[Congressional Record Volume 167, Number 54 (Tuesday, March 23, 2021)]
[Senate]
[Pages S1687-S1690]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               Filibuster

  Mr. SASSE. Mr. President, the debate about the legislative filibuster 
is not a debate about S. 1 or S. 101 or S. 901. No, this is a debate 
about nothing less than the nature and durability of American self-
government. Quite apart from the wrestling over which particular bill 
was filibustered 8 years ago or 4 years ago or 2 years ago or tomorrow, 
the decision about whether or not to eliminate the filibuster is the 
Senate's most important policy debate in decades.
  Eliminating the filibuster would obviously have all kinds of policy 
consequences, from tax rates and labor law to energy and 
infrastructure. But that is not why the debate is so important. This 
isn't fundamentally a debate about this or that policy.
  The debate about the filibuster is deeper than that because it is a 
debate about how and whether we debate at all. This matters a whole lot 
in a country this big, in a continental nation, because it is right at 
the heart of how peaceable self-government works at all. If we just 
blow that up, if we act as if it is just a matter of time before the 
filibuster goes away and all we really have is red-versus-blue jerseys 
anyway, if we just end the Senate's rules as they have existed for 240 
years, we will dramatically alter not just this institution but our 
entire form of self-government, and in the process we will dramatically 
escalate the fevered pitch of America's recent arguing.
  We shouldn't ignore the deep and long-term significance of what 
setting the Senate's rules on fire would mean simply because terms like 
``supermajority requirement'' don't fit really neatly into our modern, 
made-for-cable-TV, soap-opera variety of politics as entertainment, 
politics as sport, even politics as religion. ``Supermajority 
requirements'' are a whole bunch of syllables, and it just doesn't make 
for great sound bites.
  But make no mistake. If we set the Senate's rules on fire, we are 
going to cause dramatic, horrible consequences in American civic life.
  Almost every single Member of the newly minted Democratic majority in 
the Senate has resolved in recent weeks that the legislative filibuster 
needs to be abolished, or, in their most recent focus group term, to be 
``reformed'' out of existence.
  This move would be directly contrary to over two centuries of 
tradition in this country and in this body. It would be directly 
contrary to the Founders' explicit purposes for why this institution 
was created at all, and it would be directly contrary to the words of 
dozens and dozens of the majority Senators--their words just in the 
last 48 months.
  This is no mere procedural change. If they go through with this, an 
already sick Senate would be committing institutional suicide. There 
really is no reason to be a U.S. Senator if the Senate doesn't exist to 
foster real debate that is bigger than simple majority power.
  This nuclear trigger would all but destroy the principle of 
consensus-building that the Senate demands and, thereby, all but ensure 
that minority rights in this country would become subject to more and 
more fickle, more and more power hungry, and, inevitably, more and more 
abusive simple majorities.
  America is built on a number of seemingly small, but actually quite 
grand, ideas. One of the very best of those ideas, one that is just 
elegantly simple--so simple that we regularly don't pause to reflect on 
it together and to teach it to our kids--is the simple idea that 
whenever possible, groups of different people should be allowed to make 
different rules for themselves. This is what our system of federalism 
is about. This is why we divide power both vertically and horizontally 
between legislative, executive, and judicial branches, and then also 
across the 50 States and versus the Federal Government.
  It is not actually an extravagant thought. Children on a playground 
kind of instinctively understand that if you can't get one giant game 
of kickball together, it is OK to let the playground divide up into a 
few different games of kickball and dodgeball. It is a grand American 
tradition that when we don't have to agree, we don't have to agree 
about everything. It is OK to allow some diversity. It is OK for not 
all workplace regulations to be exactly the same everywhere in the 
country.
  As it happens, America is a really big country, a continental nation, 
and we regularly don't agree. Californians don't always agree with 
Nebraskans. Virginians don't always agree with New Yorkers. People in 
regularly sunny Miami don't always see the world exactly the same as 
folks in regularly wintry Boston do. Ohio State fans don't have to wear 
the blue and gold of Michigan.
  It is a big country full of disagreements, and so our principle is, 
regularly, that wherever we can protect and respect differences, we 
should. We don't force folks to wear the jerseys of the teams they 
don't support. There is no reason to.
  I feel like there is some joke I should make about Oral Roberts 
versus Harbaugh--I know relative competitions against Ohio State--but 
prudence recommends skipping that.
  There are also circumstances, obviously, where we need to make big 
wide-ranging monopolistic government decisions. There are times when we 
have to have one-size-fits-all rules, but those one-size-fits-all 
obligations are not for everything. Even in those moments when they are 
required, we still want to work hard to protect the rights of 
minorities and dissenters.

  So how do we respect their rights and abilities to make rules for 
varying communities across a nation of 330 million people from shore to 
shore? How do we allow as many people as possible to make divergent 
rules as they see fit? One of the ways we have done that traditionally 
in the Senate is we have always made sure, here, where we come from all 
across the country--east to west, north to south--that we would be 
required to pass legislation not by 50 plus 1 but by 50 plus 10.
  What that means is that, most all of the time, even if you are in the 
majority, you can't just do everything you want. You can't just pass 
one, big, compulsory law immediately without lots of debate, because 
you rarely have 50 plus 10. You have to bring some people from across 
the aisle over to your side. If you are in the majority, it means that 
you have to learn the habit of sitting down with Members of the 
minority. You have to talk to them. As importantly, you have to listen 
to them.
  When this process of compromise works and a bill is passed, you are 
then guaranteed that the new law has the stamp of approval of at least 
some representatives of the minority on that issue, and it means that 
they will become your allies against quickly undoing that law next 
year. They will become your allies because the process of compromise 
has led you to listen to each other and say: Instead of doing the 51-
percent thing, what harder work might be required to get to the 60-
percent thing?
  If the process of compromise breaks down, that is a pretty important 
signal as well. When you are forced to make rules that are binding on 
diverse groups of people, it is in everyone's interest that you get as 
much buy-in as possible. That makes it more likely that the new rule 
will be respected and followed beyond just this 2-year Congress. Yet, 
if you shove a rule change

[[Page S1688]]

through with a bare-knuckle majority, you ensure that 49 percent of the 
country is going to resent not just the rule but you. Pass laws today 
with a 50-plus-1 majority, and watch them be repealed tomorrow with a 
50-plus-1 majority. Our Nation would just pinball from one policy 
agenda to another. It makes politics too central in the lives of the 
American people to allow a fickle 51-and-49-percent majority to change 
the whole direction of the Nation. Each election would become more do 
or die, more Flight 93ish than the last one. Each campaign would 
descend further and further into tribal ugliness.
  In a big and diverse country, the Senate exists to force lawmakers to 
build a healthy consensus before we try to make sweeping national, 
legal changes. The Senate exists precisely to force this kind of 
consensus-building. That is really why this institution exists. It is 
how we guarantee that we do not have laws on the books that are 
respected by half of the country and resented and hated or ignored by 
the other half of the country. The Senate's supermajority requirement 
has helped to ensure that big changes are not impulsive and narrow and 
instant but, rather, deliberate and broadly accepted.
  But there is an alarming trend in our time. Let's be clear: It is in 
both parties. It is not just the Democrats, who are now in the 
majority, who are interested in this kind of new, more instant, more 
urgent, more winner-take-all kind of politics. There is a new trend 
toward a bare-knuckles belief that this is the only kind of politics 
that works, that it is the only kind of way you can go forward.
  So my colleagues--again, in both parties--have decided that if you 
have the power, you should wield it, and you should wield all of it 
with no constraint. They might use this or that particular bill as a 
stalking horse for the attempted power grab, but let's be clear: Any 
particular bill is beside the point; it is about the new ``ends justify 
the means'' principle, which is the principle that there are no 
principles except that of flexing your power as vigorously and as 
brutally and as instantly as you can for as long as you can cling to 
power.
  Some of the Republicans who have already spoken on the floor this 
last week have warned the Democrats that they might very soon rue the 
day they made this decision. There is an age-old self-delusion in power 
that says: If you are in the majority, you will never have to be in the 
minority again, so why would you want to respect any rules that have 
traditionally protected minorities? You will always be driving the 
bulldozer and never be in its path.
  This debate isn't about policy. It isn't about any specific bill. You 
can listen to the activists on the outside who are advocating for it. 
They have been transparent about their purposes for the better part of 
a year that they would use whatever bill they think most 
politicall opportune at the moment to try to end the filibuster. Books 
published on this topic in the last 60 days haven't come about in the 
last 60 days.

  We should remember that if this happens, if a simple 
majoritarianism--a mere raw exercise of power--becomes what this body 
is about, we will have taken a step down a path toward the exercise of 
naked power that will be absolutely permanent. It cannot and will not 
ever be undone. Once the supermajority rules, once the filibuster is 
gone, it will be gone forever because no one--it is self-evident to 
make this argument--is ever going to voluntarily surrender power when 
the other party has just used a simple-majority power against them. No 
one will ever restore supermajority requirements when they have a 
simple majority and a simple majority has just become the rule against 
them.
  If you want to see American politics become more brutal, if you want 
to see American politics become more crude, if you want to see American 
politics become more demagogic, then stripping away the mechanisms that 
have forced us to work together would be the perfect recipe for 
bringing about this dystopian reality. If you want to see a politics 
that favors more candidates running for office with claims that they 
will be strongmen and tyrants, then make politics nothing more than a 
contest of wills between people who spend their campaigns promising to 
spend the next 2 or 4 years simply making the other side pay. If you 
want to see the rights and interests of minority groups scorned, 
dismissed, and trampled, then establish a legislative process where 
minority voices don't need to be heard at all. That is what would 
happen if we end the supermajority requirements that have always 
dominated the Senate from its first day. If you want lame, meme 
politics that aims only to ``own the libs'' or ``drink conservative 
tears,'' this is how you bring that crap show about. You would set the 
Senate on fire.
  All of you know this, though. Many of you have spoken in private 
about this being a rash move. Many of you have spoken in public about 
having been opposed to this before.
  I think of my friend Brian Schatz--and I am going to name him 
precisely because he is a real friend, not a Washington friend, where 
you claim someone is your friend right before you try to rip his face 
off. I actually like the guy a lot. I like working with the guy, and I 
would like to keep working with the guy. But it turns out, if you make 
the Senate into the House of Representatives, there is going to be 
almost no working together across the aisle because there will no 
longer be any incentive for it. All the politics that matter will 
happen during the private caucus lunches where 51 percent will try to 
keep their 51 percent to do whatever they want.
  The Senate is, obviously, not the greatest deliberative body in the 
world, but it still has a chance to recover. Set it on fire by ending 
supermajority requirements, and no one should ever utter the phrase 
``great deliberative body'' again because there will be no more 
deliberation in this body again.
  Brian recently said that the filibuster is ``stupid and paralyzing.'' 
He also said: ``It is time to trash the Jim Crow filibuster.'' Yet, 
just 4 years ago, when Donald Trump was elected and the House 
Republicans were itching to have the Senate eliminate the filibuster 
because the Republicans controlled the House, the Senate, and the White 
House, Senator Schatz and a bunch of his colleagues actually penned a 
public letter that defended the filibuster and all of its ``existing 
rules, practices, and traditions'' precisely because it advanced the 
deliberative purposes of the Senate. I don't remember Senator Schatz 
then calling it the ``Jim Crow filibuster'' when he wrote that letter 
or when he was blocking Tim Scott's police reform legislation last year 
by pointing to the Senate's supermajority requirement rules. I don't 
remember Senator Schatz calling it ``stupid'' when he filibustered 
COVID relief in September and again in October under the Senate's 
current rules.
  Look, I want to be clear. I am not picking on Brian; I am naming him 
precisely because I like him, and afterward, we can argue about this. 
With other people I have maybe less of a relationship with, it would be 
less useful to cite them than the people with whom I actually have a 
lot of comity and good will. I do want to keep working with Brian, but 
in a simple majoritarian body, there won't be bipartisan cooperation 
anymore. There isn't much right now, but there is still a chance for 
the reform of this institution. Ending the filibuster is to end this 
institution.
  To be clear, this isn't about Senator Schatz. I could give an hours'-
and-hours'-long speech and go through all the flip-floppers in this 
Chamber who had one position 48 months ago and now have a completely 
different position. I don't need to name all of them. We should just 
ask, what changed? We know what changed. The only thing that has 
changed in the last 2 years is who is i power.

  When the Democrats were in the minority, you were fierce defenders of 
this indispensable Senate prerogative. That was the language that was 
used. The filibuster was standing between America and fascism, we 
heard. But now, when you have the slimmest majority--actually, it is 
just 50-50, and you need the VP's motorcade to break a tie--the 
filibuster is standing between you and some of your legislative goals; 
therefore, it needs to be tossed out. When you were using the 
filibuster to halt Senator Scott's police reform bill, the filibuster 
was an essential American institution that forced compromise. Now that 
it can be occasionally used to resist a 51-50 straight

[[Page S1689]]

majoritarian exercise of power, it is supposedly exclusively a relic of 
slavery and a tool of Jim Crow. It is nonsense, and the people saying 
it know that it is nonsense. You used the same rule last year, and you 
were not racist when you used it last year.
  This is B.S. that has been focus-grouped, and particular bills are 
being used as the excuses to grab power that won't just be for this 
bill; it will be forever. It will be the end of the Senate.
  Was the filibuster really a tool of Jim Crow when it was used against 
Tim Scott last year? I don't think so, and I don't think any of you 
think so. If somebody wants to come to the floor and repent of their 
racism for having used the filibuster last year, please do, but that 
isn't what was happening, so stop with the nonsense rhetoric that is 
just for an MSNBC sound bite tonight.
  It is sad to watch so many of my colleagues who know better be 
bullied into this position of shortsightedness, and they do know 
better, because many of you say it in private, and you are being 
bullied by the fringes of your party. But part of the responsibility of 
being a U.S. Senator is standing up to the extreme fringes of your 
party. Part of the responsibility of being a U.S. Senator is to say: I 
know that people are angry. I know that people are yelling. I know that 
there are hotheads. But one of the jobs of a Senator and surely the job 
of this body is to try to find a way to allow cooler heads to prevail.
  We already have an institution that is instantly responsive to 
majorities--you only have to walk 200 yards to see it--and there is 
nobody who serves in this body who wishes they served in that body. We 
know what it looks like to have a simple majoritarian body, and the 
House was designed to do that. It is a good thing. The House was 
designed to reflect the energy of the people. When the people are 
hotheaded and they want something done fast and they want their 
majority to act, they call on the House and get a hearing, but the 
Senate's job, the Senate's purpose, is different.
  The House is actually allowed to act with a hothead precisely because 
the Senate exists to cool those passions. The Senate exists to act with 
a cool head. Our job is not to cater to sudden and instant majorities 
and to changes in the wind; the Senate's job is to enlarge and refine 
the House's judgments and to try to build a consensus that can last so 
that the majority's will can be advanced while the minority's rights 
are also protected.
  The bullies who want to permanently upend the way our legislature 
works don't understand that their short-term gain of this or that bill 
will come at a long-term cost of the entire structure of the rights and 
interests of our constitutional balance.
  It doesn't take a lot of courage to go with the current of a mob, but 
a lot of Senators who quietly want to resist this change--and there are 
many on that side of the aisle who want to resist this change--are 
worried that going against the tide means watching dollars and votes 
flow away. It means getting screamed at in restaurants. It means that 
your self-interest is to avoid the short-term pain and ride the short-
term wave.
  Let me tell you, this feels pretty familiar. When I ran for this seat 
in 2014--it was the first time I had ever run for anything in my life--
one of the fundamental reasons I ran, in my having never sought any 
office of any kind, was that I thought the Senate had a chance to still 
be restored to its deliberative place in American life.
  We are living through a digital revolution that is disrupting the 
future of work, the future of war, the nature of local community, the 
neuron, synapse, and frontal lobe formations of our teens. The digital 
revolution is transforming American life everywhere, and this 
institution has a chance to help shape some of that for good instead of 
to just allow the tide to flow at full speed and consume this 
institution as well.
  So I said, I pledged--and when I said it to a largely red State in 
2014, most people apparently didn't think I meant it--that I wasn't 
running just because I disagreed with a lot of President Obama's 
policies but because I would defend the constitutional system of 
limited government and a Senate that exists for a deliberative process 
even if someone in my own party came to power and urged instant, 
radical changes that disrespected large portions of America.
  I literally made the centerpiece of why I was running that I would 
resist someone in my own party who tried to do majoritarian, instant 
stuff. And I can tell you, I can introduce you to a whole bunch of 
Republicans on the ground in Nebraska who are really mad that, when I 
said that, I didn't precisely say it 17 different ways, where I named 
every person that they might later want to have all of that instant 
power.
  After the 2016 election, people started looking back at what I said 
the whole 2014 campaign and got more uncomfortable with what they voted 
for. So nobody has to tell me how unpleasant it is to stand up and say 
things that are unpopular in your own party.
  Over the course of the last 5 years, I have been smeared and censured 
many times. I have been cussed out by lots of people who once supported 
me and called me a friend. None of that was particularly fun, but so 
what?
  The oath I took and the duty I swore was related to the point of 
being a U.S. Senator, which is that if you are not willing to stand up 
to your own side every now and again, there is really no point in 
having this job. And the thing is, a lot of you know that.
  I am not going to say it is the consensus position on your side of 
the aisle, but there are a whole bunch of people going along publicly 
with the rhetoric of ending the filibuster and ending supermajority 
requirements, even as, at the exact same time, you tell me how much you 
regret the summer of 2013 decision to allow Harry Reid to end a much 
smaller Senate tradition about supermajority confirmations.
  Supermajoritarian confirmations are a small item compared to the 
change that is being considered here. Harry Reid's take-no-prisoners 
strategy of 2013 was something that was moved unanimously by the then-
majority party, and many, many, many of you have talked to me in 
private about how much you regret it. Please consider the costs because 
this would be a much larger change.
  Whenever anyone, Republican or Democrat, has threatened to blow up 
the Senate supermajority requirements, they always have to tell 
themselves three lies. The first lie is that might makes right. The 
second lie is that the other side politically is your enemy, and they 
must simply be beaten down; they can never possibly be persuaded. And 
the third lie is that the Federal Government is the only government we 
have. None of these things is true.
  I resisted a President, nominally of my own party, when he beat me 
up, both in private and in public, for defending the filibuster when my 
party was in the majority.
  Republican Senate leaders stood up to him as well, despite lots of 
ridicule from House Republicans. A lot of people in the House 
Republican caucus wanted much faster politics, but their passions were 
a poor guide to long-term wisdom for a nation this big and diverse. It 
is better for America's hardest debates to be decided in a deliberative 
Senate rather than in the thunderdome.
  Republicans in the majority held firm against blowing up this central 
structural pillar of this institution, even when it would have 
benefited us politically. In other words, we faced the same choice then 
that you face now, and we decided that it was better to choose long-
term stability over short-term legislative victories. It was the right 
choice for a nation this big and this diverse.
  A lot of Republicans think that decision was naive. Their argument 
was the other side hates us. They will definitely use all power against 
us whenever they can. And I know that many Democratic strategists on 
the outside, many people raising money, small-dollar fundraising 
online, they are making the exact same argument, but this isn't war, 
and we are not supposed to be permanent enemies.
  We want a politics of debate and of verbal jousting rather than of 
physical violence. And one of the most urgent political tasks we face 
today is to demonstrate that it is possible for people who deeply 
disagree and who are polarized in our division--we can still work 
together for the common good.

[[Page S1690]]

  We urgently need to protect and strengthen, not weaken and destroy, 
the norms that force us to come together and cooperate.
  But we don't need to be naive. We don't need to believe that that 
means we would always sing ``Kumbaya.'' We obviously don't in this 
body, but that doesn't mean we are free to be naive in the other 
direction as well.
  For every step we take that further divides, further infuriates, and 
further inflames half the country, it makes it far likelier that we 
will set a fire that we cannot put out.
  The American Founders understood the problem that we are facing. They 
were not naive about how politics worked and what it took, what kind of 
labor and sweat and relational hand-wringing and bread-breaking it 
takes to be able to work together amicably. They were working from a 
personal experience of repression, tyranny, and violence. And so they 
set out some basic principles of federalism, localism, and consensus 
building, of supporting majorities but without sacrificing minorities. 
And so they established a framework in which these principles could be 
balanced in a way that is responsive to changing conditions and needs.
  The Founders' concerns are still our concerns, but guess what. They 
built the Senate for this exact moment. We are constantly tussling over 
how to make sure that every voice is heard and every person has a 
place. We live in a divided time. We live in a divided nation. But they 
lived in a divided time and in a divided nation, and so they created 
the Senate to be a place that could deescalate red-hot anger, to take a 
deep breath rather than just assuming that a runaway majority of 50 
percent plus 1 should advance whatever it wanted.
  Friends, colleagues, you know after the summer of 2013, the dominoes 
were worse than you had expected, and many of you--I don't know if it 
is most, but many of you hav talked about how much you regret the 
summer of 2013 decision. This decision is 100 times larger.

  Friends, please consider whether or not it is prudent to set the 
Senate on fire. It is the only deliberative structure we have in our 
government, and at a time when institutions are being consumed, let us 
not consume another.
  The PRESIDING OFFICER. The Senator from Michigan.