[Congressional Record Volume 168, Number 6 (Monday, January 10, 2022)]
[Senate]
[Pages S109-S110]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               Filibuster

  Now on another subject, the subject of this week in the U.S. Senate 
about whether the 60-vote requirement to move legislation ahead should 
be done away with--that is the purpose of coming to the Senate for 
these remarks.
  Senate procedure is complex enough that talking about it often trips 
up even Senators who have been around here for several years. Reporters 
writing about the so-called filibuster often look to past reporting to 
get their bearings. In doing so, they perpetuate a conventional wisdom 
that is false or even misleading.
  It is common around here to refer to the cloture motion as the Senate 
filibuster. Now, I want all my colleagues to know that I am guilty of 
doing this sort of shorthand all the time, and I tell myself I ought to 
not be making the same mistake.
  According to the nonpartisan Congressional Research Service:

       Filibustering includes any use of dilatory or obstructive 
     tactics to block a measure by preventing it from coming to a 
     vote.

  The cloture motion is not the same thing as a filibuster, as the 
Congressional Research Service will also confirm. The cloture motion 
requires 60 votes to bring consideration of legislation to finality. 
That means not just debate but, crucially, the amendment process.
  Of course, I want to repeat that. The effect of invoking cloture is 
to say that the Senate has considered the bill enough, meaning a 
sufficient number of amendments have been considered that the Senate 
has a chance to work its collective will.
  The Senate was designed by the constitutional Framers to be a 
deliberative body. In the House, a narrow majority can pass hastily 
drafted, poorly conceived legislation.
  As political parties have become more ideologically polarized, power 
to shape legislation has accrued to the House leadership. Individual 
Members of the House of Representatives have essentially no opportunity 
to get a vote on bills or amendments unless blessed by the Speaker of 
the House, Republican or Democrat.
  The House Rules Committee, filled with partisans loyal to the 
Speaker, will draft a very special rule for considering a specific 
bill, and that is possible to detail the number of amendments, if any, 
allowed to be offered. Members of the majority party in the House are 
expected to vote for their party's rule, no matter what.
  The Senate is supposed to be different. It is kind of like what we 
call the cooling saucer, making sure each provision in legislation is 
thought through and done as well as we can, particularly to overcome 
some in the House of Representatives who act so quickly. We also make 
sure that bills work for most States, not just the most populous States 
on the east or west coast that tend to dominate the House of 
Representatives.
  So the Senate is different. Each and every Senator represents a whole 
State, and each Senator has equal right to participate in the 
legislative process on behalf of their State. Senators who would 
abdicate that right are doing a disservice to their State and the 
people they represent.
  In the 2008 election, Democrats gained a 60-vote supermajority in the 
Senate, with a Democrat House and President Obama. As such, the Senate, 
during those 2 years, tended to act kind of like the House does on 
process. The usual deliberative process, with bipartisan negotiations 
and careful refining and tweaking by committees, all went out the 
window. Major legislation was drafted in the Senate Democrat leader's 
office, often bypassing Senate committees. Democrats would then 
dutifully invoke cloture, often with no Senate floor amendment process 
at all. So, naturally, those of us who have served around the Senate a 
while were astounded at the time that Democrat Senators would routinely 
vote to cut off the amendment process before it had begun. Surely, they 
had amendments important to their States that they would have liked to 
have offered, but voting for cloture was expected of Democrats. They 
had 60 votes, after all. They could do almost anything they wanted to. 
And it turned out just like the rule that comes out of the Rules 
Committee, affecting how debate happens in the House of 
Representatives. Now, Democrats did this even if it meant giving up 
their right to offer amendments, thus abdicating their responsibility 
to represent their home States.

  That situation became the norm, even when the Democrats lost their 
short-lived 60-vote supermajority.
  Most Senators now serving only know the Senate since this break with 
Senate tradition. Despite some improvements in recent years, the 
culture of the Senate has not recovered. When people say the Senate is 
broken, the problem is not the one Senate rule keeping it from becoming 
just like the House of Representatives. In other words, it is not the 
60-vote requirement that has broken the Senate. The problem is that 
people expect the Senate to act just like the House of Representatives 
when the Senate is actually intended to be a check on the House. Since 
the most significant effect of blowing up the 60-vote cloture rule 
would be denying the right of all Senators to offer amendments on the 
Senate floor, why do people still talk about some return to the 
mythical talking filibuster?
  That comes out of confusion over the word ``filibuster'' that I 
mentioned at the start of my remarks today. The Senate rules state that 
in most cases during debate on a bill, a Senator may speak for as long 
as that Senator holds the floor. That is the rule Jimmy Stewart's 
character took advantage of to delay consideration of a corrupt bill in 
the classic movie ``Mr. Smith Goes to Washington.'' That meets the 
definition of a filibuster, but it has nothing to do with the cloture 
rule. Those who would argue that Senators ought to have to speak 
nonstop on the Senate

[[Page S110]]

floor until they collapse just to preserve their right to offer an 
amendment on behalf of their State are either confused or being 
dishonest.
  During the Trump administration, reporters routinely sprinkled the 
word falsely in the descriptions of things that President Trump said as 
sort of a running fact-check. Reporters ought to revise the practice of 
using the word falsely when President Biden and other Democrats make 
demonstrably false statements. This issue, of course, would be a good 
place to start--and do it this week.
  Any reference to some nonexistent, totally mythical age of the 
talking filibuster ought to have a disclaimer that no such requirement 
ever existed for a 60-vote cloture rule. As I mentioned, conventional 
wisdom about the filibuster has been distorted by confusion and perhaps 
intentional shell games.
  For Senators or reporters to truly understand this issue, I urge you 
to consult the nonpartisan Congressional Research Service as your main 
source.