[Congressional Record Volume 163, Number 1 (Tuesday, January 3, 2017)]
[Senate]
[Pages S12-S14]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   THE ELECTION AND THE CONSTITUTION

  Mr. MERKLEY. Mr. President, this is the first day in which a new 
Senate is assembled in which we ponder traditions of this body. Indeed, 
it has been described, as my colleague from Texas mentioned, as the 
world's greatest deliberative body. But over the time I have been 
familiar with the Senate, it has lost the ability to claim that title, 
the ``greatest deliberative body.'' It is a completely different 
institution from the one I first saw in 1976 when I came as an intern 
for Senator Mark Hatfield of Oregon, because at that point we

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saw deliberation on the floor about the issues we face. We saw that the 
use of the filibuster to obstruct ordinary bills was rarely invoked. We 
saw bipartisan cooperation on big issues facing America. But that 
dialogue on the floor is largely missing.
  One reason I wanted to sit here and listen to my colleagues on both 
sides of the aisle speak today was to ponder that tradition in which 
people listen to each other and ponder the opportunity to address those 
substantial issues that we have before us. My colleague from Texas, the 
Republican leader, noted that this past election, the people of America 
spoke loud and clear about the direction they want this country to go 
in. Well, certainly that is not the case. The majority of American 
citizens rejected the policies put forward by President-Elect Trump. By 
3 million votes, the citizen election overwhelmingly rejected those 
policies. Indeed, had it not been for a strategy of voter suppression 
on the Republican side, it would have been far more than 3 million 
votes rejecting those policies.
  Let us be clear that this strategy of voter suppression is an attack 
on the Constitution. Our Constitution was founded on the principle that 
we would pursue policies here that support the success of all 
Americans. That is where our Constitution starts, with these three 
words: ``We the People.'' That is why the Founders wrote those three 
words in supersized font--so when you saw the written Constitution from 
across the room, you couldn't read the fine print but you could see the 
mission statement: ``We the People.'' It is why Abraham Lincoln 
summarized the genius of our country as being a government of the 
people, by the people, and for the people.
  Let us be clear. Without voter suppression, those 3 million votes, 
the majority that rejected the Trump policies would have been far 
larger. Let's remember that if it were not for Russian hacking of the 
election, that 3-million vote majority that rejected the Trump policies 
would have been larger yet. Let's remember that if it were not for an 
out-of-control FBI Director intervening in the final days of the 
campaign, the citizen vote rejecting Trump would have been even larger.
  By the citizen-vote calculation, Trump lost the debate over the 
direction of America. If we consider the votes cast for Members of the 
Senate, overwhelmingly those votes rejected the Republican agenda. So 
here we are with colleagues who say the American people spoke loud and 
clear. If you consider the vision of our country and the citizen vote 
for the Presidency and the citizen vote for Members of the Senate, that 
loud and clear message is a rejection of the Trump policies.
  There is no mandate here to throw millions of people off of their 
health care. My colleague from Texas said the American people deserve 
health care they can afford. Well, isn't that the challenge, that when 
health care has a price tag and there is no ability afforded you, you 
get no health care? You get health care for the upper middle class and 
health care for the wealthy but not health care for every citizen. 
Shouldn't we have a nation in which quality health care is accessible, 
is affordable to every single citizen? Twenty million more people have 
access to that now than they had 8 years ago. It is an incredible 
change.
  A woman came up to me at a fundraiser for multiple sclerosis, and she 
said: Senator, things are so different this year.
  I said: What do you mean?
  She said: A year ago, before we had the Affordable Care Act, if you 
got a diagnosis of multiple sclerosis, you were in deep trouble. It is 
a complicated, mysterious disease. It is an expensive disease, and if 
you had insurance, it likely wasn't going to cover the costs associated 
with it because of annual limits or lifetime limits.
  She noted that if you didn't have insurance, you wouldn't be able to 
get insurance because you would now have a preexisting condition and no 
insurer would give you the opportunity to be able to have an affordable 
health care plan.
  She said: Well, what a different place we are in now because now we 
have the peace of mind that our loved ones afflicted with this terrible 
disease will be able to get the health care they need.
  Isn't that what we should seek--a health care system where people 
have peace of mind, where we no longer have thousands of bankruptcies 
based on health care costs, bankruptcies that you don't see in other 
developed nations that have done a better job of making health care 
available to every single citizen?
  Let's not turn the clock back to whether health care was only for the 
healthy or the wealthy. Let's not turn the clock back to where our 
young folks were in a health care desert between the time they left 
their parent's policy and before they had a career of their own, before 
we said they could stay on their parent's policy to age 26.
  Let's not turn the clock back to the point where we didn't make 
preventive policies for seniors free, and we found that that ounce of 
prevention was worth a pound of cure. We did that in the Affordable 
Care Act, and people across the Nation have appreciated that.
  It is not just on health care that we see no mandate for the Trump 
agenda; we don't see any mandate for the Trump agenda on the 
environment. There is a proposal by the President-elect to put an 
individual in charge of our environmental policies who has been all 
about increasing pollution--increasing fine particle pollution that 
causes asthma and other diseases; increasing mercury pollution, which 
is a toxic attack on the nervous system and affects the development of 
our youngsters. A neurotoxin like mercury is something to be 
controlled, not increased.
  There was a commentary by my colleague from Texas that we should 
expedite the nominees. We know full well that my Republican colleagues 
did everything they could to obstruct President Obama's nominees. It 
was not so long ago we were here on the floor and we couldn't get a 
Department of Labor nominee through this Chamber, or Gina McCarthy with 
the Environmental Protection Agency, or various judges slated for the 
DC Circuit Court.
  I believe the nomination system needs to be reformed. I believe a 
President's nominee should get a timely vote. So why don't we consider 
the possibility of establishing a rule that gives people a timely vote? 
Why not put a 100-day clock on all nominees but the Supreme Court? If 
that 100 days ripens and we haven't had a vote on this floor and if a 
group of Senators wants a vote, then why not hold that vote, with an 
hour of debate, and hold the vote the next day? But to do that, we 
would have to have a debate over the rules under which this body 
functions.
  There is no clear path to consider rules, which means we are often 
trapped by the precedents of the past that have become unworkable. So 
shouldn't we consider a rule change that gives a clear path for rule 
changes to be considered on this floor? Isn't that something on which 
Senators could come together on a bipartisan basis? And by establishing 
such a course of action, we could consider the possibility of having a 
100-day clock on nominees so that they would not be trapped forever in 
purgatory, not knowing if they are ever going to get a vote. And we 
know that so many of President Obama's nominees were trapped in 
purgatory. It has had a terrible impact on those who are willing to 
consider the possibility of serving the executive branch, not knowing 
if they will ever get a vote. Couldn't we improve on this?
  Isn't improving the nomination process something that is important in 
the balance of powers, the balance between the legislative branches? 
Our Constitution created three coequal branches, not a vision in which 
the legislative branch or half of a legislative branch can run a 
continuous attack on the judiciary, a continuous attack on the 
executive branch.
  There are other rule changes we ought to consider. We could consider 
that for Supreme Court nominees, if they are filibustered, it has to be 
a talking filibuster so that it takes time and effort to obstruct, 
using the power of the minority, so that there is a conversation 
directly held day and night, on through the weekend, on through the 
next week and the following week, on whether debate should be closed on 
a nominee to the Supreme Court. Currently, we don't have a talking 
filibuster for the Supreme Court, so if you simply can't get enough 
votes to close debate, this Chamber is silent. It sits silent rather 
than being in an engaged dialogue in front of the American people so 
the American people can weigh

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in on whether the use of the filibuster on a Supreme Court nominee 
makes you a hero or makes you a bum.
  Should we not consider a strategy by which, on ordinary issues of 
policy, the filibuster is restricted to final passage of a bill rather 
than having obstruction with each amendment and obstruction with the 
motion to proceed to a bill, so that we can spend our time debating 
bills rather than debating whether to debate bills? And what goes hand 
in hand with moving the filibuster only to final passage is a clear way 
for amendments to be offered by Members on both sides of the aisle that 
are relevant to a bill, that are germane to a bill. If we have the 
ability to clearly debate amendments, we will be closer to being a 
deliberative body and therefore maybe even the possibility of becoming 
a great deliberative body or even the world's greatest deliberative 
body once again. But when we are paralyzed and unable to get bills to 
the floor or when they are on the floor but we are unable to propose 
amendments, we won't be there. These two things go hand in hand.
  These are all ideas I advocated for when I was in the majority. Today 
I stand here in the minority arguing for these same fundamental 
changes. They will strengthen the success of this body for the majority 
and the minority and strengthen our ability to work together to produce 
legislation that addresses the big issues facing this Nation.
  Let's be clear. There is no mandate for the Trump agenda, no mandate 
for dismantling health care for millions of Americans. There is no 
mandate for increasing air and water pollution, no mandate for tax 
giveaways to the richest Americans, no mandate for increasing the 
disparity in compensation between ordinary workers and the best off, 
the most powerful, and the most privileged.
  We will indeed, as our Democratic leader noted, hold the President-
elect accountable. The President-elect said, ``I am going to drain the 
swamp,'' but he has proposed turning the economy over to Goldman Sachs, 
to the banking world, and he has proposed turning over our foreign 
policy to Exxon, the fossil fuel world. That is the opposite of 
draining the swamp. We will hold the President-elect accountable.
  The President-elect said he was going to fight for working people. 
Well, proposing a Secretary of Labor who is against working people 
getting fair compensation is inconsistent, to say the least, with a 
pledge to fight for working people. We will hold the President-elect 
accountable.
  There is much work to be done, but if we hold as our North Star the 
vision that we are here as a legislative body to fight for the vision 
of ``we the people,'' policies that lift up all Americans, give an 
opportunity for every American to thrive, then perhaps we will find a 
course in which we can work together in a bipartisan fashion to make 
America greater and greater.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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