[Congressional Record Volume 167, Number 48 (Monday, March 15, 2021)]
[Senate]
[Pages S1512-S1514]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Filibuster
Madam President, it was August of 1957, and a Senator took the floor
here in this very Chamber. He had a remarkable record. He served as a
Democratic Senator, as a Dixiecrat Senator, and as a Republican Senator
before he finally retired, and he served many years.
In 1957, he was on the floor of the Senate to take his last stand. It
was August, and it was a confrontation he had been preparing for, for a
long time. He was a veteran in World War II, one of the few in the
Chamber at that time, and he was clearly a man devoted to his country
and had shown real courage in serving as an officer in World War II.
But his job on that day was to speak on the floor of the Senate for a
long time.
He had been preparing for it. He had taken daily steam baths trying
to dehydrate his body so that he could stand on the Senate floor for a
long time, even absorb fluids without needing to take a break to go the
restroom. He arrived for the battle armed with throat lozenges to stave
off hoarseness, and he held the floor longer than any single Senator
ever has, even to this day--24 hours and 18 minutes.
For what principled purpose did this Senator take such pains and
preparation? For what noble reason did he grind the world's greatest
deliberative body to a full-scale halt for more than 24 hours? In order
to defend Jim Crow racial discrimination and deny equality to all
Americans.
Despite his efforts, the Senate would go on to pass the Civil Rights
Act of 1957, the first Federal civil rights law in nearly a century
since the Reconstruction. That Senator, of course, was Strom Thurmond
of South Carolina. This is how he described the Civil Rights Act of
1957 during his now notorious filibuster of that historic law. He said,
``I think the bill which is under consideration is unconstitutional. I
think it's invalid. I think we are doing a useless thing.''
Well, the truth was just the opposite. The blatant discrimination of
Jim Crow laws was an affront to our Constitution, a stain on our
national character, and a threat to our standing in the world. The
Civil Rights Act of 1957, which Strom Thurmond filibustered, broke the
death grip of Jim Crow on American democracy and led the way, a few
years later, to even more sweeping equality laws, including the Civil
Rights Act of 1964 and the Voting Rights Act of 1965.
Today, nearly 65 years after Strom Thurmond's marathon defense of Jim
Crow, the filibuster is still making a mockery of American democracy.
The filibuster is still being misused by some Senators to block
legislation urgently needed and supported by a strong majority of the
American people.
There is one major difference, however, when it comes to filibusters
from
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the days of Strom Thurmond and his long-winded defense of segregation.
Strom Thurmond had to sacrifice personally his comfort for his
misguided beliefs. He had to actually speak without sitting on the
floor for more than 24 hours to maintain his filibuster. In his day, if
you sat down to take a rest or left the floor, the filibuster was over.
Today, it is not the same. Senators can literally phone in a
filibuster. All a Senator has to do is to tell the staff working in the
cloakroom what their intention is as to a filibuster, and then the
message is delivered to the floor, and another bill is sent to the
Senate's overflowing legislative graveyard. This is what hitting
legislative rock bottom looks like.
Today's filibuster has turned the world's most deliberative body into
one of the world's most ineffectual bodies. We are like the giant in
``Gulliver's Travels,'' tied down by our own legislative redtape,
unable to respond to crises and the clear wishes of the American
people.
Defenders of the filibuster will tell you that it is essential for
American democracy. The opposite is true. Today's filibuster undermines
democracy.
By eroding people's faith in the ability of democracy to solve
problems that matter the most, misuse of the filibuster may
accidentally open the door to autocrats, would-be dictators, who
falsely promise to deliver results, even if they ignore all of
democracy's rules.
To my friends who count themselves as proud members and supporters of
the Federalist Society--I am sure you have heard of it--go back and
read the Federalist Papers. Read what the Founders thought of the
filibusters. They hated the idea. Alexander Hamilton and James Madison,
both, penned passionate defenses of simple majority rule. Listen to
what Alexander Hamilton had to say about the supermajority rule: ``What
at first sight may seem a remedy is, in reality, a poison.'' Those are
Hamilton's own words. If a majority could not govern, Hamilton warned,
it would lead to ``tedious delays; continual negotiation and intrigue;
[and] contemptible compromises of the public good.'' ``Tedious delays;
continual negotiations and intrigue''--sound familiar?
And then there is James Madison, the father of the U.S. Constitution,
in Federalist 58. He wrote that if a supermajority were required to
pass all new laws ``the fundamental principle of free government would
be reversed. It would be no longer the majority that would rule; the
power would be transferred to the minority.''
Hamilton, Madison, and other of our Founding Fathers debated and
rejected the idea of supermajority rule. They protected minority rights
by creating a government with a President, two legislative Chambers,
and a judiciary in which minority views were respected and making a
law, even with simple majorities, was a challenge.
Rather than protecting the finely balanced system our Founders
created, today's filibuster throws the system out of balance, giving
one-half of one branch of government what amounts to veto over the rest
of government. It promotes gridlock, not good governance.
As I said, Senators don't have to stand for even 1 minute to shut
down the Senate. All they have to do is to threaten it, phone it in,
catch a plane, go home from Washington, and come back Monday to see how
their filibuster is doing. ``Mr. Smith Phones It In,'' that wouldn't
have been much of a movie, would it?
Defenders of today's filibuster offer a second defense of the
tradition. They say the filibuster promotes bipartisan cooperation and
debate. Well, just look around. Can anyone really claim that we are
living in the great age of Senate debate? Last year, calendar year
2020, in the entire year, 12 months, we considered 29 amendments on the
floor of the Senate--29. It is quite an improvement over the previous
year, a 30-percent improvement. The previous year we considered 22
amendments on the floor of the Senate. I am not counting the vote-arama
spectacles. That is not much of a debate. It is not much of an
amendment process. Sixty seconds a side, that is a great debate? Not by
my definition.
The truth is, as filibusters and threatened filibusters have
increased in recent decades, real debate and bipartisan cooperation
have plummeted. Today's filibuster is often used to prevent the Senate
from even starting to debate important ideas. It is not the guarantor
of democracy; it has become the death grip of democracy.
Senator Thurmond's 1957 filibuster marked only the fifth time since
1917 that the Senate had voted to cut off any measure. I want you to
reflect on that for a minute. We had had five filibusters in five
decades when he took the floor in August of 1957. Guess what. We can
have five filibusters in 5 days now; they have become so common.
So how did the filibuster become a weapon of mass obstruction? The
answer is, we stumbled into it. The filibuster was a mistake to begin
with, and it has gotten worse over time. As many of our colleagues
know, when Congress first met in 1789, the House and the Senate rule
books were nearly identical. Both rule books allowed a simple majority
to cut off debate on any proposal by invoking what was known as the
previous question rule. The House still has that motion.
The Senate eliminated the previous question rule by mistake in 1805.
The change came at the suggestion of Vice President Aaron Burr, who was
fresh off of his trial for killing Alexander Hamilton, and who was
later tried for treason. Burr, presiding over the Senate one day,
skimmed the rule book and suggested the previous question rule be
dropped. He reasoned, we hardly ever use that rule, so why is it
necessary? Thus, the filibuster was born, not as a sacred
constitutional principle but an offhanded clerical suggestion.
There were few filibusters before the Civil War. After the war,
filibusters remained rare, used exclusively to deny African Americans
their basic constitutional rights. The first major changes started in
1917. The Senate adopted what is known as rule XXII--the cloture rule--
allowing the Senate to end debate with two-thirds majority vote.
Fast-forward to the 1970s, two more changes in the filibuster. First,
Senators changed the rule to allow more than one bill or matter to be
pending on the Senate floor at a time. Before this, a filibuster really
literally brought the Senate to a halt. The creation of this two-track
system allowed the Senate to take up other matters while the filibuster
continued, at least theoretically.
In 1975, the rules were changed again, requiring just a three-fifths
majority, 60 votes--not 67 but 60 votes--to end a filibuster. Suddenly,
the filibuster became relatively painless, for Senators at least, and
the number of filibusters exploded.
From 1917 to 1970, the Senate took 49 votes to break filibusters--49
votes in that period of 53 years. That is fewer than one a year. Since
2010, it has taken the Senate on average more than 80 votes a year to
end filibusters.
Filibusters on so-called motions to proceed now regularly prevent us
from even discussing proposals supported by the strong majority of
American people. The modern filibuster had broken the normal
legislative process. It was never an essential or even intentional part
of democracy, and now it rules the Senate.
Over my last 20 years, I have faced a 60-vote requirement to move a
measure which is very important to me and to hundreds of thousands of
people in our country. It is known as the Dream Act, the bipartisan
Dream Act. It was introduced so we could give to young people who were
brought to this country as infants, toddlers, and little kids by their
families a chance to earn their way to a path of legalization and
citizenship.
Five times since it was first introduced, the Dream Act has been
stopped by a filibuster--twice in 2007, once in 2010, twice in 2018. In
each instance, the Dream Act received a bipartisan majority vote but
was blocked by a minority of Senators. Their opposition prevented the
Senate from even debating the measure.
It was repeated rejections to the Dream Act by a minority of Senators
that finally moved President Obama to establish the Deferred Action for
Childhood Arrivals, DACA.
To our Republican colleagues, let me say this: If you don't want to
see this President or any President impose solutions based on Executive
orders, shouldn't we be willing to debate the issues at hand and
consider actually legislating?
I have long been open to changing the Senate rules to restore the
standing filibuster. If a Senator insists on
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blocking the will of the Senate, he should at least pay the minimal
price of being present, no more phoning it in. If your principles are
that important, stand up for them, speak your mind, hold the floor, and
show your resolve.
Others have proposed different reforms, including reducing the number
of votes needed to invoke cloture, creating a tiered system of voting
in which a filibuster could be broken with successively smaller
majorities and, ultimately, a simple majority. Some have suggested that
we forbid filibusters of bills that pass out of the committee with
bipartisan support. I support discussing any proposal that ends the
misuse of a filibuster as a weapon of mass obstruction.
If the Senate retains the filibuster, we must change the rules so
that any Senator who wants to bring the government to a standstill
endures at least some discomfort in the process. We need new rules that
actually promote debate. They are long overdue.
I will close with one thought. My first job in the Senate was as a
college intern for Illinois Senator Paul Douglas. Paul Douglas was an
extraordinary man: Ph.D. in economics, war hero, champion of honest
government, and a passionate supporter of civil rights.
In 1957, he was actually on the floor when Strom Thurmond was giving
his historic filibuster. In a bit of ingenuity, Paul Douglas asked that
a pitcher of orange juice be placed on the desk next to Strom
Thurmond's desk. He hoped that thirst and the call of nature might
force an end to the shameful filibuster. Well, it didn't work.
Likewise, it will take more than orange juice these days to bring an
end to the filibuster as a weapon of mass obstruction.
It is time to change the Senate rules. Stop holding the Senate
hostage. We cannot allow misuse of arcane rules to block the will of
the American people. I urge my colleagues to defend democracy by making
the changes needed.
I yield the floor.
The PRESIDING OFFICER. The junior Senator from Alabama