[Congressional Record Volume 167, Number 109 (Wednesday, June 23, 2021)]
[Senate]
[Pages S4723-S4725]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               Filibuster

  Mr. MURPHY. Mr. President, my State proudly calls itself the Land of 
Steady Habits. Some people in Connecticut think it is kind of a funny 
thing to be proud of--being resistant to change--but honestly, in the 
Northeast, in the crucible of America, we know there is real value to 
consistency and tradition.
  A nation as unique as ours--multicultural, democratic, ever expanding 
in scope and ambition--we probably can't hold together unless there is 
some agreement between all of our different peoples about the 
expectations that we have for each other in the conduct of our national 
business. Without tradition, our Nation's defining dynamism, it might 
break us.
  Yes, it is wildly old-fashioned to hold town meetings, where every 
citizen has to show up on one particular day, to make decisions about 
how you spend money or what rates you pay in taxes, but that way of 
governing, created in New England some four centuries ago, is still the 
method of decisionmaking in many of our towns. It may not be the most 
efficient means of government, but tradition matters. It helps to hold 
us together as a country.
  I know and appreciate the value of consistency. I don't deny it. So 
earlier this week, I read with interest an opinion piece, penned by one 
of my friends in the Senate Democratic caucus, making the argument that 
amongst the most important reasons to preserve the 60-vote threshold in 
the Senate is to advance the value of consistency and tradition in 
American politics.
  I was glad to read it. I am proud of my colleague because for too 
long, the punditry and the activists have had near exclusive domain 
over the debate about the wisdom of changing the rules of this body. So 
it has been strange, given how much this place means to the 100 of us 
who serve here, that we have mostly left the dialogue over its future 
to those who don't work inside this Chamber every day.
  Yes, right now, there is a disagreement amongst Senate Democrats and 
between the majority of Senate Democrats and the majority of Senate 
Republicans about how the Senate should operate, but there is no merit 
in hiding this dispute. There is no valor in letting others define the 
terms that lay out the conflicting arguments, which I readily submit 
are compelling on both sides. So let's have the debate. Let's have it 
right here. No more shadowboxing. The stakes, I would argue, are too 
important.
  Let me start here. The argument to keep the 60-vote threshold, to 
guarantee policy consistency or to uphold Senate tradition, is 
downright dangerous because this argument essentially prioritizes 
consistency over democracy.
  At the very moment when Americans have less faith than ever before 
that this place has the capacity to implement the will of the people, 
the 60-vote threshold is a slap in the face of majoritarianism, which 
is the bedrock principal of American democracy, the idea that the 
majority of people get to

[[Page S4724]]

decide the direction of this country--not elites, not oligarchs, like 
in other nations; people, regular people.
  To say that Americans can have an election, choose leaders of a 
particular view, and then watch while the rules of democracy 
deliberately stop the voters' will from being enacted is to thumb our 
noses at the American electorate--at the very moment when they are 
actively considering whether American democracy has anything left to 
offer them.
  My colleague argues quite powerfully that the requirement to achieve 
60 votes to pass legislation in the Senate guards against rapid policy 
change, giving several examples, including education and environment 
policy and voting rules as areas where danger might lie if one majority 
imposed the policy in one Congress that would be undone by the next. I 
want to walk us through this argument.
  My first approach might be to postpone the harder question of whether 
or not to value consistency over democracy and to simply accept for a 
moment the prioritization of consistency and tradition. I do so knowing 
that our Founding Fathers also prioritized consistency.
  In Federalist 9 and 10, Hamilton and Madison discuss what they call 
the problem of factions. Madison says that a faction is ``a number of 
citizens, whether amounting to a minority or majority of the whole, who 
are united and actuated by some common impulse of passion, adverse to 
the rights of other citizens.'' Now, notice here that Madison doesn't 
really care whether the faction represents a minority or majority of 
citizens; he simply defines it by its cause's malevolence. This was and 
still is tricky business--rich White men defining for everybody else 
what cause is righteous and which cause is wicked. But our Founding 
Fathers built a system of government to make rapid policy change--even 
change supported by the majority of voters--very, very hard to 
implement.
  Now, how do they do this? I want to lay this out because if you do 
care about preventing rapid policy shifts, it is important to 
understand why the 60-vote threshold isn't necessary, is overkill given 
all the other barriers our system has to prevent rapid policy shifts.
  First, our Founding Fathers established a bicameral legislature as 
opposed to a unicameral parliamentary system. That meant that no change 
could be implemented until two different legislative bodies agreed to 
the exact same text.
  Second, they layered on top of that bicameral legislative structure a 
unitary President with the power to veto that legislation.
  Third, they put in place an unelected body, the Supreme Court, that 
could invalidate any statutory changes that conflicted with the 
Constitution.
  Fourth, they put the House and the Senate and the Presidency all on 
overlapping, conflicting election schedules, guaranteeing that it would 
be 100 percent possible for the voters to sweep out all elected 
officials and replace them with a new slate all at one moment.
  Fifth, the Founders built a few supermajority requirements but only 
for selective occasions: treaties, impeachments, constitutional 
amendments--the stuff that could last forever. The Founding Fathers did 
want extra consensus around that.
  All of that design has lasted. It is still with us today.
  There are other parts of the original design intended to protect the 
value of consistency to protect against the danger of faction that have 
not lasted. The Founders also believed that only White men should vote 
and that citizens shouldn't be trusted to directly select the Members 
of this body. That is all history because for all of the anti-faction 
design that we have kept, we changed just as much, and all of that 
change has moved in only one direction--toward more majoritarian 
democracy.
  Why? Well, because as our grand experiment--the American experiment--
matured, we saw proof of concept. The people could be trusted to govern 
themselves. They could choose leaders who were more able, more honest, 
more effective than any King or Queen, any Sultan or Emperor. So we 
extended the franchise universally. We directly elected the Senate.
  As America expanded, the new States out West gobbled up even more 
democracy. The West decided to not just elect legislators but judges, 
prosecutors, dog catchers and commissioners. Majoritarian rule became 
addictive, and our country grew and it demanded more and more of it.
  That brings us to the 60-vote threshold. The 60-vote threshold in a 
country built on the strength of direct democracy stands out like a 
sore, rotting thumb--this anti-majoritarian drain clog designed 
intentionally to stop the majority of Americans from getting what they 
want from government.
  Proponents of existing Senate rules say that in the name of 
bipartisanship or tradition or consistency of policy, we should 
purposefully frustrate the changing will of the electorate. But why? 
Why not trust voters? For instance, voters elected a President and a 
Congress in 2008 that promised to enact a system of universal 
healthcare. It just so happened that at that moment, for the first time 
in 40 years, there were 60 votes for the party of that view in the 
Senate, so a universal healthcare law was passed.
  But why should it not be up to the voters and not politicians to 
review the efficacy of a major policy change like that and, if they so 
choose, elect leaders to rescind or revise it? I don't want the ACA 
repealed, but I am deeply uncomfortable that a 60-vote threshold robs 
from voters that decision.
  This preference for policy consistency, intentionally blind to the 
merits of policy over direct democracy, is particularly insidious at 
this moment in American history, first because the 60-vote threshold is 
being used in a very, very different way today than it has anytime 
prior in our Nation's history.
  Up until the 1970s, cloture votes were almost nonexistent in the 
Senate. Legislative filibusters were used in those days mostly by 
racist southern White Senators to stop civil rights bills. Beginning in 
the seventies, that tactic became more widely employed but was still 
used sparingly.
  Consider this. In 1994, our colleague Senator Feinstein forced a vote 
on one of the most controversial of all proposals that come before this 
body--a ban on assault weapons. It received fewer votes than the 
Manchin-Toomey background check bill did 30 years later. Senator 
Feinstein's proposal got 52 votes; Manchin-Toomey got 54 votes. But the 
assault weapons ban became law while the background checks bill did 
not. Why? Because in 1994, many important votes, even the assault 
weapons ban, were allowed to proceed on a majority-vote basis. Not so 
by 2013.
  I could make the argument that it was Republicans who started this 
rapid escalation of the use of the 60-vote threshold, but who really 
cares? It doesn't matter because today both parties use it almost 
without exception in a way that looks radically different from the way 
the tactic was utilized half a century ago.
  I would argue that if you want to do an overview of the history of 
the 60-vote threshold, it doesn't tell a story of the value the Senate 
places on consistency. No, it is the opposite. Watching the way the 
tactic has been used so differently over time, it demonstrates the 
value the Senate places on change in practice and tradition. Reforming 
this rule would, frankly, just pay heed to this reality.
  The second danger of valuing consistency over democracy at this 
moment lies in the signal that it sends to an American public that is 
in, frankly, no mood for the choices of the elites to be continually 
substituted for their own collective judgment.
  Right now, Americans are in kind of a revolutionary mood, and for 
good reason. More Americans today than at any time in recent history 
see themselves on the precipice of financial and sometimes spiritual 
ruin. They are done with economic and political elites jealously 
protecting the status quo. And the election of Donald Trump, although 
revealed by time to be a false prophet, was an unmistakable foot stomp 
by an electorate tired of being taken for granted.
  So why on Earth would our message, amidst this growing populist 
tempest, be to tell voters that rules in the Senate are required to 
protect them from their own bad judgment, to take from them, purposely, 
the ability to change policies whenever and however they wish?

[[Page S4725]]

  I submit to you that today, right now, this replacement of popular 
will by anti-majoritarian rule-rigging could destroy us. Today more 
than ever, voters want to know that their vote counts every election. 
And continuing to give minorities here in the Senate power to stop 
change is dangerously disconsonant with the current political mood of 
this country. Take power away from the American people at your peril.
  Finally, on this question of the value we should place on 
consistency, I want to raise the problem of the city firehouse. 
Firehouses are places that value consistency and tradition. 
Firefighters spend a lot of time in close quarters together. When that 
alarm rings, they are required to work together in precise and 
disciplined unison to get out the door in seconds in order to save 
lives and property. Practices change in a firehouse but carefully and 
through consensus decision making. Keeping everybody together matters 
when the stakes are so high.
  But what would happen if inside that firehouse, a sizable group of 
firefighters decided one day that the mission of the department should 
no longer be to put out fires but maybe, instead, just to let them burn 
a little? Wouldn't then the value of consensus decision making become a 
little less important? If you were a homeowner, wouldn't you want to 
make sure that the firefighters who still wanted to fight fires were 
setting the rules and not the guys who are OK with the houses in the 
neighborhood burning down?
  I know this is a crude analogy, but to value consistency or tradition 
above everything else, I think you have to be pretty certain that 
everybody in your club, everybody on your team is guided by the same 
foundational goal.
  In the case of the U.S. Senate, our goal, our endgame has always been 
simple: the preservation of American democracy, the belief that every 
American should have a say in who governs, and the persons whom they 
choose and no one else should be seated in power
  We have had fights--often vicious in nature--over the course of our 
Nation's history over how fast we should expand the vote, how quickly 
we should reform our Constitution to allow for more direct democracy. 
But never before has one party actively advocated for the lessening of 
democracy. Never before has one party openly advocated for candidates 
who receive the smaller share of the vote to be made President of the 
United States.
  In the last year, a democratic Rubicon has been crossed by one party, 
and we can't ignore this devastating blow to our Nation. You cannot 
value consistency in practice when a large faction of your group's 
members don't believe in the underlying mission of your organization 
any longer. The firehouse can't just keep doing the same things it 
always does year after year for the sake of consistency or tradition or 
consensus when two or three of the members who hop on the firetruck 
when that alarm sounds aren't intending to actually put out the fire 
when they arrive at the building.
  Giving Republicans a veto power over legislation when they no longer 
believe in the same way the Democrats do or Republicans used to in the 
sacredness of the vote is to risk the voluntary destruction of our 
democracy.
  Consistency as a value has merit. It does. But in this business, 
consistency is often put on an unhealthy pedestal. What is the value of 
being consistent when all of the circumstances around you are changing? 
Where is the strength in sticking to your position when everything 
around you is in metamorphosis? When democracy itself is being attacked 
in a brutal, coordinated, unprecedented volley of blows, what is the 
good of holding to a position just for the sake of being consistent if 
the primary consequence is to simply green light the assault to 
continue?
  Consistency and tradition and bipartisanship--they matter but not at 
the expense of democracy, not in a moment when millions of voters are 
questioning the wisdom of American democracy because no matter whom 
they elect, nothing seems to change, and not when one party has 
increasingly abandoned the joint project to which all Members of this 
body swore an oath as a condition of our membership.
  I yield the floor.
  Mr. President, I know Senator Marshall is ready to speak, and I 
apologize for delaying him with my rather long remarks.

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