[Congressional Record Volume 168, Number 3 (Wednesday, January 5, 2022)]
[Senate]
[Pages S30-S32]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               Filibuster

  Mr. THUNE. Mr. President, I had hoped we had put the idea of changing 
the Senate filibuster rule to bed when two Members of the Democratic 
Party in the Senate pledged to oppose any attempt to abolish the 
filibuster, but, unfortunately, the Democrat leader has revived this 
idea and has said that he plans to hold a vote on changing the 
filibuster rule on or before January 17.
  Democrats have offered a lot of bad ideas over the past year--a lot 
of bad ideas. But it is possible that abolishing the filibuster is by 
far the worst. Abolishing the filibuster would mean fundamentally 
changing the character of the Senate and removing one of the most 
significant protections for minority rights in our system of 
government.
  Our Founders recognized that it wasn't just Kings who could be 
tyrants. They knew majorities could be tyrants, too, and that a 
majority, if unchecked, could trample the rights of the minority.
  And so the Founders combined majority rule with both representation 
and constitutional protections for the minority. They established 
safeguards, checks and balances throughout our government, to keep the 
government in check and ensure that the rights of the minority were 
protected. And one of those safeguards was the U.S. Senate.
  In the House of Representatives, majority rule is emphasized, and the 
Founders could have left it at that. They could have stuck with a 
single legislative body. But they didn't. Why? Because they were 
worried about the possibility of tyrannical majorities in the House 
endangering the rights of the minority.
  The author of Federalist 62 notes:

       A senate, as a second branch of the legislative assembly, 
     distinct from and dividing the power with, a first, must be 
     in all cases a salutary check on the government. It doubles 
     the security to the people, by requiring the concurrence of 
     two distinct bodies in schemes of usurpation or perfidy. . . 
     .
       Secondly. The necessity of a senate is not less indicated 
     by the propensity of all single and numerous assemblies, to 
     yield to the impulse of sudden and violent passions, and to 
     be seduced by factious leaders, into intemperate and 
     pernicious resolutions.

  That is from the author of Federalist 62.
  So the Founders created the Senate as a check on the House of 
Representatives. They made the Senate smaller

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and Senators' terms of office longer, with the intention of creating a 
more stable, more thoughtful, and more deliberative legislative body to 
check ill-considered or intemperate legislation in attempts to curtail 
minority rights.
  As time has gone on, the legislative filibuster has become perhaps 
the key way the Senate protects minority rights. The filibuster ensures 
that the minority party and the Americans it represents has a voice in 
the Senate. It forces compromise. It forces bipartisanship. It 
encourages a greater level of stability and predictability.
  Even in the rare case when a majority party has a filibuster-proof 
majority in the Senate, the filibuster still forces the majority party 
to take into account the views of its more moderate or middle-of-the-
road Members, thus ensuring that more Americans are represented in 
legislation.
  Removing the filibuster would erase this protection and allow the 
majority, including an incredibly narrow or merely technical majority, 
as Democrats have right now, to trample minority rights.
  In the words of one former Senator, ``We should make no mistake. . . 
. It is a fundamental power grab by the majority party. . . . Folks who 
want to see this change want to eliminate one of the procedural 
mechanisms designed for the express purpose for guaranteeing individual 
rights, and they also have a consequence, and would undermine the 
protections of a minority point of view in the heat of majority 
excess.''
  That is former Senator, now President, Joe Biden, one of the many 
Democrats who has opposed abolishing the filibuster, because, of 
course, Democrats were singing a different tune on the filibuster just 
a couple of years ago.
  When President Trump urged Republican Senators to abolish the 
legislative filibuster--and, I would add, dozens of times--Democrats 
were strongly opposed. In 2017, 32 Democrat Senators, including now-
Vice President Harris and a majority of the current Democrat caucus, 
signed a letter urging that the legislative filibuster be preserved, 
and Republicans agreed and refused to abolish the legislative 
filibuster despite the former President's repeated urging.
  It is not because we didn't have a lot of legislation that we wanted 
to pass; we did. And we knew that abolishing the filibuster would make 
it a whole lot easier to advance our agenda, but we also knew that the 
Senate wasn't designed to let a slim majority of Senators push through 
whatever agenda it wanted and that abolishing the legislative 
filibuster would quickly come back to haunt us when we were in the 
minority again. And so we resisted our own President's urging and 
preserved--preserved--the legislative filibuster.
  Now, however, many Democrats, who not only supported but actively--
actively and repeatedly--used the filibuster during the previous 
administration to block major coronavirus relief legislation and police 
reform legislation, have apparently decided that rules protecting the 
minority should only apply when Democrats are in the minority.
  Apparently, Democrat minorities deserve representation, but 
Republican minorities do not.
  It is a particularly outrageous position when you consider the fact 
that, right now, Democrats have nothing more than a technical majority 
in the Senate. The Senate is currently divided 50-50. The only reason 
Democrats have a deciding vote in the Senate is because the Vice 
President is a Democrat. That is hardly the kind of majority that 
should make Democrats feel free to steamroll minority rights.
  And let me put aside the question of minority rights and Democrats' 
hypocrisy on this issue for just a moment.
  I want to talk about two things: One, my Democrat colleagues should 
be very sure that abolishing or amending the filibuster will come back 
to haunt them. That is simply the way of things. They only have to look 
back at Democrats' decision to abolish the filibuster for judicial 
nominations.
  I think I can speak for most of my Democrat colleagues when I say 
that it came back to haunt them and probably sooner than they expected. 
More than one Democrat, faced with President Trump's judicial nominees 
and his Supreme Court appointments, openly regretted their party having 
abolished the judicial filibuster. I would urge my Democrat colleagues 
to remember that.
  And I would urge them to remember that if they regret having 
abolished the judicial filibuster, they are likely to regret abolishing 
the legislative filibuster even more.
  I would also urge them to remember that they barely have a majority 
now, and that even the strongest majorities eventually end up back in 
the minority. Sooner or later, abolishing or amending the legislative 
filibuster will come back to haunt them.
  I get that my Democrat colleagues want to accomplish big things. 
Well, I would just like to remind them that it is possible to 
accomplish big things in a bipartisan fashion. I know, because we did 
it at the Commerce Committee when I was the committee chair, but it 
does require a real willingness to compromise and an acceptance of the 
fact that the Senate is not designed to let a narrow majority 
unilaterally impose its will.
  Finally, I urge my Democrat colleagues to think about what abolishing 
the filibuster would mean for ordinary Americans. Of course, it would 
mean decreased representation for any Americans whose party was a 
minority, but it would also mean highly unstable government policy and 
a resulting lack of confidence in government as well as a sharp 
increase in partisanship, which, I venture to say, is not what we need 
around here right now.
  In his discussion of the importance of the Senate as a stabilizing 
body, the author of Federalist 62 notes that ``a continual change even 
of good measures is inconsistent with every rule of prudence, and every 
prospect of success. . . . In the first place, it forfeits the respect 
and confidence of other nations, and all the advantages connected with 
national character. . . . The internal effects of a mutable policy are 
still more calamitous. It poisons the blessing of liberty itself. It 
will be of little avail to the people that the laws are made by men of 
their own choice, if the laws be so voluminous that they cannot be 
read, or so incoherent that they cannot be understood; if they be 
repealed or revised before they are promulgated, or undergo such 
incessant changes that no man, who knows what the law is to-day, can 
guess what it will be to-morrow. Law is defined to be a rule of action; 
but how can that be a rule, which is little known, and less fixed?''
  Abolish the filibuster, and we will end up in exactly the situation 
the author of Federalist 62 feared--with an inconsistent and ever-
changing set of laws.
  An all-Democrat government will quickly push through whatever 
measures it judges to be the best, and an all-Republican government, 
when it takes power, will do the same.
  And again, neither party should be so arrogant as to think that the 
opposing party will never again gain control of government. The 
government was in unified Republican hands just 3 years ago; today, it 
is narrowly in Democrat hands, and it will continue to shift.
  Abolish the filibuster, and policy will shift sharply with it: social 
policy on abortion, religious freedom, and other issues; regulatory 
policy; tax policy; foreign policy, and the list goes on.
  In short, to quote Federalist 62, the laws would ``undergo such 
incessant changes that no man, who knows what the law is to-day, can 
guess what it will be to-morrow.''
  And such incessant changes of national policy would unquestionably 
heighten partisanship in this country.
  As the laws became more extreme, the tension between Republicans and 
Democrats, conservatives and liberals, would only heighten--here in 
Congress, yes, but, most importantly, throughout the country among 
ordinary Americans.
  Our government would no longer be perceived as government of the 
people and for the people. It would now be perceived as government of 
and for Democrat Americans or Republican Americans, depending on the 
party in power.
  Democrats may think that some of the bills that they are advancing 
will serve the American people.
  Well, something else that will serve the American people is 
moderation and predictability in our government, and that is something 
that we will lose if we turn the Senate into the House of 
Representatives and abolish protection for minority rights.

[[Page S32]]

  When Republicans were repeatedly faced with the prospect of 
abolishing the legislative filibuster during the previous 
administration, we said no, not because there wasn't important 
legislation we wanted to pass but because we knew that the best thing 
for our country and for our future representation in the Senate was to 
preserve this essential protection for the minority.
  I urge my Democratic colleagues to think of their future and our 
country and make the same decision.
  I yield the floor.