Thus, a majority is all the Constitution requires for us to make rules, to set precedents, and to operate on a day-to-day basis. The Supreme Court made this clear.

Second, the Supreme Court held that the power to make rules is not one which, once exercised, is exhausted. It is a continuous power, always subject to being exercised by the House. By ``House,'' the court means the House of Representatives or the Senate. The import of this statement is crucial for present purposes. The power of the majority of Senators to define Senate procedures is one that exists at all times, whether at the beginning, the middle, or the end of Congress.

The constitutional background is simple and uncomplicated. We can govern ourselves. We can do it by majority vote, and we can do it at any time. Let me repeat: The Supreme Court has held that we have the right to govern ourselves, that we can do it by majority vote, and we can do it any time.

Let's look at how the Senate employs its constitutional power to govern itself. There are four basic ways that the Senate does so: In standing rules, precedents, standing orders, and in rulemaking statutes. I will discuss each briefly in turn.

First, the Senate has adopted standing rules to govern some but not all Senate practices and procedures. I have seen much confusion in the press and even, sadly, in this body about those standing rules. Some argue that the standing rules are the be-all and end-all of Senate practice and procedure. The confusion might be understandable outside the Senate, but Senators know that these rules are but one aspect of the overall set of tools, the broader rules that the Senate uses to govern itself.

That brings us to the second way the Senate exercises its constitutional power: the creation of precedents. Precedents are created whenever the Presiding Officer rules on a point of order, when the Senate sustains and/or rejects an appeal of the Presiding Officer's ruling on a point of order, or when the Senate itself rules on a question that has been submitted to it by the Presiding Officer.

As former Parliamentarian and Senate procedural expert Floyd Riddick has said:

The precedents of the Senate are just as significant as the rules of the Senate.

Let me repeat what Mr. Riddick said:

The precedents of the Senate are just as significant as the rules of the Senate.

Indeed, as we will see, precedents have sometimes been created that directly contradict the Standing Rules of the Senate. I will return to that point later, but I want everyone to remember what Mr. Riddick said.

A third way that the Senate exercises its constitutional power is through standing orders which can be adopted by legislation, Senate resolutions, or run-of-the-mill unanimous consent agreements. It is worth pausing to note that the Senate regularly overrides the standing rules and precedents of the Senate through unanimous consent agreements. You saw that a few minutes ago. Our leaders get together and decide, for example, to change the time to hold a cloture vote, even though rule XXII mandates that the vote shall occur 1 hour after the Senate comes into session on the second day after the cloture petition is filed. Yet the leaders move the votes in direct contradiction of the rules.

Of course, a unanimous consent agreement is formalistically unanimous. But that temporary rule change, if you want to call it that, is done completely outside the standing rules.

How can we do this? How can the Senate ignore the Standing Rules of the Senate? The answer is simple. It goes to the essence of the situation before us today. As the Supreme Court held, the Constitution gives the Senate the power to make rules and govern itself on a continuous basis. We are not held hostage to the standing rules, nor are we required to go through the cumbersome process of amending the standing rules when it is necessary to get something done. This has always been true.

A fourth way that the Senate exercises its constitutional power is through rulemaking statutes. For example, for 30 years the Budget Act has been placing severe restrictions on the rights of Senators to debate. Indeed, the Congressional Research Service has identified 26 rulemaking statutes that somehow limit the ability of individual Senators to debate and/or amend legislation. Think about that for a moment. We hear much pontificating on this floor about the supposedly sacred and untouchable right of Senators to debate on an unlimited basis. Yet, arguably, our most important function, that of ensuring that government services are budgeted and receive funding, is subject to carefully crafted restrictions of that right of debate. We have 50 hours of debate, followed by a majority vote, period. For generations, Senators have judged some limits on debate are necessary just as a matter of common sense. This is one of them.

Parenthetically, no matter how many times a few Senators say otherwise, this controversy before us now has nothing whatsoever to do with free speech, as the minority leader himself has acknowledged. This dispute has never been about the length of debate. It is about blocking judicial nominees. We will have plenty of debate on all of the nominees, as much as anyone wants.

I would like to move to another important aspect of this discussion: The role of tradition and norms of conduct in the day-to-day functioning of the Senate. This is crucial. Although it is frequently said that the unique features of the Senate are individual Senator's rights to demand and amend, there is another even more central aspect to Senate procedure. As I see it, the overriding feature of the Senate is the mutual self-restraint and respect for the settled norms of this body. I would like o consider a few examples.

Senators limit their speech on an informal basis every day. We cut short remarks so that others can speak. We did that a few moments ago. We acquiesce in unanimous consent agreements that will have the effect of denying ourselves any chance to speak on a subject. We decline to object to procedural unanimous consent requests even though we might have good reason to want to slow down Senate business. We acquiesce in our leader's floor schedule. We work with bill managers to limit amendments so that the Senate can function, so that each individual Senator's rights do not become an impediment to the task of governing. Senators have rights, but we also have obligations to each other and to the Nation.

So we limit our rights on the basis of mutual respect and a belief in good government but, candidly, also out of fear of retaliation. If I assert my rights too forcefully, I not only disrespect my colleagues, but I threaten my own public policy goals. The result is a complicated mutual truce of sorts that allows us to do the people's business in an orderly way. In a word, we gain institutional stability.

In short, the Senate is institutionally stable, not just because of rules, precedents, or the standing order, or the rulemaking statutes I discussed. The body is stable because we respect each other's prerogatives. We understand that any breach of the truce will produce a reaction. And it is that basic understanding of physics, action, and reaction, coupled with a genuine goodwill that allows us to function even with the many individual rights that we possess. The rights only work because we so often choose not to exercise them. So it is not just rights that define the Senate but also restraint.

Which brings us back to the filibuster of judicial nominations. It is certainly the case that the Standing Rules of the Senate do countenance the filibuster of judicial nominations, but it is equally the case that the longstanding norms of the Senate do not. Until 2003, no judicial nominee with demonstrable support of a majority of Senators had ever been denied an up-or-down vote on the Senate floor through a filibuster . Even on the rare occasions where there were attempts, they failed on a bipartisan basis. And why? Because the filibuster of judicial nominations used as a minority veto was not part of our tradition and never had been. Again, out of respect for fellow Members, for the President, and for the judiciary, and out of a recognition of the long-term impact of such tactics, the Senate had always declined to march down this path.

When I entered the Senate in 1995, I had grave concerns about some of more activist nominees that President Clinton sent to us.

But I listened to Chairman ORRIN HATCH, Majority Leader TRENT LOTT, and many others. They taught that we had a longstanding Senate tradition against blocking Senate nominations by filibuster . So I joined Democrats and Republicans alike in making sure there were no filibusters.

Ironically, some point to those successful cloture votes for confirmed judges and claim those nominees were filibustered. Well, all that establishes is that both parties ensured a supermajority to end debate, precisely to adhere to historical norms. We took the steps to ensure those judicial nominees who reach the Senate floor received the fair up-or-down votes to which they were entitled. Again, the standing rules might have permitted such obstruction, but the Senate norms and traditions did not.

To the extent the rules technically permitted such obstruction, the traditions had rendered the power obsolete and inert. In common law, there is a doctrine called desuetude, which means that obsolete or unenforced laws shall not have effect in the future even if not formally repealed. In other words, a law that is de facto unenforced may be treated as ineffective de jure as well.

We faced a similar situation in the Senate. In fact, our tradition was our rule. To minimize the traditions of this body is to display a naive and legalistic misunderstanding of the institution. To say we are a body of traditions is meaningless if we do not acknowledge that our traditions have content and meaning. There can be no question that the filibusters of the last Congress broke that Senate tradition and, therefore, the set way this body had governed itself. By breaking traditions of the Senate, members of the minority should have known they would force the Senate to react. Tradition should never change without consensus, and a consensus requires, at a minimum, a majority. The question is, what are we to do when norms and traditions are changed by the minority? What do we do when there is no consensus, just a minority with a determination to exploit dormant rules to further partisan end? The Senate can do one of two things: Let our traditions be transformed and permit rule by minority or we can insist that the Senate maintain traditional norms and take action to protect them.

That brings us to the constitutional option itself. The constitutional option is nothing more than the Senate governing itself, as the Constitution provides, by acts of majorities of Senators. The Senate has been in this situation before 4 times over a 10-year period, when the Senate majority reacted to a minority using rules that had not traditionally been used to obstruct Senate business. My colleague Senator McConnell will discuss each instance in depth. I address one in particular by way of illustration.

In 1977, two Senators attempted to block a natural gas deregulation bill after cloture had already been invoked. They were succeeding through a strategy of ``filibuster by amendment.'' Post-cloture debate time had lapsed, but the obstructing Senators could still call up amendments, force quorum calls, and force rollcall votes on the amendments. Rule XXII prohibited dilatory or nongermane amendments, but Senate procedure did not rule these amendments out of order. True, a Senator could raise a point of order against one of these dilatory amendments, but any favorable ruling could be appealed. A rollcall vote could then be demanded on that appeal. And once that rollcall vote began, the obstructing Senators could accomplish their slowdown in a different way--filibuster by rollcall vote. To make matters worse, in 1977, before any point of order could even be made against an amendment, the amendment in question had to be read by the clerk. By objecting to the routine courtesy of waiving the reading of the amendment, the obstructing Senators delayed the business of the Senate even further.

That all may seem complicated, but there is one undeniable truth about what these obstructing Senators were doing. It was all completely permitted under the standing rules and the precedents of the Senate. At the same time, however, these tactics were in violation of settled Senate norms and practices. So what was the Senate to do?

The answer came when the then-Democratic majority leader made the decision these new tactics were dilatory, in violation of the traditional norms, and could no longer prevail. He asked then-Vice President Walter Mondale to sit in the chair in his capacity as President of the Senate. The Democratic majority leader made a point of order that ``when the Senate is operating under cloture, the chair is required to take the initiative under Rule XXII to rule out of order all amendments that are dilatory or which on their face are out of order.'' Mondale sustained the point of order, even though it had no foundation in the rules or precedents of the Senate. Another Senator appealed the Mondale ruling, and the Democratic majority leader moved to table. The Senate then voted to table the appeal. In doing so, the Senate created a new precedent. But that precedent ran directly contrary to the Senate's longstanding procedures which had required Senators to raise points of order to enforce Senate rules. Under the new precedent established by the Senate, no such point of order would be necessary.

Again, this may seem complicated, but these small changes had dramatic effects. The Democratic majority leader began to call up each of the dilatory amendments so the Chair could rule them out of order. One by one, the Chair obliged. Under normal circumstances, an appeal would have been in order, but the majority leader exercised his right of preferential recognition to block any appeal. He quickly called up every remaining amendment, Vice President Mondale ruled them out of order, and all of the amendments were disposed of.

Nearly 20 years later, the Senator who orchestrated those events in 1977 explained to the Senate what he had done. He explained:

I asked Mr. Mondale, the Vice President, to go please sit in the chair; I wanted to make some points of order and create new precedents that would break these filibusters. And the filibuster was broken--back, neck, legs, and arms. So there should be no confusion about what happened on that day.

That was the constitutional option in action. The Senate faced a situation where a minority of Senators was frustrating Senate business in an untraditional way. The majority wished to proceed. The majority did not propose any formal rules change, refer the proposal to the Rules Committee, wait for its action, and then bring it to the floor under rule XXII's cloture provisions for such rule change proposals. That procedure was not followed. Instead, the majority leader recognized that the Senate had the constitutional power to bypass that route, which is exactly what the Senate did.

As I mentioned earlier, that same Democratic leader would create several other precedents while serving as majority leader, in each case because he concluded the existing standing rules and precedents of the Senate were inadequate, and that a majority of Senators had the power to alter the way the Senate governs itself. In 1979, for example, a new precedent was created to prevent legislation on appropriations bills, in direct contravention of the text of the standing rules at that time. In 1980, the Senate used the constitutional option to eliminate the ability to debate and filibuster the motion to proceed to a particular item on the Executive Calendar. That situation is remarkably similar to the one we face today. In 1987, in a complicated set of maneuvers, the Senate created new precedents to limit minority rights and declare that certain dilatory tactics during the morning hour were out of order.

I will not examine each of these historical events in detail today. Instead, I ask unanimous consent to have printed in the RECORD a copy of the policy paper prepared by the Republican Policy Committee, which I chair, which examined each of these events in great detail.

These precedents--in 1977, 1979, 1980, and in 1987--bear directly on the situation the Senate faces today. In those instances, Senate business was being obstructed by dilatory tactics that had not traditionally been employed but which were permitted under the rules. The Senate faced the same conundrum as it does today: Must the Senate permit rule by the minority, or can it exercise its constitutional power to restore traditional practices? In each case, the Senate did the latter. It created precedents that altered the practices and procedures and, in some cases, operation of the standing rules themselves in order to ensure that tradition was upheld.

What did not happen as a result of these earlier exercises of the constitutional option?

Well, first, the Senate did not collapse or become ``like the House of Representatives,'' which is the fear of many Senators today.

Second, Senators' speech rights are just as strong as ever. Nor were Americans' free speech rights injured, as some Senators say will happen.

Third, minority rights were not destroyed. The Senate minority is as vibrant as ever and has been remarkably successful in obstructing the business of the Senate, whether we are talking about the Energy bill, medical liability lawsuit reform, asbestos reform, tax relief, or other issues.

Before I close, I would like to address concerns that some of my conservative friends have recently expressed. Some are fretting that Republicans are taking a dangerous step by restoring the traditional up-or-down vote standard for judicial nominees. My friends argue that Republicans may want to filibuster a future Democratic President's nominees. To that I say, I do not think so. And even if true, I am willing to give up that tool. It was never a power we thought we had in the past, and it is not one likely to be used in the future, unless that longstanding tradition is abdicated.

I know some insist we will someday want to block judges by filibuster , but I know my colleagues. I have heard them speak passionately, publicly and privately, about the injustice done to filibustered nominees. I think it highly unlikely that they will shift their views simply because the political worm has turned, again, if we sustain the tradition of the Senate. So I say to my friends what you say that we Republicans are losing is in fact no loss at all.

My friends also argue that the legislative filibuster will be next. I have even seen some media outlets insist that this exercise of the constitutional option for judicial filibusters will automatically apply to the legislative filibuster . This is completely false. Moreover, no Republican Senator wants to eliminate the legislative filibuster and few, if any, Democrats do. Some once did, but they recently recanted. In fact, the junior Senator from California said she was ``wrong ..... totally wrong'' ever to have thought otherwise.

Everyone here knows that political fortunes change. It is one thing to give this supposed ``right'' that had never been used, such as this filibuster of judicial nominees. It is quite another to be so shortsighted as to eliminate such a powerful legislative tool. In fact, the first vote I ever cast as a Senator was to preserve the legislative filibuster , and I was in the majority.

But I think it is important to acknowledge, in the interest of intellectual honesty, that if the majority wanted to eliminate the filibuster for all matters, including legislation, it would have certainly had that power. It would be wildly imprudent, contrary to tradition, generally destructive of the institution, but that is what the Constitution provides--the power of the Senate to govern itself.

In closing, I say to my colleagues what we are contemplating doing is in the best traditions of the Senate. We are restoring our consensus practices for managing the judicial confirmation process using a tool that has been repeatedly used and has always been available. I look forward to completing this debate so that we can start voting on individual judicial nominees and turn to the pressing legislative matters of the Senate.

The Judicial Filibuster and the Constitutional Option

Continued from the previous post

The filibusters of judicial nominations during the 108th Congress were unprecedented in Senate history. [This historical observation has been conceded by leading Senate Democrats. For example, the Democratic Senatorial Campaign Committee solicited campaign contributions in November 2003 with the claim that the filibusters were an ``unprecedented'' effort to ``save our courts.'' See Senator John Cornyn, Congressional Record, Nov. 12, 2003, S14601, S14605. No Senator has disputed that until Miguel Estrada asked the President to withdraw his nomination in September 2003, no circuit court nominee had ever been withdrawn or defeated for confirmation due to the refusal of a minority to permit an up-or-down vote on the Senate floor.] While cloture votes had been necessary for a few nominees in previous years, leaders from both parties consistently worked together to ensure that nominees who reached the Senate floor received up-or-down votes. The result of this bipartisan cooperation was that, until 2003, no judicial nominee with clear majority support had ever been defeated due to a refusal by a Senate minority to permit an up-or-down floor vote, i.e., a filibuster . [For a review of all past cloture votes on judicial nominations prior to the 108th Congress, see Senate Republican Policy Committee, ``Denying Mr. Estrada an Up-or-Down Vote Would Set a Dangerous Precedent'' (Feb. 10, 2003). See also Cornyn, 27 Harv. J. L. Pub. Pol'y at 218-227.]

The Senate's Use of the Constitutinal Option

Continued from the previous post

The Senate is a relatively stable institution, but its norms of conduct have sometimes been violated. In some instances, a minority of Senators has rejected past practices and bipartisan understandings and exploited heretofore ``off limits'' opportunities to obstruct the Senate's business. At other times, a minority of Senators has abused the rules and precedents in a manner that violates Senators' reasonable expectations of proper procedural parameters. These are efforts to change Senate norms and practices, but they do not necessarily have the support of a majority.

Such situations create institutional conundrums: what should be done when a mere minority of Senators changes accepted institutional norms? One option is to acquiesce and allow ``rule by the minority'' so that the minority's norm becomes the Senate's new norm. But another option has been for the majority of Senators to deny the legitimacy of the minority Senators' effort to shift the norms of the entire body. And to do that, it has been necessary for the majority to act independently to restore the previous Senate norms of conduct.

This section examines those illustrative instances--examples of when the Senate refused to permit a minority of Senators to change norms of conduct or to otherwise exploit the rules in ways destructive to the Senate, and, instead, exercised the constitutional option.

When Senator Robert C. Byrd was Majority Leader, he faced several circumstances in which a minority of Senators (from both parties) began to exploit Senate rules and precedents in generally unprecedented ways. The result was obstruction of Senate business that was wholly unrelated to the institution's great respect for the right to debate and amend. Majority Leader Byrd's response was to implement procedural changes through majoritarian votes in order to restore Senate practices to the previously accepted norms of the body.

In 1977, two Senators attempted to block a natural gas deregulation bill after cloture had already been invoked. [See Martin B. Gold & Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: a Majoritarian Means to Overcome the Filibuster , 28 Harv. J. L. Pub. Pol'y 206,262-264 (2004).] A ``post-cloture filibuster'' should seem counterintuitive for anyone with a casual acquaintance with Senate rules, but these obstructing Senators had found a loophole. Although further debate was foreclosed by Rule XXII once post-cloture debate was exhausted, the Senators were able to delay a final vote by offering a series of amendments and then forcing quorum calls and roll call votes for each one. Even if the amendments were ``dilatory'' or ``not germane'' (which Rule XXII expressly prohibits), Senate procedure provided no mechanism to get an automatic ruling from the Chair that the amendments were defective. A Senator could raise a point of order, but any favorable ruling could be appealed, and a roll call vote could be demanded on the appeal. Moreover, in 1975, before a point of order could even be made, an amendment first must have been read by the clerk. While the reading of amendments is commonly waived by unanimous consent, anyone could object and require a reading that could further tie up Senate business. Thus, the finality that cloture is supposed to produce could be frustrated.

These practices were proper under Senate rules and precedents, but Majority Leader Byrd concluded in this context that these tactics were an abuse of Senate Rule XXII. His response was to make a point of order that ``when the Senate is operating under cloture the Chair is required to take the initiative under rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order.'' [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 263.] The Presiding Officer, Vice President Walter Mondale, sustained the point of order, another Senator appealed, and Majority Leader Byrd immediately moved to table. The Senate then voted to sustain the motion to table the appeal. In so doing, the Senate set a new precedent that ran directly contrary to the Senate's longstanding procedures which required Senators to raise points of order to enforce Senate rules. Now, under this precedent, the Chair would be empowered to take the initiative to rule on questions of order in a post-cloture environment.

The reason for Majority Leader Byrd's tactic immediately became clear. He began to call up each of the dilatory amendments that had been filed post-cloture, and the Chair instantly ruled them out of order. There was no reading of the amendments (which would have been dilatory in itself) and there were no roll call votes. The Majority Leader then exercised his right of preferential recognition to call up numerous remaining amendments, and similarly disposed of them. No appeals could be taken because any appeal was mooted when Majority Leader Byrd secured his preferential recognition to call up additional amendments. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 263-264.]

This was the constitutional option in action. Majority Leader Byrd did not follow the regular order and attempt to amend the Senate Rules in order to block these tactics. Instead, he used a simple point of order that cut off the ability of a minority of Senators to add a new layer of obstruction to the legislative process. His method was consistent with the Senate's constitutional authority to establish procedure.

Majority Leader Byrd used the constitutional option again in 1979 in order to block legislation on appropriations bills. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 264-265.] Standing Rule XVI barred Senate legislative amendments to appropriations bills. By precedent, however, such amendments were permissible when offered as germane modifications of House legislative provisions. Thus, when the House acted first and added legislative language to an appropriations measure, Senators could respond by offering legislative amendments to the House's legislative language. While another Senator might make a point of order, the Senator offering the authorizing language could respond with a defense of germaneness. And, by the express language of Rule XVI, that question of germaneness must be submitted to the Senate and decided without debate. By enabling the full Senate to vote on the germaneness defense without getting a ruling from the Presiding Officer first, the legislative amendment's sponsor avoided having to overturn the ruling of the Chair and create any formal precedents in doing so. The result was a breakdown in the appropriations process due to legislative amendments, and it was happening pursuant to Senate rules that plainly permitted these tactics.

Majority Leader Byrd resolved to override the plain text of Rule XVI and strip the Senate of its ability to decide questions of germaneness in this context. Senator Byrd's mechanism was similar to the motion he employed in 1977: he made a point of order that ``this is a misuse of precedents of the Senate, since there is no House language to which this amendment could be germane, and that, therefore, the Chair is required to rule on the point of order as to its being legislation on an appropriation bill and cannot submit the question of germaneness to the Senate.'' [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 265 (emphasis added).] The Chair sustained the point of order, and the Senate rejected the ensuing appeal, 44-40.

The result of Majority Leader Byrd's exercise of the constitutional option was a binding precedent that caused the Senate to operate in a manner directly contrary to the plain language of Rule XVI. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 265.] Moreover, the method was contrary to past Senate practices regarding germaneness. But the process employed, as in 1977, was nonetheless constitutional because nothing in the Senate's rules, precedents, or practices can deny the Senate the constitutional power to set its procedural rules.

The Senate's Executive Calendar has two sections--treaties and nominations. Prior to March 1980, a motion to enter Executive Session, if carried, would move the Senate automatically to the first item on the Calendar, often a treaty. Rule XXII provides (then and now) that such a motion to enter Executive Session is not debatable. However, unlike the non-debatable motion to enter Executive Session, any motion to proceed to a particular item on the Executive Calendar was then subject to debate. In practice, then, the Senate could not proceed to consider any business other than the first Executive Calendar item without a Senator offering a debatable motion, which then would be subject to a possible filibuster . [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 265-267.]

Majority Leader Byrd announced his objection to this potential ``double filibuster'' (once on the motion to proceed to a particular Executive Calendar item, and again on the Executive Calendar item itself), and exercised another version of the constitutional option. This time he moved to proceed directly to a particular nomination on the Executive Calendar and sought to do so without debate. Senator Jesse Helms made the

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point of order that Majority Leader Byrd could only move by a non-debatable motion into Executive Session, not to a particular treaty or nomination. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 266.] The Presiding Officer upheld the point of order given that it was grounded in Rule XXII and longstanding understandings of Senate practices and procedures. But Majority Leader Byrd simply appealed the ruling of the Chair and prevailed, 38-54. Thus, even though there was no basis in the Senate Rules, and even though Senate practices had long preserved the right to debate any motion to proceed to a particular Executive Calendar item, the Senate exercised its constitutional power to ``make rules for its proceedings'' and created the procedure that the Senate continues to use today.
As an historical sidenote, Majority Leader Byrd used this new precedent to great effect in December 1980 when he bypassed several items (including several nominations) on the Executive Calendar to take up a single judicial nomination--that of Stephen Breyer, then Chief Counsel to the Senate Judiciary Committee, to be a judge on the U.S. Court of Appeals for the First Circuit. Judge Breyer was later nominated and confirmed to the U.S. Supreme Court in 1994. Without Majority Leader Byrd's exercise of the constitutional option earlier that year, it is almost certain that Justice Breyer would not be on the Supreme Court today.

A fourth exercise of the constitutional option came in 1987 when Senator Byrd was once again Majority Leader. The controversy in question involved an effort by Majority Leader Byrd to proceed to consider a particular bill, an effort that had been frustrated because a minority of Senators objected each time he moved to proceed. To thwart his opponents, Majority Leader Byrd sought to use a special feature of the Senate Rules--the Morning Hour (the first two hours of the Legislative Day).

Under Rule VIII, a motion to proceed to an item on the Legislative Calendar that is made during the Morning Hour is non-debatable. This feature of the rules gives the Majority Leader significant power to set the Senate agenda due to his right to preferential recognition (which is, itself, a creature of mere custom and precedent). Such a motion cannot be made, however, until the Senate Journal is approved and Morning Business is thereafter concluded (or the first of the two hours has passed). Meanwhile, the clock runs on the Morning Hour while that preliminary business takes place. When the Morning Hour expires, a motion to proceed once again becomes debatable and subject to filibuster . [Gold, Senate Procedure and Practice, at 68-69.] It was this feature of the Morning Hour that Senator Byrd believed would enable him to proceed to the bill in question.

Majority Leader Byrd's plan was complicated, however, when objecting Senators forced a roll call vote on the approval of the Journal, as was their right under the procedures and practices of the Senate. Rule XII provides that during a roll call vote, if a Senator declines to vote, he or she must state a reason for being excused. The Presiding Officer then must put a non-debatable question to the Senate as to whether the Senator should be excused from voting. When Majority Leader Byrd moved to approve the Journal, one Senator declined to vote and sought to be excused. Following Rule XII, the Presiding Officer put the question directly to the Senate--should the Senator be excused?--but during the roll call on whether the first Senator should be excused, another Senator announced that he wished to be excused from voting on whether the first Senator should be excused. The Chair was likewise obliged to put the question to the Senate. At that point, yet another Senator announced he wished to be excused from that vote. There were four roll call votes then underway--the original motion to approve the Journal and three votes on whether Senators could be excused. If Senators persisted in this tactic, the time it took for roll call votes would cause the Morning Hour to expire, and the Majority Leader would lose his ability to move to proceed to his bill without debate. All this maneuvering was wholly consistent with the Standing Rules of the Senate.

Majority Leader Byrd countered with a point of order, arguing that the requests to be excused were, in fact, little more than efforts to delay the actual vote on the approval of the Journal. His solution was to exercise the constitutional option: to use majority-supported Senate precedents to change Senate procedures, outside the operation of the Senate rules. In three subsequent partyline votes, three new precedents were established: first, that a point of order could be made declaring repeated requests to be excused from voting on a motion to approve the Journal (or a vote subsumed by it) to be ``dilatory;'' second, that repeated requests to be excused from voting on a motion to approve the Journal (or a vote subsumed by it) ``when they are obviously done for the purpose of delaying the announcement of the vote on the motion to approve the Journal, are out of order;'' and third, that a Senator has a ``limited time'' to explain his reason for not voting, i.e., he cannot filibuster by speaking indefinitely when recognized to state his reason for not voting. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 267-269.] Majority Leader Byrd had crafted these new procedures completely independently of the Senate Rules, and they were adopted by a partisan majority without following the procedures for rule changes provided in Rule XXII. Yet the tactics were wholly within the Senate's constitutional power to devise its own procedures.

This 1987 circumstance offers a very important precedent for the present difficulties. Majority Leader Byrd established that a majority could restrict the rights of individual Senators outside the cloture process if the majority concluded that the Senators were acting in a purely ``dilatory'' fashion. Previous to that day, dilatory tactics were only out of order after cloture had been invoked.

The Senate also has endorsed (or acted in response to) some version of the constitutional option several other times over the past 90 years--in 1917, 1959, 1975, and 1979.

The original cloture rule, adopted in 1917, itself appears to be the result of a threat to exercise the constitutional option. Until 1917, the Senate had no cloture rule at all, although one had been discussed since the days of Henry Clay and Daniel Webster. The ability of Senators to filibuster any effort to create a cloture rule put the body in a quandary: debate on a possible cloture rule could not be foreclosed without some form of cloture device.

The logjam was broken when first term Senator Thomas Walsh announced his intention to exercise a version of the constitutional option so that the Senate could create a cloture rule. His method was to propose a cloture rule and forestall a filibuster by asserting that the Senate could operate under general parliamentary law while considering the proposed rule. Doing so would permit the Senate to avail itself of a motion for the previous question to terminate debate--a standard feature of general parliamentary law. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 220-226.] In this climate, Senate leaders quickly entered into negotiations to craft a cloture rule. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 226.] Negotiators produced a rule that was adopted, 76-3, with the opposing Senators choosing not to filibuster . [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 226.] But it was only after Senator Walsh made clear that he intended to press the constitutional option that those negotiations bore fruit. As Senator Clinton Anderson would remark in 1953, ``Senator Walsh won without firing a shot.'' [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 227.]

The same pattern repeated in 1959, 1975, and 1979. In each case, the Senate faced a concerted effort by an apparent majority of Senators to exercise the constitutional option to make changes to Senate rules. In 1959, some Senators threatened to exercise the constitutional option in order to change the cloture requirements of Rule XXII. Then-Majority Leader Lyndon Johnson preempted its use by offering a modification to Rule XXII that was adopted through the regular order. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 240-247.] In 1975, the Senate three times formally endorsed the constitutional option by creating precedents aimed at facilitating rule changes by majority vote, although the ultimate rule change (also to Rule XXII) was implemented through the regular order after off-the-Floor negotiations. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 252-260.] And in 1979, Majority Leader Byrd threatened to use the constitutional option unless the Senate consented to a time frame for consideration of changes to post-cloture procedures. The Senate acquiesced, and the Majority Leader did not need to use the constitutional option as he had in the other cases discussed above. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 260; Congressional Record, Jan. 15, 1979.]

The Senate, therefore, has long accepted the legitimacy of the constitutional option. Through precedent, the option has been exercised and Senate procedures have been changed. At other times it has been merely threatened, and Senators negotiated textual rules changes through the regular order. But regardless of the outcome, the constitutional option has played an ongoing and important role.

The Senate's Right to Set Procedural Rules

Continued from the previous post

The Senate's constitutional power to make rules is straightforward, but two issues do warrant brief elaboration--the number of Senators that are constitutionally necessary to establish procedures and whether there are any time limitations as to when the rulemaking power can be exercised.

The Supreme Court addressed both of these questions in United States v. Ballin, an 1892 case interpreting Congress's rulemaking powers. [144 U.S. 1 (1892).] First, the Court held that the powers delegated to each body are held by a simple majority of the quorum, unless the Constitution expressly creates a supermajority requirement. [Ballin, 144 U.S. at 6. There is no serious disagreement with the Supreme Court's conclusion in Ballin. Indeed, Senator Edward Kennedy has said that only a majority is necessary to change Senate procedures. Congressional Record, Feb. 20, 1975, S3848. Senator Charles Schumer conceded during a Judiciary subcommittee hearing on the constitutionality of the filibuster that Senate rules ``could be changed by a majority vote.'' S. Hrg. 108-227 (May 6, 2003), at 60.] The Constitution itself sets the quorum for doing business--a majority of the Senate. [U.S. Const., art. I, 5, cl. 1.] Second, the Supreme Court held that the ``power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house.'' [Ballin, 144 U.S. at 5.] Thus, the Supreme Court has held that the power of a majority of Senators to define the Senate's procedures exists at all times whether at the beginning, middle, or end of a Congress.

The Senate majority exercises this constitutional rulemaking power in several ways:

First, it has adopted Standing Rules to govern some Senate practices and procedures. Those rules formally can be changed by a majority vote. Any motion to formally amend the Standing Rules is subject to debate, and Senate Rule XXII creates a special two-thirds cloture threshold to end that debate.

Second, the Senate operates according to Senate precedents, i.e., rulings by the Chair or the Senate itself regarding questions of Senate procedure. A precedent is created whenever the Chair rules on a point of order, when the Senate sustains or rejects an appeal of the Chair's ruling on a point of order, or when the Senate itself rules on a question that has been submitted to it by the Chair. [Floyd M. Riddick, Senate Parliamentarian, Oral History Interviews (November 21, 1978), Senate Historical Office, Washington, D.C., at 429.] As former parliamentarian and Senate procedural expert Floyd M. Riddick has said, ``The precedents of the Senate are just as significant as the rules of the Senate.'' [Riddick interview at 426.]

Third, the Senate binds itself through rule-making statutes that constrain and channel the consideration of particular matters and guarantee that the Senate can take action on certain matters by majority vote. At least 26 such rule-making statutes govern Senate procedure and limit the right to debate, dating back to the 1939 Reorganization Act and including, most prominently, the 1974 Budget Act. [Martin B. Gold, Senate Procedure and Practice (2004), at 5. For a complete list of the 26 statutes that limit Senate debate, see John Cornyn, Our Broken Judicial Confirmation Process and the Need for Filibuster Reform, 27 Harv. J. L. Pub. Pol'y 181,213-214 (2003).]

Finally, the Senate can modify the above procedures through Standing Orders, which can be entered via formal legislation, Senate resolutions, and unanimous consent agreements.

It is important to emphasize, however, that these rules are the mere background for day-today Senate procedure. As any Senate observer knows, the institution functions primarily through cooperation and tacit or express agreements about appropriate behavior. Most business is conducted by unanimous consent, and collective norms have emerged that assist in the protection of minority rights without unduly hindering the Senate's business.

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Consider, for example, the Senate's contrasting norms regarding the exercise of individual Senators' procedural rights. Under the rules and precedents of the Senate, each Senator has the right to object to consent requests and, with a sufficient second, to demand roll call votes on customarily routine motions. If Senators routinely exercised those rights, however, the Senate would come to a standstill. Such wholesale obstruction is rare, but not because the Senate's standing rules, precedents, and rulemaking statutes prohibit a Senator from engaging in that kind of delay. Rather, Senators rarely employ such dilatory tactics because of the potential reaction of other Senators or the possibility of retaliation. As a result, informed self enforcement of reasonable behavior is the norm.

At the same time, some ``obstructionist'' tactics have long been accepted by the Senate as features of a body that respects minority rights. Most prominent is the broadly accepted right of a single Senator to speak for as long as he or she wants on pending legislation, subject only to the right of the majority to invoke cloture and shut off debate. Indeed, an overwhelming and bipartisan consensus in support of the current legislative filibuster system has existed for 30 years. [Standing Rule XXII's standard for cloture--three-fifths of Senators ``duly chosen and sworn''--has been in effect since 1975.] Thus, the norms of the Senate tolerate some, but not all, kinds or degrees of obstruction.

Thus, while written rules, precedents, and orders are important, common understandings of self-restraint, discretion, and institutional propriety have primarily governed acceptable Senatorial conduct. It is the departures from these norms of conduct that have precipitated institutional crises that require the Senate to respond.

Introduction to the Constitutional Option

Part of John Kyl’s speech on the US Senate floor on May 19, 2005

I will not examine each of these historical events in detail today. Instead, I ask unanimous consent to have printed in the RECORD a copy of the policy paper prepared by the Republican Policy Committee, which I chair, which examined each of these events in great detail.

There being no objection, the material was ordered To be printed in the RECORD, as follows:

The Senate's Power To Make Procedural Rules by Majority Vote


In recent months, there has been growing public interest in the Senate's ability to change its internal procedures by majority vote. The impetus for this discussion is a Senate minority's use of the filibuster to block votes on 10 judicial nominations during the 108th Congress. Until then, a bipartisan majority of Senators had worked together to guarantee that filibusters were not to be used to permanently block up-or-down votes on judicial nominations. For example, as recently as March 2000, Majority Leader Trent Lott and Minority Leader Tom Daschle worked together to ensure that judicial nominees Richard Paez and Marsha Berzon received up-or-down votes, even though Majority Leader Lott and most of the Republican caucus ultimately voted against those nominations. But that shared understanding of Senate norms and practices--that judicial nominations shall not be blocked by filibuster --broke down in the 108th Congress.

This breakdown in Senate norms is profound. There is now a risk that the Senate is creating a new, 60-vote confirmation standard. The Constitution plainly requires no more than a majority vote to confirm any executive nomination, but some Senators have shown that they are determined to override this constitutional standard. Thus, if the Senate does not act during the 109th Congress to restore the Constitution's simple-majority standard, it could be plausibly argued that a precedent has been set by the Senate's acquiescence in a 60-vote threshold for nominations.

One way that Senators can restore the Senate's traditional understanding of its advice and consent responsibility is to employ the ``constitutional option''--an exercise of a Senate majority's power under the Constitution to define Senate practices and procedures. The constitutional option can be exercised in different ways, such as amending Senate Standing Rules or by creating precedents, but regardless of the variant, the purpose would be the same--to restore previous Senate practices in the face of unforeseen abuses. Exercising the constitutional option in response to judicial nomination filibusters would restore the Senate to its longstanding norms and practices governing judicial nominations, and guarantee that a minority does not transform the fundamental nature of the Senate's advice and consent responsibility. The approach, therefore, would be both reactive and restorative.

This constitutional option is well grounded in the U.S. Constitution and in Senate history. The Senate has always had, and repeatedly has exercised, the constitutional power to change the Senate's procedures through a majority vote. Majority Leader Robert C. Byrd used the constitutional option in 1977, 1979, 1980, and 1987 to establish precedents changing Senate procedures during the middle of a Congress. And the Senate several times has changed its Standing Rules after the constitutional option had been threatened, beginning with the adoption of the first cloture rule in 1917. Simply put, the constitutional option itself is a longstanding feature of Senate practice.

This paper proceeds in four parts: (1) a discussion of the constitutional basis of the Senate's right to set rules for its proceedings; (2) an examination of past instances when Senate majorities acted to define Senate practices--even where the written rules and binding precedents of the Senate dictated otherwise; (3) an evaluation of how this history relates to the present impasse regarding judicial nomination filibusters; and (4) a clarification of common misunderstandings of the constitutional option. The purpose of this paper is not to resolve the political question of whether the Senate should exercise the constitutional option, but merely to demonstrate the constitutional and historical legitimacy of such an approach.

Sunday, July 10, 2005

Europe's angry Muslims

June 27, 2005
Europe's Angry Muslims
By Robert S. Leiken
From the July/August 2005 issue of Foreign Affairs

Fox News and CNN's Lou Dobbs worry about terrorists stealing across the United States' border with Mexico concealed among illegal immigrants. The Pentagon wages war in the Middle East to stop terrorist attacks on the United States. But the growing nightmare of officials at the Department of Homeland Security is passport-carrying, visa-exempt mujahideen coming from the United States' western European allies.

Jihadist networks span Europe from Poland to Portugal, thanks to the spread of radical Islam among the descendants of guest workers once recruited to shore up Europe's postwar economic miracle. In smoky coffeehouses in Rotterdam and Copenhagen, makeshift prayer halls in Hamburg and Brussels, Islamic bookstalls in Birmingham and "Londonistan," and the prisons of Madrid, Milan, and Marseilles, immigrants or their descendants are volunteering for jihad against the West. It was a Dutch Muslim of Moroccan descent, born and socialized in Europe, who murdered the filmmaker Theo van Gogh in Amsterdam last November. A Nixon Center study of 373 mujahideen in western Europe and North America between 1993 and 2004 found more than twice as many Frenchmen as Saudis and more Britons than Sudanese, Yemenites, Emiratis, Lebanese, or Libyans. Fully a quarter of the jihadists it listed were western European nationals -- eligible to travel visa-free to the United States.

The emergence of homegrown mujahideen in Europe threatens the United States as well as Europe. Yet it was the dog that never barked at last winter's Euro-American rapprochement meeting. Neither President George W. Bush nor Secretary of State Condoleezza Rice drew attention to this mutual peril, even though it should focus minds and could buttress solidarity in the West.

The mass immigration of Muslims to Europe was an unintended consequence of post-World War II guest-worker programs. Backed by friendly politicians and sympathetic judges, foreign workers, who were supposed to stay temporarily, benefited from family reunification programs and became permanent. Successive waves of immigrants formed a sea of descendants. Today, Muslims constitute the majority of immigrants in most western European countries, including Belgium, France, Germany, and the Netherlands, and the largest single component of the immigrant population in the United Kingdom. Exact numbers are hard to come by because Western censuses rarely ask respondents about their faith. But it is estimated that between 15 and 20 million Muslims now call Europe home and make up four to five percent of its total population. (Muslims in the United States probably do not exceed 3 million, accounting for less than two percent of the total population.) France has the largest proportion of Muslims (seven to ten percent of its total population), followed by the Netherlands, Germany, Denmark, Sweden, the United Kingdom, and Italy. Given continued immigration and high Muslim fertility rates, the National Intelligence Council projects that Europe's Muslim population will double by 2025.

Unlike their U.S. counterparts, who entered a gigantic country built on immigration, most Muslim newcomers to western Europe started arriving only after World War II, crowding into small, culturally homogenous nations. Their influx was a new phenomenon for many host states and often unwelcome. Meanwhile, North African immigrants retained powerful attachments to their native cultures. So unlike American Muslims, who are geographically diffuse, ethnically fragmented, and generally well off, Europe's Muslims gather in bleak enclaves with their compatriots: Algerians in France, Moroccans in Spain, Turks in Germany, and Pakistanis in the United Kingdom.

The footprint of Muslim immigrants in Europe is already more visible than that of the Hispanic population in the United States. Unlike the jumble of nationalities that make up the American Latino community, the Muslims of western Europe are likely to be distinct, cohesive, and bitter. In Europe, host countries that never learned to integrate newcomers collide with immigrants exceptionally retentive of their ways, producing a variant of what the French scholar Olivier Roy calls "globalized Islam": militant Islamic resentment at Western dominance, anti-imperialism exalted by revivalism.

As the French academic Gilles Kepel acknowledges, "neither the blood spilled by Muslims from North Africa fighting in French uniforms during both world wars nor the sweat of migrant laborers, living under deplorable living conditions, who rebuilt France (and Europe) for a pittance after 1945, has made their children ... full fellow citizens." Small wonder, then, that a radical leader of the Union of Islamic Organizations of France, a group associated with the Muslim Brotherhood, curses his new homeland: "Oh sweet France! Are you astonished that so many of your children commune in a stinging naal bou la France [fuck France], and damn your Fathers?"

As a consequence of demography, history, ideology, and policy, western Europe now plays host to often disconsolate Muslim offspring, who are its citizens in name but not culturally or socially. In a fit of absentmindedness, during which its academics discoursed on the obsolescence of the nation-state, western Europe acquired not a colonial empire but something of an internal colony, whose numbers are roughly equivalent to the population of Syria. Many of its members are willing to integrate and try to climb Europe's steep social ladder. But many younger Muslims reject the minority status to which their parents acquiesced. A volatile mix of European nativism and immigrant dissidence challenges what the Danish sociologist Ole Waever calls "societal security," or national cohesion. To make matters worse, the very isolation of these diaspora communities obscures their inner workings, allowing mujahideen to fundraise, prepare, and recruit for jihad with a freedom available in few Muslim countries.

As these conditions developed in the late 1990s, even liberal segments of the European public began to have second thoughts about immigration. Many were galled by their governments' failure to reduce or even identify the sources of ins?curit? (a French code word for the combination of vandalism, delinquency, and hate crimes stemming from Muslim immigrant enclaves). The state appeared unable to regulate the entry of immigrants, and society seemed unwilling to integrate them. In some cases, the backlash was xenophobic and racist; in others, it was a reaction against policymakers captivated by a multiculturalist dream of diverse communities living in harmony, offering oppressed nationalities marked compassion and remedial benefits. By 2002, electoral rebellion over the issue of immigration was threatening the party systems of Austria, Belgium, Denmark, France, and the Netherlands. The Dutch were so incensed by the 2002 assassination of Pim Fortuyn, a gay anti-immigration politician, that mainstream parties adopted much of the victim's program. In the United Kingdom this spring, the Tories not only joined the ruling Labour Party in embracing sweeping immigration restrictions, such as tightened procedures for asylum and family reunification (both regularly abused throughout Europe) and a computerized exit-entry system like the new U.S. Visitor and Immigration Status Indicator Technology program; they also campaigned for numerical caps on immigrants. With the Muslim headscarf controversy raging in France, talk about the connection between asylum abuse and terrorism rising in the United Kingdom, an immigration dispute threatening to tear Belgium apart, and the Dutch outrage over the van Gogh killing, western Europe may now be reaching a tipping point.

The uncomfortable truth is that disenfranchisement and radicalization are happening even in countries, such as the Netherlands, that have done much to accommodate Muslim immigrants. Proud of a legendary tolerance of minorities, the Netherlands welcomed tens of thousands of Muslim asylum seekers allegedly escaping persecution. Immigrants availed themselves of generous welfare and housing benefits, an affirmative-action hiring policy, and free language courses. Dutch taxpayers funded Muslim religious schools and mosques, and public television broadcast programs in Moroccan Arabic. Mohammed Bouyeri was collecting unemployment benefits when he murdered van Gogh.

The van Gogh slaying rocked the Netherlands and neighboring countries not only because the victim, a provocative filmmaker, was a descendant of the painter Vincent, the Dutch's most cherished icon, but also because Bouyeri was "an average second-generation immigrant," according to Stef Blok, the chairman of the parliamentary commission reviewing Bouyeri's immigration record. European counterterrorism authorities saw the killing as a new phase in the terrorist threat. It raised the specter of Middle East-style political assassinations as part of the European jihadist arsenal and it disclosed a new source of danger: unknown individuals among Europe's own Muslims. The cell in Hamburg that was connected to the attacks of September 11, 2001, was composed of student visitors, and the Madrid train bombings of March 2004 were committed by Moroccan immigrants. But van Gogh's killer and his associates were born and raised in Europe.

Bouyeri was the child of Moroccan immigrant workers. He grew up in a proletarian area of Amsterdam sometimes known as Satellite City because of the many reception dishes that sit on its balconies, tuned to al Jazeera and Moroccan television. Bouyeri's parents arrived in a wave of immigration in the 1970s and never learned Dutch. But Bouyeri graduated from the area's best high school. His transformation from promising student to jihadist follows a pattern in which groups of thriving, young European Muslims enlist in jihad to slaughter Westerners.

After graduating from a local college and then taking advanced courses in accounting and information technology, Bouyeri, who had an unruly temper, was jailed for seven months on a violence-related crime. He emerged from jail an Islamist, angry over Palestine and sympathetic to Hamas. He studied social work and became a community organizer. He wrote in a community newsletter that "the Netherlands is now our enemy because they participate in the occupation of Iraq." After he failed to get funding for a youth center in Satellite City and was unable to ban the sale of beer or the presence of women at the events he organized, he moved to downtown Amsterdam. There, he was recruited into the Hofstad Group, a cell of second-generation Islamic militants.

The cell started meeting every two weeks in Bouyeri's apartment to hear the sermons of a Syrian preacher known as Abu Khatib. Hofstad was connected to networks in Spain, Morocco, Italy, and Belgium, and it was planning a string of assassinations of Dutch politicians, an attack on the Netherlands' sole nuclear reactor, and other actions around Europe. European intelligence services have linked the cell to the Moroccan Islamic Combat Group, which is associated with the Madrid bombings and a series of attacks in Casablanca in 2003. Its Syrian imam was involved with mujahideen in Iraq and with an operational chief of al Qaeda. "Judging by Bouyeri's and the Hofstad network's international contacts," an analyst for the Norwegian government says, "it seems safe to conclude that they were part of the numerous terrorist plots that have been unraveled over the past years in western Europe."

The Hofstad Group should not be compared with marginal European terrorist groups of the past, such as the Baader-Meinhof Gang in Germany, Action Directe in France, or the Red Brigades in Italy. Like other jihadist groups today, it enjoys what Marxist terrorists long sought but always lacked: a social base. And its base is growing rapidly, thanks in part to the war in Iraq.

The Dutch General Intelligence and Security Service (AIVD) says that radical Islam in the Netherlands encompasses "a multitude of movements, organizations and groups." Some are nonviolent and share only religious dogma and a loathing for the West. But aivd stresses that others, including al Qaeda, are also "stealthily taking root in Dutch society" by recruiting estranged Dutch-born Muslim youths. An aivd report portrays such recruits watching jihadist videos, discussing martyrdom in Internet chat rooms, and attending Islamist readings, congresses, and summer camps. Radical Islam has become "an autonomous phenomenon," the aivd affirms, so that even without direct influence from abroad, Dutch youth are now embracing the fundamentalist line. Much the same can be said about angry young Muslims in Brussels, London, Paris, Madrid, and Milan.

Broadly speaking, there are two types of jihadists in western Europe: call them "outsiders" and "insiders." The outsiders are aliens, typically asylum seekers or students, who gained refuge in liberal Europe from crackdowns against Islamists in the Middle East. Among them are radical imams, often on stipends from Saudi Arabia, who open their mosques to terrorist recruiters and serve as messengers for or spiritual fathers to jihadist networks. Once these aliens secure entry into one EU country, they have the run of them all. They may be assisted by legal or illegal residents, such as the storekeepers, merchants, and petty criminals who carried out the Madrid bombings.

Many of these first-generation outsiders have migrated to Europe expressly to carry out jihad. In Islamist mythology, migration is archetypically linked to conquest. Facing persecution in idolatrous Mecca, in AD 622 the Prophet Muhammad pronounced an anathema on the city's leaders and took his followers to Medina. From there, he built an army that conquered Mecca in AD 630, establishing Muslim rule. Today, in the minds of mujahideen in Europe, it is the Middle East at large that figures as an idolatrous Mecca because several governments in the region suppressed Islamist takeovers in the 1990s. Europe could even be viewed as a kind of Medina, where troops are recruited for the reconquest of the holy land, starting with Iraq.

The insiders, on the other hand, are a group of alienated citizens, second- or third-generation children of immigrants, like Bouyeri, who were born and bred under European liberalism. Some are unemployed youth from hardscrabble suburbs of Marseilles, Lyon, and Paris or former mill towns such as Bradford and Leicester. They are the latest, most dangerous incarnation of that staple of immigration literature, the revolt of the second generation. They are also dramatic instances of what could be called adversarial assimilation -- integration into the host country's adversarial culture. But this sort of anti-West westernization is illustrated more typically by another paradigmatic second-generation recruit: the upwardly mobile young adult, such as the university-educated Zacarias Moussaoui, the so-called 20th hijacker, or Omar Khyam, the computer student and soccer captain from Sussex, England, who dreamed of playing for his country but was detained in April 2004 for holding, with eight accomplices, half a ton of explosives aimed at London.

These downwardly mobile slum dwellers and upwardly mobile achievers replicate in western Europe the two social types that formed the base of Islamist movements in developing countries such as Algeria, Egypt, and Malaysia: the residents of shantytowns and the devout bourgeoisie. As in the September 11 attacks, the educated tend to form the leadership cadre, with the plebeians providing the muscle. No Chinese wall separates first-generation outsiders from second-generation insiders; indeed, the former typically find their recruits among the latter. Hofstad's Syrian imam mentored Bouyeri; the notorious one-eyed imam Abu Hamza al-Masri coached Moussaoui in London. A decade ago in France, the Algerian Armed Islamic Group proselytized beurs (the French-born children of North African immigrants) and turned them into the jihadists who terrorized train passengers during the 1990s. But post-September 11 recruitment appears more systematic and strategic. Al Qaeda's drives focus on the second generation. And if jihad recruiters sometimes find sympathetic ears underground, among gangs or in jails, today they are more likely to score at university campuses, prep schools, and even junior high schools.

According to senior counterintelligence officials, classified intelligence briefings, and wiretaps, jihadists extended their European operations after the roundups that followed September 11 and then again, with fresh energy, after the invasion of Iraq. Osama bin Laden now provides encouragement and strategic orientation to scores of relatively autonomous European jihadist networks that assemble for specific missions, draw operatives from a pool of professionals and apprentices, strike, and then dissolve, only to regroup later.

Typically these groups target European countries allied with the United States in Iraq, as was proved by the Madrid bombings, the November 2003 attacks on British targets in Istanbul, as well as the lion's share of some 30 spectacular terrorist plots that have failed since September 11. In March 2004, within days of the London police chief's pronouncement that a local terrorist attack was "inevitable," his officers uncovered a plot involving nine British nationals of Pakistani origin and seized the largest cache of potential bomb-making material since the heyday of the Irish Republican Army. A few months later, Scotland Yard charged eight second-generation South Asian immigrants, reportedly trained in al Qaeda camps, with assembling a dirty bomb. Three of them had reconnaissance plans showing the layout of financial institutions in three U.S. cities.

Several hundred European militants -- including dozens of second-generation Dutch immigrants "wrestling with their identity," according to the Dutch intelligence service -- have also struck out for Iraq's Sunni Triangle. In turn, western Europe serves as a way station for mujahideen wounded in Iraq. The Iraq network belongs to an extensive structure developed by Abu Musab al-Zarqawi, now formally bin Laden's sworn ally and the "emir" of al Qaeda in Iraq. Recently unsealed Spanish court documents suggest that at a meeting in Istanbul in February 2002, Zarqawi, anticipating a protracted war in Iraq, began to lay plans for a two-way underground railway to send European recruits to Iraq and Middle Eastern recruiters, as well as illegal aliens, to Europe. Zarqawi also activated sleeper cells established in European cities during the Bosnian conflict.

A chief terrorism investigator in Milan, Armando Spataro, says that "almost all European countries have been touched by [Iraq] recruiting," including, improbably, Norway, Switzerland, Poland, Bulgaria, and the Czech Republic. The recruitment methods of the Iraq network, which procures weapons in Germany from Balkan gangs, parallels those for the conflicts in Chechnya and Kashmir. Thanks to its state-of-the-art document-forging industry, Italy has become a base for dispatching volunteers. And Spain forms a trunk line with North Africa as well as a staging area for attacks in "al Andalus," the erstwhile Muslim Spanish caliphate.

Although for some Europeans the Madrid bombings were a watershed event comparable to the September 11 attacks in the United States, these Europeans form a minority, especially among politicians. Yet what Americans perceive as European complacency is easy to fathom. The September 11 attacks did not happen in Europe, and for a long time the continent's experience with terrorism mainly took the form of car bombs and booby-trapped trash cans. Terrorism is still seen as a crime problem, not an occasion for war. Moreover, some European officials believe that acquiescent policies toward the Middle East can offer protection. In fact, while bin Laden has selectively attacked the United States' allies in the Iraq war, he has offered a truce to those European states that have stayed out of the conflict.

With a few exceptions, European authorities shrink from the relatively stout legislative and security measures adopted in the United States. They prefer criminal surveillance and traditional prosecutions to launching a U.S.-style "war on terrorism" and mobilizing the military, establishing detention centers, enhancing border security, requiring machine-readable passports, expelling hate preachers, and lengthening notoriously light sentences for convicted terrorists. Germany's failure to convict conspirators in the September 11 attacks suggests that the European public, outside of France and now perhaps the Netherlands, is not ready for a war on terrorism.

Contrary to what many Americans concluded during Washington's dispute with Paris in the lead-up to the invasion of Iraq, France is the exception to general European complacency. Well before September 11, France had deployed the most robust counterterrorism regime of any Western country. Irish terrorism may have diverted British attention from jihad, as has Basque terrorism in Spain, but Algerian terrorism worked the opposite effect in France.

To prevent proselytizing among its mostly North African Muslim community, during the 1990s the energetic French state denied asylum to radical Islamists even while they were being welcomed by its neighbors. Fearing, as Kepel puts it, that contagion would turn "the social malaise felt by Muslims in the suburbs of major cities" into extremism and terrorism, the French government cracked down on jihadists, detaining suspects for as long as four days without charging them or allowing them access to a lawyer. Today no place of worship is off limits to the police in secular France. Hate speech is rewarded with a visit from the police, blacklisting, and the prospect of deportation. These practices are consistent with the strict Gallic assimilationist model that bars religion from the public sphere (hence the headscarf dispute).

Contrast the French approach to the United Kingdom's separatist form of multiculturalism, which offered radical Arab Islamists refuge and the opportunity to preach openly, while stepping up surveillance of them. French youth could still tune into jihadist messages on satellite television and the Internet, but in the United Kingdom open radical preaching spawned terrorist cells. Most of the rest of Europe adopted the relaxed British approach, but with less surveillance.

Now, the Madrid bombings and the van Gogh killing have strengthened the hand of engaged politicians, such as Germany's Social Democratic interior minister, Otto Schily, and the former French interior minister, Nicolas Sarkozy, who leads the governing Union for a Popular Movement. They have also prompted Brussels, London, Madrid, Paris, and The Hague to increase resources and personnel devoted to terrorism.

In general, European politicians with security responsibilities, not to mention intelligence and security officials who get daily intelligence reports, take the harder U.S. line. Schily has called for Europe-wide "computer-aided profiling" to identify mujahideen. The emergence of holy warriors in Europe and the meiosis of radical groups once connected to al Qaeda have prompted several European capitals to increase cooperation on counterterrorism as well as their counterterrorism resources and personnel.

Yet a jihadist can cross Europe with little scrutiny. Even if noticed, he can change his name or glide across a border, relying on long-standing bureaucratic and legal stovepipes. After the Madrid bombings, a midlevel European official was appointed to coordinate European counterterrorist statutes and harmonize eu security arrangements. But he often serves simply as a broker amid the gallimaufry of the 25 member states' legal codes.

Since the Madrid bombings, the Spanish Interior Ministry has tripled to 450 the number of full-time antiterrorism operatives, and the Spanish national police are assigning a similar number of additional agents to mujahideen intelligence. Spanish law enforcement established a task force combining police and intelligence specialists to keep tabs on Muslim neighborhoods and prison mosques. Similarly, special police cells are being organized in each of France's 22 regions, stepping up the surveillance of mosques, Islamic bookshops, long-distance phone facilities, and halal butchers and restaurants.

The 25 eu members have also put into effect a European arrest warrant allowing police to avoid lengthy extradition procedures. Despite widespread concerns about possible privacy abuses, several EU countries have lowered barriers between intelligence and police agencies since the van Gogh murder. Germany aims to place its 16 police forces under one umbrella. In France, Germany, Spain, the Netherlands, and the United Kingdom, intelligence and police officers meet with officials in state-of-the-art communications centers, or "war rooms," to share information about interrogations, informant reports, live wiretaps, and video or satellite pictures.

Still, counterterrorism agencies remain reluctant to share sensitive information or cooperate on prosecutions. Measures proposed in the wake of the Madrid attacks, such as a Europe-wide fingerprint and DNA database and biometric passports, remain only that -- proposals. Fragmentation and rivalry among Europe's security systems and other institutions continue to hamper counterterrorism efforts. For nearly a decade, France has sought the extradition of the organizer of several bombings in the Paris metro in the 1990s, but his case languishes in the British courts to the anguish of the Home Office as well as Paris.

The new mujahideen are not only testing traditional counterterrorist practices; their emergence is also challenging the mentality prevailing in western Europe since the end of World War II. Revulsion against Nazism and colonialism translated into compassion toward religious minorities, of whatever stripe. At first, Muslim guest workers were welcomed in Europe by a liberal orthodoxy that generally regarded them as victims lacking rights. In some countries, such as the Netherlands and the United Kingdom, that perspective spawned a comprehensive form of multiculturalism. London's version verged on separatism. While stepping up surveillance, the British authorities allowed Islamists refuge and an opportunity to preach openly and disseminate rabid propaganda. Multiculturalism had a dual appeal: it allowed these states to seem tolerant by showering minorities with rights while segregating them from, rather than absorbing them into, the rest of society. Multiculturalism dovetailed with a diminished Western ethos that suited libertarians as well as liberals.

But now many Europeans have come to see that permissiveness as excessive, even dangerous. A version of religious tolerance allowed the Hamburg cell to flourish and rendered German universities hospitable to radical Islam. Now Europeans are asking Muslims to practice religious tolerance themselves and adjust to the values of their host countries. Tony Blair's government requires that would-be citizens master "Britishness." Likewise, "Dutch values" are central to The Hague's new approach, and similar proposals are being put forward in Berlin, Brussels, and Copenhagen. Patrick Weil, the immigration guru of the French Socialist Party, sees a continental trend in which immigrant "responsibilities" balance immigrant "rights."

The Dutch reaction to van Gogh's assassination, the British reaction to jihadist abuse of political asylum, and the French reaction to the wearing of the headscarf suggest that Europe's multiculturalism has begun to collide with its liberalism, privacy rights with national security. Multiculturalism was once a hallmark of Europe's cultural liberalism, which the British columnist John O'Sullivan defined as "free[dom] from irksome traditional moral customs and cultural restraints." But when multiculturalism is perceived to coddle terrorism, liberalism parts company. The gap between the two is opening in France, the Netherlands, the United Kingdom, and to some extent even in Germany, where liberalism stretched a form of religious tolerance so much so that it allowed the Hamburg cell to turn prayer rooms into war rooms with cocky immunity from the German police.

Yet it is far from clear whether top-down policies will work without bottom-up adjustments in social attitudes. Can Muslims become Europeans without Europe opening its social and political circles to them? So far, it appears that absolute assimilationism has failed in France, but so has segregation in Germany and multiculturalism in the Netherlands and the United Kingdom. Could there be another way? The French ban the headscarf in public schools; the Germans ban it among public employees. The British celebrate it. The Americans tolerate it. Given the United States' comparatively happier record of integrating immigrants, one may wonder whether the mixed U.S. approach -- separating religion from politics without placing a wall between them, helping immigrants slowly adapt but allowing them relative cultural autonomy -- could inspire Europeans to chart a new course between an increasingly hazardous multiculturalism and a naked secularism that estranges Muslims and other believers. One thing is certain: if only for the sake of counterterrorism, Europe needs to develop an integration policy that works. But that will not happen overnight.

Indeed, the fissure between liberalism and multiculturalism is opening just as the continent undergoes its most momentous population shift since Asian tribes pushed westward in the first Christian millennium. Immigration obviously hits a national security nerve, but it also raises economic and demographic questions: how to cope with a demonstrably aging population; how to maintain social cohesion as Christianity declines and both secularism and Islam climb; whether the eu should exercise sovereignty over borders and citizenship; and what the accession of Turkey, with its 70 million Muslims, would mean for the eu. Moreover, European mujahideen do not threaten only the Old World; they also pose an immediate danger to the United States.

The United States' relative success in assimilating its own Muslim immigrants means that its border security must be more vigilant. To strike at the United States, al Qaeda counts less on domestic sleeper cells than on foreign infiltration. As a 9/11 Commission staff report put it, al Qaeda faces "a travel problem": How can it move its mujahideen from hatchery to target? Europe's mujahideen may represent a solution.

The New York Times has reported that bin Laden has outsourced planning for the next spectacular attack on the United States to an "external planning node." Chances are it is based in Europe and will deploy European citizens. European countries generally accord citizenship to immigrants born on their soil, and so potential European jihadists are entitled to European passports, allowing them visa-free travel to the United States and entry without an interview. The members of the Hamburg cell that captained the September 11 attacks came by air from Europe and were treated by the State Department as travelers on the Visa Waiver Program (VWP), just like Moussaoui and Richard Reid, the shoe bomber.

Does that mean the VWP should be scrapped altogether, as some members of Congress are asking? By no means. The State Department is already straining to enforce stricter post-September 11 visa-screening measures, which involve longer interviews, more staff, and more delays. Terminating the VWP would exact steep bureaucratic and diplomatic costs, and rile the United States' remaining European friends. Instead, the United States should update the criteria used in the periodic reviews of VWP countries, taking into account terrorist recruiting and evaluating passport procedures. These reviews could utilize task forces set up in collaboration with the Europeans. Together, U.S. and European authorities should insist that the airlines require U.S.-bound transatlantic travelers to submit passport information when purchasing tickets. Such a measure would give the new U.S. National Targeting Center time to check potential entrants without delaying flight departures. And officers should be stationed at check-in counters to weed out suspects.

Europe's emerging mujahideen endanger the entire Western world. Collaboration in taming Muslim rancor or at least in keeping European jihadists off U.S.-bound airplanes could help reconcile estranged allies. A shared threat and a mutual interest should engage media, policymakers, and the public on both sides of the Atlantic. To concentrate their minds on common dangers and solutions might come as a bittersweet relief to Europeans and Americans after their recent disagreements.

Robert S. Leiken is Director of the Immigration and National Security Program at the Nixon Center and a nonresident Fellow at the Brookings Institution. He is the author of Bearers of Jihad? Immigration and National Security After 9/11.