Speeches & Floor Statements

Floor Speech: Preserving the Senate filibuster

Posted on June 18, 2013

For the last few weeks, I have been listening to the Republican leader ask the majority leader not to turn the Senate into a place where a majority of 51 can do anything it wants.  I am on the Senate floor today to suggest three reasons why I believe the majority leader will not do that:

No. 1, he said he would not.  Senators keep their word.    No. 2, in 2007, the majority leader said to do so would be the end of the Senate.  There have not been many majority leaders in the history of the Senate.  I know none of them want to have written on their tombstone:  He presided over "the end of the Senate." 

Third, the majority leader is an able and experienced legislator.  He knows if Democrats find a way to use 51 votes to do anything they want to do, it will not be very long until Republicans find a way, if we are in the majority, to use 51 votes to do whatever we want to do. 

So let me take these three reasons one by one.  First, the majority leader has given his word.  The Republican leader mentioned that.  At the beginning of the last two congresses, at the request of the Republican leader, I worked with several Democrats and Republicans to change the rules of the Senate to make it work better.  We succeeded in that.  We talked about it, negotiated, and we voted those changes through.

We eliminated the secret hold.  We abolished 169 Senate-confirmed positions.  We expedited 273 more.  We reduced the time to confirm district judges.  We made it easier to go to conference.  In exchange for all of that, the majority leader said he would not support changes in the rules in this two-year session of Congress except through the regular order.  He said:   

“The minority leader and I have discussed this on numerous occasions.” This is the Democratic leader. “The proper way to change the Senate rules is through the procedures established in the rules.  I will oppose any effort in this Congress or the next to change the Senate rules other than through the regular order.” 

I ask unanimous consent to have printed, following my remarks, the majority leader's comments. 

Second, I was a new senator 10 years ago in 2003.  I was absolutely infuriated by what the Democrats did in the first few months.  For the first time in history, they used the filibuster to deny a president's judicial nominations for the circuit courts of appeal.  It had never ever been done before.  So Republicans threatened the so-called “nuclear option.”  We threatened we would change the rules of the Senate so we could work our will with 51 votes. 

Senator Reid said at the time “that would be the end of the Senate.”  He wrote that in his book called "The Good Fight" in 2007.  It is the most eloquent statement I have heard about why changing the rules of the Senate to give a majority the right to do anything it wants with 51 votes is a bad idea.  I wish to read a few sentences from Senator Reid's book "The Good Fight," written in 2007.  

“Senator Frist of Tennessee, who was the majority leader, had decided to pursue a rules change that would kill the filibuster for judicial nominations.”  Sounds familiar. “And once you open the Pandora's box, it was just a matter of time before a Senate leader who couldn't get his way on something moved to eliminate the filibuster for regular business as well.  That, simply put, would be the end of the United States Senate.     

“It is the genius of the Founders that they conceived the Senate as a solution to the small state / big state problem.  And central to that solution was the protection of the rights of the minority.  A filibuster is the minority's way of not allowing the majority to shut off debate.  And without robust debate, the Senate is crippled.  Such a move would transform the body into an institution that looked like the House of Representatives where everything passes with a simple majority.  And it would tamper dangerously with the Senate's advise-and-consent function as enshrined in the Constitution.  If even the most controversial nominee could simply be rubber stamped by a simple majority, advise and consent would be gutted.  Trent Lott of Mississippi knew what he was talking about when he coined the name for what they were doing the nuclear weapon.”

One more paragraph. 

“But that was their point.  They knew – Lott knew – if they trifled with the basic framework of the Senate like that, it would be nuclear.  They knew that it would be a very radical thing to do.  They knew that it would shut the Senate down… there will come a time when we will be gone.”  This is Senator Reid talking. “There will come a time when we will all be gone, and the institutions that we now serve will be run by men and women not yet living.  And those institutions will either function well because we have taken care of them or they will be in disarray and someone else's problem to solve.  Well, because the Republicans could not get their way getting some radical judges confirmed to the federal bench, they were threatening to change the Senate so fundamentally that it would never be the same again.  In a fit of partisan fury, they were trying to blow up the Senate.  Senate rules can only be changed by a two-thirds vote of the Senate, or 67 Senators.  The Republicans were going to do it illegally with a simple majority, or 51.  Vice President Cheney was prepared to override the Senate Parliamentarian. Future generations be damned.” 

Those are the words of the distinguished senator from Nevada in 2007, eloquently explaining why this body is so different from the House of Representatives. 

I ask unanimous consent not only to have those remarks printed in the record but several more pages from Senator Reid's excellent seventh chapter entitled "The Nuclear Option" in his book from 2007. 

Third and finally, if the Democrats can turn the Senate into a place where a majority of 51 can do anything they want, soon a majority of 51 Republicans is going to figure out the same thing to do.  After 2014, some observers have said we might even be in the majority.  Senator McConnell might be the Republican leader and the majority leader.  After 2016, we may even have a Republican President. 

Preparing for that opportunity, I wish to suggest the 10 items, briefly, I wish to see on an agenda if we Republicans are able to pass anything we want with 51 votes, as the majority leader has suggested. 

No. 1, repeal ObamaCare. 

No. 2, S. 2, that would be the second bill if I were the leader.  I would put up Pell grants for kids.  Like the GI bill for veterans, Pell grants follow students to the colleges of their choice -- creating opportunity at the best colleges in the world.  Why don't we do the same thing for students in kindergarten through the 12th grade, take the $60 billion we spend, create a voucher for 25 million middle and low-income children?  It would be $2,200 for each one of them, just the money we now spend.  Let it follow them to any school they choose to attend, an accredited school, public or private.

No. 3 on my list, complete Yucca Mountain.  I have spoken often of the importance of nuclear energy to our country.  It provides 20 percent of all of our electricity, 60 percent of our clean electricity for those concerned about climate change and clean air.  Since 2010, the majority leader has stalled the nuclear waste repository in Nevada.  That jeopardizes our 100 reactors.  That jeopardizes our source of 60 percent of our clean electricity.  If we had 51 votes in the Senate, we could direct the Nuclear Regulatory Commission to issue a license.  We could direct the Department of Energy to build Yucca Mountain and we could fund the money to do it. 

The junior senator from Nevada, who shares Senator Reid's opposition to that, said something about this recently. 

“The day is going to come that either he is here or not --” That is the majority leader.  “-- or the Republicans take control and it's a 50-vote threshold.  Those kinds of issues are the ones that concern me the most.  When you are from a small state, you need as many arrows in your quiver as possible to fight back on some of these issues that you can be overtaken by.  Frankly, the 60-vote threshold is what has protected and saved Nevada in the past.” 

I ask unanimous consent to have Senator Heller's comments printed in the record. 

If all the Democrats who voted once upon a time for completing Yucca Mountain were to do so again, we could get a bipartisan majority of 51 votes today in the Senate to complete Yucca Mountain.  So make no mistake, a vote to end the filibuster is a vote to complete Yucca Mountain.  Here is the rest of my list -- I will do it quickly -- that I would suggest to the Republican leader, if he were majority leader, as his priorities for a Senate where we could pass anything we wanted with 51 votes. 

Make the Consumer Protection Bureau accountable to Congress.  That would be No. 4. 

No. 5, drill in the Arctic National Wildlife Refuge and build the Keystone Pipeline.     

No. 6, Fix the debt.  It ought to be No. 1.  Senator Corker and I have a $1 trillion reform of entitlement programs that would put us on the road toward fixing the debt. 

No. 7, Right to work for every State.  We would reverse the presumption -- create a presumption of freedom, giving workers in every state the right to work.  States would have the right to opt out, to insist on forced unionism, the reverse of what we have today. 

No. 8, No EPA regulation of greenhouse gasses.

No. 9, Repeal the Death Tax. 

Finally, No. 10, Repeal Davis-Bacon, save taxpayers billions by ending the federal mandate on contractors. 

The Republican leader and I have plenty of creative colleagues.  They will have their own top 10 lists.  When word gets around on our side of the aisle that the Senate will be like the House of Representatives and a train can run through it without anyone slowing it down, there will be a lot of my colleagues with their own ideas about adding a lot of cars to that freight train.

Jon Meacham's book about Thomas Jefferson is one I have been reading.  He reports a conversation between John Adams and Jefferson in 1798.  Adams said:   

“No Republic could ever last which had not a senate...strong enough to bear up against all popular storms and passions...” And that- “Trusting the popular assembly for the preservation of our liberties...was the mearest chimera imaginable.” 

Alexis de Tocqueville, while traveling our country in the 1830s, saw only two great threats for our young democracy.  One was Russia, one was the tyranny of the majority. 

Finally, as the Republican leader so well stated, there is no excuse here for all of this talk.  The Democrats are manufacturing a crisis.  To suggest Republicans are holding things up unnecessarily is absolute nonsense.  In fact, over the last two Congresses, we have made it easier for any president to have his or her nominations secured.

The Washington Post on March 18, the Congressional Research Service on May 23, said President Obama's nominations for the Cabinet are moving through the Senate at least as rapidly as his two predecessors.  The secretary of energy was recently confirmed 97 to 0.  There may be another three votes on Cabinet-level nominees this week. 

Then as the Republican leader said, look at the executive calendar.  Only three district and two circuit judge nominees are waiting for floor action. 

As for filibusters, according to the Senate historian, the number of Supreme Court justices who have been denied their seats by filibuster is zero.  The only possible exception is Abe Fortas, and Lyndon Johnson engineered a 45-to-43 vote so he could hold his head up while he continued to serve on the court. 

The number of cabinet members who have been denied their seats by a filibuster in the history of the Senate is zero. 

The number of district judges who have been denied their seats by a filibuster in the history of the Senate is zero.  This is according to the Senate historian and the Congressional Research Service. 

So what are they talking about?  I know what they are talking about.  They are talking about circuit judges.  That is the only exception.  Why is it an exception?  Because when I came to the Senate 10 years ago, the Democrats broke historical precedent and blocked five distinguished judges of President Bush by a filibuster. 

Republicans have returned the favor and blocked two of President Obama's by a filibuster, which should be a lesson for the future to those who want to change the rules.  About half the members of the Senate are serving in their first term.  They may not know about the majority leader's statements in 2007.  They may not know about the history of the Senate.  They may have heard all of these conflicting facts and not have the right facts. 

What I have given you is what the Senate historian and the Congressional Research Service say are the facts.  Of course, there have been delays.  My own nomination was delayed 87 days by a Democratic senator.  I did not try to change the rules of the Senate.  President Reagan's nomination of Ed Meese was delayed a year by a Democratic Senate. 

No one has ever disputed our right in the Senate, regardless of who was in charge, to use our constitutional duty of advise and consent to delay and examine, sometimes cause nominations to be withdrawn or even to defeat nominees by a majority vote.   

Yes, some sub-cabinet members have been denied their seats by a filibuster.  The Democrats denied John Bolton his post at the United Nations.

Senator Warren Rudman told me the story of how the Democratic senator from New Hampshire blocked his nomination by a secret hold.  Nobody knew what was happening.  I asked Senator Rudman what he did about it.

He said:  “I ran against the so-and-so in the next election, and I beat him.” This is how Senator Rudman got to the Senate.

In summary, the idea that we have a crisis of nominations is absolute, complete nonsense, totally unsupported by the facts.  It should be embarrassing to my friends on the other side to even bring it up.  They should be congratulating us for helping to make it easier for any president to move nominations through. 

The advise and consent is a constitutional prerogative that both parties have always defended.  There are three reasons why the majority leader will not turn the Senate into a place where a majority of 51 can do anything it wants, in my judgment:  one, he said he wouldn't, and senators keep their word; two, he said the nuclear option would be the end of the Senate.  No majority leader wants written on his tombstone he presided over the end of the Senate; three, if Democrats turn the Senate into a place where 51 senators can do anything they want, it will not be long before Republicans do the same. 

To be very specific, if Senator Reid and Democrats vote to allow a majority to do anything they want in the Senate and set that precedent, voting to end the filibuster will be a vote to complete Yucca Mountain. 

I come with respect to the Republican and the Democratic leaders, and especially to this institution, to say let's end the threats, let's stop the nonsense, let's get back to work on immigration and the other important issues facing our country. 

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