Mr. President, let me start by thanking our colleague, the Senator from Oregon, Senator Merkley, for his leadership in working to restore the functioning of the Senate and to protect our democracy. We need both, and we need them now. It…
Mr. President, let me start by thanking our colleague, the Senator from Oregon, Senator Merkley, for his leadership in working to restore the functioning of the Senate and to protect our democracy. We need both, and we need them now.
It was just 12 days ago that we marked the 1-year anniversary of the January 6 attack on this Capitol and on our democracy itself. It was a violent attempt to stop Congress from certifying the Presidential election of Joe Biden and to overturn the decision of the American people. It was inspired and instigated by the former President.
While that assault did not succeed in stopping us from counting the vote that day, the Big Lie did not die. In fact, the Big Lie has metastasized. It has spread, and its poison is seeping across the country. It is now taking
the form of Republican-controlled State legislatures enacting laws that erect new barriers to the ballot box. Let's be clear. They are erecting barriers specifically designed to make it harder for people of color and younger voters to cast their ballots.
As we saw in a Federal Circuit Court case a number of years ago with respect to North Carolina, the court found that the State legislature had targeted African-American voters with surgical precision.
Dr. King observed that voting is ``the foundation stone for political action.'' He also observed that when the right to vote is impeded, a tragic betrayal of the highest mandates of our democratic tradition are betrayed.
What we see happening in State legislatures are not just efforts to put up barriers to the ballot box; they are also passing laws to authorize partisan operatives to interfere in the counting of the votes and even to overturn the results after the count. So laws to interfere with the casting of the votes and laws to interfere with the counting of the votes--that is what is happening right now. Nineteen legislatures around the country have already enacted these kinds of laws.
So, yes, our democracy was under attack right here on January 6 of last year, but 1 year later, the evidence is clear: The Big Lie is alive, and our democracy is still under attack. It is under attack by those seeking to implement the Big Lie in State legislatures. It is just the venue that has changed.
When we reconvened here after the attacks of January 6, I said on this floor that what we witnessed is what happens when we don't stand up together as Democrats and Republicans to confront the Big Lie.
Now, over a year later, we have another chance to stand up together. To meet this moment and to protect our democracy, we need to take action here and now. That is what the Freedom to Vote Act does. It establishes minimum standards to ensure equal access to the ballot box across the country. It guards against partisan election meddling. It ends gerrymandering nationwide, and it ends secret money in elections. It contains the John R. Lewis Voting Rights Advancement Act to restore the protections guaranteed in the Voting Rights Act of 1965. That is what it does.
We are well within our rights as Federal lawmakers to write and pass these bills. The relevant portion of article I, section 4, clause 1 of the Constitution--I have that here--clearly states:
The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations.
The Constitution specifically empowers us to pass these laws to protect voting. So enough of the specious argument I have heard so many times here on the Senate floor that these bills somehow represent an unconstitutional power grab--far from it. The Framers expressly empowered the Congress to protect Federal elections.
Now, all 50 Members of the Democratic majority, the Democratic caucus, support these bills to protect our democracy. I am disappointed that, as of this moment, not one Member of the Senate Republican caucus plans to join us. In fact, we know that there are 16 Republican Senators here today who voted in 2006 to reauthorize the Voting Rights Act. Today, not a single Republican Senator will stand up and support these bills. That is a very sad and bad sign of this moment in our history.
I accept that each and every Senator has the right to cast their vote on bills however they choose. That is the way democracy works. But what is happening now is very different. Republican Senators are using the current version of the Senate rules to block a vote on these vital measures to protect our democracy; to prevent this body from having a final vote on the Freedom to Vote legislation and the John R. Lewis Voting Rights Advancement Act.
So let's step back and look at how the current version of the Senate rules operates in practice, and I say ``current rules'' because the Senate rules have evolved over time, as our colleague from Oregon has mentioned. They have taken many twists and turns over the years. In their current form and practice, they have departed radically from their original purpose and design.
Today, with some exceptions, 41 out of 100 Senators can block the other 59 from voting on legislation that is important to the American people. Over the last year, this Senate rule has been used to block bills that enact commonsense gun safety provisions and provide for equal pay for equal work. Many other bills have been blocked from even getting a vote under the current Senate rules.
So let's unpack this. Let's understand what this means.
Right now, under our rules, it is possible for 41 Senators representing 21 States and 11 percent of the U.S. population to block the will of 50 Senators representing 84 percent of the U.S. population. Think about that. Under our current rules, Senators representing a small percentage of the population--11 percent--can block the will of the majority.
How did this happen? Well, it happened because over time--not at the beginning but over time--Senators decided to empower themselves at the expense of the American people. It wasn't always this way. As I said, in its earliest days, the Senate was founded on two principles. The first was that Senators would have ample opportunity to make their case to their fellow Senators and to the country. If they had the minority position on a particular issue, they had a chance to come here to the floor of the Senate to persuade their colleagues of the merits of their position and maybe in the process have the whole country turn to their side of the debate and influence the ultimate result.
So the Senators were given the opportunity for a prolonged debate to ensure that all opinions were heard and considered before the final vote. In fact, as my colleague from Oregon mentioned, each Senator was able to deliver two speeches on a particular question on a single legislative day. But after all the views were heard, after prolonged debate was ended, the Senate would move to a majority vote. That is how the Senate earned its representation as the world's greatest deliberative body.
Nothing could be further from that truth today. We have very little debate on the Senate floor today--real debate, where Senators engage on the big questions of the day. In fact, the minority of Senators who oppose legislation pending before the Senate can block it without even coming to the Senate floor to debate. They don't even have to come here to make their case to their fellow Senators and the American people, don't even have to show up to debate. We are talking about a Senate rule that was designed to encourage debate. Yet we have it operating today where nobody has to even show up on this floor to make their position known.
It is not that Senators don't even have to show up to debate; they don't even have to show up for the vote to cut off debate. Under our current rules, we could have a vote right here in the Senate of 59 to nothing in favor of moving forward on legislation, and the 41 Senators who didn't even show up would carry the day. They would block the 59 from expressing the will of the American people. How crazy is that? That is what the current Senate rules provide.
That is not what the Founders of our Republic envisioned. In fact, the current version and application of the Senate's rules amount to a total perversion of the constitutional framework. These rules pervert the intent of our Framers, and they undermine the democratic architecture of our Republic.
Our Founders never--never--intended for a minority of Senators--for 41 Senators--to be able to thwart the will of the majority and of the people.
In Federalist 22, Alexander Hamilton asserted that the fundamental maxim of republican government was ``the sense of the majority should prevail.''
Even more clearly right on point was James Madison in Federalist 58, where he directly warned against requiring more than a majority for a decision in the legislature, saying that ``the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.'' This is James Madison, a key architect of our Constitution and the framework of this Republic.
Now, we know it is true that the Framers of our Constitution knew the dangers of overly powerful majorities, and they wanted to and did guard against that risk in the Constitution itself. That is why the Framers diffused power among the people, among the States, and within the Federal Government--to protect minority viewpoints in the country.
In the Bill of Rights, our Founders clearly said that each American has certain unalienable rights that no government action can take away--not by a vote of this Congress, not by an order of the President, not by anybody in the executive branch. That is the Bill of Rights. Our Founders also created three coequal branches of government constrained by a system of checks and balances. It is all right here in the Constitution. Within the legislative branch, they didn't create one unitary body, like most Parliaments today; they created two separate bodies--the Senate and the House of Representatives--and a totally independent executive branch, with the President directly elected by the people through the electoral college.
Now, I think it is worth pointing out that the Senate contains built- in protections for the minority by its very structure. The 2 Senators from Wyoming represent 578,000 of our fellow Americans, and the 2 Senators from California represent 39 million of our fellow Americans. Two Senators from Wyoming represent 578,000 people, and 2 Senators from California represent 39 million Americans, but here in the Senate, each of those Senators, whether from Wyoming or California, has votes of equal weight. We can do the math, the political math.
People of Wyoming are already exerting influence here in the Senate way out of proportion to their share of the American population. That is in the structure. But if you layer the current version of the Senate filibuster rule on top of the Senate structure and on top of other protections for minority rights enshrined in our Constitution, you further nullify the will of the American people. You nullify the will of the majority of our fellow citizens.
That is why the anti--majoritarian, anti-democratic--small ``d''-- Senate rule is nowhere to be found in the Constitution. You can search high and low; it is nowhere to be found here. In fact, as I said, our Founders were very clear about allowing the majority sentiment vote to prevail in the end. And they were very clear in this document, the Constitution, exactly when to require a supermajority vote. It is right here: Two-thirds vote of all Members is required to convict and remove a President; two-thirds vote is needed to expel a Senator; two-thirds needed to override a Presidential veto; two-thirds vote to concur on treaties; two-thirds to amend the Constitution. That is it. That is what is in the Constitution of the United States.
Our Founders did not envision a Senate where the normal course of legislative process and business could be permanently blocked by a minority of Senators. There is nothing in here about needing 60 out of 100 votes to pass legislation like the Freedom to Vote Act. There is nothing in our Constitution about a Senate where 41 out of 100 Senators can routinely block the will of the majority and subvert the will of the American people.
James Madison expressly warned against requiring supermajorities for legislation--yes for treaties, yes for removal of a President, not for the normal course of legislation.
So where did the current Senate rule come from? It is a total invention of Senators that empowers individual Senators by disempowering the overwhelming majority of the American people. That is what it is.
Think about this in the context of the Freedom to Vote Act. The duly elected President of the United States, who won over 80 million votes and in the electoral college, is in favor of it. A majority of the House of Representatives representing the majority of the American people is in favor of it. And 50 U.S. Senators representing 62 percent of the American people are in favor of it. But the bill is being blocked by a minority of Senators representing a minority of the American people.
And think about this. State legislatures around the country, as we gather here, are passing laws to erect barriers to voting by a majority vote. The laws they are passing impact every citizen in this country because they impact the outcome of Federal elections. When State legislatures in Georgia pass laws to disenfranchise voters in Federal elections, they are disenfranchising voters in all of the other 49 States who have a stake in the outcome of Federal elections.
But the current version of the Senate rules prevents the U.S. Senate from casting a majority vote to protect voting for every American, even though the Constitution expressly empowers us to do that--to regulate Federal elections.
So, Mr. President, what arguments do proponents of the current filibuster rule present to justify this self-anointed power to thwart the majority will of the American people?
One claim is that it promotes bipartisanship. Look, I know the Presiding Officer. I know the Senator from Virginia who has joined us. I know the Senator from Oregon. All of us prefer to find common ground to meet the challenges of the day when we can. I am proud to be the author of many bipartisan measures and to sponsor many others, and to vote for many of those measures. But let's not kid ourselves here in the U.S. Senate about the ability of the 60-vote requirement to promote bipartisanship. The Senate we are living in today is the most polarized ever. The claim that this rule promotes bipartisanship flies in the face of the reality we witness every day.
In fact, the filibuster in its current form has become a partisan political weapon. Tim Lau of the Brennan Center notes that, while there have been more than 2,000 filibusters since 1917, about half of them have been in just the past 12 years. Think about that. There were more filibusters in President Obama's second term than in all the years between World War I and the end of the Reagan administration combined. This abuse has led to partisan gridlock, not bipartisan cooperation.
But let's talk about bipartisanship. I had hoped--we had hoped--that action to preserve our democracy would be a bipartisan endeavor. But that isn't where we are today, and that is not new. The battle to protect constitutional rights has been waged along party lines in the past. The Fourteenth Amendment, which guaranteed citizenship to former slaves and guarantees equal protection under the law, was passed by Republicans in Congress with almost no bipartisan support. We salute them for that action. The 15th Amendment guarantees the right to vote to all citizens of the United States, and it was passed by one party and one party alone. Those actions were taken by the old Republican Party that used to be the party of Lincoln. Should we have sacrificed those critical amendments at the altar of bipartisanship? Should we have said to them: Don't pass them because no Democrats at that time supported them? Of course not.
We all strive for bipartisanship, but that goal should not stand in the way of legislative action, especially on issues central to protecting our democracy.
Another argument often made, including by many of our Democratic colleagues, in favor of keeping the current version of the Senate rules and the supermajority requirement, highlights the risk of giving up the ``protection'' of the filibuster on issues that Democrats hold dear and where Republicans hold a different position.
If we eliminate the 60-vote threshold to pass policies that Republicans don't like, won't Republicans be able to use a majority vote to pass policies that Democrats don't like?
That is true. That is the nature of democracy. That is what elections are for--every 2 years for Members of the House, every 6 years for the Senate, and every 4 years for the President. If the American people don't like a law that we have passed, they get to go to the ballot box to render a decision. That is the ultimate accountability in the system, and we should not be erecting artificial rules to protect ourselves from the majority views of the American people.
In fact, it is simply arrogant--arrogant--to invent a rule that blocks the will of the American people. It is simply arrogant to say that we Senators, not we the people, are the guardians of our democracy, and we are going to come up with this rule that is not in the Constitution to do that. That is what our current Senate rules do.
Now, there is one major exception to the 60-vote rule to end a filibuster on legislation. It is called the reconciliation process. I believe that this major exception exposes the absurdity of the current Senate rule itself. Most folks watching this debate may be justifiably confused. They are watching the Senate and they are saying: It was about a year ago that the Senate passed the American Rescue Plan with a majority vote. It was a vote of 50 to 49. It was a major piece of legislation responding to the pandemic emergency. Not a single Republican Senator voted for it, but it passed. During the Trump administration, Senate Republicans passed a major tax giveaway to the rich by a vote of 51 to 48. Not a single Democrat voted for it.
Those laws contained major policy changes, but they could not be blocked by a vote of a minority of 41 Senators. Why is that? It is because in 1974, the Senate carved out a major exception to the supermajority filibuster rule for legislation connected to the annual budget process. That carve-out--that procedure--allowed for the passage of the Trump tax law, for the American Rescue Plan, and earlier for the Affordable Care Act.
So, colleagues, here we are maintaining this carve-out to the filibuster rule that allows Donald Trump and Senate Republicans to pass big tax cuts by a majority party-line vote. You can't block it with a vote of 41. It allows us to pass important things like the American Rescue Plan, using the same procedure.
But our rules don't allow us to pass rules to protect our democracy. That is absurd. Anyone paying close attention to the rules would see how absurd that is in a great democracy, and it needs to change and it needs to change now.
Each day that we maintain the current undemocratic Senate rules that allow 41 Senators to block the will of the majority, we allow State legislatures to continue their assault on democracy and we prevent our own democracy from working the way it was intended.
The American people sent us here to get things done, to move the country forward, and the overwhelming majority are crying out for us to protect the future of our democracy. That is why we must amend the undemocratic rule that empowers 41 of 100 Senators to disempower the majority of the people of our country.
And I support the proposal put forward by our colleague from Oregon, Senator Merkley, that takes us back to the original design and intent of the first Senate and the Framers--debate. Everyone gets a chance to make their point. Convince your colleagues and convince the American people. But as James Madison said, at the end of the day, a great democracy must have a majority rule subject to the conditions already applied and set out in our Constitution.
So I urge my colleagues to join us in restoring the Senate to its original purpose and then to pass the Freedom to Vote Act, including the John R. Lewis Voting Rights Advancement Act, to protect our democracy.
I yield the floor.
I suggest the absence of a quorum.