Filibuster reform goes out with a whimper

Yesterday U.S. Senators voted to change the chamber’s rules to reduce the use of filibusters in certain situations. However, the reforms fall far short of what Senator Tom Harkin and others have proposed to remove the de facto supermajority requirement for conducting any Senate business.

Senate Majority Leader Harry Reid could have used the so-called “nuclear option” (also known as the “constitutional option”) to force through new rules at the beginning of the year on a simple majority vote. However, within the 55-member Senate Democratic caucus, there was no consensus behind sweeping reforms like Harkin’s. He has advocated for returning the filibuster to its historical purpose: slowing down Senate debate, rather than blocking any action not supported by 60 senators. Some Democrats want to preserve the essence of the filibuster for the time when they will be in the minority again.

Instead, Reid negotiated a deal with Senate Minority Leader Mitch McConnell. Alexander Bolton summarized the important points for The Hill:

The enacted reforms do not include the implementation of the talking filibuster, which would require senators seeking to block legislation to actively hold the floor and debate. If debate stops, the pending matter moves to a simple majority vote, under this proposal.

Nor does it shift the burden of sustaining a filibuster onto the minority party by requiring senators to muster 41 votes to continue blocking legislation. Now the burden is on the majority to round up 60 votes to overcome a filibuster. […]

Instead, the reforms will speed up efforts by the majority leader to move to begin debates on new business and confirm sub-Cabinet executive-branch and district-court judicial nominees, which passed on a 78-16 vote. The reforms also make it easier to send legislation to conference with the House – that rule was changed on a 86-9 vote. It will also require senators to appear on the Senate floor in person to block a bill or nominee and actually debate if they want to prolong consideration of business after the Senate has voted to move on.

The centerpiece of the deal would empower the majority leader to prohibit filibusters on motions to proceed to new business if he allows the minority leader and the minority bill manager each an opportunity to vote on an amendment. Non-germane amendments would need to overcome a 60-vote threshold. The majority leader and majority bill manager would allow be allowed votes on amendments under this scenario.

Harkin and Iowa’s Republican Senator Chuck Grassley both voted for each of the reforms approved yesterday. Here’s the roll call for the 86 to 9 vote; eight Republicans voted against the deal, plus independent Bernie Sanders of Vermont, who is on the left wing of the Senate Democratic caucus. Here’s the roll call on the other part of the deal; Sanders and 15 Senate Republicans voted no.

Although the 60-vote threshold for many things remains intact, the Reid-McConnell deal may reduce the ability of one or a few senators to block action supported by almost everyone in the chamber.

Harkin gave a long speech on the Senate floor yesterday, which made clear that he would have liked to see more done to allow Senate action by simple majority vote. His office released the full text of his remarks on filibuster reform (as prepared). I enclose those below. I am seeking comment from Grassley on the filibuster reform deal and will add his remarks if I receive them.

In a statement, Alliance for Justice President Nan Aron pointed out that under the deal, “circuit court nominations remain subject to the kind of destructive obstruction that has characterized President Obama’s first term.” The Alliance for Justice is an association of more than 100 progressive organizations.

January 24, 2013

Statement by Senator Tom Harkin on the Reform of the Filibuster

As prepared for delivery

WASHINGTON, D.C. – Senator Tom Harkin today delivered a speech on the floor of the Senate on the need to reform the filibuster.

“As I have noted, a revolution has occurred in the Senate in recent years,” said Harkin.  “Never before was it accepted that a 60 vote threshold was required for everything.  This did not occur through Constitutional Amendment or through a great public debate.  Rather, because of the abuse of the filibuster, the minority party – the party the American people did not want to govern – has assumed for itself absolute and virtually unchecked veto power over all legislation, any executive branch nominee, no matter how insignificant the position, and over all judges, no matter how uncontroversial.”

Following is text of his remarks, as prepared for delivery.

“Mr. President, I have been in this body for 28 years. I am currently eighth in seniority. I am proud and honored to represent the great state of Iowa, to be a United States Senator, and to serve in this illustrious body. As such, I think that I have some perspective on the U.S. Senate. At its best, it is in the United States Senate where our great American experience in democratic self-government most fully manifests itself. It is in this body that the American people, through their elected officials, can come together, collectively, to debate, to deliberate and to address the great issues of our time. Throughout our nation’s history, it has done so. In the nearly quarter century that I have been here, it is this great lawmaking body which has expanded the rights of Americans with disabilities, ensured health insurance for millions of Americans, and in the early 1990s put our nation on a course to eliminate the national debt within a generation, among other things.

“It is because of my great reverence for this institution and my love for our country, that I come to the floor today. One does not need to read the abysmal approval ratings of Congress to know that Americans are fed up and angry with their broken government. In too many critical areas, people see a Congress riven with dysfunction. Citizens see their legislature going from manufactured crises to manufactured crisis. And, they see a legislature that is simply unable to respond effectively to the most urgent challenges of our time.

“Of course, there are a myriad of reasons for this gridlock: increased partisanship, a decline in civility and comity, too much power in the hands of special interest groups, a polarizing media, and the increasing time demands involved in raising a large amount of money to run for reelection.

“But, make no mistake; a principal cause of dysfunction is the rampant abuse of the filibuster in the United States Senate.  And, it is long past time to make the Senate a more functional body, one that is better able to respond to the nation’s challenges.

“The fact is, Mr. President, I am not a Johnny Come Lately to filibuster reform.  In January, 1995, when I was in the minority, I introduced legislation to reform the filibuster.

“Even though I was in the minority, I introduced my resolution because I saw an arms race, where each side would simply escalate the use of the filibuster and abuse procedural tools to the point where this body ceased to properly function and stop being able to address our nation’s needs.  And, sadly, that is what has happened and that is why, 18 years after I first introduced my proposal, I believe reform has never been more urgent and necessary.

“Mr. President, the Minority Leader has stated that reformers advocate a ‘fundamental change to the way the Senate operates.’  To the contrary, it is the abuse of the filibuster, not the reforms being advocated, that has fundamentally changed the character of this body and our entire system of government.  Democrats are not guiltless in this regard by any means, but the real power grab has been by Republicans who have abused an extraordinary tool, one used sparingly for nearly 200 years, in order to turn effective control of this body – and of public policy – over to those who the American people expressly chose not to be the majority party.  In many cases, those who are warning of a fundamental change to the nature and culture of the Senate are the very ones who have already carried out such a revolutionary change.

“Mr. President, the minority leader has recently called the filibuster ‘near sacred.’  He could not be more incorrect. The notion that 60 votes are required to pass any measure or confirm any nominee is not in the Constitution and until recently would have been considered a ludicrous idea flying in the face of any definition of government by democracy.

“Far from considering the filibuster ‘near sacred,’ it is safe to say that the Founders would have considered a supermajority requirement sacrilegious.  After all, they experimented with a supermajority requirement under the Articles of Confederation, and it was expressly rejected in the Constitution because the Framers believed it has been proven unworkable.

“The filibuster was once a tool used only in the rarest of instances – most shamefully to block critical civil rights legislation.  Across the entire 19th Century, there were only 23 filibusters. From 1917 – when the Senate first adopted rules to end a filibuster – until 1969, there were fewer than 50, less than one filibuster a year.  In his six years as Majority Leader, Lyndon Johnson only faced one filibuster.  According to one study, in the 1960s, just eight percent of major bills were filibustered.

“In contrast, since 2007, there have been over 380 motions to end filibusters.  And, this number does not include the countless bills and nominees on which the majority has not even tried to obtain cloture, either because of lack of time or because such an exercise would be fruitless.  The fact is, for the first time in history, on an almost daily basis, the minority, and in many cases just one senator, routinely is able to, and does, use just the threat of a filibuster to stop bills from even coming to the floor for debate and amendment.

“Unfortunately, moreover, because of outdated rules, today an actual filibuster rarely occurs.  Too often, just the mere threat of a filibuster is all that is needed to block a measure that enjoys broad majority support.

“So let’s get beyond this outrageous idea that Democrats, in proposing modest rules reform, would be initiating a revolution. In actuality, the changes that are seriously under discussion right now are simply a modest reaction to decades of escalating warfare, which has culminated in six years of unrelenting Republican obstructionism.

“Because I feel so passionately that reform is so badly needed, I fully support the common sense proposals from Senators Jeff Merkley and Tom Udall.  Their proposal would simply require the minority to actually filibuster – meaning a Senator would have to come to the Senate floor and explain his or her opposition or offer his or her views on how a bill could be improved.

“Under the proposed reform, Senators would have to actually make arguments, debate, and deliberate.  Senators would have to obstruct in public, and be held accountable for that obstructionism.

“…Perhaps because this is such a common sense reform, Republicans who have come to the floor have not addressed why they oppose rules that would require more transparency.  The Republicans have failed to explain to this body or to the public why a minority – again the party the public chose not to govern -should be able to kill a bill or nominee by stealth.  Republicans have failed to explain why they oppose more debate and more deliberation, which is puzzling given that they profess that their sincere concerns are animated by a desire to foster debate and deliberation. They fail to defend why coming to the floor to speak is such a burden and why they oppose common sense reform.

“Instead, Republican after Republican has come to the floor and denounced what they claim are Democratic efforts to eliminate the filibuster and to, in their words, fundamentally change this body.

“The fact is, they are attacking the wrong plan.  The truth is, under the common sense reform proposed by Senators Udall and Merkley, the filibuster would still be a tool.  Sixty votes would still be needed to enact a measure or confirm a nominee.  The de facto rule that 60 votes are needed to accomplish anything here would remain.

“How do I know?  Because unlike the Merkley and Udall plan, I emphatically do support the gradual elimination of the filibuster and the end to the ability of the minority to exercise veto power over all measures and nominees. Unlike a majority of my colleagues – in both caucuses – I do believe that this body should be governed by the basic democratic principle that the majority, after ample debate and deliberation and right to amend, should have the power to govern, to enact the agenda the voters voted for, and to be held accountable at the ballot box.

“In other words, I believe in democracy.

“As I have noted, a revolution has occurred in the Senate in recent years.  Never before was it accepted that a 60 vote threshold was required for everything.  This did not occur through Constitutional Amendment or through a great public debate.  Rather, because of the abuse of the filibuster, the minority party – the party the American people did not want to govern – has assumed for itself absolute and virtually unchecked veto power over all legislation, any executive branch nominee, no matter how insignificant the position, and over all judges, no matter how uncontroversial.

“In other words, because of the filibuster, even when a party has been resoundingly repudiated at the polls, that party retains the power to prevent the majority from governing and carrying out the agenda the public elected it to implement.  In this regard, over 380 filibusters is not some cold statistic.  Each filibuster represents a minority of senators preventing the majority of the people’s representatives from governing.

“As just one example, Republicans repeatedly filibustered motions to proceed to legislation that would require more disclosure of campaign donations.  A substantial majority of senators supported the bill, and 80 percent of the public believed the Supreme Court’s decision in Citizens United was wrong.  Yet, a small minority of senators was able to prevent needed reform from even being debated on the floor of the Senate, let alone receiving an up-or-down vote.

“And, that is just one example.  In the last two Congresses, consider just some of the measures blocked by the minority – measures that received majority support on a cloture vote: the DREAM ACT, the Bring Jobs Home Act, the Small Business Jobs and Tax Relief Act, the Paying a Fair Share Act of 2012, the Repeal Big Oil Tax Subsidies Act, the Teachers and First Responders Back to Work Act, the American Jobs Act of 2011, the Public Safety Employer-Employee Cooperation Act, the Paycheck Fairness Act, and the Creating American Jobs and Ending Offshoring Act.

“It used to be that if a senator opposed a bill, he or she would engage in a spirited debate, try to change people’s minds, attempt to persuade the public, vote no, and then try to hold members who voted yes accountable at the ballot box.  In contrast, today, to quote former Senator Charles Mathias from 1994, ‘The filibuster has become an epidemic, used whenever a coalition can find 41 votes to oppose legislation.  The distinction between voting against legislation and blocking a vote, between opposing and obstructing, has nearly disappeared.’  When Senator Mathias spoke, and described an ‘epidemic,’ in that Congress there were 80 motions to end filibusters, a number that pales in comparison to today.

“Now, to grind this body to a halt, all the minority party has to do is resort to the filibuster, often in stealth, in order to block a motion to proceed.  For example on critical jobs legislation, all the minority party has to do is block the motion to proceed and then turn around and blame the majority for failing to address the jobs crisis.

“It is no surprise that Americans are fed up with their broken government – frustrated and angry. As this list of blocked bills demonstrates, this anger is fully justified.  In too many critical areas, what people see is a dysfunctional Congress that is unable to respond effectively to the urgent challenges we face.  As The Des Moines Register recently noted, ‘One message candidates heard from voters this election was contempt for partisan gridlock in Congress.  One of the biggest obstacles to congressional action is the profusion of filibusters in the Senate.’

“It is no surprise that editorials throughout the country have recognized that the use of the filibuster must be changed.  USA Today has noted that the ‘filibuster has become destructively routine.’  The Roanoke Times noted that ‘filibuster reform alone will not fix everything that is wrong with Washington, but it would remove one of the chief impediments to governing.’  And, the Minnesota Star Tribune stated that ‘[m]ost Americans live under the impression that representative democracy’s basic precept is majority rule.  Sadly, that’s no longer the case in the U.S. Senate, where the minority party has so abused the filibuster that it (the minority) now controls the action – or more accurately, the inaction.  This perverts the will of the voters and should not be allowed to stand.’

“Mr. President, I ask unanimous consent that copies of editorials from around the country in support of filibuster reform be inserted into the record.

“…At issue in this debate is a principle at the heart of our representative democracy.  Alexander Hamilton, describing the underlying principle animating the Constitution, wrote that ‘the fundamental maxim of republican government … requires that the sense of the majority should prevail.’

“The Framers, to be sure, put in place important checks to temper pure majority rule.  For example, the Bill of Rights protects fundamental rights and liberties.  The Framers, moreover, imposed structural requirements.  For example, to become a law, a bill must pass both houses of Congress and is subject to the President’s veto power.

“The Senate itself is a check on pure majority rule.  As James Madison said, ‘[t]he use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.’  To achieve this purpose, citizens from the smallest states have the same number of Senators as citizens of the largest states.  Further, Senators are elected every six years.

“These provisions in the Constitution are ample to protect minority rights and restrain pure majority rule.  What is not necessary, what was never intended, is an extra-Constitutional empowerment of the minority through a de facto requirement that a supermajority of senators be needed to even consider a bill or nominee, let alone enact a measure or confirm an individual.

“In fact, the Constitution was expressly framed and ratified to correct the glaring defects of the Articles of Confederation – which required a two-thirds supermajority to pass any law, and unanimous consent of all states to ratify any amendment.  The experience under the Articles of Confederation had been a dismal failure, one that crippled our national government – and the Framers were determined to remedy those defects under the new Constitution.  It is not surprising that the Founders specifically rejected the idea that more than a majority would be needed for most decisions.

“Indeed, the Framers were very clear about circumstances where a supermajority is required. There were only five: Ratification of a treaty, override of a veto, votes of impeachment, passage of a Constitutional amendment, and the expulsion of a member.  It should be clear, especially to those who worship at the shrine of ‘original intent,’ that if the Framers wanted a supermajority for moving legislation or confirming a nominee, they would have done so.  Yet not only did they not do so, until 1806 the Senate had a rule that allowed any Senator to make a motion “for the previous question.”  This motion goes back to the British Parliament and permitted a simple majority to stop debate on the pending issue and bring an immediate vote.

“The Founders were clear why a supermajority requirement was not included in the Constitution. As Alexander Hamilton explained, a supermajority requirement for all legislation and nominees would mean that a small minority could ‘destroy the energy of government.’  Government would, in Hamilton’s words, be subject to the “caprice or artifices of an insignificant, turbulent, or corrupt junta.”

“James Madison also noted, when rejecting a supermajority requirement to pass legislation, ‘it would no longer be the majority that would rule, the power would be transferred to the minority.’

“Unfortunately, Madison’s warning has come true.  In the Senate, the minority, not the majority, controls.  In today’s Senate, American democracy is turned on its head: the minority rules and the majority is blocked.  The majority has responsibility and accountability, but lacks the power to govern.  The minority has the power, but lacks accountability and responsibility. This means that the minority can block bills and prevent confirmation of essential executive branch officials, and then turn around and blame the majority for not solving the nation’s problems. The minority can block popular legislation, and then accuse the majority of being ineffective.

“I firmly believe that we need to restore the tradition of majority rule to the Senate. Elections should have consequences.

“That is why I developed my plan to amend the Standing Rules to permit a decreasing majority of Senators, over a period of days, to invoke cloture on a given matter.  Under my proposal, a determined minority could slow down any bill. Senators would have ample time to make their arguments and attempt to persuade the public and a majority of their colleagues.  This protects the rights of the minority to full and vigorous debate and deliberation, maintaining one of the hallmarks of the Senate.  As Senator George Hoar noted in 1897, the Framer’s designed the Senate to be a deliberative forum in which ‘the sober second thought of the people might find expression.’

“But, at the end of ample debate, the majority should be allowed to act; there would be an up-or-down vote on legislation or a nominee.  In this way, we can restore this body to one where government can actually function and where we can actually legislate.

“My plan has another advantage.  Recently, the Minority Leader defended the abuse of the filibuster on the grounds that it forces the majority to compromise and “to resolve the great issues of the moment in the middle.”  I strongly disagree with him.  The fact is that, right now, because of the abuse of the filibuster the minority has no incentive to compromise.  They have the power to block legislation without, in many cases, even coming to the floor to explain themselves.  In such a world, as we have seen over the past years, why would the minority come to the table to cut a deal?

“In contrast, if the minority knows that at the end of the day, a bill is subject to majority vote, they will be more willing to come to the table and negotiate seriously.  Likewise, the majority will have an incentive to compromise because it will want to save considerable time, and not have to go through numerous cloture votes over a period of 16 days, plus 30 hours of debate, as allowed under my proposal.

“Mr. President, I want to emphasize another fact about my proposal.  Republicans repeatedly state that filibusters are necessary because Democrats increasingly employ procedural maneuvers to deprive Republicans of the right to offer amendments.  I am sympathetic to this argument and it is why, in the last Congress, I included in my resolution guaranteed rights to offer germane amendments, filed in advance of the cloture vote so everyone knows what it coming.

“Unfortunately, every Republican voted against my proposal.  That is because Republicans currently want the best of both worlds – the right to offer non-germane amendments and the right to obstruct. This does not make sense.

“No one should be fooled.  The fact is that the radicals who hold sway in the Republican Party are not concerned with making the Senate – and our government – function better.  That is because the current use of the filibuster has nothing to do with ensuring minority rights to debate and deliberation as well as the right to amend, otherwise they certainly would support either my proposal or at the very least the common sense one Senators Merkley and Udall have offered. Nor have I heard one Republican come down to the floor and unequivocally state that if the Majority Leader stopped filling the amendment tree, they would routinely vote for cloture, even if they opposed the underlying bill.

“They don’t do so because the current use of the filibuster has nothing to do with “minority rights.”  Rather, it has everything to do with obstruction, hijacking democracy, and a pure power grab designed to nullify elections in which the public has rejected Republican ideas and placed them in the minority.  The Minority Leader has been frank about this approach to governing. In a speech about a balanced budget amendment, he said the following: ‘The time has come for a balanced budget amendment that forces Washington to balance its books… . The Constitution must be amended to keep the government in check.  We’ve tried persuasion.  We’ve tried negotiations.  We’ve tried elections.  Nothing has worked.’  In other words, when elections – when democracy – does not work – what do the Republicans do?  They resort to undermining the ability of the American people to govern.

“The truth is, even accepting for sake of argument the minority’s claim that some of their filibusters were the result of the Majority Leader filling the tree, he has done so just 69 times over the past six years.  In contrast, the minority has filibustered at least 391 times, not including those filibusters where the majority leader did not even try to invoke cloture.

“Moreover, Republicans have repeatedly filibustered motions to proceed.  There is absolutely no reason to filibuster a motion to proceed.  One cannot offer amendments to try to improve a measure if the Senate is prevented from even considering a bill.

“In addition, Republicans have repeatedly filibustered executive and judicial branch nominees. Of course, nominations cannot be amended, again belying the argument that Republicans are just filibustering because of filling the tree.

“Mr. President, while I have focused on the current minority – the Republicans – I do want to reemphasize that neither side is blameless, and that reform is not about one party gaining an unfair advantage.

“The truth is, Mr. President, many people around here, in both parties, confuse ‘minority rights’ with ‘minority winning.’  Having the right to debate and deliberate does not mean you have a right to get your way.  A minority does deserve the right to debate and to deliberate.  A minority does not deserve the right to prevail.  A minority does not deserve the right to systematically block action by the majority elected by the American people.  That is not ‘minority rights.’ Rather, it is what Senator Frist described in 2005 – ‘nothing less than a formula for tyranny by the minority.’

“When I say ‘the minority’ I am not talking about the Republicans; I am talking about whoever is the minority of the moment.  It may be the Democrats or it may be Republican or it could be a bipartisan coalition.

“Mr. President, there is nothing radical about the proposal I have introduced.  As I noted, the filibuster is not in the Constitution and was rejected by the Founders.  Further, there is nothing sacrosanct about requiring 60 votes to end debate.  The Senate has adopted rules and laws that forbid the filibuster in numerous circumstances.  For example, the Senate has limited the filibuster with respect to budget, war powers, international trade acts and Congressional Review Act disapproval of regulations.

“Moreover, Article I, Section 5, Clause 2 of the Constitution – the Rules of Proceedings Clause – specifies that ‘[e]ach House may determine the rules of its proceedings.’  My resolution, far from being unprecedented, stands squarely within a tradition of updating Senate rules as appropriate to foster a more effective and functioning legislature. For example, beginning in 1917, the Senate has passed four significant amendments to its Standing Rules, the latest in 1975, to narrow the filibuster.

“In 1979, Senator Robert Byrd, a master of Senate rules, made clear that the Constitution allows a majority of the Senate to change its rules.  He said: ‘[t]he Constitution in article I, section 5, says that each House shall determine the rules of its proceedings. Now we are the beginning of Congress.  This Congress is not obliged to be bound by the dead hand of the past… . It 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.’

“This is, or at least was, also the opinion of the Republican Party. In a memorandum dated April 25, 2005, the Republican Policy Committee chaired by our former colleague, Senator Jon Kyl, stated, ‘The Senate has always had, and repeatedly has exercised, the constitutional power to change the Senate’s procedures through a majority vote.’ I disagreed with the Republican use of the Constitutional Option then – changing the rules in the middle of the session for only one purpose (judicial nominations) – but I do agree with the clear statement of authority Senator Kyl spelled out then.

“I would like to insert into the record a letter from numerous constitutional scholars, including Charles Fried, Solicitor General under President Reagan and Michael McConnell, former federal judge nominated by President George W. Bush.  These scholars make clear that at the beginning of a new Congress, a majority of the Senate can change its rules.  That letter reads:

“Some, however, have sought to elevate the debate to constitutional dimensions by suggesting that it is institutionally improper for a new Senate to alter the Senate’s rules by majority vote because the internal procedures adopted by prior Senates have required a two-third majority to allow a vote on a motion to alter the rules.

“With respect, such a concern confuses the power to change the Senate’s rules during a session, with the unquestioned constitutional power of each incoming Senate to fix its own rules unencumbered by the decisions of past Senates.  The standing two-thirds requirement for altering the Senate’s rules is a sensible effort at preventing changes to the rules in the midst of a game.  It cannot, however, prevent the Senate, at the beginning of a new game, from adopting rules deemed necessary to permit the just, efficient and orderly operations of the 113th Senate… .

“We agree with the overwhelming consensus of the academic community that no pre-existing internal procedural rule can limit the constitutional authority of each new Senate to determine by majority vote its own rules of procedure.

“Mr. President, the last significant rule change was in 1975, when the Senate lowered the number of votes necessary for cloture from a maximum of 67 to 60.  The fact is, today, only one member of the Senate – Senator Leahy – was in the Senate in 1975 and voted on the current version of Rule 22.  Yet, the dead hand of the past has made the filibuster entrenched against change.  It is long past time for the Senate to again use its authority to restore its ability to govern effectively and democratically.

“And, Mr. President, I want to emphasize that I firmly believe that amending the Standing Rules is necessary.  Informal agreements are insufficient to return the Senate to functionality.  Two years ago, at the start of the 112th Congress, rules reform gave way to a handshake deal.  The Majority Leader and the Minority Leader vowed to ‘make the Senate a better institution’ through ‘fewer filibusters and procedural delays and more opportunities for debate and amendments.’ I don’t think anyone would argue that this ‘gentleman’s agreement’ was effective.

“Mr. President, the Minority Leader recently stated that the reforms being advocated are being done with the ‘purpose of consolidating power and further marginalizing the minority voice.’ Nothing can be further from the truth.  I want to be clear that the reforms I advocate are not about one party or one agenda gaining an unfair advantage. It is about the Senate as an institution operating more fairly, effectively and democratically.

“As I stated, I first introduced filibuster reform in 1995, when I was a member of the minority party.  Thus, to use a legal term, I come with clean hands.  Moreover, with the House under Republican control, in order to enact legislation, Democrats will need to work with Republicans regardless of whether the filibuster exists or not.  Further, in my years in the Senate, the party in the majority has switched five times.  It belies common sense to expect that Democrats will not find themselves in the minority again at some point.  The truth is that this body does not function the way it is supposed to and this should be something that Democrats and Republicans should care about.  What was never envisioned, and what should not be allowed to continue, is a system where bills are even prevented from being debated or the idea that a small minority – individuals the people did not want to govern – can block legislation or nominees without even having to come to the floor to explain themselves.

“Finally, Mr. President, Senator after Senator has claimed that reform, any reform, will somehow make the Senate like the House. I hear this from members of my own party too.

“Since when did the Senate become defined by Rule 22?  When did the defining characteristic of this body become the ability of a small number of senators, often in stealth, to prevent the United States Senate from even proceeding to a bill, let alone allowing the majority to act?  This is emphatically not the essence of the Senate!

“The fact is, even with reform, citizens from small states will have the same representation in this body as citizens of large states, and Senators will continue to be elected every six years. Moreover, the Senate will continue to operate, as it has in so many instances, based on unanimous consent.  And, each Senator will continue to understand that maintaining good relationships with all Senators, working hard to become experts in issues, and drafting legislation and amendments will remain the essence of what it means to be a Senator, not the ability to filibuster.

“Bear in mind, too, that until 1970 there was approximately one filibuster per Congress.  Did anyone suggest then that because there was not the rampant of abuse of the filibuster – except shamefully on civil rights legislation – that the Senate was no different than the House?  Was the Senate of Clay, Wagner, Vandenberg, Johnson and Taft just another House of Representatives? Were the giants of the Senate who came before us – Daniel Webster, Fighting Bob LaFollette, Hubert Humphrey – any less a Senator because they were not defined by a de facto 60 vote supermajority requirement?

“Moreover, proponents of the filibuster regularly quote the oft told story of George Washington’s description of the Senate to Thomas Jefferson. Jefferson had returned from France and was breakfasting with Washington.  Jefferson asked Washington why he agreed to have a Senate. ‘Why,’ asked Washington, ‘did you just now pour that coffee into your saucer before drinking it?’ ‘To cool it,’ said Jefferson; ‘my throat is not made of brass.’ ‘Even so,’ said Washington,’ ‘we pour our legislation into the Senatorial saucer to cool it.’

“Mr. President, I believe the Senate should embrace Washington’s vision of this body.  The Senate was set up to slow things down, ensure proper debate and deliberation.  That is what the Founders intended and the reforms I advocate will not eliminate this critical function of the Senate.  We will not become the House.  As one author has noted, however, the increasing use of the filibuster has converted the Senate from the ‘saucer’ George Washington intended, in which scalding ideas from the more passionate House of Representatives might ‘cool’ into a ‘deep freeze and a dead weight.’

“Mr. President, at the heart of this debate is a central question – do we believe in democracy? Republicans, and sadly too many colleagues in my own caucus, repeatedly warn my own party about advancing reforms because Democrats will find ourselves in the minority one day.

I do not fear democracy.

“I do believe that issues of public policy should be decided at the ballot box, not by the manipulation of archaic procedural rules.  The truth is, neither party should be afraid of majority rule, afraid of allowing a majority of the people’s representatives to work its will.  After ample protections for minority rights, the majority in the Senate, whether Democratic, or Republican, or a bipartisan coalition, duly elected by the American people, should be allowed to carry out its agenda, to govern, and to be held accountable.

“I want to conclude, by noting that it is often said, and it is true, that the power of a Senator comes not by what we can do, but what we can stop.  The Senate is a body in which one individual Senator has an enormous amount of power.  And, let us be honest, no one wants to give that power up.

“But I believe it is time for Senators to look at themselves.  For the good of the Senate, and more importantly for the good of the country, we need to give up a little bit of that power. I am willing to give it up.

“All Senators should have fundamental confidence in democracy and the good sense of the American people.  We must have confidence in our ability to make our case to the people, and to prevail at the ballot box.  We must not be afraid of democracy. I am not afraid of democracy.  And looking at the future I am not afraid of living with these reforms as a member of the minority party.”

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