[Congressional Record Volume 168, Number 7 (Tuesday, January 11, 2022)]
[Senate]
[Pages S139-S142]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               Filibuster

  Mrs. CAPITO. Mr. President, I rise today to deliver I think one of my 
more important speeches that I will give as a Member of this body, and 
that is to defend the longstanding rules of the U.S. Senate.
  We are at a critical moment, make no mistake. With the slimmest of 
majorities, the Democrats haven't been able to pass their wildly 
unpopular agenda, so they are considering using the nuclear option--
just think of the term ``nuclear option'' to show you how draconian it 
is--to eliminate the Senate's 60-vote threshold for legislation. They 
are doing it under the guise of protecting voting rights, but make no 
mistake--this power grab is not about voting rights. Instead, it is 
about advancing one party's agenda.
  So I would like to take a look back at what Democrats, including 
President Biden, have said on the issue and why they are changing their 
tune. We can also debunk the argument that, if given the chance, 
Republicans would change the rules and eliminate the filibuster as the 
Democrats wish to do now.

  Finally and most important to me, I am going to talk about how this 
shortsighted move would impact West Virginians, those whom I represent 
here in the Senate. They are the ones who will ultimately be hurt by 
this reckless and irresponsible change, and it is my responsibility to 
do what I can to stop it.
  So President Biden is in Atlanta today, taking the bully pulpit to 
protest a State's law that he does not like as a reason to end the 
filibuster. He even says this is one of those defining moments. It 
really is. People are going to be judged as to where they were before 
and where they are after the vote.
  It is interesting that he would say that because I would like to 
remind President Biden where he was when he was Senator Biden and what 
he had to say about eliminating the filibuster on this very floor in 
2005.
  He said:

       It is not only a bad idea; it upsets the constitutional 
     design, and it disservices the country.

  Well, Senator Biden, I couldn't agree more. But he is not the only 
one who has done a complete 180 when it comes to the filibuster.
  Majority Leader Schumer once said it would be ``doomsday for 
democracy''--that sounds pretty bad, ``doomsday for democracy''--if the 
filibuster were to be eliminated, and he was right. More recently, he 
has called the filibuster the most important distinction between the 
House and the Senate. Again, I couldn't agree more.
  Then, from my home State of West Virginia, the late Senator Robert 
Byrd, a longtime Democrat, was unequivocal in his defense of preserving 
Senate rules.
  He wrote in 2010:

       The Senate has been the last fortress of minority rights 
     and freedom of speech in this Republic for more than two 
     centuries. I pray that Senators will pause and reflect before 
     ignoring that history and that tradition in favor of the 
     political priority of the moment.

  What would he say today?
  Again, this is not about voting rights. It is important to note that 
we did have a record turnout in 2020. More people voted than ever 
before. More than 158 million ballots were cast in 2020, which is a 7-
percent increase from 2016, and we didn't have this voting rights 
legislation. In West Virginia, we had thousands more people vote than 
voted in 2016. As a matter of fact, the total number of ballots that 
were cast in 2020 was more than in any election in our history with one 
exception--the 1960 election of President John F. Kennedy.
  So don't believe the hyperbole. Don't believe the rhetoric. Don't 
take the bait. The party-wide flip-flop we are now seeing has nothing 
to do with voting rights. Instead, it has everything to do with paving 
the way for an aggressive and progressive agenda that the Democrats 
wish to enact.
  One of the arguments from the other side that I hear all the time is, 
well, the Republicans would do the same thing and change the rules if 
given the chance. Guess what. We could have done that. Unfortunately, 
that argument doesn't carry much weight. Leader McConnell, while 
sometimes under intense pressure to do this, never wavered, and we 
protected this institution. We didn't change the rules on the 
legislative filibuster when we didn't get our way. We could have, but 
we didn't.
  Again, he knows, just as President Biden and Leader Schumer know, 
that if you can't get what you want, changing the rules is no way to 
govern. I certainly wouldn't run my household like that. It is no way 
to govern because it ultimately hurts those who sent us here to 
represent them.
  In my home State of West Virginia, do you know what they want? They 
want us to work together like they saw us do on the bipartisan 
infrastructure bill. I hear this all the time. Bipartisanship is 
critical to making good and better policy, and if the Senate rules are 
changed, it would be a relic of the past. We just passed and signed 
into law the infrastructure bill that I worked to negotiate. We also 
passed the CARES Act. We passed opioid. We passed the Great American 
Outdoors Act--bipartisan.
  We can do this, but if we change the rules to where only 50 votes are 
needed to pass legislation, there will be zero incentive or motivation 
for the two sides to work together. Just as bad, legislative 
accomplishments could be done or undone or redone and done over and 
over with just one flip of a Senate seat. Policies harmful to my State 
could be enacted: the Green New Deal, court packing, the federalizing 
of our elections. By the way, 54 of my 55 county clerks oppose that 
legislation. There would be packing the Senate with new States, 
defunding the police, attacking

[[Page S140]]

the Second Amendment for law-abiding Americans, and more.
  We don't even have to imagine what the Democrats would do or would 
want to do; we can just look at New York and what they just did. They 
are going to allow 800,000 noncitizens to vote. To put that in context, 
in my State of West Virginia, we only had 794,000 voters who voted for 
President in 2020.
  Ramming radical policies through Congress without even attempting to 
gain consensus is not what our Founders envisioned, and it is not how 
Americans want us to operate.
  Rest assured, those willing to change the rules to benefit themselves 
will do it again and again and again. Today, supposedly, it is voting 
rights. Tomorrow, it could be gun control. The next day, it could be 
open borders. I can only imagine.
  I am asking my fellow Senators on the other side of the aisle: Don't 
do this. You will come to regret it, I think, if you do.
  But I think that we need to preserve the rights of the minority.
  We need to preserve the chance for bipartisanship. We need to 
preserve the traditions of the Senate. If you destroy this tradition, 
unfortunately, the country will suffer the consequences.
  Thank you.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. MARSHALL. Mr. President, I may be one of the Senate's newest 
Members, but that does not mean I don't understand the importance of 
the filibuster to this body or to this Nation as a whole.
  Like Senators before me, I have observed the practice from the other 
side of the Capitol as a Member of the House and have heard the calls 
from a frustrated majority to eliminate it for the sake of jamming 
through an agenda and cashing in the political gain that would come 
from doing so.
  But anyone who has an appreciation for our founding knows the purpose 
of the filibuster is indeed to frustrate the majority, to serve as an 
additional check in our government, and drive consensus and 
cooperation. Its purpose is to protect the rights of the minority and 
prevent the tyranny of the majority--in short, to save us from 
ourselves.
  The Senators supporting the majority leader's effort to eliminate the 
60-vote threshold seemed to once understand this too. Just a few years 
ago, 25 of them cosigned a letter opposing ``any effort to curtail the 
existing rights and prerogatives of Senators to engage in full, robust, 
and extended debate.''
  Sadly, we are now witnessing the most blatant hypocritical policy 
switch we have ever seen, as many current Democrat Senators and the 
President have abandoned these principles.
  This flip-flop appears to be all in the name of greed and power. They 
want to break the filibuster so they can break other institutions, such 
as the Supreme Court and State-run elections, to rig our political 
system in their favor because they can't win on their own radical 
socialist policies.
  Without the filibuster, we will see tax laws, immigration rules, and 
more major policy go up and down like a roller coaster, negatively 
impacting our economy, creating uncertainty, and making it impossible 
for long-term business planning.
  The filibuster is meant to force both parties to work together to 
come up with long-lasting policies which will help all Americans.
  Take, for example, voting legislation. I want to make it easier to 
vote and harder to cheat--easier to vote, harder to cheat. With Nancy 
Pelosi's power grab act and other radical election proposals, the 
Democrats want to let the Federal Government take over our elections, 
which is unconstitutional, make it easier to commit fraud, pave the way 
for mass ballot harvesting, let felons vote, take integrity out of the 
elections process by prohibiting voter ID--something I am proud to say 
Kansas requires, voter identification, and it is working--and, finally, 
route taxpayer dollars toward funding political candidates they may not 
agree with.
  I hope that Members of this body can come together, in a bipartisan 
way, to tackle the important issue of election integrity without 
destroying the 60-vote threshold in the Senate.
  We have shown, in recent weeks, we can work together in a bipartisan 
fashion. The Senate voted 88 to 11 to pass the annual Defense 
authorization bill in December. The HELP Committee is currently working 
through a bipartisan bill to help tackle future pandemics. We can still 
tackle major issues in the Senate without abandoning our principles.
  The right to extended debate for Members of this body has been 
preserved for two centuries, longer than the constitutional method of 
electing Senators via their home State legislature, which was ended 
when the 17th Amendment was ratified.
  It is a dark day that Senators are being forced to come to the Senate 
floor to defend the 60-vote threshold. It would be one of the body's 
darkest days if 51 Senators changed the rules and removed our rights to 
robust debate and the right of our home States to have equal 
representation in this most distinguished legislative body. And it will 
come back to haunt them.
  The answer to these partisan times is not to double down on 
partisanship and blow up the filibuster. I pray cooler and wiser heads 
will prevail, and we will maintain this important function of the 
Senate. Otherwise, our Nation is destined to become a winner-takes-all 
system, where the rights of the minority will never again be 
considered, and our Nation will suffer for it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. TILLIS. Mr. President, I rise today to express my opposition to 
the majority leader's plan to change the Senate rules. It will open the 
door wide for the filibuster to be eliminated for all legislation 
moving forward.
  The bottom line is very simple: The ideologues in the Senate want to 
turn what the Founding Fathers called the ``cooling saucer of 
democracy'' into the rubberstamp of dictatorship. They want to because 
they can't get their way. They want to wash away 200 years of history. 
They want to turn this country into a banana republic, where if you 
can't get your way, you change the rules. It would be a doomsday for 
democracy.
  These are strong words, and these are wise words, but they are not my 
words. They are direct quotes from Senator Schumer back in 2005, when 
he was a staunch opponent of weakening the filibuster. That is because 
during that time, the then-junior Senator from New York and his 
Democratic colleagues were making unprecedented use of the filibuster 
to derail President George W. Bush's judicial nominees.
  The majority leader at one point profoundly admitted that ``[y]es, we 
are blocking judges by filibuster. That is part of the hallowed process 
around here of the Founding Fathers saying the Senate is the cooling 
saucer.''
  But things have certainly changed two decades later.
  President Biden, the majority leader, and their Democratic allies 
were intent on ending the filibuster the second the Democrats won the 
Senate last January.
  The majority leader's latest attempt is to force a carve-out of the 
filibuster for what he claims will be just for one piece of 
legislation. But he knows where it leads: the full elimination of the 
filibuster and sooner rather than later.
  I thought my friend the senior Senator from West Virginia put it 
perfectly last week. He said:

       The problem with carve-outs is that you end up eating the 
     whole bird.

  There is no such thing as a carve-out when it comes to the 
filibuster. We all know it. I will talk a little bit about that later.
  But for more than a century, the filibuster has served as a safeguard 
for our Republic. It has prevented one party from ramming through an 
ideological agenda when that party controls both the White House and 
Congress.
  Without the filibuster, both the far left and the far right would 
have free rein to ram through extreme ideological agendas. Divisive 
partisan proposals could become law with only a simple majority. And 
with both parties regularly trading control of Congress, laws can just 
as easily be overturned and replaced, promoting the kind of chaotic, 
confusing policymaking we see in some European Parliaments.
  By requiring 60 votes to end debate in the Senate, the filibuster 
promotes stability. It necessitates bipartisan compromise to pass 
legislation. That is something we need more of, not less.

[[Page S141]]

  I saw it firsthand when I was a proud participant in the passage of 
the bipartisan infrastructure bill. That is the way this Chamber needs 
to work.
  That is why when President Trump demanded, I think some 30 times, 
that the Republicans should eliminate the filibuster in 2017, 61 
Senators joined together in a letter making it clear that we would not 
let it happen. Thirty-two were Democrats, and 29 were Republicans. I 
was one of them.
  And even though I received my fair share of pushback from my side of 
the aisle back in North Carolina, I was proud to sign that letter in 
2017, and I would be proud to sign that letter today.
  Unfortunately, this modest display of political courage has not been 
reciprocated by many of my friends on the other side of the aisle. 
Twenty-seven of the Senators who signed that letter are still in the 
Senate. Twenty-six of them are now supporting the full elimination of 
the filibuster. What changed? Nothing except the party in power.
  Democrats staunchly defended and used the filibuster when Donald 
Trump was President at an unprecedented level, but Democrats are 
suddenly against the filibuster now that Joe Biden is President. Many 
of my Democratic colleagues are practicing situational principles: 
putting their own party's short-term interests ahead of what they know 
are the best long-term interests for the Senate and the Nation. It 
doesn't get more politically cynical than that.
  President Biden served in the Senate for 36 years. He was known as a 
strong defender of the institution, including the filibuster. In this 
very Chamber, 21 years ago, Senator Biden declared that defending the 
filibuster was about defending ``compromise and moderation.'' And he 
noted that his speech was one of the most important he would ever give. 
But now he favors destroying compromise, moderation, and the 
institution he had long cherished, all for the sake of political 
expediency for the next 12 months, until Republicans take back the 
House and most likely the Senate.
  As I noted earlier, the majority leader also shares a partisan double 
standard with the President. In a ``Dear Colleague'' letter just 
earlier this month, he wrote that ``Senate Democrats must urge the 
public in a variety of different ways to impress upon their Senators 
the importance of acting and reforming the Senate rules, if that 
becomes a prerequisite for action to save our democracy.''
  The Senate rule change he refers to is carving out the filibuster in 
order to pass one of the far left's priorities; that is, the voting 
bill that many of my Members or colleagues have talked about today.
  But in 2018, the then-Senate minority leader struck a different tone. 
He said:

       The legislative filibuster . . . is the most important 
     distinction between the Senate and the House. Without the 60-
     vote threshold for legislation, the Senate becomes a 
     majoritarian institution like the House . . . no Senator 
     would like to see that happen.

  What is the difference between today and only a few short years ago? 
Again, it is the party that is in power.
  This same pattern of situational principles also applies to the 
majority whip. He went on national television when Donald Trump was 
President to warn that eliminating the filibuster ``would be the end of 
the Senate as it was originally devised.''
  That is Senator Durbin.
  But less than 4 years later, after Democrats won control of the White 
House and the Senate, the majority whip has a much different take. He 
recently declared that ``the filibuster is making a mockery of the 
American democracy.'' He made that statement after he and his fellow 
Democrats used the filibuster a recordbreaking 328 times between 2019 
and 2020, when President Trump was in office. That level hypocrisy is 
audacious, even by Washington, DC, standards.
  And I know Democrats have been pushing back on this claim, claiming 
they are not trying to end the filibuster. They assure us that this is 
a one-time deal that will only apply to this one bill.
  I would refer them to Newton's third law of physics: ``For every 
action, there is an equal and opposite action.'' It most definitely 
applies to Senate rules as well.
  In 2013, Senate Democrats invoked the nuclear option to end the 60-
vote cloture requirement on judicial and Executive nominees other than 
the Supreme Court. All Republicans, and even a handful of Democrats, 
including the senior Senator from West Virginia, pleaded with the 
Democrats not to do it.
  Minority Leader McConnell warned Democrats at the time that ``you'll 
regret this, and you might regret it even sooner than you think.'' But 
they did it anyway. And, indeed, there was that reaction.
  Four years later, Republicans controlled the Senate, and we used the 
nuclear option to finish what our Democratic colleagues started on the 
executive calendar. We ended the 60-vote requirement for Supreme Court 
nominees.
  There is a clear precedent on what happens when we change the Senate 
rules on a partisan basis for political expediency. It produces long-
term consequences that I believe both sides will ultimately regret.
  Democrats invoked the nuclear option to get more district judges, but 
by doing so, they paved the path for Justice Gorsuch, Justice 
Kavanaugh, and Justice Barrett, who now sit on the Supreme Court today.
  What do we think now if the Democrats nuke the filibuster for just 
one bill? The Senate rule change that the majority leader is pushing is 
really a proxy vote for ending the legislative filibuster altogether 
and turning the Senate into the House, full stop.
  So I ask my Democratic colleagues to consider this: When President 
Trump called for ending the filibuster, a large majority of Republican 
Senators stood up to preserve bipartisanship and to protect and respect 
this institution. Now, the roles are reversed. President Biden and the 
majority leader are demanding that you give them your vote to weaken 
the filibuster so it can ultimately be ended.
  To my Democratic colleagues who signed on to the very same letter I 
did in difficult circumstances, I ask you: Will you stand up for the 
principles that you stood for just a few years ago and respect and 
defend this institution?
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. ROMNEY. Mr. President, I prepared some remarks to give this 
evening, but I had the occasion to watch President Biden as he spoke in 
Georgia just a few minutes ago, and he said quite a number of things 
that simply weren't true. He also accused a number of my good and 
principled colleagues in the Senate of having sinister, even racist 
inclinations. He charged that voting against his bill allies us with 
Bull Connor, George Wallace, and Jefferson Davis--so much for unifying 
the country and working across the aisle.
  More troubling, however, he said that the goal of some Republicans is 
to ``turn the will of the voters into a mere suggestion.'' And so 
President Biden goes down the same tragic road taken by President 
Trump: casting doubt on the reliability of American elections.
  This is a sad, sad day. I expected more of President Biden, who came 
into office with a stated goal of bringing the country together.
  Now, our country has defied the odds for a democratic republic. It 
has survived and thrived for over 200 years. The character of the 
American people deserves most of the credit for that, but close behind 
are our vital institutions. Over the last several years, many of us 
recoiled as foundational American institutions have been repeatedly 
demeaned: The judiciary was charged with racial bias. The press was 
called the enemy of the people. Justice and intelligence agencies were 
belittled. Public health agencies were dismissed. Even our election 
system was accused of being rigged.
  The U.S. Senate is one of our vital democratic institutions, and the 
power given to the minority in the Senate and the resulting requirement 
for political consensus are among the Senate's defining features. Note 
that in the Federal Government empowerment of the minority is 
established through only one institution: the Senate.
  The majority decides in the House. The majority decides in the 
Supreme Court. The President, of course, is a majority of one. Only in 
the Senate does the minority restrain the power of the majority. That a 
minority should be afforded such political power is a critical element 
of this institution.

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  For a law to pass in the Senate, it must appeal to Senators in both 
parties. This virtually assures that the bill did not originate from 
the extreme wing of either one and, thus, best represents the interests 
of the broadest swath of Americans. The Senate's minority empowerment 
has meant that America's policies inevitably tack towards the center. 
As Senator Biden previously affirmed: ``At its core, the filibuster is 
not about stopping a nominee or a bill, it is about compromise and 
moderation.''
  Consider how different the Senate would be without the filibuster. 
Whenever one party replaced the other as majority, tax and spending 
priorities would change, safety net programs would change, national 
security policy could change, cultural issues would careen from one 
extreme to the other--creating uncertainty and unpredictability for 
families, for employers, and for our friends abroad.
  The need to marshal 60 votes requires compromise and middle ground. 
It empowers the minority. And it has helped to keep us centered as a 
nation, fostering the stability and predictability that are essential 
for investments in people, in capital, and in the future. Abandoning 
the principle of minority empowerment would fundamentally change a 
distinct and essential role of the U.S. Senate.
  But today's Democrats, now with the barest of majorities in a 50-50 
Senate, conveniently ignore their own impassioned defense of the 
filibuster when they were in the minority. Let us be clear that those 
who claim the filibuster is racist know better.
  For President Obama to make this absurd charge after he, himself, 
made a vigorous and extensive defense of the filibuster just a few 
years ago is both jarring and deeply disappointing. After all, I don't 
recall a single claim from Democrats that employing the filibuster 
hundreds of times over the last several years when they were in the 
minority was in any way racist.

  Over the course of my life, I have found that when presented with a 
matter of personal advantage that would require abandoning principles, 
the human mind goes to work overtime to rationalize taking that 
advantage.
  Only a few months ago, some of my Senate Democratic colleagues 
rationalized that the Senate couldn't function and, therefore, they had 
to get rid of the 60-vote rule. But then the Senate functioned quite 
well when it passed the infrastructure bill, armed services 
legislation, and a bill on innovation.
  So, a few months later, some of these colleagues argued that in order 
to raise the debt ceiling, the 60-vote rule has to go. Then, with 
bipartisan cooperation, the Senate raised the debt ceiling.
  So now, the Democrats' latest rationalization is that their partisan 
new election law must be passed. But Democrats have filed these voting 
bills numerous times over numerous years, always without seeking 
Republican involvement in drafting them. Anytime legislation is crafted 
and sponsored exclusively by one party, it is obviously an unserious, 
partisan effort.
  Let me note two more truths. The country is sharply divided right 
now. Despite the truth spoken by a number of good people in my party, 
most Republicans believe Donald Trump's lie that the 2020 election was 
fraudulent, stolen by Democrats. That is almost half the country.
  Can you imagine the anger that would be ignited if they see Democrats 
alone rewrite, with no Republican involvement whatsoever, the voting 
laws of the country? If you want to see division and anger, the 
Democrats are heading down the right road.
  There is also a reasonable chance Republicans will win both Houses in 
Congress and that Donald Trump himself could once again be elected 
President in 2024. Have Democrats thought what it would mean for them 
for the Democrat minority to have no power whatsoever?
  And finally, Mr. President, I offer this thought: How absurd is it to 
claim that, to save democracy, a party that represents barely half the 
country must trample on the rules of our democracy's senior 
institution?
  The PRESIDING OFFICER. The Senator from Rhode Island.