[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

[[Page S4541]]

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.

[[Page S4542]]

  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.

                          ____________________