Speeches & Floor Statements

Heritage Foundation Speech by Senator Lamar Alexander

Posted on January 4, 2011

The Filibuster: “Democracy’s finest show . . . the right to talk your head off”

 Address by Senator Lamar Alexander

Heritage Foundation

January 4, 2011

Voters who turned out in November are going to be pretty disappointed when they learn the first thing some Democrats want to do is cut off the right of the people they elected to make their voices heard on the floor of the U.S. Senate.

In the November elections, voters showed that they remember the passage of the health care law on Christmas Eve, 2009: midnight sessions, voting in the midst of a snow storm, back room deals, little time to read, amend or debate the bill, passage by a straight party line vote.

It was how it was done as much as what was done that angered the American people.  Minority voices were silenced.  Those who didn’t like it were told, “You can read it after you pass it.”  The majority’s attitude was, “We won the election.  We’ll write the bill.  We don’t need your votes.”

And of course the result was a law that a majority of voters consider to be an historic mistake and the beginning of an immediate effort to repeal and replace it.

Voters remembered all this in November, but only 6 weeks later Democratic senators seemed to have forgotten it.  I say this because on December 18, every returning Democratic senator sent Senator Reid a letter asking him to “take steps to bring [Republican] abuses of our rules to an end.” 

When the United States Senate convenes tomorrow, some have threatened to try to change the rules so it would be easier to do with every piece of legislation what they did with the health care bill:  ram it through on a partisan vote, with little debate, amendment, or committee consideration, and without listening to minority voices. 

The brazenness of this proposed action is that Democrats are proposing to use the very tactics that in the past almost every Democratic leader has denounced, including President Obama and Vice President Biden, who has said that it is “a naked power grab” and destructive of the Senate as a protector of minority rights.

The Democratic proposal would allow the Senate to change its rules with only 51 votes, ending the historical practice of allowing any senator at any time to offer any amendment until sixty senators decide it is time to end debate. 

As Investor’s Business Daily wrote, “The Senate Majority Leader has a plan to deal with Republican electoral success. When you lose the game, you simply change the rules. When you only have 53 votes, you lower the bar to 51.”  This is called election nullification. 

Now there is no doubt the Senate has been reduced to a shadow of itself as the world’s greatest deliberative body, a place which, as Sen. Arlen Specter said in his farewell address, has been distinctive because of “the ability of any Senator to offer virtually any amendment at any time.”  

But the demise of the Senate is not because Republicans seek to filibuster.  The real obstructionists have been the Democratic majority which, for an unprecedented number of times, used their majority advantage to limit debate, not to allow amendments and to bypass the normal committee consideration of legislation. 

To be specific, according to the Congressional Research Service:

  1. the majority leader has used his power to cut off all amendments and debate 44 times – more than the last six majority leaders combined;
  2. the majority leader has moved to shut down debate the same day measures are considered (same-day cloture) nearly three times more, on average, than the last six majority leaders;
  3. the majority leader has set the record for bypassing the committee process – bringing a measure directly to the floor 43 times during the 110th and 111th Congresses.

 Let’s be clear what we mean when we say the word “filibuster.”  Let’s say the majority leader brings up the health care bill.  I go down to the floor to offer an amendment and speak on it.  The majority leader says “no” and cuts off my amendment.  I object.  He calls what I tried to do a filibuster. I call what he did cutting off my right to speak and amend which is what I was elected to do. So the problem is not a record number of filibusters; the problem is a record number of attempts to cut off amendments and debate so that minority voices across America cannot be heard on the floor of the Senate.

So the real “party of no” is the majority party that has been saying “no” to debate, and “no” to voting on amendments that minority members believe improve legislation and express the voices of the people they represent.  In fact, the reason the majority leader can claim there have been so many filibusters is because he actually is counting as filibusters the number of times he filed cloture – or moved to cut off debate.

Instead of this power grab, as the new Congress begins, the goal should be to restore the Senate to its historic role where the voices of the people can be heard, rather than silenced, where their ideas can be offered as amendments, rather than suppressed, and where those amendments can be debated and voted upon rather than cut off.

To accomplish this, the Senate needs to change its behavior, not to change its rules.  The majority and minority leaders have been in discussion on steps that might help accomplish this.  I would like to discuss this afternoon why it is essential to our country that cooler heads prevail tomorrow when the Senate convenes.   

One good example Democrats might follow is the one established by Republicans who gained control of both the Senate and House of Representatives in 1995.  On the first day of the new Republican majority, Sen. Harkin proposed a rule change diluting the filibuster.  Every single Republican senator voted against the change even though supporting it clearly would have provided at least a temporary advantage to the Republican agenda.

Here is why Republicans who were in the majority then, and Democrats who are in the majority today, should reject a similar rules change:

First, the proposal diminishes the rights of the minority.  In his classic Democracy in America, Alexis de Tocqueville wrote that one of his two greatest fears for our young democracy was the “tyranny of the majority,” the possibility that a runaway majority might trample minority voices.

Second, diluting the right to debate and vote on amendments deprives the nation of a valuable forum for achieving consensus on difficult issues.  The founders knew what they were doing when they created two very different houses in Congress.  Senators have six-year terms, one-third elected every two years.  The Senate operates largely by unanimous consent.  There is the opportunity, unparalleled in any other legislative body in the world, to debate and amend until a consensus finally is reached.  This procedure takes longer, but it usually produces a better result – and a result the country is more likely to accept.  For example, after the Civil Rights Act of 1964 was enacted, by a bipartisan majority over a filibuster led by Sen. Russell of Georgia, Sen. Russell went home to Georgia and said that, though he had fought the legislation with everything he had, “As long as it is there, it must be obeyed.” Compare that to the instant repeal effort that was the result of jamming the health care law through in a partisan vote.

Third, such a brazen power grab by Democrats this year will surely guarantee a similar action by Republicans in two years if Republicans gain control of the Senate as many believe is likely to happen.  We have seen this happen with Senate consideration of judges.  Democrats began the practice of filibustering President Bush’s judges even though they were well-qualified; now Democrats are unhappy because many Republicans regard that as a precedent and have threatened to do the same to President Obama’s nominees.  Those who want to create a freight train running through the Senate today, as it does in the House, might think about whether they will want that freight train in two years if it is the Tea Party Express. 

Finally, it is hard to see what partisan advantage Democrats gain from destroying the Senate as a forum for consensus and protection of minority rights since any legislation they jam through without bipartisan support will undoubtedly die in the Republican-controlled House during the next two years.

 

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The reform the Senate needs is a change in its behavior, not a change in its rules. I have talked with many senators, on both sides of the aisle, and I believe most of us want the same thing: a Senate where most bills are considered by committee, come to the floor as a result of bipartisan cooperation, are debated and amended and then voted upon.

It was not so long ago that this was the standard operating procedure.  I have seen the Senate off and on for more than forty years, from the days in 1967 when I came to the Senate as Sen. Howard Baker’s legislative assistant.  That was when each senator had only one legislative assistant.  I came back to help Sen. Baker set up his leadership office in 1977 and watched the way that Sen. Baker and Sen. Byrd led the Senate from 1977 to 1985, when Democrats were in the majority for the first four years and Republicans were the second four years.

Then, most pieces of legislation that came to the floor had started in committee.  Then that legislation was open for amendment.  There might be 300 amendments filed and, after a while, the majority would ask for unanimous consent to cut off amendments.  Then voting would begin.  And voting would continue.

The leaders would work to persuade senators to limit their amendments but that didn’t always work.  So the leaders kept the Senate in session during the evening, during Fridays, and even into the weekend.  Senators got their amendments considered and the legislation was fully vetted, debated and finally passed or voted down.

Sen. Byrd knew the rules.  I recall that when Republicans won the majority in 1981, Sen. Baker went to see Sen. Byrd and said, “Bob I know you know the rules better than I ever will.  I’ll make a deal with you.  You don’t surprise me and I won’t surprise you.”

Sen. Byrd said, “Let me think about it.”

And the next day Sen. Byrd said yes and the two leaders managed the Senate effectively together for eight years.

What would it take to restore today’s Senate to the Senate of the Baker-Byrd era?

Well, we have the answer from the master of the Senate rules himself, Sen. Byrd, who in his last appearance before the Rules Committee on May 19, 2010 said:  “Forceful confrontation to a threat to filibuster is undoubtedly the antidote to the malady [abuse of the filibuster].  Most recently, Senate Majority Leader Reid announced that the Senate would stay in session around-the-clock and take all procedural steps necessary to bring financial reform legislation before the Senate.  As preparations were made and cots rolled out, a deal was struck within hours and the threat of filibuster was withdrawn….I also know that current Senate Rules provide the means to break a filibuster.”

Sen. Byrd also went on to argue strenuously in that last speech that “our Founding Fathers intended the Senate to be a continuing body that allows for open and unlimited debate and the protection of minority rights.  Senators,” he said, “have understood this since the Senate first convened.”

Sen. Byrd then went on: “In his notes of the Constitutional Convention on June 26, 1787, James Madison recorded that the ends to be served by the Senate were ‘first, to protect the people against their rulers, secondly, to protect the people against the transient impressions into which they themselves might be led... They themselves, as well as a numerous body of Representatives, were liable to err also, from fickleness and passion.  A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose against impetuous councils.’  That fence,” Sen. Byrd said in that last appearance, “was the United States Senate. The right to filibuster anchors this necessary fence.  But it is not a right intended to be abused.”

“There are many suggestions as to what we should do.  I know what we must not do.  We must never, ever, ever, ever tear down the only wall—the necessary fence –this nation has against the excess of the Executive Branch and the resultant haste and tyranny of the majority.”

What would it take to restore the years of Sens. Baker and Byrd, when most bills that came to the floor were first considered in committee, when more amendments were considered, debated and voted upon?  

1                    Recognize that there has to be bipartisan cooperation and consensus on important issues.  The day of “we won the election, we jam the bill through” will have to be over.  Sen. Baker would not bring a bill to the floor when Republicans were in the majority unless it had the support of the ranking Democratic committee member.

2                    Recognize that senators are going to have to vote. This may sound ridiculous to say to an outsider, but every Senate insider knows that a major reason why the majority cuts off amendments and debate is because Democratic members don’t want to vote on controversial issues.  That’s like volunteering to be on the Grand Ole Opry but then claiming you don’t want to sing.  We should say, if you don’t want to vote, then don’t run for the Senate.

3                    Finally, according to Sen. Byrd, it will be the end of the three-day work week.  The Senate convenes on most Mondays for a so-called bed-check vote at 5:30.  The Senate during 2010 did not vote on one single Friday.  It is not possible either for the minority to have the opportunity to offer, debate and vote on amendments or for the majority to forcefully confront a filibuster if every senator knows there will never be a vote on Friday.

There are some other steps that can be taken to help the Senate function better without impairing minority rights.

One bipartisan suggestion has been to end the practice of secret holds.  It seems reasonable to expect a senator who intends to hold up a bill or a nomination to allow his colleagues and the world know who he or she is so that the merits of the hold can be evaluated and debated.

Second, there is a crying need to make it easier for any President to staff his government with key officials within a reasonable period of time.  One reason for the current delay is the President’s own fault, taking an inordinately long time to vet his nominees.  Another is a shared responsibility: the maze of conflicting forms, FBI investigations, IRS audits, ethics requirements and financial disclosures required both by the Senate and the President of nominees.  I spoke on the Senate floor on this, titling my speech “Innocent until Nominated.”  The third obstacle is the excessive number of executive branch appointments requiring Senate confirmation.  There have been bipartisan efforts to reduce these obstacles.  With the support the majority and minority leaders, we might achieve some success.

Of course, even if all of these efforts succeed there still will be delayed nominations, bills that are killed before they come to the floor and amendments that never see the light of day.  But this is nothing new.  I can well remember when Sen. Metzenbaum of Ohio put a secret hold on my nomination when President George H.W. Bush appointed me education secretary.  He held up my nomination for three months, never really saying why.  

I asked Sen. Rudman of New Hampshire what I could do about Sen. Metzenbaum, and he said, “Nothing.”  And then he told me how President Ford had appointed him to the Federal Communications Commission when he, Rudman, was Attorney General of New Hampshire. The Democratic senator from New Hampshire filibustered Rudman’s appointment until Rudman finally asked the president to withdraw his name.

 “Is that the end of the story?” I asked Rudman.

 “No,” he said.  “I ran against the [so-and-so] and won, and that’s how I got into the Senate.”

 During his time here Sen. Metzenbaum would sit at a desk at the front of the Senate and hold up almost every bill going through until its sponsor obtained his approval.  Sen. Allen of Alabama did the same before Metzenbaum.  And Sen. John Williams of Delaware during the 1960’s was on the floor regularly objecting to federal spending when I first came here forty years ago.

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I have done my best to make the argument that the Senate and the country will be served best if cooler heads prevail and Democrats don’t make their power grab tomorrow to make the Senate like the House, to permit them to do with any legislation what they did with the health care law.  I have said that to do so will destroy minority rights, destroy the essential forum for consensus that the Senate now provides for difficult issues, and surely guarantee that Republicans will try to do the same to Democrats in two years.  More than that, it is hard to see how Democrats can gain any partisan advantage from this destruction of the Senate and invitation for retribution since any bill they force through the Senate in a purely partisan way during the next two years will surely be stopped by the Republican-controlled House of Representatives.

But I am not the most persuasive voice against the wisdom of tomorrow’s proposed action.  Other voices are.  And I have collected some of them, mostly Democratic leaders who wisely argued against changing the institution of the Senate in a way that would deprive minority voices in America of their right to be heard:

[Video (click here to view) – transcript follows]

             
[From Mr. Smith Goes to Washington,]

Jimmy Stewart:  Wild horses aren’t going to drag me off this floor until those people have heard everything I’ve got to say, even if it takes all winter.
Reporter:  H.V. Kaltenborn speaking, half of official Washington is here to see democracy’s finest show. The filibuster - the right to talk your head off.

[Sen. Robert Byrd’s final appearance in the Senate Rules Committee.]
 
SENATOR ROBERT BYRD:  We must never, ever, ever, ever, tear down the only wall, the necessary fence, that this nation has against the excesses of the Executive Branch.
 
SEN. CHUCK SCHUMER:  The checks and balances which have been at the core of this Republic are about to be evaporated.  The checks and balances which say that if you get 51% of the vote, you don’t get your way 100% of the time.
 
FORMER SEN. CLINTON:  You’ve got majority rule. Then you’ve got the Senate over here where people can slow things down where they can debate where they have something called the filibuster. You know it seems like it’s a little less than efficient, well that’s right, it is.  And deliberately designed to be so.
 
SEN. DODD:  I’m totally opposed to the idea of changing the filibuster rules. I think that’s foolish in my view.
 
SEN. BYRD:  That’s why we have a Senate, is to amend and debate freely.
 
SEN. ALEXANDER:  The whole idea of the Senate is not to have majority rule. It’s to force consensus. It’s to force there to be a group of Senators on either side who have to respect one another’s views so they work together and produce 60 votes on important issues.
 
SEN. DODD:  I can understand the temptation to change the rules that make the Senate so unique and simultaneously so terribly frustrating.  But whether such temptation is motivated by a noble desire to speed up the legislative process or by pure political expediency, I believe such changes would be unwise.
 
SEN. ROBERTS:  The Senate is the only place in government where the rights of a numerical minority are so protected. A minority can be right, and minority views can certainly improve legislation
 
SEN. ALEXANDER:  The American people know that it’s not just the voices of the Senator from Kansas or the Senator from Iowa that are suppressed when the Majority Leader cuts off the right to debate, and the right to amend. It’s the voices that we hear across this country, who want to be heard on the Senate floor.
 
SEN. GREGG:  You just can’t have good governance if you don’t have discussion and different ideas brought forward.
 
SEN. DODD:  Therefore to my fellow Senators, who have never served a day in the minority, I urge you to pause in your enthusiasm to change Senate rules.
 
SEN. REID:  The Filibuster is far from A ‘Procedural Gimmick.’ It’s part of the fabric of this institution that we call the Senate.  For 200 years we’ve had the right to extend the debate. It’s not procedural gimmick. Some in this chamber want to throw out 214 years of Senate history in the quest for absolute power. They want to do away with Mr. Smith, as depicted in that great movie, being able to come to Washington. They want to do away with the filibuster. They think they’re wiser than our Founding Fathers, I doubt that’s true.
 
FORMER SEN. OBAMA:  Then if the Majority chooses to end the filibuster, if they choose to change the rules and put an end to Democratic debate; then the fighting and the bitterness and the gridlock will only get worse.