Speeches & Floor Statements

Floor Speech: preserving the Senate and the rights of the minority

July 11, 2013 - July 11, 2013

    I thank the senator from Utah for his thoughtful remarks.  I have been trying to think of a way to put in context what is at stake because the majority leader said in his remarks today:  We have changed the rules 18 times.  True.  We have changed the rules a lot.  But we are not talking about changing the rules of the Senate.  We are talking about changing the Senate. 

            That is what the proposal is, changing the Senate from an institution that protects minority rights by requiring 60 votes out of 100 on major matters of importance instead of a majority of votes.  You know we grow up and we go to first grade and we learn that the majority wins.  So we get that ingrained in ourselves as we grow up in America.

            It is a good principle, the majority wins.  It is a way to resolve disputes and work things out. 

            But from the very beginning of our country, our most thoughtful observers and visitors have looked at our country and said:  But a democracy needs some protections for the minority, for the people with a minority view. 

            I have mentioned on the floor before that I have been reading Jon Meacham's book about Thomas Jefferson, about the conversation they had after dinner on February 15, 1798.  Jefferson wrote about what Adams said to him.  Adams said: 

          No Republic could ever last which had not a Senate.  Trusting the popular assembly for the preservation of our liberties is unimaginable. 

            "Trusting a popular assembly for the preservation of our liberties."  What did he mean by that?  What he meant by that is that the passions in our country -- and they particularly happen that way today because of the Internet -- can suddenly grow very strong.  They happened back at that time in France with the French Revolution, where the population got excited and began to behead people in connection with the French Revolution. 

            So popular passions can run strong.  Our Founders said:  We want a House of Representatives that reflects those popular passions, which is why when you go over to the House, they have a Rules Committee.  Whoever wins the House by one vote gets nine of the seats and whoever loses gets four of the seats to make it clear that the party that has four of the seats does not have anything to say about anything, so they can bring it up on Monday and pass it on Tuesday. 

            That is what a popular assembly can do.  So Adams was saying to Jefferson:  We need another body.  We need a Senate that is not so responsive to the popular passions.  President Adams and President Jefferson said at the beginning of our country that they did not believe a Republic could stand without such a Senate.  That is what they said then.  Our most famous visitor to the United States was Alexis de Tocqueville, a young Frenchman who came in the 1830s. 

            He wrote a book, "Democracy in America," which is probably the best book ever written about democracy in America.  He said in this that there are two great dangers he saw in our future democracy.  This is when it was very young.  One was Russia.  That was a prescient comment.  But the other was the tyranny of the majority.  That is what de Tocqueville said. 

            The great danger to our democracy is the tyranny of the majority.  That means a majority can run over you with a one-vote margin.  What does that mean today?  Let's say you care about abortion rights.  Let's say you care about gay rights. Let's say you care about climate change.  Let's say you didn't support the war in Iraq, you didn't support the war in Afghanistan.  Let's say you don't like government snooping, but the majority does. 

            The majority has a view that is different from your view, so they can run over you -- in the Senate they can't because they will have to persuade at least 60.  It will take some time to do it, and it doesn't always work.  You have to stop and think about any issues.

            The House can say:  No secret ballot in a union election, and they can pass it in a day.  It will come to the Senate, and we will say:  Let's think about it.  We will think about it even if the Democrats are in charge and they are in favor of no secret ballot in a union election because we protect the rights of working men and women across the country who may be in the minority.  But we have to stop and think about whether we want to abolish the secret ballot in union elections.

            What the majority leader is proposing doing next week is not just changing a rule, he is changing this institution so that whoever has a majority of one can do anything they want to do, anytime they want to do it, and can run over any minority.  It doesn't make so much difference that you run over a person in the minority in the Senate -- you know, we are just individuals.  But what about the views we represent?  What about the views of the farmers in North Dakota, mountaineers in Tennessee, or the civil rights workers in Alabama?  What about the people in the 1970s who opposed the Vietnam war?  The majority?  The majority ran over it. 

            People who are accustomed to being in the minority know the advantage and the importance of having protection of minority rights.  They know -- and they have studied American history -- that the chief defender of minority rights in the history of our country has been the Senate.  This is what the majority leader proposes to change.  He proposes to make this place like the House, where a freight train can run through it overnight and change abortion rights, change the war attitude, change civil rights, change environmental policy.  One vote can do it.  Run the train through the House.  Run the train through the Senate.  Today it might be a Democratic train.  Tomorrow it might be the Tea Party Express. 

            Our friends on the other side might wish to think about that.  I have some very creative colleagues over here.  I will bet they could come up with a pretty good agenda of things we would like to do if we had 51 votes and we could do it anyway.

            This is not about a rules change.  This is about changing the nature of a Senate that John Adams, Thomas Jefferson, George Washington, and the Founders of our country created to be an alternative to a popular assembly and that every majority leader in our history has, in the end, supported in this way.

            We should not take this lightly -- especially if you are an American person who has an unpopular view.  If you feel as though you are in the minority, if you feel that a majority might not agree with you, might even run over you, you do not want the Senate to suddenly be a place where a freight train could run right through it overnight.

            You may say:  Well, we have the president and the White House. 

            You may.  You do today.  You might not tomorrow.  You might not tomorrow. 

            When I came to the Senate 10 years ago one party had both the Senate, the House, and the presidency.  What if we were 10 years ago and we could run a freight train through the House, to the Senate, and send it down to President Bush?  We might say that no state in the country -- every state in the country must have a right-to-work law.  We believe in right-to-work laws.  We might have new rules on public unions.  We might have different ideas on abortion.  We might have different ideas on climate change.  If you are in the minority, you wouldn't be able to stop us.  You wouldn't even be able to slow us down for a good conversation.  We could just run right through town. 

            Nearly one-half of this body is in its first term.  More than half of my Democratic friends have never been in the minority.  I have been in the minority in a variety of ways in my lifetime, and I want some protection -- more than just from the popular assembly that might run through. 

            That is why I said this morning that I hope very much that the Democratic leader will accept the request from those of us on the Republican side for all of us senators to meet together in the Old Senate Chamber where we can meet privately, where we can talk face-to-face. 

            We can say:  We need to understand how in the world the Democratic side could want to change the character of the Senate in this way when in two years they could be on the other side.  What would make you so angry that you would want to do that? 

            If you would say to us, you have been filibustering our nominees, we would say to you, I guess you know that none of your nominees have ever been defeated by filibuster.  I guess you know that -- except for two circuit judges.  And you started that because you did five of ours.

            You will say:  Well, you have been delaying our nominations.

            We will say:  I hope you know that the Congressional Research Service and the Washington Post say that President Obama's Cabinet nominees have been moving through the Senate more rapidly than President Bush's did and President Clinton's did in their second terms.  I hope you know that.

            You may say:  But you have been holding people up for years.

            We will reply:  I hope you will look at the Executive Calendar. 

            It is on everybody's desk here.  This is the list of people who can be confirmed in the Senate.  How do they get on the Executive Calendar?  They come out of committees.  Who controls the committees?  Democratic majorities.  If there is someone who hasn't been confirmed, put him on the calendar.  It is your committee that can do it. 

            Once they get on the calendar, how do they get confirmed?  Only one person can manage that schedule -- the majority leader.  All he has to do is say:  I move the nomination of Jacob J. Lew, of New York, to be U.S. Alternate Governor of the International Monetary Fund.  He has been on the calendar since April 16, 2013. 

            You may say:  There is an objection to that. 

            We will say:  So what?  The majority leader can bring it up, and under our rules we can ask for a 60-vote vote on Mr. Lew to the International Monetary Fund.  He is already in the administration, so that probably wouldn't happen, but let's say it did.  The majority leader can bring it up on Monday.  We would vote on Wednesday.  He would get 60 votes, and then he would be confirmed.  That would take one of the 24 people off of this Executive Calendar. 

            You might say:  Well, they have been waiting for years.  We might say:  Wait a minute, I have got it right here.  The one who has been waiting the longest came to the floor February 26, 2013.  That was four months ago.  There is no one here who has been waiting longer than four months, who has been here waiting for us to do something about it.  The only one who could move somebody off this calendar to a vote is the majority leader sitting right over there, so what are you talking about?

            This is what we would say to you. 

            You must be angry about something else or you wouldn't be thinking about changing the character of the whole Senate because no one has been denied their seat by filibuster except a circuit judge, and you set the precedent for that.  There is no one left to confirm except these nominees for the National Labor Relations Board that President Obama made unconstitutionally on January 24, 2012. 

            The Republican leader said:  You have a labor secretary who is controversial. 

            We all concede that, but the majority leader hasn't moved that we have a vote on him.  He has been reported since May; he has been sitting here since May.  The majority leader could have brought him up. 

            There is a lady nominated for the Environmental Protection Agency.  Bring up her nomination.  Let's vote on it.  There are a couple of other controversial nominations, but all we have to do is vote -- except on these unconstitutional nominees. 

            What do we do about them?  Let's make clear what happened to the National Labor Relations Board.  In December of 2011 the President sends us two nominees to the National Labor Relations Board.  This is the way it is supposed to happen.  Their papers then come over to the Health, Education, Labor and Pensions Committee.  Senator Hatch used to chair that.  I am on that committee now as a ranking member.  Before the papers from the White House even get to the committee, the president recess-appoints them.  In other words, he used his power to appoint these persons to the NLRB during a recess when the Senate was in session.  How do we know it was in session?  It was in session, in a pro forma session, which is a device invented by the majority leader, Senator Reid, when George W. Bush was president to keep President Bush from making recess appointments. 

            President Bush didn't like that, these 3-day pro forma sessions, but he respected it. 

            He said:  Our Founders didn't want a king.  They created separation of powers.  That means checks and balances.  I am the president, but I can't do everything.  There is Congress over here, and there is a Bill of Rights over here. 

            President Bush said:  I don't like what Senator Reid did.  He created these pro forma sessions so I can't make a recess appointment, but I will respect that.

            Senator Reid has a pro forma session when President Obama is in, and President Obama doesn't respect it and appoints two people.  They are still there.  The Court of Appeals for the District of Columbia has ruled that unconstitutional, as has the Third Circuit Court of Appeals -- two of the highest courts in the land -- and they are still there.  They are still there making cases unconstitutionally.  They have decided 1,031 cases, all of which will be subject to being vacated if the Supreme Court agrees with the federal courts.  We cannot ignore that in the Senate if we wish to preserve the principle of checks and balances in the United States.

            I mentioned at the beginning that I like to read history.  I said this on the Senate floor, and I will read it again and then conclude because I know other senators are here. 

            I was reading Jon Meacham's book about Thomas Jefferson, which I mentioned, and John Adams and Jefferson and how changing the Senate, not changing the rules -- but if you change the Senate rules in this way, that means that the majority, on any day, any year, could come through and do anything it wants to do. 

            They might decide:  We don't like the gas in North Dakota, or we don't like the corn in Tennessee.  So we are going to change the rules so we can have an advantage that 51 of us can do something about. 

            They could do that any day.  Do it now; do it then. 

            I mentioned that history.  I mentioned de Tocqueville's history.  But here is the last piece of history I will mention once more.  This is chapter seven of Senator Reid's book in 2007.  Chapter seven is entitled "The Nuclear Option."  I had just come to the Senate.  He talks about me in this chapter and gives me some credit for the gang that was formed to preserve the Senate at the time when another majority leader was trying to change the character of the Senate.

            I see the distinguished majority leader, so I will defer to his comments.  Maybe it is appropriate for me to read them.  Senator Reid wrote in 2007:

            “Peaceable and productive are not two words I would use to describe Washington in 2005. I just couldn't believe that Bill Frist was going to do this.  The storm had been gathering all year, and word from conservative columnists and in conservative circles was that Senator Frist of Tennessee, who was the majority leader, had decided to pursue a rules change that would kill the filibuster for judicial nominations.” 

            This is Senator Reid's book.  It is an excellent book, and I appreciate being mentioned in it. Senator Reid continues:

            “And once you opened that 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.  And that, simply put, would be the end of the United States Senate.” 

            I believe that.  I believe it would be.  It is not a mere rules change.  Anytime this body changes its rules in the middle of a session without following the 67-vote rules cloture requirement, anytime it does that, it doesn't matter what it is for, it could do it again for a matter of precedent.  If it does it for judicial nominations, the importance of the change is not whether it is a good idea to have an up-or-down vote on judicial nominations -- the importance of the change is that with 51 votes you can do anything you want at any time.  That, in de Tocqueville's words, in his foresight and his prescience in the 1830s, takes away from the people of the United States their greatest protection of their liberties because it encourages the tyranny of the majority. 

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