Mr. President, this past week, New York Times columnist Gail Collins noted that ``Washington was immobilized by snow on Friday. This is highly unusual. Normally, Washington is immobilized by…
Mr. President, this past week, New York Times columnist Gail Collins noted that ``Washington was immobilized by snow on Friday. This is highly unusual. Normally, Washington is immobilized by senators.''
Sadly, Gail Collins is right. The unprecedented abuse of Senate rules by Republicans has overwhelmed the legislative process. The same week that Washington saw a large snow storm shut down the city and close the Federal Government, we saw the unprecedented action of a minority blocking Senate confirmation of every single executive branch nominee. Last week, we saw Republicans require the Senate to debate for 30 hours one Department of Labor nominee in lieu of conducting other business and I use the term ``debate'' generously since during that time one Member spoke in opposition to her confirmation. This Congress, we have seen the minority require the Senate clerk to read lengthy bills out loud. And, most significantly, the minority has used the filibuster at an unheard of level in the history of this body.
The U.S. Senate cannot continue to function this way. That is why today I am introducing a bill to change the Standing Rules of the Senate to reform the cloture procedure in the U.S. Senate. I am introducing this bill as a member of the majority party in the Senate. I note, however, that this bill is identical to the one I first introduced in 1995, when I was a member of the minority party in the Senate. So this legislation is not about one party or the other gaining an advantage. It is about the Senate as an institution operating more fairly, effectively, and democratically.
I will explain the details of my proposal shortly. But first I would like to provide some historical background.
In 1995, for the first time in 8 years I found myself a member of the minority party in the Senate. At the beginning of that Congress, although Republicans outnumbered Democrats 53 to 47, I introduced legislation to change the Senate rules regarding the filibuster. My plan would have ensured ample debate and deliberation--the original purpose of the filibuster--but it would have allowed a bill, over time, to be passed by a simple majority vote. Unfortunately, my proposal did not pass.
In the intervening years, it has become even more apparent that for our government to properly function, we must reform and curb the use of the filibuster.
I readily acknowledge, changing the Senate rules is a tall order; and my goal is not to change the rules halfway through the 111th Congress. Instead, it is to lay down a marker and to focus attention on the unprecedented level of obstruction that occurs in the Senate today. The sad reality is that, today, because of the promiscuous use of the filibuster, the ability of our government to legislate and to address problems is severely jeopardized.
The filibuster was once an extraordinary tool used in the rarest of instances. When many people think of the filibuster they think of the climax of the classic film ``Mr. Smith Goes to Washington,'' when Jimmy Stewart's character singlehandedly uses a filibuster to stop a corrupt piece of legislation favored by special interests.
The reality is that in 1939, the year ``Mr. Smith Goes to Washington'' was filmed, there were zero filibusters in this body. In the 1950s, there was an average of just one filibuster per Congress.
Yet, over the past half century, the use of this device has grown exponentially. The concerns I raise today are not new. The problem, however, has become far more serious.
In 1982, my good friend and colleague Senator Dale Bumpers of Arkansas said this about procedures like the filibuster:
Unless we recognize that things are out of control and
procedures have to be changed, we'll never be an effective
legislative body again.
During the 2 years of that Congress, the 97th, there were 31 filibusters, as measured by the number of cloture motions filed.
In 1985, former Senator Thomas Eagleton of Missouri remarked:
The Senate is now in the state of incipient anarchy. The
filibuster, once used, by and large, as an occasional
exercise in civil rights matters, has now become a routine
frolic in almost all matters. Whereas our rules were devised
to guarantee full and free debate, they now guarantee
unbridled chaos.
During that Congress, the 99th, there were 40 filibusters.
In 1994, former Senator Charles Mathias of Maryland said:
Today, filibusters are far less visible but far more
frequent. 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.
During that Congress, the 103rd, right before I first introduced legislation to modify the filibuster, there were 80 filibusters.
Remarkably, from 1995 through 2008, the number of filibusters per Congress has increased 75 percent. In the last Congress, the 110th Congress, there were an astonishing 139 motions to end filibusters.
In the current 111th Congress, now near its midpoint, there have been 74. Last year alone, in one year--2009--there were 67 filibusters. In just 1 year, Republicans tripled the amount of filibusters that occurred in the entire 20-year period between 1950 and 1969.
I would also point out that, according to a study by UCLA Professor Barbara Sinclair, in the 1960s, just 8 percent of major bills were subject to a filibuster. In the last Congress, 70 percent of major bills were targeted.
The simple fact is that, today, rather than an unusual event, the filibuster, or the threat of a filibuster, has become a routine occurrence. Let me repeat these figures. In the 1950s, an average of one bill was filibustered in each Congress. In the 104th Congress, when Democrats were in the minority, there were 82 filibusters. In the last Congress, 139 bills were filibustered. In the current Congress, there have already been 74 filibusters.
What was once a procedure used very rarely and judiciously has become an almost daily procedure used routinely and often recklessly.
A quarter century ago, faced with 40 filibusters in the course of one Congress, Senator Eagleton remarked that the Senate was in a situation of ``unbridled chaos.''
Sixteen years ago, faced with 80 filibusters in one Congress, Senator Mathias warned that the Senate was facing an ``epidemic.''
In this Congress, we are on pace to far surpass those earlier numbers. At the current pace, we will face approximately 140 filibusters in the 111th Congress. It is no accident that Norm Ornstein, the esteemed Congressional scholar, wrote an article in 2008 titled ``Our Broken Senate.''
And, it is not just scholars. Editorials throughout the country have recognized that the use of the filibuster must be changed. The Newark Star-Ledger called the filibuster a ``rule that cripples our democracy.'' The San Jose Mercury News recently noted that the ``Senate's abuse of filibuster rule threatens democracy.'' The Sacramento Bee wrote that it is ``time to bust up [the] filibuster.''
The extraordinary number of filibusters by Republicans are not just statistics. Behind each filibuster is an attempt by Republicans to block the majority from passing legislation and confirming nominees to help everyday working Americans.
In the 71 years since Hollywood filmed ``Mr. Smith Goes to Washington,'' the aim of the filibuster has been turned completely upside down. Seven decades ago, Jimmy Stewart, ``Senator Smith,'' was the little guy using the filibuster to battle the special interests. Today, it is the special interests that are using the filibuster to kill legislation that would benefit the little guy.
What is particularly striking, moreover, is not just the sheer number of filibusters today. It is the fact that this once rare tactic--what was once a dramatic challenge to majority rule only used in extraordinary circumstances--is now used or threatened to be used on virtually every measure and every nominee. To quote Norm Ornstein:
The Senate has taken the term ``deliberative'' to a new
level, slowing not just contentious legislation but also
bills that have overwhelming support.
For example, late last year, the Republicans filibustered a motion to proceed to the Defense Appropriations bill for the sole purpose to delay a vote on health care reform. In other words, Republicans risked denying our troops the resources they need at a time of war for no other purpose than to delay the Senate. After a filibuster and delay, the bill passed 88 to 10.
The Republicans filibustered a motion to proceed to a bill to extend unemployment compensation. After delaying and then grinding Senate business to a halt, the bill passed 97 to l. In other words, Republicans filibustered a bill they fully intended to support, simply in order to stall or stop business in the Senate.
Similarly, the Republicans filibustered the agriculture appropriations bill that funded key agriculture, conservation, and nutrition programs. That bill passed 84 to 11.
The Republicans filibustered the Credit Card Holders Bill of Rights. That bill passed 92 to 2.
The Republicans filibustered the Fraud Enforcement and Recovery Act. That bill passed 84 to 4.
As the Defense Appropriations bill and unemployment compensation bill examples show, in many cases Republicans have filibustered motions to proceed. This is truly remarkable. In fact, last Congress there were over 50 filibusters of motions to proceed to consider bills. Republicans filibustered efforts for this body to consider efforts to provide low-income home energy assistance, efforts to strengthen the Consumer Product Safety Commission to ensure our children are not exposed to unsafe toys, and efforts to ensure women are guaranteed equal pay for equal work. In all of these cases and many others, Republicans objected to this body even bringing up for debate and deliberation important issues that matter to the American people.
There is absolutely no purpose to filibuster a motion to proceed except delay and obstruction. If one does not like a piece of legislation, one has an opportunity to offer amendments to try to improve the measure. But one cannot do that if the Senate is prevented from even considering a bill.
One of the most striking features of the abuse of this extraordinary tool by Republicans is how quickly it has become accepted that literally any legislation needs 60 votes to pass the Senate. If 41 senators do not like a bill, it does not get a vote. Newspapers and pundits regularly pronounce that 60 votes are ``needed to pass the bill'', even as we all know, only 51 Senators are, in fact, needed.
So accepted is this extraordinary abuse by the minority, that after the most recent election in Massachusetts, the media regularly pronounced that Democrats going from a 20-seat majority to an 18-seat majority was the equivalent to losing majority status. A Philadelphia Metro newspaper headline asked: ``How will Dems recover after losing majority?'' CNN reported: ``Brown's election tips Senate balance of power to GOP.'' The New York Times reported that ``Brown's Senate win has cost them their razor-thin advantage.'' One paper, the Village Voice, even wrote satirically, ``Scott Brown wins Mass. Race, Giving GOP 41-59 Majority in the Senate.'' When the rules are abused in such a manner that a majority of 18 seats is now treated as the equivalent to being in the minority, it is time to change the rules.
This is not how it is supposed to be. To be sure, the Founders put in place a system of checks and balances that made it difficult to enact legislation. A bill must pass in both Houses of Congress. It is then subject to the President's veto power. A law can be challenged in court. These are all very significant checks.
What was never intended, however, was that a supermajority of 60 votes would be needed to enact virtually any piece of legislation. Indeed, the Framers of the Constitution 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.
James Madison specifically rejected the idea that more than a majority would be needed for decisions. Responding to anti-Federalist arguments that the Constitution should have required more than a majority, Madison argued that such rules would lead to minority rule, something inconsistent with fundamental republican principles. As he wrote in Federalist No. 58:
That some advantages might have resulted from such a
precaution, cannot be denied. It might have been an
additional shield to some particular interests, and another
obstacle generally to hasty and partial measures. But these
considerations are outweighed by the inconveniences in the
opposite scale. In all cases where justice or the general
good might require new laws to be passed, or active measures
to be pursued, the fundamental principle of free government
would be reversed. It would no longer be the majority that
would rule; the power would be transferred to the minority.
James Madison would be appalled by the current abuse of the filibuster to impose minority rule.
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. ``Even so,'' said Washington,'' ``we pour our legislation into the Senatorial saucer to cool it.''
As one author recently 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.''
At issue is a fundamental principle of our democracy--rule of the majority in a legislative body. As Alexander Hamilton noted in the Federalist Papers, ``The fundamental maxim of republican government . . . requires that the sense of the majority should prevail.''
Mr. President, elections should have consequences. My feeling in 1995 was that if the Nation elects a majority of Republicans to the Senate, as it did, then after the minority has an opportunity to make its case, the majority should prevail. And, it should be the same when the people send a majority
of Democrats to the Senate. If the people do not like how the majority is governing, then they have the ability to change the composition of the Senate at the next election.
Fifteen months ago, a sizable majority of voters sent Democrats to Washington to implement real change and reform. It is no surprise that people are now frustrated. Largely, because of the filibuster their hopes for change have been frustrated. Instead, the public sees nothing but gridlock.
Because of Senate rules, a minority as small as one Senator can block action by the majority. Even when a party is resoundingly repudiated at the polls, that party retains the power, thanks to the filibuster, to prevent the majority from legislating and effectively governing. Regrettably, the filibuster has become a bludgeon that the minority uses to thwart the will of the majority, to mire the Senate in procedural impasses and repeatedly to hold the entire Senate hostage for extended periods of time. Today, even simple, noncontroversial bills and nominations are not permitted to come to a vote. This is wrong. As a result of the filibuster, the legislative process itself has been overwhelmed.
The legislation I introduce today would amend the Standing Rules of the Senate to permit a decreasing majority of Senators to invoke cloture on a given matter. On the first cloture vote, 60 votes would be needed to end debate. If the motion does not get 60 votes, a Senator can file another cloture motion and two days later have another vote; that vote would require 57 votes to end debate. If cloture is not obtained, a Senator can file another cloture motion and wait two more days; in that vote, 54 votes would be required to end debate. If cloture is still not obtained, a Senator could file one more cloture motion, wait 2 more days, and--at that point--just 51 votes would be needed to move to the merits of the bill.
Let me be clear, this proposal has absolutely nothing to do with limiting minority rights. Under this proposal, a determined minority could slow down any bill. In this way, proper deliberation is ensured. Senators would have ample time to make their arguments and attempt to persuade the public and a majority of colleagues. However, a minority of members would no longer be able to stymie the majority by grinding the Senate to a halt, as sadly too regularly happens today.
Mr. President, this is hardly radical legislation. There are currently numerous rules and laws that forbid the filibuster in numerous circumstances. For example, we cannot filibuster a federal budget resolution. We cannot filibuster a resolution authorizing the use of force. We cannot filibuster international trade agreements. We cannot filibuster a reconciliation bill.
Reform of the filibuster should not be a Democrat or Republican issue. Indeed, it was the former Republican Majority Leader Bill Frist who said when he nearly shut this body down over the use of filibusters: ``This filibuster is nothing less than a formula for tyranny by the minority.''
A majority in this body--whether Democratic Senators, Republican Senators, or a bipartisan coalition of Senators--should be allowed to work its will. When a given party wins the Presidency and both houses of Congress by significant margins, that party should be allowed to carry out its agenda, and then should be held accountable in the next election.
But, I do not see how we can effectively govern a 21st century superpower when a minority of just 41 senators can dictate action--or inaction--not just to the majority of senators but to a majority of the American people. This is all the more true when you consider that those 41 senators could come from small states and represent as little as 15 percent of the American population. This is not democratic. Certainly, it is not the kind of democracy envisioned and intended by our Founders. Instead, it is a sure-fire formula for national paralysis, drift, and decline.
I urge my colleagues to join me in restoring the best traditions of the United States Senate, a legislative body committed to debate and deliberation, but also one guided by our Founders' bedrock democratic principles of majority rule.
Yes.
