[Congressional Record Volume 168, Number 11 (Tuesday, January 18, 2022)]
[Senate]
[Pages S237-S239]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               H.R. 5746

  Mr. MERKLEY. Mr. President, I think I will start just by returning to 
the 1800s and a Senator from Massachusetts, Senator Sumner. Senator 
Sumner later played a key role in the civil rights debate, which is why 
I am returning to that story. I think it is a story about the Senate 
floor.
  Sumner gave a speech about Kansas being admitted into the Union, and 
he was a Republican Senator who called out two Democratic Senators, 
insulting one of them. And a Representative from the House of 
Representatives, on the other end of this corridor, came over here. His 
name was Preston Brooks, and he took considerable offense, and he 
proceeded to come to the Senate floor and cane Senator Sumner. Senator 
Sumner was gravely injured, but he did recover--recovering slowly. He 
served for another 18 years, which leads me to the fact that he 
proceeded to put forward civil rights legislation in 1875--in 1875--150 
years ago--almost 150 years ago, 145 years ago.

[[Page S238]]

  And so he argued after the Civil War that our Black Americans were 
being discriminated against and it needed to end; that anyone should go 
into any public accommodation and be treated equally here in the United 
States of America--a Constitution that says: All men--and let's include 
women--are created equally.
  So he put forward this bill, and it said that every person gets equal 
access to theaters, to public schools, to churches, to cemeteries, 
equal opportunity to serve in jury duty, and that any suits brought in 
this regard would be tried in Federal court, not State court, so we 
could enforce a Federal standard of nondiscrimination across this land.
  Sumner died of a heart attack in 1874. He had put forward this 
originally as an amendment--actually, an introduction in 1870, as a 
bill. He died before it could be passed. As he was dying, he pleaded 
with Frederick Douglass and others at his bedside: You must take care 
of my civil rights bill.

  In the months following his death, the Senate did act, and they 
supported that bill, and it was passed into law in 1875. At that 
moment, it would be hard to envision that, after I was born, we would 
still be fighting for equal access to public accommodations. The Senate 
passed that bill and made it into law in 1875. But the Supreme Court of 
the United States struck down that law 8 years later. Boom--equal 
access in America supported by the elected Representatives in the House 
and the Senate was blown to smithereens by a Supreme Court of the 
United States of America.
  Well, that did set the stage for another civil rights battle, and it 
was 1890. It was after Benjamin Harrison's successful Presidential 
campaign, in which he promised election reform and election integrity 
because, you see, anyone looking at our Republic would know that we are 
all affected, no matter what State we come from, by the integrity of 
the elections in the other States. There has to be integrity in all of 
them for this U.S. Senate to have integrity. There has to be integrity 
in all of the State elections for that House of Representatives down 
the hall to have integrity.
  So Benjamin Harrison was elected campaigning on this type of reform. 
And there was a Senator, Senator George Hoar, who championed amendments 
or an attempt to bolster national protections for Federal elections. It 
was particularly targeted at stopping voter suppression that had really 
arisen in the southern part of the United States following the Civil 
War. So this bill, known commonly as the Lodge bill, also known as the 
federal elections bill, passed the House of Representatives in 1890.
  What did this bill do? It allowed citizens from any district to 
petition a Federal circuit court to appoint Federal supervisors for 
congressional elections in case of efforts to suppress the vote by 
local officials. It permitted the Federal Government to appoint 
supervisors to oversee all phases of Federal elections, including voter 
registration and the certification of the election results to make sure 
there were no shenanigans at the State level that would corrupt the 
core vision of equal representation, the core foundation of integrity 
of elections. It is the foundation of the vision of the legitimacy and 
the production of government of, by, and for the people.
  And this bill even enabled Federal election supervisors to request 
deputy U.S. marshals, as necessary, to protect the ballot box for every 
citizen to have access. It passed the House of Representatives, and it 
came here to the Senate, and it failed because they couldn't get 
unanimous consent to close debate. At that time, there was no cloture 
motion.
  The Senators, in 1805, had gotten rid of the prior question rule, 
which would have allowed debate to be closed because they had a social 
contract. That social contract was that we listen to everyone to get 
their perspectives. People can speak, not once, but twice on a 
question. They can speak for as long we wanted to listen to everyone 
and then we take a vote. That was the social contract.
  But this filibuster broke that social contract because everyone was 
listened to, but you couldn't get unanimous consent to close debate and 
so the bill died. It had the support of the people of the United States 
of America through their elected representatives down the hall. It had 
the support of this Senate to protect the fundamental right to vote in 
our Nation by the majority of this body here in the U.S. Senate. But 
the social contract was broken to block Black Americans from voting; to 
allow States and local election officials to rig the registration 
system so you could never sign up; to allow intimidators to gather at 
the polls to keep Black Americans from getting through them to put 
their ballot in the box.
  I would like to say that all traces of inequality in voting are gone 
from America. I would like to say that. And, indeed, that was 
reasonably true--reasonably true--through the recent years, before the 
Supreme Court gutted the Voting Rights Act, because any changes in your 
voting rules had to be preapproved in States that engaged in these 
intimidating practice. I say ``reasonably true'' because the real fact 
is there was still a significant blemish in our elections, and that is, 
on election day, in certain States and certain precincts, there was a 
game being played to make it harder for some citizens to vote than 
other citizens to vote.
  The game worked like this: If you have an area where you want low 
turnout, you proceed to create a big precinct so that there are a lot 
of people who have to go to that one place to vote. And if you have a 
desire to encourage the people in another precinct to vote, a White 
precinct, you create smaller precincts so the voting line won't be as 
long.
  And then there were other tricks like, for example, understaffing the 
voting precinct where it is predominantly Black Americans to make it 
harder for them to vote and making sure you staff really well the 
precinct where you want the White Americans to vote.
  And there were other tricks, as well. For example, relocating the 
voting location in the Black precinct so that people go to the wrong 
place, or putting it where parking is virtually impossible so it is 
much harder to get to the poll, or putting out false information about 
the date and the location of the voting.
  These things are all wrong. Voter suppression exists today. And it 
was powerful to see how a couple tools have greatly reduced those 
tricks and traps.
  One of those tools is early voting. If you have an early voting 
period, it is hard to create long lines. It is hard to sustain wrong 
information about where to go. It is very difficult to deny people the 
ability to vote simply by having too few staffers.
  Even more so, vote-by-mail is powerful. Now, we have Republican 
States like Utah that have vote-by-mail, and they love it. And it 
elects Republicans. You have more blue States like Oregon that have 
vote-by-mail, and they love it. That is my home State.
  I was really struck, when I was first running for the Oregon State 
Legislature--it was 1998, and we still voted at the precincts' voting 
polls, except the Republican Party had said: We can increase turnout if 
we get all the Republicans to sign up for absentee ballots. So they got 
a high percentage of Republicans to sign up for absentee ballots. Then 
the Democrats said: Well, OK, yes, we can get Democrats to sign up for 
absentee ballots. So 50 percent of the electorate in 1998 in Oregon was 
voting by mail and 50 percent, polls.
  As I went door to door in my first race for the Oregon House and 
asked people what they liked and didn't like, they normally said: What 
I really hate is that we have too many potholes, and I am not happy 
with city hall. What I really like is my absentee ballot.
  I would say: Well, why is that?
  They would say: Well, you know, I don't have to worry about where to 
park, and I don't have to worry about long lines. Do you know what 
else? It is a complicated set of issues under the initiative system we 
have in Oregon, and I can be able to sit at my table, study them, 
discuss them with my spouse, and have my children come to the table and 
see what we are doing.
  Well, these two tools really opened the doors to the election process 
in the last election, and the response of my Republican colleagues was: 
Oh, no, we can't let that happen. We don't want those people to vote. 
We better rein in vote-by-mail. We better rein in voter registration.
  Georgia got rid of voter registration in between the main election 
and the

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runoff because 70,000-plus Georgians registered in that period, and 
they think it helped Democrats more than Republicans. So, in a 
prejudicial way, they said: Let's make registration harder.
  Well, it is not acceptable in our country to erect barriers for 
targeted communities--not for Black Americans, not for Hispanic 
Americans, not for college students, not for young voters, and not for 
Native American reservations--not for anyone.
  But why are those groups being targeted in a surgical way by the 
strategies in State after State after State with Republican 
legislatures and Republican Governors? Because those constituencies 
tend to vote more often for Democrats than Republicans. So they are 
stealing the vote of millions of Americans. They are corrupting the 
election process for millions of Americans.
  We stand here today in the Senate with the same issue we were 
debating in 1890 and 1891. The House had set national standards so 
every American could vote, and the Senate would not give unanimous 
consent to get to a final vote and contributed to eight-plus decades of 
discrimination in our country, of corrupted elections in our country--
until the Voting Rights Act of 1965.
  I see a colleague here preparing to speak, and I haven't even begun 
my real speech yet. I am going to close to hand the floor to him, my 
colleague from Maryland, but let me summarize a couple points before I 
do so.
  I believe the Senate is far better off when the minority has the 
power to slow things down. I think that is value, to be able to have 
leverage to get amendments; to be able to negotiate a compromise; to be 
able to make sure a technical bill has been examined by experts and you 
understand what it really does; to make sure we have seen all the 
provisions; to make sure the public has seen all the provisions; to 
make sure the press has been able to investigate the provisions. All of 
that is incredibly positive, and it is why, whether I have been in the 
minority or been in the majority, I have argued we need to sustain 60 
votes to close debate, and I still hold that position now--60 votes to 
close debate by a vote.
  There have traditionally been four ways that a debate on the floor 
comes to a conclusion.
  The first is a break in the debate. At that point, I was struck when 
I asked the experts ``Is the Chair allowed to call the question?'' and 
I was told that not only can they call the question, they have a 
responsibility to call the question when there is a break in the 
debate. So a break in the debate is one.
  The second is by unanimous consent. Everyone agrees we have been at 
this long enough. Let's do four more amendments and then go to final 
passage, and there is a unanimous consent agreement to do that. We 
still do that quite often.
  The third is to have a vote on closing debate, and we have to get 60 
votes. It is not a ratio of those who show up to vote. So the irony is, 
those who want a debate often don't show up. You can have a vote 59 to 
5, and the 59 lose. You have to get 60 votes.
  The fourth is rule XIX, which says every Senator gets to speak twice. 
Now, as far as I am aware, there has never been a debate in the U.S. 
Senate that was finally brought to a close by everyone using up their 
two speeches, but it always hovers there, saying there is an eventual 
ability to vote on the question.
  These are the four traditional strategies. We need to apply those 
four strategies to a period of debate addressing final passage of the 
bill. The cloture motion would still be there. The possibility of a UC 
would still be there. A break in the debate would still be a break in 
the debate, and a UC would be a UC. All four tools would still be 
there, but we would be addressing final passage.

  The problem we have--a little kind of behind-the-scenes complexity of 
Senate rules--is that in the modern Senate, there is always a pending 
amendment. So you can't actually get to final passage unless you have a 
period of debate dedicated to final passage, and breaking the debate 
would call the question on the amendment, not final passage.
  This means that those who want more debate could hold the floor for 
weeks and weeks on something they are determined to keep presenting to 
the American public, but it brings in the public. It brings in the 
public. They can weigh in on whether we are heroes or whether we are 
bums. They can weigh in on amendments we say we are going to bring up 
the next day. They can help us understand how folks back home feel.
  There is no public in the no-show, no-effort, invisible filibuster we 
have had since 1975. There is no public, and there are no amendments 
because amendments require a supermajority to close debate. Someone 
says: Well, I am not going to agree to that until my amendment gets up. 
There is no longer a social contract: You do your amendment. I will do 
my amendment. We will all do them. They will be on topic.
  It is gone. So the number of amendments has dropped tenfold between 
the 109th Congress and the 116th Congress. The number of amendments 
dropped more than tenfold over that time period. Instead, the floor 
managers negotiate. The leaders negotiate. They produce a list and then 
ask everyone to agree to that list, and someone objects: You left out 
my amendment.
  So we--a room full of former House Members and industry leaders, 
former Governors, former speakers of their State house or presidents of 
their State senate; all of this talent sitting around here--do nothing 
day after day after day while the invisible, no-show, no-effort 
filibuster destroys debate in the Senate of the United States of 
America.
  It is our responsibility to restore debate in this Chamber, to 
restore amendments. The advantages of the restoration are, No. 1, that 
you have amendments; No. 2, that you have public debate; and No. 3, 
perhaps the most important, you have an incentive for both sides to 
negotiate, because under the no-show, no-effort, invisible filibuster 
that we have had since 1975, the minority of either side says: You 
know, if I can get 41 of our minority Members to agree not to close 
debate, and all they have to do is not even show up to vote or show up 
to vote if they like but vote no, then the majority can never get 
anything done, and won't that enhance our political power in the 
minority party?
  That is an almost irresistible temptation in the tribal, partisan 
warfare of today. So each minority is tempted into basically exercising 
a veto over the majority party's policy agenda. That is ``an eye for an 
eye makes the whole world blind,'' strategy. The Democrats sabotage the 
Republican majority. The Republicans sabotage the Democratic majority. 
But under the public filibuster, not only is the public involved, but 
the minority has to maintain continuous debate, which can be hard, so 
they have an incentive to negotiate. The majority, seeing the time 
burned up that they need for other things, other policy bills and 
nominations, they have an incentive to negotiate. So you get 
amendments. You get the public involved. Most important, you recreate 
an incentive to negotiate. That is the reinvigorated filibuster 
strategy, the talking filibuster.
  Call it the public filibuster or just call it extended debate on 
final passage of the bill. Whatever you call it, it is better than the 
paralysis and partisanship that are destroying the Senate's ability to 
address the questions that face this Nation, and there is no more 
important question than defending the right of every citizen to vote.
  The PRESIDING OFFICER. The Senator from Maryland.

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