[Congressional Record Volume 159, Number 87 (Tuesday, June 18, 2013)]
[Senate]
[Pages S4536-S4542]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FILIBUSTERS
Mr. ALEXANDER. Mr. President, for the last few weeks, I have been
listening to the Republican leader ask the majority leader not to turn
the Senate into a place where a majority of 51 can do anything it
wants. I am on the Senate floor today to suggest three reasons why I
believe the majority leader will not do that:
No. 1, he said he would not. Senators keep their word.
No. 2, in 2007, the majority leader said to do so would be the end of
the Senate. There have not been many majority leaders in the history of
the Senate. I know none of them want to have written on their
tombstone: He presided over ``the end of the Senate.''
[[Page S4537]]
No. 3, the majority leader is an able and experienced legislator. He
knows if Democrats find a way to use 51 votes to do anything they want
to do, it will not be very long until Republicans find a way, if we are
in the majority, to use 51 votes to do whatever we want to do.
So let me take these three reasons one by one. First, the majority
leader has given his word. The Republican leader mentioned that. At the
beginning of the last two Congresses, at the request of the Republican
leader, I worked with several Democrats and Republicans to change the
rules of the Senate to make it work better. We succeeded in that. We
talked about it, negotiated, and we voted those changes through.
We eliminated the secret hold. We abolished 169 Senate-confirmed
positions. We expedited 273 more. We reduced the time to confirm
district judges. We made it easier to go to conference. In exchange for
all of that, the majority leader said he would not support changes in
the rules in this 2-year session of Congress except through the regular
order. He said:
The minority leader and I have discussed this on numerous
occasions.
This is the Democratic leader.
The proper way to change the Senate rules is through the
procedures established in the rules. I will oppose any effort
in this Congress or the next to change the Senate rules other
than through the regular order.
I ask unanimous consent to have printed, following my remarks, the
majority leader's comments.
Second, I was a new Senator 10 years ago in 2003. I was absolutely
infuriated by what the Democrats did in the first few months. For the
first time in history, they used the filibuster to deny a President's
judicial nominations for the circuit courts of appeal. It had never
ever been done before. So Republicans threatened the so-called
``nuclear option.'' We threatened we would change the rules of the
Senate so we could work our will with 51 votes.
Senator Reid said at the time ``that would be the end of the
Senate.'' He wrote that in his book called ``The Good Fight'' in 2007.
It is the most eloquent statement I have heard about why changing the
rules of the Senate to give a majority the right to do anything it
wants with 51 votes is a bad idea. I wish to read a few sentences from
Senator Reid's book ``The Good Fight,'' written in 2007.
Senator Frist of Tennessee, who was the majority leader,
had decided to pursue a rules change that would kill the
filibuster for judicial nominations.
Sounds familiar.
And once you open the Pandora's box, it was just a matter
of time before a Senate leader who couldn't get his way on
something moved to eliminate the filibuster for regular
business as well. That, simply put, would be the end of the
United States Senate.
It is the genius of the Founders that they conceived the
Senate as a solution to the small state / big state problem.
And central to that solution was the protection of the rights
of the minority. A filibuster is the minority's way of not
allowing the majority to shut off debate. And without robust
debate, the Senate is crippled. Such a move would transform
the body into an institution that looked like the House of
Representatives where everything passes with a simple
majority. And it would tamper dangerously with the Senate's
advise-and-consent function as enshrined in the Constitution.
If even the most controversial nominee could simply be rubber
stamped by a simply majority, advise and consent would be
gutted. Trent Lott of Mississippi knew what he was talking
about when he coined the name for what they were doing the
nuclear weapon.
One more paragraph.
But that was their point. They knew--Lott knew--if they
trifled with the basic framework of the Senate like that, it
would be nuclear. They knew that it would be a very radical
thing to do. They knew that it would shut the Senate down . .
. there will come a time when we will be gone.
This is Senator Reid talking.
There will come a time when we will all be gone, and the
institutions that we now serve will be run by men and women
not yet living. And those institutions will either function
well because we have taken care of them or they will be in
disarray and someone else's problem to solve. Well, because
the Republicans could not get their way getting some radical
judges confirmed to the Federal bench, they were threatening
to change the Senate so fundamentally that it would never be
the same again. In a fit of partisan fury, they were trying
to blow up the Senate. Senate rules can only be changed by a
two-thirds vote of the Senate, or 67 Senators. The
Republicans were going to do it illegally with a simple
majority, or 51. Vice President Cheney was prepared to
override the Senate Parliamentarian. Future generations be
damned.
Those are the words of the distinguished Senator from Nevada in 2007
eloquently explaining why this body is so different from the House of
Representatives.
I ask unanimous consent not only to have those remarks printed in the
Record but several more pages from Senator Reid's excellent seventh
chapter entitled ``The Nuclear Option'' in his book from 2007.
Third and finally, if the Democrats can turn the Senate into a place
where a majority of 51 can do anything they want, soon a majority of 51
Republicans is going to figure out the same thing to do. After 2014,
some observers have said we might even be in the majority. Senator
McConnell might be the Republican leader and the majority leader. After
2016, we may even have a Republican President.
Preparing for that opportunity, I wish to suggest the 10 items,
briefly, I wish to see on an agenda if we Republicans are able to pass
anything we want with 51 votes, as the majority leader has suggested.
No. 1, repeal ObamaCare.
No. 2, S. 2, that would be the second bill if I were the leader. I
would put up Pell grants for kids. Like the GI bill for veterans, Pell
grants follow students to the colleges of their choice--creating
opportunity at the best colleges in the world. Why don't we do the same
thing for students in kindergarten through the 12th grade, take the $60
billion we spend, create a voucher for 25 million middle- and low-
income children. It would be $2,200 for each one of them, just the
money we now spend. Let it follow them to any school they choose to
attend, an accredited school, public or private.
No. 3 on my list, complete Yucca Mountain. I have spoken often of the
importance of nuclear energy to our country. It provides 20 percent of
all of our electricity, 60 percent of our clean electricity for those
concerned about climate change and clean air. Since 2010, the majority
leader has stalled the nuclear waste repository in Nevada. That
jeopardizes our 100 reactors. That jeopardizes our source of 60 percent
of our clean electricity. If we had 51 votes in the Senate, we could
direct the Nuclear Regulatory Commission to issue a license. We could
direct the Department of Energy to build Yucca Mountain and we could
fund the money to do it.
The junior Senator from Nevada, who shares Senator Reid's opposition
to that, said something about this recently.
The day is going to come that either he is here or not--
That is the majority leader.
--or the Republicans take control and it's a 50-vote
threshold. Those kinds of issues are the ones that concern me
the most. When you are from a small State, you need as many
arrows in your quiver as possible to fight back on some of
these issues that you can be overtaken by. Frankly, the 60-
vote threshold is what has protected and saved Nevada in the
past.
I ask unanimous consent to have Senator Heller's comments printed in
the Record.
If all the Democrats who voted once upon a time for completing Yucca
Mountain were to do so again, we could get a bipartisan majority of 51
votes today in the Senate to complete Yucca Mountain. So make no
mistake, a vote to end the filibuster is a vote to complete Yucca
Mountain.
Here is the rest of my list--I will do it quickly--that I would
suggest to the Republican leader, if he were majority leader, as his
priorities for a Senate where we could pass anything we wanted with 51
votes.
Make the Consumer Protection Bureau accountable to Congress. That
would be No. 4.
No. 5, drill in the Arctic National Wildlife Refuge and build the
Keystone Pipeline.
No. 6, fix the debt. It ought to be No. 1. Senator Corker and I have
a $1 trillion reform of entitlement programs that would put us on the
road toward fixing the debt.
No. 7, right to work for every State. We would reverse the
presumption--create a presumption of freedom, giving workers in every
State the right to work. States would have the right to opt out, to
insist on forced unionism, the reverse of what we have today.
No. 8, No EPA regulation of greenhouse gases.
[[Page S4538]]
No. 9, Repeal the Death Tax.
Finally, No. 10, repeal Davis-Bacon, save taxpayers billions by
ending the Federal mandate on contractors.
The Republican leader and I have plenty of creative colleagues. They
will have their own top 10 lists. When word gets around on our side of
the aisle that the Senate will be like the House of Representatives and
a train can run through it without anyone slowing it down, there will
be a lot of my colleagues with their own ideas about adding a lot of
cars to that freight train.
Jon Meacham's book about Thomas Jefferson is one I have been reading.
He reports a conversation between John Adams and Jefferson in 1798.
Adams said:
No Republic could ever last which had not a senate . . .
strong enough to bear up against all popular storms and
passions . . .
And that--
Trusting the popular assembly for the preservation of our
liberties . . . was the mearest chimera imaginable.
Alexis de Tocqueville, while traveling our country in the 1830s, saw
only two great threats for our young democracy. One was Russia, one was
the tyranny of the majority.
Finally, as the Republican leader so well stated, there is no excuse
here for all of this talk. The Democrats are manufacturing a crisis. To
suggest Republicans are holding things up unnecessarily is absolute
nonsense. In fact, over the last two Congresses, we have made it easier
for any President to have his or her nominations secured.
The Washington Post on March 18, the Congressional Research Service
on May 23, said President Obama's nominations for the Cabinet are
moving through the Senate at least as rapidly as his two predecessors.
The Secretary of Energy was recently confirmed 97 to 0. There may be
another three votes on Cabinet-level nominees this week.
Then as the Republican leader said, look at the Executive Calendar.
Only three district and two circuit judge nominees are waiting for
floor action.
As for filibusters, according to the Senate Historian, the number of
Supreme Court Justices who have been denied their seats by filibuster
is zero. The only possible exception is Abe Fortas, and Lyndon Johnson
engineered a 45-to-43 vote so he could hold his head up while he
continued to serve on the Court.
The number of Cabinet members who have been denied their seats by a
filibuster in the history of the Senate is zero.
The number of district judges who have been denied their seats by a
filibuster in the history of the Senate is zero. This is according to
the Senate Historian and the Congressional Research Service.
So what are they talking about? I know what they are talking about.
They are talking about circuit judges. That is the only exception. Why
is it an exception? Because when I came to the Senate 10 years ago, the
Democrats broke historical precedent and blocked five distinguished
judges of President Bush by a filibuster.
Republicans have returned the favor and blocked two of President
Obama's by a filibuster, which should be a lesson for the future to
those who want to change the rules. About half the Senate are serving
in their first term. They may not know about the majority leader's
statements in 2007. They may not know about the history of the Senate.
They may have heard all of these conflicting facts and not have the
right facts.
What I have given you is what the Senate Historian and the
Congressional Research Service say are the facts. Of course, there have
been delays. My own nomination was delayed 87 days by a Democratic
Senator. I did not try to change the rules of the Senate. President
Reagan's nomination of Ed Meese was delayed a year by a Democratic
Senate.
No one has ever disputed our right in the Senate, regardless of who
was in charge, to use our constitutional duty of advise and consent to
delay and examine, sometimes cause nominations to be withdrawn or even
to defeat nominees by a majority vote.
Yes, some sub-Cabinet members have been denied their seats by a
filibuster. The Democrats denied John Bolton his post at the United
Nations.
Senator Warren Rudman told me the story of how the Democratic Senator
from New Hampshire blocked his nomination by a secret hold. Nobody knew
what was happening. I asked Senator Rudman what he did about it.
He said: I ran against the so-and-so in the next election, and I beat
him.
This is how Senator Rudman got to the Senate.
In summary, the idea that we have a crisis of nominations is
absolute, complete nonsense, totally unsupported by the facts. It
should be embarrassing to my friends on the other side to even bring it
up. They should be congratulating us for helping to make it easier for
any President to move nominations through.
The advise and consent is a constitutional prerogative that both
parties have always defended.
There are three reasons why the majority leader will not turn the
Senate into a place where a majority of 51 can do anything it wants, in
my judgment: one, he said he wouldn't, and Senators keep their word;
two, he said the nuclear option would be the end of the Senate. No
majority leader wants written on his tombstone he presided over the end
of the Senate; three, if Democrats turn the Senate into a place where
51 Senators can do anything they want, it will not be long before
Republicans do the same.
To be very specific, if Senator Reid and Democrats vote to allow a
majority to do anything they want in the Senate and set that precedent,
voting to end the filibuster will be a vote to complete Yucca Mountain.
I come with respect to the Republican and the Democratic leaders, and
especially to this institution, to say let's end the threats, let's
stop the nonsense, let's get back to work on immigration and the other
important issues facing our country.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Reid made the same commitment (if anything, more broadly)
on January 27, 2011, when he said:
``The minority leader and I have discussed this issue on
numerous occasions. I know that there is a strong interest in
rules changes among many in my caucus. In fact, I would
support many of these changes through regular order. But I
agree that the proper way to change Senate rules is through
the procedures established in those rules, and I will oppose
any effort in this Congress or the next to change the
Senate's rules other than through the regular order.''
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.
It is the genius of the founders that they conceived the
Senate as a solution to the small state/big state problem.
And central to that solution was the protection of the rights
of the minority. A filibuster is the minority's way of not
allowing the majority to shut off debate, and without robust
debate, the Senate is crippled. Such a move would transform
the body into an institution that looked just like the House
of Representatives, where everything passes with a simple
majority. And it would tamper dangerously with the Senate's
advise-and-consent function as enshrined in the Constitution.
If even the most controversial nominee could simply be
rubber-stamped by a simple majority, advise-and-consent would
be gutted. Trent Lott of Mississippi knew what he was talking
about when he coined a name for what they were doing: the
nuclear option.
And that was their point. They knew--Lott knew--if they
trifled with the basic frame work of the Senate like that, it
would be nuclear, They knew that it would be a very radical
thing to do. They knew that it would shut the Senate down.
United States senators can be a self-regarding bunch
sometimes, and I include myself in that description, but
there will come a time when we will all be gone, and the
institutions that we now serve will be run by men and women
not yet living, and those institutions will either function
well because we've taken care with them, or they will be in
disarray and someone else's problem to solve. Well, because
the Republicans couldn't get their way getting some radical
judges confirmed to the federal bench, they were threatening
to change the Senate so fundamentally that it would never be
the same again. In a fit of partisan fury, they were trying
to blow up the Senate. Senate rules can only be changed by a
two- thirds vote of the Senate, or sixty-seven senators. The
Republicans were going to do it illegally with a simple
majority, or fifty-one. Vice President Cheney was prepared to
overrule the Senate parliamentarian. Future generations be
damned.
Given that the filibuster is a perfectly reasonable tool to
effect compromise, we had been resorting to the filibuster on
a few judges. And that's just the way it was. For 230 years,
the U.S. Senate had been known as the world's greatest
deliberative body--not always efficient, but ultimately
effective.
[[Page S4539]]
There had once been a time when the White House would
consult with home-state senators, of either party, before
sending prospective judges to the Senate for confirmation. If
either senator had a serious reservation about the nominee,
the nomination wouldn't go forward. The process was called
``blue-slips.'' The slips were sent to individual senators.
If the slips didn't come back, there was a problem. The Bush
White House ignored the blue-slip tradition, among many other
traditions, and showed little deference to home-state
senators.
We realized that if they were not going to adhere to our
blue slips or entertain any advice from us, then they were
trying to subvert the minority's ability to perform its
advise-and-consent function under the Constitution. It was
clear that Bush and Karl Rove were going to try to load all
the courts--especially the circuit courts of appeals, because
you can't count on Supreme Court vacancies. And most of the
decisions are made by circuit courts anyway, so it could be
said that they are the most important judicial nominees of
all.
We Democrats made a decision that since the White House was
ignoring the Constitutional role of the Senate, then we were
going to have to delay some of the more extreme nominees. Be
cautious and look closely was the byword. One rule we tried
to follow was that if all Democrats on the Judiciary
Committee voted no on a nominee, then we would say, ``Slow
down.''
The Republicans immediately complained that they had never
filibustered Clinton's judges, a claim that simply wasn't
true. Frist himself had participated in the filibuster of the
nomination of Judge Richard Paez, which at the time had been
pending in the Senate for four years. When Senator Schumer
had called him on it on the Senate floor, Frist had stammered
to try to find a way to explain how their use of the
filibuster was legitimate and ours wasn't. And moreover, it
was a disingenuous claim. The reason the Republicans
didn't deploy the filibuster that often when Clinton was
President is that they had a majority in the Senate. and
they had simply refused to report more than sixty of
President Clinton's judicial nominees out of committee,
saving them the trouble of a filibuster. In any case, the
U.S. Senate had never reached a crisis point like this
before,
In the early part of 2005, I hadn't wanted to believe it
was true, and felt confident that we could certainly avoid
it. We make deals in the Senate, we compromise. It is
essential to the enterprise. I was determined to deal in good
faith, and in a fair and open-minded way, ``What I would like
to do is say there is no nuclear option in this Congress.'' I
said on the floor one day, ``and then move forward.'' Give us
a chance to show that we're going to deal with these nominees
in good faith and in the ordinary course. And if you don't
think we are fair, you can always come back next Congress and
try to invoke the nuclear option. Because it would take a
miracle for us to retake the Senate next year.
Did I regret saying this? No. Because at the time I
believed it, and so did everyone else.
And in any case, we had confirmed 204, or 95 percent, of
Bush's judicial nominations. It was almost inconceivable to
me that the Republicans would debilitate the Senate over
seven judges. But the President's man, Karl Rove, was
declaring that nothing short of 100 percent confirmation rate
would be acceptable to the White House, as if it were his
prerogative to simply eliminate the checks-and- balances
function of the Senate. Meanwhile, we were at war, gas prices
were spiking, and we were doing nothing about failing
pensions, failing schools, and a debt-riven economy. Where
was our sense of priorities?
I had been pressing Majority Leader Bill Frist in direct
talks for a compromise--one in which Democrats prevented the
confirmation of some objectionable judges and confirmed some
that we didn't want to confirm, all in the interest of the
long-term survival of the Senate. But I had been getting
nowhere. Those talks had essentially ceased by the end of
February. And then Senator Frist began advertising that he
was aggressively rounding up votes to change the Senate
rules, and Republican senators, some quite prominent, began
to announce publicly that they supported the idea. Pete
Domenici of New Mexico. Thad Cochran of Mississippi. Ted
Stevens of Alaska. Orrin Hatch of Utah. I was so disappointed
that they were willing to throw the Senate overboard to side
with a man who, it was clear, was becoming one of the worst
Presidents in our history. President Bush tried at any cost
to increase the power of the executive branch, and had only
disdain for the legislative branch. Throughout his first
term, he basically ignored Congress, and could count on
getting anything he wanted from the Republicans. But from
senators who had been around for a while and had a sense of
obligation to the institution, I found this capitulation
stunningly short-sighted. It was clear to me that Frist
wanted this confrontation, no matter the consequences.
And as the weeks and months passed, it dawned on me that
Frist's intransigence was owed in no small part to the fact
that he was running for President. Funding the filibuster so
that extremist judges could be confirmed with ease had become
a rallying cry for the Republican base, especially the
religious right. In fact, Senator Frist would be the featured
act at ``Justice Sunday,'' a raucous meeting at a church in
Louisville on the last Sunday in April that was billed as a
rally to ``Stop the Filibuster Against People of Faith.''
This implied, of course, that the filibuster itself was
somehow anti-Christian. I found this critique, which was
becoming common in those circles, to be very strange, to say
the least. Democratic opposition to a few of President Bush's
nominees had nothing whatsoever to do with their private
religious beliefs. But that did not stop James Dobson of
Focus on the Family of accusing me of ``judicial tyranny to
people of faith.''
``The future of democracy and ordered liberty actually
depends on the outcome of this struggle.'' Dobson declared
from the pulpit at Justice Sunday.
So the battle lines were drawn.
All the while, very quietly, a small group of senators had
begun to talk about ways to avert the looming disaster.
Earlier in the year, Lamar Alexander, the Republican junior
senator from Tennessee, had gone to the floor and given a
speech that hadn't gotten much notice in which he had
proposed a solution. Since under Senate rules a supermajority
of sixty votes is required to end a filibuster, and the
makeup of the Senate stood at fifty-five in the Republican
caucus and forty-five in the Democratic, Alexander had
suggested that if six Republicans would pledge not to vote to
change Senate rules and six Democrats would pledge to never
filibuster judicial nominees, then we could dodge this
bullet. This would come to be know as ``the Alexander
solution.''
Of course, this was an imperfect solution--if the minority,
be it Democratic or Republican, pledged to never use the
filibuster, then you were de facto killing the filibuster
anyway and may as well change the rules. But Alexander's
thinking was in the right direction. In fact, I had begun
talking quietly to Republican senators one by one, canvassing
to see if I could get to the magic number six as well, should
Frist press a vote to change the rules. If he wanted to go
that way, maybe we could win the vote outright, without
having to forge a grand compromise.
I knew we had Lincoln Chafee of Rhode Island. So there was
one. I thought we had the two Mainers. Olympia Snowe and
Susan Collins. I thought we had a good shot at Mike DeWine of
Ohio. We had a shot at Arlen Specter of Pennsylvania. Maybe
Chuck Hagel of Nebraska. I knew we had a good shot at John
Warner of Virginia. Warner, a former Marine and secretary of
the Navy, was a man of high character. When Oliver North ran
as a Republican against Senator Chuck Robb in 1994. Warner
crossed party lines to campaign all over Virginia against
North. I also felt that Bob Bennett of Utah would, at the end
of the day, vote with us.
But these counts are very fluid and completely unreliable.
It would be hard to get and keep six. We were preparing
ourselves for a vote, but a vote would carry great risk.
As it turned out, Alexander's chief of staff was roommates
with the chief of staff of the freshman Democratic senator
from Arkansas, Mark Pryor. Pryor, whose father before him had
served three terms in the Senate, had been worrying over a
way to solve this thing. His chief of staff, a gravelly
voiced guy from Smackover, Arkansas, named Bob Russell, got a
copy of Alexander's speech from his roommate and gave it to
Pryor. Alexander's idea of a bipartisan coalition got Pryor
thinking, and he sought out the Tennessean and began a quiet
conversation about it.
At the same time, Ben Nelson of Nebraska, one of the more
conservative Democrats in the Senate, began having a similar
conversation with Trent Lott. At some point they became aware
of each other's efforts, and one day in late March, Pryor
approached Nelson on the floor to compare notes.
Lott and Alexander would quickly drop out of any
discussions. Such negotiations without Bill Frist's knowledge
proved too awkward, particularly for Alexander, who was a
fellow Tennessean. And even though there was antipathy
between Lott and Frist over the leadership shake-up in
2002, Lott backed away as well.
But others were eager to talk.
Knowing what was at stake, John McCain and Lindsey Graham
began meeting sub rosa with Pryor and Nelson. They would go
to a new office each time, so as not to arouse suspicion.
These four would form the nucleus of what would become the
Gang of Fourteen, the group of seven Republicans and seven
Democrats who would eventually bring the Senate back from the
brink. Starting early on in their negotiations, Pryor and
Nelson came to brief me on their talks, and I gave my quiet
sanction to the enterprise. Senator Joe Lieberman came to me
and said that he was going to drop out of the talks. I said,
``Joe, stay, we might be able to get it done. It's a gamble.
But stay and try to work something out.''
Each meeting would be dedicated to some aspect of the
problem, and there was a lot of back and forth about what
would be the specific terminology that could trigger a
filibuster. Someone, probably Pryor, suggested
``extraordinary circumstances,'' and that's what the group
would eventually settle on. What that meant is that to
filibuster a judicial nominee, you'd have to have an
articulable reason. And a good reason, not just fluff.
Slowly, they were joined by others. Ben Nelson approached
Robert Byrd to ask if he would join the effort. No one cares
more about the Senate than Byrd, and he agreed, anything to
preserve the rules. John Warner was the same way, and it may
have been Warner's presence in the negotiations that would
serve as the biggest rebuke to Frist.
[[Page S4540]]
Ultimately, seven Republican senators would step away from
their leader, in an unmistakable comment on his recklessness.
Meanwhile, the drumbeat for the nuclear option was
intensifying in Washington, and was beginning to crowd out
all else. James Dobson said that the faithful were in their
foxholes, with bullets whizzing overhead. In mid-March, Frist
had promised to offer a compromise of some sort. A month
later, nothing. In mid-April, I was with the President at a
White House breakfast and took the opportunity to talk with
him about it. ``This nuclear option is very bad for the
country, Mr. President,'' I said. ``You shouldn't do this.''
Bush protested his innocence. ``I'm not involved in it at
all,'' he said. ``Not my deal.'' It may not have been the
President's deal, but it was Karl Rove's deal.
A couple of days later, Dick Cheney spoke for the White
House when he announced that the nuclear option was the way
to go, and that he'd be honored to break a tie vote in the
Senate when it was time to change the rules. The President
had misled me and the Senate.
And that was the second time I called George Bush a liar.
The first time was over the nuclear waste repository
located at Yucca Mountain, in my home state of Nevada. I have
successfully opposed this facility with every fiber in me
since I got to Washington, as it proposes to unsafely encase
tons of radioactive waste in a geological feature that is too
close to the water table, crossed by fault lines, unstable,
and unsound. And Yucca Mountain posed a grave danger to the
whole country, given that the waste--70,000 tons of the most
poisonous substance known to man--would have to be
transported over rail and road to the site from all over
America, past our homes, schools, and churches. Not a good
idea. President Bush committed to the people of Nevada that
he was similarly opposed to Yucca Mountain, and would only
allow it based on sound science. Within a few months of his
election, and with a hundred scientific studies awaiting
completion, Bush reversed himself. When one lies, one is a
liar. I called him a liar then, and with his obvious
duplicity on the nuclear option revealed by the Vice
President's pronouncement, I called the President a liar
again.
I then met again with Mark Pryor and Ben Nelson. I knew
that they were trying to close a deal with the Gang of
Fourteen. I was afraid to tell them to stop, and afraid to go
forward. But I patted them on the back and off they went.
``Make a deal,'' I told them.
By this time, Bill Frist had been in the Senate for a
decade. An affable man and a brilliant heart-lung transplant
surgeon, he had been two years into his second term when
Majority Leader Trent Lott had heralded Senator Strom
Thurmond on his one hundredth birthday in early December 2002
by saying that if Thurmond's segregationist campaign for the
presidency in 1948 had been successful, ``we wouldn't have
all these problems today.'' The uproar over Lott's comments
had wounded the Majority Leader, and just before Christmas
the White House had in effect ordered that Frist would
replace Lott and become the new Majority Leader, the first
time in Senate history that the President had chosen a Senate
party leader.
As Majority Leader, Frist had almost no legislative
experience and always seemed to me to be a little off balance
and unsure of himself. For someone who came from a career at
which he was consummate, this must have been frustrating.
When I became Minority Leader after the 2004 election, I
obviously got to watch Frist from a closer vantage point. My
sense of his slight discomfort in the role only deepened. In
negotiations, he sometimes would not be able to commit to a
position until he went back to check with his caucus, as if
he was unsure of his own authority. Now, anyone in a
leadership position who must constantly balance the interests
of several dozen powerful people, as well as the interests of
the country, can understand the challenges of such a
balancing act. And to a certain extent, I was in sympathy
with Frist. But my sympathy had limits. What Frist was doing
in driving the nuclear-option train was extremely reckless,
and betrayed no concern for the long-term welfare of the
institution. There are senators who are institutionalists and
there are senators who are not. Frist was not. He might not
mind, or fully grasp, the damage that he was about to do just
to gain short-term advantage, I reminded him: We are in the
minority at the moment, but we won't always be. You will
regret this if you do it.
By this time, the Senate was a swirl of activity. More
senators were taking to the floor to declare themselves in
support of the nuclear option or issue stern denunciations.
Senator Byrd gave a very dramatic speech excoriating Frist
for closely aligning his drive to the nuclear option with the
religious right's drive to pack the judiciary. And he
insisted that Frist remain on the floor to hear it.'' My wife
and I will soon be married, the Lord willing, in about
sixteen or seventeen more days, sixty-eight years.'' Byrd
said. ``We were both put under the water in that old
churchyard pool under the apple orchard in West Virginia, the
old Missionary Baptist Church there. Both Erma and I went
under the water. So I speak as a born-again Christian. You
hear that term thrown around. I have never made a big whoop-
de-do about being a born-again Christian, but I speak as a
born-again Christian.
``Hear me, all you evangelicals out there! Hear me!''
Byrd was in his eighth term in the Senate, and before that
had served three terms in the House. He has been in Congress
about 25 percent of the time we have been a country. So his
testimony carried great power.
Negotiations among the Gang of Fourteen continued
feverishly. Not even a panicked Capitol evacuation in early
May could stop them. An unidentified plane had violated
the airspace over Washington, and the Capitol had to be
cleared in a hurry, but McCain, Pryor, and Nelson
continued talking nonetheless.
Joe Lieberman of Connecticut came to me again, concerned.
Talks had gotten down to specific judges, and the group was
trying to hammer out a number that would be acceptable to
confirm. Senator Lieberman was worried that our side might
have been giving away too much, and that in his view the
group was in danger of hatching a deal that would be
unacceptable to Democrats. He wanted to drop out. I told him
again that he couldn't. The future of the country could well
depend on his participation.
``Joe. I need you there,'' I told him. ``Help protect us.''
Once the existence of the Gang of Fourteen became known,
once a ferocious scrutiny became trained on them, the group
started to feel an even more determined sense of mission.
They realized that they were doing something crucial, and
loyalty to party became less important than loyalty to the
Senate and to the country, at least for a little while.
And until the day that a deal was struck, the Republican
leader's office boasted that no such deal was possible.
As if to underscore this point, and see his game of chicken
through to the end, Frist actually scheduled a vote to change
Rule XXII of the Standing Rules of the Senate for May 24.
The Democratic senators came to see me and told me that
they had completed a deal to stop the nuclear option. They
had done it. I told Pryor, Nelson, and Salazar, ``Let's hope
it works.'' It did. And on the evening of May 23, 2005, the
brave Gang of Fourteen, patriots all--Pryor of Arkansas,
McCain of Arizona, Nelson of Nebraska, Graham of South
Carolina, Salazar of Colorado, Warner of Virginia, Inouye of
Hawaii, Snowe of Maine, Lieberman of Connecticut, Collins of
Maine, Landrieu of Louisiana, DeWine of Ohio, Byrd of West
Virginia, and Chafee of Rhode Island--signed a Memorandum of
Understanding, in which they allowed for the consideration of
three of the disputed judges, and rabled a couple more.
Personally I found these judges unacceptable, but such is
compromise. The deal that was struck was very similar to that
which I had proposed to Bill Frist months before.
As Frist and I were just about to discuss the Gang of
Fourteen deal before hordes of gathered press, Susan McCue,
my chief of staff, pulled me aside and said, ``Stop smiling
so much. Don't gloat.''
I didn't gloat, but I was indeed smiling. I couldn't help
it.
``I remain concerned,'' Heller told The Washington
Examiner. ``The nuclear option, they claim will be limited
only to judicial nominations. But I don't believe that for a
second. Once they get a taste of the 50-vote threshold, I
think this thing spreads to every other issue.''
``The day is going to come that either he's not here or the
Republicans take control and if it's a 50-vote threshold,
those kind of issues are the ones that concern me the most,''
Heller said. ``When you're from a small state, you need as
many arrows in your quiver as possible to fight back on some
of these issues that you can be overtaken by. And, frankly,
this 60-vote threshold is what has protected and saved Nevada
in the past.''
I yield the floor.
The PRESIDING OFFICER. The Republican leader.
Mr. McCONNELL. I ask unanimous consent that the Senator from
Tennessee and I be allowed to engage in a colloquy.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. I wish to congratulate my friend from Tennessee on a
brilliant presentation on the history of the Senate and the current
manufactured crisis we face.
The only comment I would add, just by way of reiterating the point my
friend has already made, the Senator quoted Jefferson and Adams about
the tyranny of the majority.
Mr. ALEXANDER. That was de Tocqueville.
Mr. McCONNELL. De Tocqueville. Washington, when he was presiding over
the Constitutional Convention, according to legend, asked what will the
Senate be like. He said: Well, it will be like the saucer under the
teacup. The tea will slosh out of the cup, down into the saucer, and
cool off.
In other words, from the very beginning, it was anticipated by the
wise men who wrote the Constitution that the Senate would be a place
where things slowed down and were thought over. That has been the
tradition for a very long time throughout the history of our country.
Until the First World War, it was not possible to stop a debate at
all. Cloture
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was actually adopted by the Senate in the late teens of the previous
century and then lowered in the 1970s to the current two-thirds.
Looking at the history of our country, it is pretty clear to me that
the Senate has done exactly what Washington thought it would do, slow
things down and move them to the middle, and has been a place where
bipartisan compromise was by and large achieved, except in periods of
time where either side had a very big majority which, of course, our
friends on the other side had in 2009 and 2010.
The American people took a look at that and decided to issue a
national restraining order and restore the kind of Senate they are more
comfortable with that operates, to use a football analogy, between the
two 45-yard lines. There is not a doubt in my mind that if the majority
breaks the rules of the Senate, to change the rules of the Senate with
regard to nominations, the next majority will do it for everything. The
Senator from Tennessee has pointed that out.
I wouldn't be able to argue a year and a half from now, if I were the
majority leader, to my colleagues that we shouldn't enact our
legislative agenda with a simple 51 votes, having seen what the
previous majority just did. I mean, there would be no rational basis
for that.
It is appropriate to talk about what our agenda would be. I would be,
of course, consulting with my colleagues on what our agenda would be,
but I don't think there is any doubt that virtually every Member of the
Senate Republican conference would think repealing ObamaCare would be
job one of a new Republican majority. I don't even have to guess is
what likely to be the No. 1 priority: repealing ObamaCare.
The Senator from Tennessee mentioned drilling in ANWR. There has been
a majority in the Senate for quite some time, both when the Democrats
were in the majority and when the Republicans were in the majority, to
lift the ban against drilling in ANWR.
I think that would certainly be on any top 10 list that I was able to
put together as majority leader. Approving the Keystone Pipeline, we
have gotten as many as 60 votes for that. We have gotten as many as 56
votes for ANWR.
What about repealing the death tax? We had as many as 57 votes back
in 2006 to repeal the death tax entirely. There is a new bill being
introduced this afternoon by our colleague, Senator Thune of South
Dakota, to get rid of the death tax altogether, to get rid of the
dilemma every American faces. He has to visit the IRS and the
undertaker on the same day, the government's final outrage.
These are the kinds of priorities our Members feel strongly about. I
think I would be hard-pressed, with the new majority--having just
witnessed the way the Senate was changed with a simple majority by the
current Democratic majority--to argue that we should restrain ourselves
from taking full advantage of this new Senate.
From the country's point of view, it is a huge step in the wrong
direction. I am not advocating that, but I would be hard-pressed to say
to our Members, the precedence having been set, why should we confine
it to nominations.
Mr. ALEXANDER. I agree with the Republican leader.
Of course, the distinguished majority leader agrees with the Senator
as well. He said in his book in 2007--I read it, but I will read it
again--when talking about the Republican efforts several years ago,
Republicans were so upset with actual obstructionism, as opposed to
made up obstructionism, which is what we see here. They were so upset
that this is what Senator Reid said: If the majority leader pursues a
rules change that would kill the filibuster for judicial nominations.
And once you open 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 from regular business as well, and that,
simply put, would be the end of the Senate.
What that means is the Senate would be similar to the House. A
freight train could run through it. Many Senators have not visited the
House Rules Committee. I have. It is an interesting place.
The Republicans can run the House by a single vote. But if one goes
up to the Rules Committee--and I am sure the distinguished Republican
leader has been there--there are thirteen chairs, thirteen members.
How many Democrats do you suppose have those chairs? Four. How many
Republicans have those chairs? Nine. It is 2 to 1 plus 1 majority in
the House Rules Committee. In the House of Representatives, whatever
the majority wants to do it can do.
If we have a body with 51 votes to make all the decisions, and if I
and others are deeply concerned about the nuclear waste sitting around
in some of these 100 reactors--we have several of us on both sides of
the aisle who were working on legislation like that--and we want it put
in a repository, legally, where it is supposed to be, we have 51 votes,
if they all vote the way they voted before, to order the government to
open Yucca Mountain and put the nuclear waste there. This is what we
can do with 51 votes.
The way our government is designed, the House can order that, which
they have. The Senate hasn't because the majority leader has been able
to make this body stop and think about whether it wanted to do this. I
may not like that result, but I prefer that process for the good of the
country to give us the time to work things out.
I would ask the Republican leader, hasn't it always been the
responsibility, maybe the chief responsibility, of the Republican
leader and the Democratic leader to preserve this institution? Newer
Senators may not know as much about it, may not have as long a view as
they have.
Over the time the minority leader has been here, hasn't that been--I
would ask through the Chair to the Republican leader, hasn't that been
the responsibility of the leaders of the Senate?
Mr. McCONNELL. I will say to my friend from Tennessee, the Senator is
absolutely right. The one thing the two leaders have always agreed on
is to protect the integrity of the institution.
For those who may be observing this colloquy, they probably wonder
why it is occurring. I wish to explain to our colleagues--and to any
others who may be watching while this colloquy occurs--Senate
Republicans are tired of the culture of intimidation.
We have seen it over in the executive branch with the IRS and we have
seen it at HHS with regard to ObamaCare; this feeling that if you are
not in the majority you need to sit down, shut up, and get out of the
way. That mentality, that arrogance of power, has seeped into the
Senate.
The culture of intimidation is this: Do what I want to do when I want
to do it or I will break the rules of the Senate--change the rules of
the Senate by breaking the rules of the Senate. In other words, it is
the intimidation, the threat that has been hanging over the Senate as
an institution for the last few months. It needs to come to an end.
I believe that is why the Senator from Tennessee and myself would
like the majority leader to answer the question does he intend to keep
his word.
Senators shouldn't have to walk on eggshells around here, afraid to
exercise the rights they have under the rules of the Senate. There is
no question that all Senators have a lot of power in this body. This
body operates on unanimous consent. That means if any 1 of the 100
wants to deny that, it makes it hard. That is the way the Senate has
been for a very long time.
I want the culture of intimidation by the majority in the Senate to
come to an end. The way it can end is for the majority leader to say:
My word is good, and we will quit having this culture of intimidation
hanging over the Senate for the next year and a half.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. I wish to congratulate the Republican leader on his
remarks. It is important for those watching to know there are plenty of
us here who know how the Senate is supposed to work, and we are doing
that. We passed the farm bill, and we passed the water resources bill,
involving locks, dams, and ports in this country. We did that the way
the Senate is supposed to work. We worked across party lines. We got a
consensus, got more than the majority, and did it.
We have eight Senators who have come forward with an immigration
bill, a tough issue, but we are working together to see if we can
resolve that.
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I am part of a group of six or seven Senators who are trying to lower
interest rates for 100 percent of students, not just 40 percent. We are
not trying to ram it through with 51 votes, but we are trying to get a
consensus and then pass it and send it to the House. Hopefully, they
will do it.
When the great civil rights bills passed, they were a consensus, and
the country accepted them because they were important pieces of
legislation.
When the Republican leader and I were young--I was here and he was
almost here--we saw Senator Dirksen and President Johnson work together
to get a supermajority to say to the country it is time to move ahead
on civil rights. That is the way the Senate is supposed to work. Let's
stop the threats, stop the intimidation and recognize the progress we
have made and get back to work on immigration.
Mr. McCONNELL. I wish to conclude by thanking the Senator from
Tennessee for a very impressive presentation and for his reminding us
all of what makes the Senate great.
I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. FRANKEN. Are we in morning business?
The PRESIDING OFFICER. We are.
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