[Congressional Record Volume 168, Number 8 (Wednesday, January 12, 2022)]
[Senate]
[Pages S171-S179]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Filibuster
Mr. COTTON. Madam President:
Right now, we are on the precipice of a constitutional crisis. We are
about to step into the abyss. I want to talk for a few minutes why we
are on that precipice and why we are looking into the abyss.
Let me first ask a fundamental question: What is the crisis
that calls for the undoing of two centuries of tradition? . .
. Are . . . Senators merely doing their jobs as legislators,
responding to a generalized public calling for the abolition
of the filibuster? Clearly not. It is not the American people
at large who are demanding detonation of the nuclear option.
[T]he nuclear option is being pushed largely by the
radioactive rhetoric of a small band of radicals who hold in
their hands the political fortunes of the President.
Constitutional scholars will tell us that the reason we
have these rules in the Senate--unlimited debate, two-thirds
to change the rules, the idea that 60 have to close off
debate--is embodied in the spirit and rule of the
Constitution. . . . That is what the Constitution is all
about, and we all know it.
It is the Senate where the Founding Fathers established a
repository of checks and balances. It is not like the House
of Representatives where the majority leader or the Speaker
can snap his fingers and get what he wants. . . . On
important issues, the Founding Fathers wanted--and they were
correct in my judgment--that the slimmest majority should not
always govern. . . . The Senate is not a majoritarian body.
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 rubber stamp of
dictatorship. . . . They want to make this country into a
banana republic where if you don't get your way, you change
the rules! Are we going to let them? It'll be a doomsday for
democracy if we do.
I, for one, hope and pray that it will not come to this.
But I assure my colleagues, at least speaking for this
Senator . . . I will do everything I can to prevent the
nuclear option from being invoked not for the sake of myself
or my party but for the sake of this great Republic and its
traditions.
Those are powerful words, but they are not mine. Every word of my
speech today was originally spoken by our esteemed colleague, the
senior Senator from New York, Chuck Schumer. Senator Schumer spoke so
eloquently in defense of the Senate's rules, customs, and traditions
when the fortunes of his party looked a little different. My, how times
have changed. Now it is Senator Schumer's fingers that are hovering
over the nuclear button, ready to destroy the Senate for partisan
advantage.
Think about it. The narrowest majority in Senate history wants to
break the Senate rules to control how voters in every State elect
Senators. Could there be a better argument to preserving the Senate's
rules, customs, and traditions?
So, before it is too late, let us reflect on the wise and eloquent
words of Senator Schumer's, words that are as true today as they were
when he spoke them, even if Senator Schumer is singing a different tune
today.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BLUNT. Madam President, the Senate is designed to be a place
where the Members of the minority party and the millions of Americans
they represent are heard. In this Senate, the minority could not be any
bigger. In fact, if the minority were any bigger, we would be in the
majority. This is a 50-50 Senate, and it is no time to take away the
protections that the Senate for almost 200 years has afforded to the
minority. The considerations given to the minority are important not
only to the Senators and the millions of people they represent, but I
think they are important in how the country moves forward.
I served in the House. I like the House. I watch the House as closely
as any Senator does. Every time the House changes, the House passes a
bunch of pretty dramatic legislation. Then it comes to the Senate. That
dramatic legislation they passed in the House doesn't go anywhere in
the Senate. When the House changes again--and it has a number of times
in the last 20 years--the other side comes in and passes legislation
that reverses all of that and maybe does a little dramatic legislation
of their own that also doesn't go anywhere when it gets to the Senate.
If all laws were passed by a simple majority, there would be the
potential for the majority to rewrite the country's laws constantly, no
matter how small the shift in power was. It is always a mistake,
frankly, to act like you have a mandate if you don't have one. It is a
mistake for the country to change direction dramatically before the
country has had time to think about it. The bureaucratic whiplash could
be enormous. The economic impact could be enormous of the changing
policies on regulation and taxes and everything else in a dramatic way
every time one side gets some small advantage over the other side.
For the past year, we have heard a constant refrain from our
colleagues on the other side of the aisle that the legislative
filibuster--the supermajority to move to finalize a piece of
legislation--must be reformed. At the present moment, we are hearing it
must be reformed only, maybe, for elections, that we should have a
carve-out for elections. Just a few weeks ago, it had to be reformed to
have a carve-out for the debt ceiling. I am sure, if we had done either
of those things, in a few weeks, we would be talking about a third
carve-out. And what are we doing it for? We are doing it for what I see
as a federalization of the election process.
When asked in a Morning Consult/POLITICO poll that was just released
today--so this is something the American people have just weighed in on
today. When they were asked which of the three voting ideas that were
polled should be a top priority of the Congress in the voting area--one
was reforming Congress's role in counting electoral votes; one was
expanding voting access; one was expanding the oversight of the State
changes in elections--they were all beaten by ``none of the above.''
``None of the above'' got more votes in that poll than some of the top
priorities the Democrats were talking about.
We hear that we have to extend the Voting Rights Act. We have even
titled the Voting Rights Act after a person whom I served with in the
House, whom I traveled with, whom I had a close friendship with--John
Lewis. That would be a good reason for me to vote for the Voting Rights
Act, and certainly I voted to extend the Voting Rights Act before. In
fact, I would vote to extend the Voting Rights Act today, and I would
even be more happy to vote for the Voting Rights Act today if it were
the Voting Rights Act that just happened to be named for John Lewis.
The Voting Rights Act in 1965 was 12 pages. The extensions have all
been about the same size. This bill has another 110 pages of additional
legislative things that don't deal with the principles of the Voting
Rights Act at all; they deal with the Federal Government's taking over
the election process.
We have seen our colleagues talk about this in one bill after
another. I think the motives are pretty transparent right now; it is
another way to break the filibuster. But we hear that the laws that
States are passing--and by the way, the States have been passing
election laws for the whole country, as it relates to their States, for
a little over 200 years now. The Constitution was pretty specific as to
who would conduct elections in the country and who would set the rules
and regulations in the country for those elections.
We hear that these laws are very restrictive. Now, mostly, these laws
are laws that the legislatures leaned forward, as they should have, in
my opinion, in a pandemic environment. It was an election that, in at
least 100 years, we had never conducted anything like with the pandemic
experience we were in. So they leaned forward. They allowed things that
had never been allowed before: more mail-in voting, voting from your
car, voting from a parking lot, all sorts of things. Then those same
legislatures looked back at what had happened as a result of that and
said: Do we want to keep all of this as if we were going to have a
pandemic every year or do we want to keep part of it? In every case
that I have looked
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at, the changes in election law made it easier to vote in 2021 than it
was in the last election before the pandemic.
I would encourage all of my colleagues, who are such sudden experts
on Utah and Iowa and other election laws, to look at the 2018 election
laws and see how they compare. What the legislatures did was exactly
what you would hope they would do--respond to a crisis and, when the
crisis is over, evaluate how much of that we want to keep as part of
our permanent system and how much of it was only in crisis.
What do these laws do?
In Utah, the State legislature determined it would be appropriate for
the Lieutenant Governor, who is the chief election official of Utah, to
get the names of deceased individuals from the Social Security
Administration and give them to county officials, who would take their
names off the rolls. That is listed as one of the things that make it
harder to vote--well, harder to vote for dead people. That is fine. I,
actually, asked this question in a hearing of someone--one of the
election-monitoring people who said this was difficult.
I said: Well, what about that?
He said: The Social Security Administration is often wrong.
Well, if anybody is going to get something straightened out pretty
quickly, it would be a living person who no longer is getting their
Social Security check because the Social Security Administration had
them on a list of people who were deceased. What a foolish argument
that was for that to be a repressive thing.
In Georgia, the State legislature adjusted their mail-in ballot
deadline to ensure voters who requested mail-in ballots got their
ballots with enough time to cast them. They brought their date more in
line with the advice of the U.S. Postal Service. The truth is that lots
of States did this.
States like Georgia and Florida now include specific provisions in
State law that allow for the use of drop boxes. In fact, they have to
have at least one in every county. There were no drop boxes in Georgia
anywhere before the 2020 elections. Now there have to be drop boxes
everywhere, and it has to be understood where those locations can be
found.
States like Iowa and Georgia implemented more early voting days than
the so-called Freedom to Vote Act would require. In fact, these States
had more days of early voting than many States that have Democrat-led
legislatures, like New York and Connecticut and the President's home
State of Delaware.
They also forgot that many Republican States, like Arizona, Florida,
and Georgia, have already implemented no-excuse absentee voting.
I was an election official for 20 years, part of that as the chief
election official in our State, the secretary of state. I am absolutely
confident that nobody takes the security of the elections and the
confidence in the elections and the ability to register and vote in an
easy way more seriously than people who are directly answerable to
their neighbors, if they are the local official, or to the people who
vote for them, if they are the State official.
President Obama said in 2016 that the diversity of this statewide
system was one of the strengths of our system--the State-run system--
and one of the reasons it would make it really hard for any outside
entity--any foreign entity, any outside group--to truly try to rig a
national election.
I have got more to say. I am going to submit the rest of my remarks
for the record. I am sure there will be more time to talk about this
next week.
On ballot harvesting, 62 percent of people in one poll are opposed to
ballot harvesting. Ballot harvesting is when you ask somebody to give
you their ballot. You say: I will turn it in for you.
Well, maybe--who would know?
I will put it in the mail for you.
Who would know? If it never gets to the counting place, it just got
lost in the mail.
One of the reasons it might have gotten lost in the mail is the
ballot harvester knows, with almost certainty, that the way you marked
your ballot is not the way the ballot harvester would prefer to have
the ballots marked.
Seventy percent of Americans support voter maintenance. That is
eliminated in many ways by the law being proposed.
One proposal even went so far as to tell States the kind of paper
their ballots would be printed on. If you really want to make it easy
to impact an election, be sure that somebody knows the exact paper that
every entity in America prints their ballots on and gets some of that
to use to try to divert the election and make the election less secure.
We are going to hear a lot about this over the next couple of days. I
certainly would welcome the opportunity to have more time, and I am
sure I will have more time, to talk about what is in these bills, both
the State bills and the Federal bills, as opposed to what people are
saying is in both bills.
I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
Mrs. BLACKBURN. Madam President, the Senator from Missouri is exactly
right. We are going to hear so much about this, and the reason is, as
the American people hear about this so-called election bill, what they
are realizing is, it is not something that is going to make their local
election safer. It is something that is going to put that power in
Washington, DC.
Now, what we are hearing from the majority leader and the Democratic
leadership is that they have got to get rid of the filibuster in order
to push forward this election bill, adding States, packing courts--all
of this laundry list of a socialist agenda that they are planning to
execute.
So what I want to do today for a couple of minutes is just walk us
down memory lane as to what people have had to say, what our Democratic
colleagues have had to say about the filibuster.
In May of 2005, then-Senator Joe Biden came to the floor and he
vigorously jumped into the middle of a debate over the filibuster. He
said that things would go very wrong if his colleagues decided to blow
up the rules to get their way. What is interesting about Senator
Biden's position is that it had almost nothing to do with his policy
goals.
Here is his quote:
Folks who want to see this change want to eliminate one of
the procedural mechanisms designed for the express purpose of
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.
He understood, at that point in time, the importance of preserving
the Senate's institutional power and abiding by standards that not only
welcome but require deliberation and compromise.
Well, what a difference a few years and a Senate majority can make.
Today, we are having the exact same debate, but the power my Democratic
colleagues won in the last election has changed their minds about
breaking the Senate to get their way. The problem is, the Senate is not
broken. It does not need their changes.
But the rules no longer matter to the majority leader, even though he
said as recently as 2017:
[L]et us go no further down this road. I hope the
Republican leader and I can, in the coming months, find a way
to build a firewall around the legislative filibuster, which
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,
much more subject to the winds of short-term electoral
change.
Well, my, my, my, how about that? He understood the dangers of
legislative whiplash, even when he was in the minority. So did my
colleague Senator Durbin, who said in 2018 that he believed that ending
the filibuster would ``be the end of the Senate as it was originally
devised and created, going back to our Founding Fathers.''
Well, I am going to ask the Senators from New York and Illinois: What
happened here? What changed their minds so drastically? They have done
a 180.
I would ask the same question of many of my Democratic colleagues. In
2017, 32 Senate Democrats--yes, that is correct, 32, many of whom are
still serving in this Chamber today--signed onto a bipartisan letter in
support of the filibuster. Now, they, too, have changed their minds. It
makes you wonder: What is everybody on the Democratic aisle drinking
these days?
This is no way to run the world's greatest deliberative body, but it
is a great way to destroy it. Between 2017 and today, many Senate
Democrats
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changed their minds about how to handle the filibuster.
Over the past year, we have watched Joe Biden and the Democrats
attack more than one institution forming the foundation of this Nation.
The Supreme Court, the First Amendment, the Second Amendment, limits on
the power of the Executive, and, now, the Senate rules have all proved
to be inconvenient to their agenda and ended up on the chopping block.
That is where they are putting them.
My Democratic colleagues may be frustrated, but that is just too bad.
The Senate was not designed to rubberstamp legislation that is so
belligerently foolish it can't tempt a single Republican vote--not one.
No.
The Senate was designed to protect the American people and the
institution itself from shortsighted leadership.
My colleagues claim that all they are asking for is one teeny little
carve-out--just one. But I would remind them that there is only so much
carving you can do before you reduce the entire thing to dust. And
based on their track record, we have no reason to trust that they will
stop carving and put down the knife rather than use it to hold the
Senate hostage the next time they can't scrounge up the votes to check
something off their to-do list.
I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
Mr. SCOTT of Florida. Madam President, since the founding of our
Republic, the Senate has existed to encourage extended debate and
protect the rights of the minority party.
Over the centuries, as various political parties have risen and
fallen from power, the Senate's rules have been respected and followed.
One of those rules is the legislative filibuster, which protects the
minority party's rights by requiring a 60-vote threshold to pass
legislation in the Senate.
Unfortunately, many of today's Democrats in Washington only care
about one thing: radically transforming this Nation into a new
socialist state. And they will use any means necessary to keep their
grip on the Federal Government.
Now we are seeing Democrat leadership in the Congress wield their
historically narrow majority to push one partisan bill after another
without even attempting to get Republican input or support. Instead of
working together with their Republican colleagues, they are searching
for ways to make it easier to jam through progressive, socialist
policies without any compromise. Just look at the majority leader's
most recent statements on the filibuster.
Last week, the majority leader wrote a letter to all Democrat
Senators explaining his plans to fundamentally and permanently alter
the rules of the U.S. Senate and change the legislative filibuster. His
statements could not be more hypocritical or self-serving.
The legislative filibuster, which has been in place for decades, has
been repeatedly defended as a vital and necessary rule to protect the
minority party's rights, including by Barack Obama, Joe Biden, Kamala
Harris, and even Senator Schumer.
In 2017, Senator Schumer urged then-Majority Leader McConnell to
``find a way to build a firewall around the legislative filibuster,''
which is the most important distinction between the Senate and the
House.
He went on to say:
Without the 60-vote threshold for legislation, the Senate
becomes a majoritarian institution like the House, much more
subject to the winds of short-term electoral change. No
Senator would like to see that happen, so let's find a way to
further protect the 60-vote rule for legislation.
These are the direct quotes from the Senator from New York. He called
the filibuster the most important distinction between the Senate and
the House, and now he is turning his back on them.
Of course, my colleague from New York isn't the only one caught in a
bind here by previous statements and actions. Just remember that, in
2018, the current Senate majority whip, Senator Dick Durbin, said doing
away with the legislative filibuster ``would be the end of the Senate
as it was originally devised and created going back to our Founding
Fathers.''
He further admitted: ``We have to acknowledge our respect for the
minority, and that is what the Senate tries to do in its composition
and its procedure.''
Or remember in 2017, when 32 Democrats signed a bipartisan letter
urging Senate leadership to keep the sacred part of the Senate intact.
Most of those same Senators who defended minority party rights are
still in office today, but only one has expressed any opposition to
Senator Schumer's plans to destroy the filibuster, now that he is in
the majority.
And just last Congress, most of the Democrat caucus used a filibuster
to block a police reform bill from my Republican colleague Tim Scott
and a bill that would have protected newborn babies who survived
attempted abortions.
So my Democrat colleagues think the filibuster is great when it works
in their favor, but they can't stand it when it blocks their radical
socialist agenda, an agenda we know the American people do not support.
So why the change of mind? Why are they willing to be so blatantly
hypocritical and so obviously flip-flop? Because they know if they pull
this off and pass this radical, dangerous bill to federalize elections,
it will all but secure their power into the future. That is what we are
talking about here.
Democrats want to push through this bill that will completely upend
our current election system, and they are willing to abandon their
principles and flip-flop on the filibuster if it means permanently
maintaining power.
Senator Schumer admitted it earlier today on MSNBC. He said the quiet
part out loud and explained that Democrat Senators are saying things
like ``I'll lose my election'' or ``We'll lose our majority'' if they
don't change the filibuster to pass their election takeover bill.
Democrats say this is about ``voting rights.'' It isn't. The right to
vote is more readily accessible and easily exercised by eligible voters
across the country than ever before. This is really about federalizing
our elections and enacting policies that they think will give them an
advantage in future elections. And all along the way, they will revel
in their hypocrisy and self-righteously pretend that they are
``protecting democracy.''
But make no mistake, a change to the filibuster won't protect
democracy. It will ruin it.
Democrats in this Chamber can posture all they want, but the American
people see them for what they really are: self-serving, power-hungry
politicians.
We all know that if the Democrats' bill was good, if it included
policies that would actually improve our Nation's elections, it would
pass. But there is nothing in the bill worth voting for. The Democrats'
bill is an assault on American elections. It will fuel voter fraud,
waste taxpayer dollars on political campaigns and attack ads, and make
it nearly impossible to conduct fair elections that our citizens can
trust.
We need an end to this self-serving hypocrisy, and we need Members
who will stand up for what is right. I am urging my Democratic
colleagues to see past their party's own partisan, short-term
interests, and I ask them to consider the health and future of our
democracy. That is what the American people deserve.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CRUZ. Madam President, just this week, we saw the College
Football National Championship game. A lot of tremendous athletes
engaged in tremendous feats of skill and strength, but I have to say,
there wasn't an athlete on the field who demonstrated the flexibility
that we are seeing in the U.S. Senate right now. We are today seeing
Democrats in the Senate, with the active encouragement of President Joe
Biden, engaging in not one but two partisan power grabs and doing them
both with a twist. Let me explain.
Democrats are desperate to hold on to power. It is their No. 1
priority. It is more important than anything else. It is more important
than jobs and our economy to Democrats. It is more important than
getting kids back to school. It is more important than defeating COVID.
Nothing matters more to today's Democrats than staying in power no
matter what.
How do we know that? Well, the very first bill introduced in the
House of
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Representatives, H.R. 1, is a bill many of us call the ``Corrupt
Politicians Act.'' It is a bill designed to keep Democrats in power
forever. That was Nancy Pelosi's No. 1 priority.
The very first bill introduced in this Chamber, S. 1, is likewise the
``Corrupt Politicians Act,'' a bill designed to keep Democrats in power
forever. It is the No. 1 priority of elected Democrats.
When that failed to get sufficient votes to pass, Democrats shifted
to option 1B. Option 1B has the same objective--keep Democrats in power
forever--but it is through a little twist, a sleight of hand. Now,
Democrats want to subject every significant decision concerning voting
to the unreviewable--in most instances--arbitrary power of an unelected
bureaucrat in the Federal Department of Justice.
My State of Texas has 29 million people. Those 29 million people have
democratic rights. They have rights to elect legislatures that reflect
their views, their policies, their values. Do you know what Senate
Democrats say? We don't care. We don't care what those 29 million
people want; we, the Democrats, want to stay in power.
So let's take, for example, photo ID. I have in my wallet my driver's
license. Most people do. Voter ID is a policy that is supported by the
overwhelming majority of Americans. Roughly 80 percent of Americans
support voter ID, requiring a driver's license to vote. Two-thirds of
African-American voters support voter ID. It is overwhelmingly
supported across the country.
Do you know who doesn't support it? Elected Democrats. Sadly, every
single Democrat in this Chamber has been willing to go on board with
proposals to strike down voter ID laws. Here is what the Democrats want
to do: They want to say that even though the voters of Texas want voter
ID because we want elections with integrity--we want to know that if
you come in and vote and say your name is John Doe, that you are not
somebody else pretending to be that person--congressional Democrats
don't care. They want to have an unelected bureaucrat with the ability
to strike that down--and likewise with ballot harvesting.
Ballot harvesting is one of the most corrupt practices in this
country. It is the practice whereby paid political operatives go and
collect the ballots of other people. So, for example, you have a young
operative from the DNC come into a nursing home and go room to room.
Now, some of those residents may no longer be competent to make a
choice. They may not be aware of their surroundings. But for an
unscrupulous operative, that doesn't stop them. That operative can sit
there and say: Sir or ma'am, you want to vote for so-and-so, don't you?
They can fill out the ballot for them.
Do you know what? If there is some obstreperous senior in a nursing
home who says, ``Gosh, I really want to vote for the other guy,'' well,
it is very simple for the unscrupulous operative to take that ballot--
ah, this ballot is for the other guy--and magically it ends up in the
trash, never gets mailed in. They can just mail in the ballots they
agree with and throw away the ballots they disagree with.
There is a reason the majority of States have made ballot harvesting
illegal: It invites voter fraud. By the way, it wasn't long ago when
people on both sides of the aisle recognized this.
The most significant bipartisan effort examining voter fraud: the
study of a bipartisan Commission called the Carter-Baker Commission.
Baker is former Republican Secretary of State James Baker. Carter is
former Democratic President Jimmy Carter. The Carter-Baker Commission
concluded that voter ID was an important step to stopping voter fraud.
The Carter-Baker Commission concluded that voter fraud was a real and
significant problem undermining the integrity of elections. The Carter-
Baker Commission identified ballot harvesting as one of the most
dangerous practices encouraging voter fraud.
As I said, the Carter in Carter-Baker Commission was former
Democratic President Jimmy Carter--hardly a rightwing Republican
operative by any stretch of the imagination.
It used to be, when sanity was permissible in the Democratic Party,
that people would acknowledge the obvious. Unfortunately, we are in
hyperpartisan times. So, today, Senate Democrats want to be able to
have laws on voter ID, want to have laws prohibiting ballot harvesting
struck down by one unelected bureaucrat.
By the way, who is that bureaucrat? Currently, it is a woman named
Kristen Clarke, head of the Civil Rights Division at the Department of
Justice. Ms. Clarke is one of the most radical, partisan nominees ever
to serve in the U.S. Department of Justice. She is one of the leading
advocates in the country for abolishing the police.
By the way, every single Democrat in this Chamber voted to confirm
her despite the fact that she is one of the leading advocates in the
country for abolishing the police. She has been a hardcore, leftwing,
partisan advocate her entire life.
Now, she is entitled to have her views. She is entitled to believe
those views passionately. But here is what Senate Democrats want to do:
They want to take this one person and say she can strike down the laws
adopted by legislatures elected by 29 million Texans. That is
extraordinary.
Now, what could justify such a thing? Well, we saw Joe Biden give an
incredibly demagogic, racist speech accusing half the country of being
racist, of being Bull Connor.
The Democrats say this is Jim Crow 2.0. You know, Madam President,
ironically and I think inadvertently, the Democrats are telling the
truth. They don't mean to be, but they are. What was Jim Crow 1.0? Jim
Crow 1.0 was laws that were written almost exclusively by elected
Democrats. If you look at the authors of Jim Crow, they were Democrats,
as were the founders of the Ku Klux Klan. The purpose of Jim Crow laws
was to do one thing: stop the voters from voting Democrats out of
office because, if you look at the African Americans who were freed
from slavery, they were electing Republicans. In many instances, they
were electing Black Republicans. And the Democrats didn't want that.
How dare the voters select someone not from their party. So Jim Crow
was written to strip the right to vote from the voters who dared to
vote against Democrats.
Well, fast-forward to today. The ``Corrupt Politicians Act'' is Jim
Crow 2.0. It is once again written by Democrats to strip the right to
vote from the American people to prevent them from voting Democrats out
of office.
Listen, a lot of Democrats are really nervous right now. Pretty much
everyone in Washington recognizes that in November, we are going to see
a wave election. Pretty much everyone in Washington understands that in
November, Republicans are going to retake the House of Representatives,
probably by a big margin, and there is a very good possibility we will
retake the Senate as well.
Democrats can't defend their policies. They can't defend the rampant
inflation that is hammering seniors and working-class people across the
country. They can't defend the chaos at the open borders. They can't
defend the jobs being destroyed. They can't defend the lawless and
abusive vaccine mandates. And they certainly can't defend their
catastrophic surrender and failure in Afghanistan.
It has gotten so bad that when Joe Biden and Kamala Harris went down
to the State of Georgia, Stacey Abrams, the Democratic candidate
running for Governor in Georgia--and, I would note, Stacey Abrams still
maintains to this day she won the last election. She insists the last
election was stolen and she is the sitting Governor. Apparently this is
a reelect campaign. Stacey Abrams refused to show up, to be seen with
Joe Biden and Kamala Harris. Even while Biden was giving this racially
demagogic speech, which Stacey Abrams has made a career of doing, Ms.
Abrams did not show up for the speech. She said she had a scheduling
conflict.
The Presiding Officer and I have both served some time in the Senate.
We have both seen instances where the President of the United States
was visiting our home States. I can tell you, as a Senator, you make
time to be there if you want to be there. It is clear that Ms. Abrams
did not want to be there, that she looked at Joe Biden and Kamala
Harris and sees their poll numbers plummeting, she sees their policies
failing, and she wanted to be nowhere near that.
So what is the Democrats' approach? If they can't win on the merits,
if they
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can't defend their policy failures, if they can't convince the voters,
then let's go back to the Jim Crow policies the Democrats authored to
begin with. This is Jim Crow 2.0: Strip away the power of the voters to
make a choice, put an unelected bureaucrat in charge of election laws,
and throw out the decisions of 29 million Texans.
I will tell the Presiding Officer this: Democrats don't get to claim
they are defending democracy when they are literally taking away the
rights of democratically elected legislatures. That is many things, but
it ain't democracy. One unelected bureaucrat overruling 29 million
Texans is not democracy; it is a power grab.
But I told you this was a power grab on top of a power grab with a
twist. The second power grab is, how are they going to try to pass the
``Corrupt Politicians Act''? They are going to do it by nuking the
filibuster.
The rules of the Senate written in that book that sits on the dais in
front of you say that to proceed to legislation takes 60 votes in this
Senate. It takes 60 percent of the Senators. Those are the Senate
rules. They are black and white. They are clear. If you don't like the
Senate rules, there is a way to change that. You can amend the Senate
rules. It takes 67 votes to amend the Senate rules.
A number of us have proposed amending the Senate rules. I myself have
repeatedly gone to Democrats saying I would be happy to work with
Democrats on proposals to amend the Senate rules to allow Senators on
both sides to offer more amendments. Democrats haven't been willing to
do so. Instead, what Democrats intend to do--what they want to do, what
President Biden is urging them to do--is to break the Senate rules, to
change the Senate rules. It is called nuking the filibuster.
If their plan is successful, Senator Schumer will stand up and seek a
ruling from the Chair as to whether it takes 60 votes or 50 votes to
proceed to legislation.
The Chair will say--if the Chair is following the rules--it takes 60
votes. And then Senator Schumer will move to reconsider the ruling of
the Chair and overrule the ruling of the Chair and say: Even though the
words on the page say 60 votes, from now on it is 50. It is another
brazen power grab.
There may be some folks at home who are a little cynical of the
partisan time we find ourselves in, who are skeptical of claims,
perhaps, made by both sides. But maybe you are a Democrat at home. And
I am a Republican. I am a conservative Republican. You might be saying:
Do you know what? If it is Cruz saying it, I am a Democrat; I don't
believe him.
I understand this. This is a very partisan time. There are a lot of
disagreements. So if you are a Democrat at home and you are inclined
not to believe what I say, I am going to suggest, perhaps, some people
you can believe.
I told you it was a double power grab with a twist. I want to point
to you the words of President Joe Biden. If you are not inclined to
believe a Republican, maybe you will believe Joe Biden. Here is what
Joe Biden said in 2019. This is not 1964. This is not 1954--2019, a
couple of years ago. ``Ending the filibuster is a very dangerous
move.''
If you are at home and don't believe Republicans, do you believe Joe
Biden? Was he lying when he said ``Ending the filibuster is a very
dangerous move'' or was he telling the truth? Because that is what Joe
Biden said just a couple of years ago.
Now, maybe you say: Well, he was on a campaign. People say things.
You can't hold him to fault for saying that. That is not fair.
OK, all right, so now you don't believe me, and you don't believe Joe
Biden. But let's see if we can find someone else. How about someone who
serves in this Chamber right now? How about someone who is the Senate
majority leader right now? How about Senator Chuck Schumer?
If you haven't actually watched this speech, I would encourage you to
go pull out your phone and Google it. You can find it really easily.
Senator Chuck Schumer, in 2005, gave a speech. I am going read to you
verbatim what he said. He said: ``They want, because they can't get
their way . . . to change the rules midstream.''
What would be the effect of that? You change the rules midstream. You
nuke the filibuster. What would be the effect of that? According to
Chuck Schumer, the effect of that is ``to wash away 200 years of
history.'' That is what Schumer says is the effect. ``Washing away 200
years of history''--that sound serious.
Anything else?
``They want to make this country into a banana republic, where if you
don't get your way, you change the rules''--``wash away 200 years of
history . . . make this country into a banana republic.''
That is pretty serious stuff. That ought to concern us. But at least
that is the worst it gets, right? Well, actually, no. Schumer
continued: ``It'll be doomsday for democracy if we do.''
There are reporters teeming the U.S. Capitol. Any reporter who wants
to be something other than a partisan shill and mouthpiece for the
Democrats ought to ask every single Democrat: Senator so-and-so, do you
agree with Chuck Schumer that ending the filibuster will turn our
Nation into a banana republic? Do you agree, Senator so-and-so, that
ending the filibuster would be doomsday for democracy?
And, by the way, if there are any reporters left who actually have
journalistic ethics, you shouldn't just ask Joe Manchin and Kyrsten
Sinema. Right now, they are the lone Democrats with the gumption to
stand up for democracy. But you ought to ask all 50 of them, every
single one of the Democrats: Do you agree with Chuck Schumer that
ending the filibuster is doomsday for democracy? And if not, why? Is it
just that your team is the one that can't get their way? Now it is your
side that wants to change the rules midstream. Now it is your side
that, if you don't get your way, you change the rules.
Was Joe Biden lying in 2019? Was Senator Schumer lying in 2005? I
don't know. You ought to ask them. A double power grab with a twist:
Jim Crow 2.0, seizing Federal elections, striking down the laws adopted
by democratic legislatures, putting an unelected radical leftist
bureaucrat in charge of elections with more power--this one leftist
bureaucrat--than all 29 million people in the State of Texas, doing so
by breaking the Senate rules to change the rules. And the twist is with
a dose of hypocrisy--unusual even for this place.
Look, if a Senator serves long enough, there will be times when they
may vote a little bit this way or a little bit that way. There are lots
of Senators that have had tensions with prior positions. I cannot think
of another time when a Senator has voted for something that he has
called ``doomsday for democracy.'' That is not just a little
hypocritical. And, by the way, all the Democrats agreed with him. They
were all standing shoulder to shoulder.
In 2005, when Senator Schumer said this, he was either lying or
telling the truth. If he was lying, I guess you should ask him why he
was lying. If he was telling the truth, I guess you should ask 48
Democrats who don't care why they are willing to vote for doomsday for
democracy.
If you want to understand the dangers of this double power grab with
a twist, look no further than the vicious, partisan, divisive, hateful
speech President Biden gave, insulting half this country; oddly enough,
blaming Republicans for the sins of his own party--the Democratic
Party--who wrote Jim Crow and founded the KKK.
All of us were sitting outside the Capitol when President Biden gave
his inauguration speech, when he talked about unity, when he talked
about healing. Do you want to see the vicious partisanship that ending
the filibuster will produce? You saw it. A double power grab, with a
twist of hypocrisy.
If there is a Democrat in this Chamber who gives a damn about
democracy, let me urge you: Don't vote for what your own leader has
called ``doomsday for democracy.''
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Madam President, the Senate is, indeed, a peculiar
institution. Despite what some might expect, and despite how it might
be portrayed from the outside, Senators genuinely strive to be
collegial, even when--especially when--they hold strong political and
policy disagreements. In fact, the Senate rules have strict
prohibitions on insulting the character of another Member or a State.
That is because debate is a fundamental part of the Senate. I
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mean, it is part of our culture in this institution. That is how this
institution earned the moniker as the world's greatest deliberative
body.
Some in this body, unfortunately, want to change all that. They seek
to trample over more than two centuries of precedent, procedure, and
politeness. They are attempting to break the rules that require a two-
thirds supermajority--67 votes--to change the rules. They want to
ignore that requirement and stiff-arm this historic institution in a
way that would obliterate the requirement that those in the majority
hear the voices of and work with those in the minority.
That requirement--sometimes colloquially referred to as the
filibuster--is one of the most powerful constraints or checks on human
nature, not only in the Senate but in the entirety of the U.S.
Government. If the filibuster were removed, everything from regulatory
structures to tax rates, the size of the Supreme Court, the makeup of
the military, the criminal code, and much, much more could change
drastically every few years. Keeping track of the law and its
fluctuating requirements would be impossible for the most capable of
lawyers, let alone the average American subject to all those laws. Our
business landscape would be obliterated under the ever-changing
commands of the Federal Government. Americans would be worse off in
almost every sense I can think of. In countless ways, the American
people would be harmed by this unfortunate decision.
Our system is designed specifically to control those whims and those
passions, to make sure that their impact on the law doesn't cause the
law to become this ever-changing, ever-fluctuating creature that can't
be anticipated.
Our Constitution was designed to protect the rights, the voices, and
the influence of those not in the majority. Laws that significantly
impact the lives of hundreds of millions of people should, in fact, be
difficult to pass.
In fact, the Senate has applied these principles into almost every
mechanism of the institution. Most laws pass by unanimous consent or by
simple voice vote after hearty consideration and frequent amendments
through a process known as the hotline. That would essentially cease to
function if the minority had no significant influence. Opportunities
for amending these often smaller and somewhat less controversial bills
would be foreclosed, crippling the careful consideration needed. Bills
would have to be forced through often on party-line votes over the
objection, suspicion, or protest of the minority.
But beyond building consensus and maintaining the function of the
Senate, the filibuster serves as the keel on a very large ship. It
prevents the waves and passions of each new election from drastically
changing the laws of the country. It is a stabilizer of sorts, one that
prevents our Nation's course from being jerked around to oscillating
extremes.
I was asked recently if the Senate is broken. I responded by saying
that the only sense in which I think the Senate is significantly
broken, or at least undermined in the way that it is supposed to
operate, is in its neglect of substantive debate and opportunities for
amendments for each individual Member. The filibuster protects the
remaining debate, amendment, and consideration available to Members of
this body, whether those Members are of the majority party or of the
minority party.
So removing the filibuster, on the other hand, would irreparably
render the Senate beyond recognition. The partisan vitriol and
disregard for opposing Senators would eat away at this place, at our
norms, our customs, and, ultimately, our Republic.
Now, at least until recently, many Senate Democrats--most, in fact--
held these beliefs as well. In 2017, 27 of them, including now-Vice
President Harris, signed a letter urging the preservation of the
filibuster. Many of those Members still serve today, and I encourage
them to consider their past advice.
By the way, that was a letter I signed, along with nearly every
Member of the Senate from the Republican Party. We signed on to that
notwithstanding the fact that Republicans held majorities in the Senate
and in the House and a Republican President was serving in the White
House. We did so because even though some short-term gain could have
been achieved by nuking the filibuster then, we all understood what I
think we still all understand today, which is that it would inflict
irreparable harm on the Senate, and even more than the Senate, on those
represented here. It would irreparably harm the American people to do
away with it.
Senator Schumer, the leader of this destructive current effort, has
himself in the past given grave, dire warnings about what this tactic--
making the filibuster a thing of the past--would mean. We heard many
quotes today, and in one that sticks out in my mind in particular, he
said that attempts like that to nuke the filibuster are ``what we call
abuse of power.'' He also said in that same quote that even if you have
51 percent of the vote, you still don't get your way 100 percent of the
time. He is absolutely right. That describes the Senate, it describes
its rules, and it describes so much about how our system of government
works. It even describes the system of checks and balances built into
our Constitution.
The vertical protection of federalism says many of our laws--in fact,
most of them--are supposed to be made at the State and local level and
not within Washington, and the horizontal protection--that of
federalism--says that we are going to have one branch that makes the
laws, one that enforces them, and one that interprets them.
In that same document, it gives both Chambers of Congress the
authority to set our own rules. Even though the 60-vote cloture
standard is not itself mandated by the Constitution, the authority to
add it, to adopt it, as the Senate has, is in the Constitution, and its
ends, more importantly, are entirely consistent with this principle of
checks and balances, with this notion that Senator Schumer eloquently
referred to. The mere fact that you have 51 percent of the vote doesn't
entitle you to get your way 100 percent of the time. Now, this
circumstance is particularly poignant given that he doesn't even have
51 percent of the votes in this Chamber, no. This is deadlocked 50 to
50.
He is also right that this is what we call an abuse of power. Indeed,
breaking the rules to grab power is an abuse. This attempt is so
transparent that even Senator Schumer has told the media that his
Members are concerned about losing their elections and the majority if
they can't use this tactic to federally take over our election system.
It is sad, it is tragic, and it is unacceptable.
I warn them that the American people see through this ploy. They know
what is happening, and they know why. They were promised a return to
cordial statesmanship. They were promised unity. This attempt mocks
both of these promises. It mocks the U.S. Senate. It mocks our system
of checks and balances. Most tragically, it mocks the American people.
The PRESIDING OFFICER. The junior Senator from Iowa.
Ms. ERNST. Madam President, first, I would like to wish a very happy
and healthy new year to you and to all of our staff and pages who make
the Senate run so efficiently every single day and frequently late into
the night. The world's most deliberative body has unpredictable hours,
which all too often means missing important events with family because
we are here going back and forth on the pressing issues of the day.
This is why we have a Senate, after all--to give voice to the various
viewpoints of Americans from each State and then try to resolve those
differences. It isn't always easy since, unlike the House of
Representatives, the Senate's unique rules require us to work together
across party lines.
I know what it is like to work with my Democratic friends. In fact, I
was named as one of the most bipartisan Senators of either party in the
past 25 years. That is what it takes to get things done here because
the rules force us to reach consensus.
The Senate was created specifically to prevent a mob rule mentality.
James Madison, the father of the Constitution, described the Senate as
the ``anchor'' of the Federal Government that would act as a
``necessary fence against fickleness and passion.'' George
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Washington famously said that the Senate was established to cool
legislation passed by the House in the same way that a saucer cools hot
tea.
Folks, we certainly have seen a lot of hot mess coming over from the
House. It is very concerning that the saucer intended to cool heated
passions is itself beginning to boil over as a result of hot air from
within.
Senate Democrats are threatening to blow up the Senate to
fundamentally change the U.S. Senate and to radically transform our
country. It cannot be understated how detrimental this action would be
to America. It would unravel two centuries of American representative
democracy. It would silence millions of Americans and destroy
what comity remains within this body.
I have to ask my colleagues, which side of history do you want to be
on? Do you want to go down in history books as the ones who turned the
Senate, the world's most deliberative body, into the House of
Representatives?
The law of our land would dramatically sway back and forth, and the
resulting political uncertainty would all but erase what little trust
the people have in our governing institutions and lead to even greater
political divisions. I don't think this is a future any of us want and
certainly not the one that was promised by President Biden when he
pledged--when he pledged--to the American people not to divide but to
unify our country.
When the threat of blowing up the Senate arose during Mr. Biden's
time in this institution, he spoke passionately against it. I don't
often quote Joe Biden, but I would urge you all to listen to his full
speech on the matter.
Madam President, I ask unanimous consent to have his speech printed
in the Congressional Record following my remarks.
Then-Senator Biden warned:
History will judge us harshly, in my view, if we eliminate
over 200 years of precedent and procedure in this body and, I
might add, doing it by breaking a second rule of the Senate,
and that is changing the rules of the Senate by a mere
majority vote.
Senator Biden concluded:
This nuclear option is ultimately an example of the
arrogance of power. It is a fundamental power grab by the
majority party.
Flash-forward 17 years later. Joe Biden is still in Washington, and
he and his Democratic counterparts are the ones who are exercising that
arrogance of power.
Now as the President, Biden just yesterday declared:
We have no option but to change the Senate rules, including
getting rid of the filibuster.
So how and why are we at a point where nuking the Senate could even
be a possibility? Plain and simple: The Democratic leader, who has
participated in hundreds of filibusters over the past 5 years--
hundreds, folks; hundreds--wants to have his way regardless of the
longstanding rules of this institution, the viewpoints of other
Senators, or even, folks--get this--the wishes of the citizens of his
own State.
Just last week, the Democratic leader said the filibuster was being
used to ``embarrass the will of majority,'' and therefore ``the Senate
will debate and consider changes to the Senate rules on or before
January 17.''
Folks, it is not the Senate rules embarrassing the majority but,
rather, their two-sided flip-flopping on the importance of the
filibuster to this institution and to our democracy.
Not so long ago, the Democratic leader said that eliminating the
filibuster would turn ``the cooling saucer of democracy into the rubber
stamp of dictatorship.'' It will be ``a doomsday for democracy.''
Today, he is the one with the finger on the nuclear button, all because
he can't get his way.
This is the kind of power grab you would expect from tyrants in
socialist nations, who seem to be where the Democrats are taking many
of their cues from these days. Tyranny is no way to run a democracy,
and destroying the U.S. Senate for a power grab is certainly not the
example we should be setting for the rest of the world.
But the hypocrisy doesn't end there, folks. Democrats are
manufacturing hysteria that Republican-controlled States are placing
what they consider ``unfair restrictions'' on voting as an excuse to
blow up the Senate and thereby clear a pathway for the rest of their
radical liberal agenda. The irony here is that New York, home of the
Democratic leader, Chuck Schumer, and Delaware, home of President
Biden, have some of the most restrictive absentee voting laws in the
entire country.
Just this past November, the Democratic leader's constituents--his
constituents--overwhelmingly voted down a ballot initiative to allow
absentee voting without providing an excuse and another proposal to
permit unregistered voters from registering and then voting on election
day. They were voted down--his constituents. So in New York, the only
way to qualify for an absentee ballot is to be out of the country or
sick or have a physical disability. No other reasons are permitted.
Now the senior Senator from New York is threatening to destroy the
Senate to override the wishes of the residents of his very own State
who voted against the policies he is trying to impose on every other
State. Did you catch that, folks? He is overriding the will of the
people in his own State. Does that sound like democracy to you? It is
not Senate Republicans blocking the Democrat leader's agenda; it is his
own constituents.
Folks, the reality is, this election takeover bill is just the
beginning, used as an excuse by the majority leader to then break the
Senate and strengthen his own grip on power.
This party boss mentality may work in New York, but, folks, the
Senate is not Tammany Hall. While Senate Democrats would have you
believe Republicans are somehow limiting the rights of Americans to
vote, they, in fact, are the ones plotting to silence millions of
Americans.
The same partisans on the other side of the aisle who ``boasted''
of--air quotes right here, folks, you see them--they ``boasted'' just
about a year ago of resisting. Just a year ago, they were encouraging
resisting; filibustering and blocking just about every proposal or
nominee put forth by the prior President.
Now they call this tool a threat to democracy. Remember, less than 2
years ago, following the very tragic death of George Floyd, the Senator
from New York voted to block consideration of a police reform bill put
forward by my friend Senator Tim Scott of South Carolina.
That is just one of the many other examples of commonsense bills the
Democrats blocked for purely partisan reasons.
The real threat to democracy isn't the filibuster but those
politicians who abuse the power with which they have been entrusted.
The Democratic leader has already put a choke hold on democracy right
here in the Senate, abusing his position to singlehandedly block other
Senators from offering amendments to bills he chooses to bring to the
floor.
If the majority wants to demonstrate a commitment to democracy, why
not start right here in the Senate? Instead of threatening to have less
deliberation, why not commit to more? Let's bring up bills that have
already had broad bipartisan support, and let's allow more votes on
amendments.
But rather than starting this new year with a resolution to take this
approach and make the Senate a true example of democracy in action,
where every voice is heard and respected, the Democratic leader penned
each of us a bombastic letter written with the left's usual dramatic
flair and theatrics, comparing the filibuster to a dead hand and
promising to permanently alter the Senate unless we bend to his wishes.
The senior Senator from New York should leave the theater for
Broadway, where it belongs. And before casting a vote that could
fundamentally change the Senate forever, I would urge my Democratic
colleagues to take some advice about the intended behavior of the
Senate from our Nation's greatest statesman, George Washington, and
cool it.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Congressional Record
VOL. 151, NO. 69--MAY 23, 2005
Mr. BIDEN. Mr. President, my friends and colleagues, I have
not been here as long as Senator Byrd, and no one fully
understands the Senate as well as Senator Byrd, but I have
been here for over three decades. This is the single most
significant vote any one of
[[Page S178]]
us will cast in my 32 years in the Senate. I suspect the
Senator would agree with that.
We should make no mistake. This nuclear option is
ultimately an example of the arrogance of power. It is a
fundamental power grab by the majority party, propelled by
its extreme right and designed to change the reading of the
Constitution, particularly as it relates to individual rights
and property rights. It is nothing more or nothing less. Let
me take a few moments to explain that.
Folks who want to see this change want to eliminate one of
the procedural mechanisms designed for the express purpose of
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. We
have been through these periods before in American history
but never, to the best of my knowledge, has any party been so
bold as to fundamentally attempt to change the structure of
this body.
Why else would the majority party attempt one of the most
fundamental changes in the 216-year history of this Senate on
the grounds that they are being denied ten of 218 Federal
judges, three of whom have stepped down? What
shortsightedness, and what a price history will exact on
those who support this radical move.
It is important we state frankly, if for no other reason
than the historical record, why this is being done. The
extreme right of the Republican Party is attempting to hijack
the Federal courts by emasculating the courts' independence
and changing one of the unique foundations of the Senate;
that is, the requirement for the protection of the right of
individual Senators to guarantee the independence of the
Federal Judiciary.
This is being done in the name of fairness? Quite frankly,
it is the ultimate act of unfairness to alter the unique
responsibility of the Senate and to do so by breaking the
very rules of the Senate.
Mark my words, what is at stake here is not the politics of
2005, but the Federal Judiciary in the country in the year
2025. This is the single most significant vote, as I said
earlier, that I will have cast in my 32 years in the Senate.
The extreme Republican right has made Federal appellate Judge
Douglas Ginsburg's ``Constitution in Exile'' framework their
top priority.
It is their purpose to reshape the Federal courts so as to
guarantee a reading of the Constitution consistent with Judge
Ginsburg's radical views of the fifth amendment's taking
clause, the nondelegation doctrine, the 11th amendment, and
the 10th amendment. I suspect some listening to me and some
of the press will think I am exaggerating. I respectfully
suggest they read Judge Ginsburg's ideas about the
``Constitution in Exile.'' Read it and understand what is at
work here.
If anyone doubts what I am saying, I suggest you ask
yourself the rhetorical question, Why, for the first time
since 1789, is the Republican-controlled Senate attempting to
change the rule of unlimited debate, eliminate it, as it
relates to Federal judges for the circuit court or the
Supreme Court?
If you doubt what I said, please read what Judge Ginsburg
has written and listen to what Michael Greve of the American
Enterprise Institute has said:
I think what is really needed here is a fundamental
intellectual assault on the entire New Deal edifice. We want
to withdraw judicial support for the entire modern welfare
state.
Read: Social Security, workmen's comp. Read: National Labor
Relations Board. Read: FDA. Read: What all the byproduct of
that shift in constitutional philosophy that took place in
the 1930s meant.
We are going to hear more about what I characterize as
radical view--maybe it is unfair to say radical--a
fundamental view and what, at the least, must be
characterized as a stark departure from current
constitutional jurisprudence. Click on to American Enterprise
Institute Web site www.aei.org. Read what they say. Read what
the purpose is. It is not about seeking a conservative court
or placing conservative Justices on the bench. The courts are
already conservative.
Seven of the nine Supreme Court Justices appointed by
Republican Presidents Nixon, Ford, Reagan, and Bush 1--seven
of nine. Ten of 13 Federal circuit courts of appeal dominated
by Republican appointees, appointed by Presidents Nixon,
Ford, Reagan, Bush 1, and Bush 2; 58 percent of the circuit
court judges appointed by Presidents Nixon, Ford, Reagan,
Bush 1, or Bush 2. No, my friends and colleagues, this is not
about building a conservative court. We already have a
conservative court. This is about guaranteeing a Supreme
Court made up of men and women such as those who sat on the
Court in 1910 and 1920. Those who believe, as Justice Janice
Rogers Brown of California does, that the Constitution has
been in exile since the New Deal.
My friends and colleagues, the nuclear option is not an
isolated instance. It is part of a broader plan to pack the
court with fundamentalist judges and to cower existing
conservative judges to toe the extreme party line.
You all heard what Tom DeLay said after the Federal courts
refused to bend to the whip of the radical right in the
Schiavo case. Mr. DeLay declared: ``The time will come for
men responsible for this to answer for their behavior.''
Even current conservative Supreme Court Justices are
looking over their shoulder, with one extremist recalling the
despicable slogan of Joseph Stalin--and I am not making this
up--in reference to a Reagan Republican appointee, Justice
Kennedy, when he said: ``No man, no problem''--absent his
presence, we have no problem.
Let me remind you, as I said, Justice Kennedy was appointed
by President Reagan.
Have they never heard of the independence of the
judiciary--as fundamental a part of our constitutional system
of checks and balances as there is today; which is literally
the envy of the entire world, and the fear of the extremist
part of the world? An independent judiciary is their greatest
fear.
Why are radicals focusing on the court? Well, first of all,
it is their time to be in absolute political control. It is
like, why did Willy Sutton rob banks? He said: Because that
is where the money is. Why try it now--for the first time in
history--to eliminate extended debate? Well, because they
control every lever of the Federal Government. That is the
very reason why we have the filibuster rule. So when one
party, when one interest controls all levers of Government,
one man or one woman can stand on the floor of the Senate and
resist, if need be, the passions of the moment.
But there is a second reason why they are focusing on the
courts. That is because they have been unable to get their
agenda passed through the legislative bodies. Think about it.
With all the talk about how they represent the majority of
the American people, none of their agenda has passed as it
relates to the fifth amendment, as it relates to zoning laws,
as it relates to the ability of Federal agencies, such as the
Food and Drug Administration, the Environmental Protection
Agency, to do their jobs.
Read what they write when they write about the
nondelegation doctrine. That simply means, we in the
Congress, as they read the Constitution, cannot delegate to
the Environmental Protection Agency the authority to set
limits on how much of a percentage of carcinogens can be
admitted into the air or admitted into the water. They insist
that we, the Senate, have to vote on every one of those
rules, that we, the Senate and the House, with the ability of
the President to veto, would have to vote on any and all
drugs that are approved or not approved.
If you think I am exaggerating, look at these Web sites.
These are not a bunch of wackos. These are a bunch of very
bright, very smart, very well-educated intellectuals who see
these Federal restraints as a restraint upon competition, a
restraint upon growth, a restraint upon the powerful.
The American people see what is going on. They are too
smart, and they are too practical. They might not know the
meaning of the nondelegation doctrine, they might not know
the clause of the fifth amendment relating to property, they
may not know the meaning of the tenth and eleventh amendments
as interpreted by Judge Ginsburg and others, but they know
that the strength of our country lies in common sense and our
common pragmatism, which is antithetical to the poisons of
the extremes on either side.
The American people will soon learn that Justice Janice
Rogers Brown--one of the nominees who we are not allowing to
be confirmed, one of the ostensible reasons for this nuclear
option being employed--has decried the Supreme Court's
``socialist revolution of 1937.'' Read Social Security. Read
what they write and listen to what they say. The very year
that a 5-to-4 Court upheld the constitutionality of Social
Security against a strong challenge--1937--Social Security
almost failed by one vote.
It was challenged in the Supreme Court as being
confiscatory. People argued then that a Government has no
right to demand that everyone pay into the system, no right
to demand that every employer pay into the system. Some of
you may agree with that. It is a legitimate argument, but one
rejected by the Supreme Court in 1937, that Justice Brown
refers to as the ``socialist revolution of 1937.''
If it had not been for some of the things they had already
done, nobody would believe what I am saying here. These guys
mean what they say. The American people are going to soon
learn that one of the leaders of the constitutional exile
school, the group that wants to reinstate the Constitution as
it existed in 1920, said of another filibustered judge,
William Pryor that ``Pryor is the key to this puzzle. There's
nobody like him. I think he's sensational. He gets almost all
of it.''
That is the reason why I oppose him. He gets all of it. And
you are about to get all of it if they prevail. We will not
have to debate about Social Security on this floor.
So the radical right makes its power play now when they
control all political centers of power, however temporary.
The radical push through the nuclear option and then pack the
courts with unimpeded judges who, by current estimations,
will serve an average of 25 years. The right is focused on
packing the courts because their agenda is so radical that
they are unwilling to come directly to you, the American
people, and tell you what they intend.
Without the filibuster, President Bush will send over more
and more judges of this nature, with perhaps three or four
Supreme Court nominations. And there will be nothing--
nothing--that any moderate Republican friends and I will be
able to do about it.
Judges who will influence the rights of average Americans:
The ability to sue your HMO that denies you your rights; the
ability to keep strip clubs out of your neighborhood--because
they make zoning laws unconstitutional--without you paying to
keep the
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person from building; the ability to protect the land your
kids play on, the water they drink, the air they breathe, and
the privacy of your family in your own home.
Remember, many of my colleagues say there is no such thing
as a right to privacy in any iteration under the Constitution
of the United States of America. Fortunately, we have had a
majority of judges who disagreed with that over the past 70
years. But hang on, folks. The fight over judges, at bottom,
is not about abortion and not about God, it is about giving
greater power to the already powerful. The fight is about
maintaining our civil rights protections, about workplace
safety and worker protections, about effective oversight of
financial markets, and protecting against insider trading. It
is about Social Security. What is really at stake in this
debate is, point blank, the shape of our constitutional
system for the next generation.
The nuclear option is a twofer. It excises, friends, our
courts and, at the same time, emasculates the Senate. Put
simply, the nuclear option would transform the Senate from
the so-called cooling saucer our Founding Fathers talked
about to cool the passions of the day to a pure majoritarian
body like a Parliament. We have heard a lot in recent weeks
about the rights of the majority and obstructionism. But the
Senate is not meant to be a place of pure majoritarianism.
Is majority rule what you really want? Do my Republican
colleagues really want majority rule in this Senate? Let me
remind you, 44 of us Democrats represent 161 million people.
One hundred sixty-one million Americans voted for these 44
Democrats. Do you know how many Americans voted for the 55 of
you? One hundred thirty-one million. If this were about pure
majorities, my party represents more people in America than
the Republican Party does. But that is not what it is about.
Wyoming, the home State of the Vice President, the President
of this body, gets one Senator for every 246,000 citizens;
California, gets one Senator for 17 million Americans. More
Americans voted for Vice President Gore than they did
Governor Bush. By majoritarian logic, Vice President Gore won
the election.
Republicans control the Senate, and they have decided they
are going to change the rule. At its core, the filibuster is
not about stopping a nominee or a bill, it is about
compromise and moderation. That is why the Founders put
unlimited debate in. When you have to--and I have never
conducted a filibuster--but if I did, the purpose would be
that you have to deal with me as one Senator. It does not
mean I get my way. It means you may have to compromise. You
may have to see my side of the argument. That is what it is
about, engendering compromise and moderation.
Ladies and gentlemen, the nuclear option extinguishes the
power of Independents and moderates in this Senate. That is
it. They are done. Moderates are important only if you need
to get 60 votes to satisfy cloture. They are much less
important if you need only 50 votes. I understand the
frustration of our Republican colleagues. I have been here 32
years, most of the time in the majority. Whenever you are in
the majority, it is frustrating to see the other side block a
bill or a nominee you support. I have walked in your shoes,
and I get it.
I get it so much that what brought me to the Senate was the
fight for civil rights. My State, to its great shame, was
segregated by law, was a slave State. I came here to fight
it. But even I understood, with all the passion I felt as a
29-year-old kid running for the Senate, the purpose--the
purpose--of extended debate. Getting rid of the filibuster
has long-term consequences. If there is one thing I have
learned in my years here, once you change the rules and
surrender the Senate's institutional power, you never get it
back. And we are about to break the rules to change the
rules.
I do not want to hear about ``fair play'' from my friends.
Under our rules, you are required to get \2/3\ of the votes
to change the rules. Watch what happens when the majority
leader stands up and says to the Vice President--if we go
forward with this--he calls the question. One of us, I expect
our leader, on the Democratic side will stand up and say:
Parliamentary inquiry, Mr. President. Is this parliamentarily
appropriate? In every other case since I have been here, for
32 years, the Presiding Officer leans down to the
Parliamentarian and says: What is the rule, Mr.
Parliamentarian? The Parliamentarian turns and tells them.
Hold your breath, Parliamentarian. He is not going to look
to you because he knows what you would say. He would say:
This is not parliamentarily appropriate. You cannot change
the Senate rules by a pure majority vote.
So if any of you think I am exaggerating, watch on
television, watch when this happens, and watch the Vice
President ignore--he is not required to look to an unelected
officer, but that has been the practice for 218 years. He
will not look down and say: What is the ruling? He will make
the ruling, which is a lie, a lie about the rule.
Isn't what is really going on here that the majority does
not want to hear what others have to say, even if it is the
truth? Senator Moynihan, my good friend who I served with for
years, said: You are entitled to your own opinion but not
your own facts.
The nuclear option abandons America's sense of fair play.
It is the one thing this country stands for: Not tilting the
playing field on the side of those who control and own the
field.
I say to my friends on the Republican side: You may own the
field right now, but you won't own it forever. I pray God
when the Democrats take back control, we don't make the kind
of naked power grab you are doing. But I am afraid you will
teach my new colleagues the wrong lessons.
We are the only Senate in the Senate as temporary
custodians of the Senate. The Senate will go on. Mark my
words, history will judge this Republican majority harshly,
if it makes this catastrophic move.
Ms. ERNST. I yield the floor.
The PRESIDING OFFICER (Ms. BALDWIN). The Democratic whip.
Mr. DURBIN. I ask unanimous consent that I be recognized for up to 15
minutes and Senators Padilla and Cantwell for up to 5 minutes each
prior to the scheduled vote.
The PRESIDING OFFICER. Without objection, it is so ordered.