Congressional Record, Volume 168 Issue 11 (Tuesday, January 18, 2022)

[Congressional Record Volume 168, Number 11 (Tuesday, January 18, 2022)]
[Senate]
[Pages S239-S242]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

H.R. 5746

Mr. VAN HOLLEN. Mr. President, let me start by thanking our
colleague, the Senator from Oregon, Senator Merkley, for his leadership
in working to restore the functioning of the Senate and to protect our
democracy. We need both, and we need them now.
It was just 12 days ago that we marked the 1-year anniversary of the
January 6 attack on this Capitol and on our democracy itself. It was a
violent attempt to stop Congress from certifying the Presidential
election of Joe Biden and to overturn the decision of the American
people. It was inspired and instigated by the former President.
While that assault did not succeed in stopping us from counting the
vote that day, the Big Lie did not die. In fact, the Big Lie has
metastasized. It has spread, and its poison is seeping across the
country. It is now taking

[[Page S240]]

the form of Republican-controlled State legislatures enacting laws that
erect new barriers to the ballot box. Let's be clear. They are erecting
barriers specifically designed to make it harder for people of color
and younger voters to cast their ballots.
As we saw in a Federal Circuit Court case a number of years ago with
respect to North Carolina, the court found that the State legislature
had targeted African-American voters with surgical precision.
Dr. King observed that voting is ``the foundation stone for political
action.'' He also observed that when the right to vote is impeded, a
tragic betrayal of the highest mandates of our democratic tradition are
betrayed.
What we see happening in State legislatures are not just efforts to
put up barriers to the ballot box; they are also passing laws to
authorize partisan operatives to interfere in the counting of the votes
and even to overturn the results after the count. So laws to interfere
with the casting of the votes and laws to interfere with the counting
of the votes--that is what is happening right now. Nineteen
legislatures around the country have already enacted these kinds of
laws.
So, yes, our democracy was under attack right here on January 6 of
last year, but 1 year later, the evidence is clear: The Big Lie is
alive, and our democracy is still under attack. It is under attack by
those seeking to implement the Big Lie in State legislatures. It is
just the venue that has changed.
When we reconvened here after the attacks of January 6, I said on
this floor that what we witnessed is what happens when we don't stand
up together as Democrats and Republicans to confront the Big Lie.
Now, over a year later, we have another chance to stand up together.
To meet this moment and to protect our democracy, we need to take
action here and now. That is what the Freedom to Vote Act does. It
establishes minimum standards to ensure equal access to the ballot box
across the country. It guards against partisan election meddling. It
ends gerrymandering nationwide, and it ends secret money in elections.
It contains the John R. Lewis Voting Rights Advancement Act to restore
the protections guaranteed in the Voting Rights Act of 1965. That is
what it does.
We are well within our rights as Federal lawmakers to write and pass
these bills. The relevant portion of article I, section 4, clause 1 of
the Constitution--I have that here--clearly states:

The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations.

The Constitution specifically empowers us to pass these laws to
protect voting. So enough of the specious argument I have heard so many
times here on the Senate floor that these bills somehow represent an
unconstitutional power grab--far from it. The Framers expressly
empowered the Congress to protect Federal elections.
Now, all 50 Members of the Democratic majority, the Democratic
caucus, support these bills to protect our democracy. I am disappointed
that, as of this moment, not one Member of the Senate Republican caucus
plans to join us. In fact, we know that there are 16 Republican
Senators here today who voted in 2006 to reauthorize the Voting Rights
Act. Today, not a single Republican Senator will stand up and support
these bills. That is a very sad and bad sign of this moment in our
history.
I accept that each and every Senator has the right to cast their vote
on bills however they choose. That is the way democracy works. But what
is happening now is very different. Republican Senators are using the
current version of the Senate rules to block a vote on these vital
measures to protect our democracy; to prevent this body from having a
final vote on the Freedom to Vote legislation and the John R. Lewis
Voting Rights Advancement Act.
So let's step back and look at how the current version of the Senate
rules operates in practice, and I say ``current rules'' because the
Senate rules have evolved over time, as our colleague from Oregon has
mentioned. They have taken many twists and turns over the years. In
their current form and practice, they have departed radically from
their original purpose and design.
Today, with some exceptions, 41 out of 100 Senators can block the
other 59 from voting on legislation that is important to the American
people. Over the last year, this Senate rule has been used to block
bills that enact commonsense gun safety provisions and provide for
equal pay for equal work. Many other bills have been blocked from even
getting a vote under the current Senate rules.
So let's unpack this. Let's understand what this means.
Right now, under our rules, it is possible for 41 Senators
representing 21 States and 11 percent of the U.S. population to block
the will of 50 Senators representing 84 percent of the U.S. population.
Think about that. Under our current rules, Senators representing a
small percentage of the population--11 percent--can block the will of
the majority.
How did this happen? Well, it happened because over time--not at the
beginning but over time--Senators decided to empower themselves at the
expense of the American people. It wasn't always this way. As I said,
in its earliest days, the Senate was founded on two principles. The
first was that Senators would have ample opportunity to make their case
to their fellow Senators and to the country. If they had the minority
position on a particular issue, they had a chance to come here to the
floor of the Senate to persuade their colleagues of the merits of their
position and maybe in the process have the whole country turn to their
side of the debate and influence the ultimate result.

So the Senators were given the opportunity for a prolonged debate to
ensure that all opinions were heard and considered before the final
vote. In fact, as my colleague from Oregon mentioned, each Senator was
able to deliver two speeches on a particular question on a single
legislative day. But after all the views were heard, after prolonged
debate was ended, the Senate would move to a majority vote. That is how
the Senate earned its representation as the world's greatest
deliberative body.
Nothing could be further from that truth today. We have very little
debate on the Senate floor today--real debate, where Senators engage on
the big questions of the day. In fact, the minority of Senators who
oppose legislation pending before the Senate can block it without even
coming to the Senate floor to debate. They don't even have to come here
to make their case to their fellow Senators and the American people,
don't even have to show up to debate. We are talking about a Senate
rule that was designed to encourage debate. Yet we have it operating
today where nobody has to even show up on this floor to make their
position known.
It is not that Senators don't even have to show up to debate; they
don't even have to show up for the vote to cut off debate. Under our
current rules, we could have a vote right here in the Senate of 59 to
nothing in favor of moving forward on legislation, and the 41 Senators
who didn't even show up would carry the day. They would block the 59
from expressing the will of the American people. How crazy is that?
That is what the current Senate rules provide.
That is not what the Founders of our Republic envisioned. In fact,
the current version and application of the Senate's rules amount to a
total perversion of the constitutional framework. These rules pervert
the intent of our Framers, and they undermine the democratic
architecture of our Republic.
Our Founders never--never--intended for a minority of Senators--for
41 Senators--to be able to thwart the will of the majority and of the
people.
In Federalist 22, Alexander Hamilton asserted that the fundamental
maxim of republican government was ``the sense of the majority should
prevail.''
Even more clearly right on point was James Madison in Federalist 58,
where he directly warned against requiring more than a majority for a
decision in the legislature, saying that ``the fundamental principle of
free government would be reversed. It would be no longer the majority
that would rule: the power would be transferred to the minority.'' This
is James Madison, a key architect of our Constitution and the framework
of this Republic.

[[Page S241]]

Now, we know it is true that the Framers of our Constitution knew the
dangers of overly powerful majorities, and they wanted to and did guard
against that risk in the Constitution itself. That is why the Framers
diffused power among the people, among the States, and within the
Federal Government--to protect minority viewpoints in the country.
In the Bill of Rights, our Founders clearly said that each American
has certain unalienable rights that no government action can take
away--not by a vote of this Congress, not by an order of the President,
not by anybody in the executive branch. That is the Bill of Rights. Our
Founders also created three coequal branches of government constrained
by a system of checks and balances. It is all right here in the
Constitution. Within the legislative branch, they didn't create one
unitary body, like most Parliaments today; they created two separate
bodies--the Senate and the House of Representatives--and a totally
independent executive branch, with the President directly elected by
the people through the electoral college.
Now, I think it is worth pointing out that the Senate contains built-
in protections for the minority by its very structure. The 2 Senators
from Wyoming represent 578,000 of our fellow Americans, and the 2
Senators from California represent 39 million of our fellow Americans.
Two Senators from Wyoming represent 578,000 people, and 2 Senators from
California represent 39 million Americans, but here in the Senate, each
of those Senators, whether from Wyoming or California, has votes of
equal weight. We can do the math, the political math.
People of Wyoming are already exerting influence here in the Senate
way out of proportion to their share of the American population. That
is in the structure. But if you layer the current version of the Senate
filibuster rule on top of the Senate structure and on top of other
protections for minority rights enshrined in our Constitution, you
further nullify the will of the American people. You nullify the will
of the majority of our fellow citizens.
That is why the anti--majoritarian, anti-democratic--small ``d''--
Senate rule is nowhere to be found in the Constitution. You can search
high and low; it is nowhere to be found here. In fact, as I said, our
Founders were very clear about allowing the majority sentiment vote to
prevail in the end. And they were very clear in this document, the
Constitution, exactly when to require a supermajority vote. It is right
here: Two-thirds vote of all Members is required to convict and remove
a President; two-thirds vote is needed to expel a Senator; two-thirds
needed to override a Presidential veto; two-thirds vote to concur on
treaties; two-thirds to amend the Constitution. That is it. That is
what is in the Constitution of the United States.

Our Founders did not envision a Senate where the normal course of
legislative process and business could be permanently blocked by a
minority of Senators. There is nothing in here about needing 60 out of
100 votes to pass legislation like the Freedom to Vote Act. There is
nothing in our Constitution about a Senate where 41 out of 100 Senators
can routinely block the will of the majority and subvert the will of
the American people.
James Madison expressly warned against requiring supermajorities for
legislation--yes for treaties, yes for removal of a President, not for
the normal course of legislation.
So where did the current Senate rule come from? It is a total
invention of Senators that empowers individual Senators by
disempowering the overwhelming majority of the American people. That is
what it is.
Think about this in the context of the Freedom to Vote Act. The duly
elected President of the United States, who won over 80 million votes
and in the electoral college, is in favor of it. A majority of the
House of Representatives representing the majority of the American
people is in favor of it. And 50 U.S. Senators representing 62 percent
of the American people are in favor of it. But the bill is being
blocked by a minority of Senators representing a minority of the
American people.
And think about this. State legislatures around the country, as we
gather here, are passing laws to erect barriers to voting by a majority
vote. The laws they are passing impact every citizen in this country
because they impact the outcome of Federal elections. When State
legislatures in Georgia pass laws to disenfranchise voters in Federal
elections, they are disenfranchising voters in all of the other 49
States who have a stake in the outcome of Federal elections.
But the current version of the Senate rules prevents the U.S. Senate
from casting a majority vote to protect voting for every American, even
though the Constitution expressly empowers us to do that--to regulate
Federal elections.
So, Mr. President, what arguments do proponents of the current
filibuster rule present to justify this self-anointed power to thwart
the majority will of the American people?
One claim is that it promotes bipartisanship. Look, I know the
Presiding Officer. I know the Senator from Virginia who has joined us.
I know the Senator from Oregon. All of us prefer to find common ground
to meet the challenges of the day when we can. I am proud to be the
author of many bipartisan measures and to sponsor many others, and to
vote for many of those measures. But let's not kid ourselves here in
the U.S. Senate about the ability of the 60-vote requirement to promote
bipartisanship. The Senate we are living in today is the most polarized
ever. The claim that this rule promotes bipartisanship flies in the
face of the reality we witness every day.
In fact, the filibuster in its current form has become a partisan
political weapon. Tim Lau of the Brennan Center notes that, while there
have been more than 2,000 filibusters since 1917, about half of them
have been in just the past 12 years. Think about that. There were more
filibusters in President Obama's second term than in all the years
between World War I and the end of the Reagan administration combined.
This abuse has led to partisan gridlock, not bipartisan cooperation.
But let's talk about bipartisanship. I had hoped--we had hoped--that
action to preserve our democracy would be a bipartisan endeavor. But
that isn't where we are today, and that is not new. The battle to
protect constitutional rights has been waged along party lines in the
past. The Fourteenth Amendment, which guaranteed citizenship to former
slaves and guarantees equal protection under the law, was passed by
Republicans in Congress with almost no bipartisan support. We salute
them for that action. The 15th Amendment guarantees the right to vote
to all citizens of the United States, and it was passed by one party
and one party alone. Those actions were taken by the old Republican
Party that used to be the party of Lincoln. Should we have sacrificed
those critical amendments at the altar of bipartisanship? Should we
have said to them: Don't pass them because no Democrats at that time
supported them? Of course not.
We all strive for bipartisanship, but that goal should not stand in
the way of legislative action, especially on issues central to
protecting our democracy.

Another argument often made, including by many of our Democratic
colleagues, in favor of keeping the current version of the Senate rules
and the supermajority requirement, highlights the risk of giving up the
``protection'' of the filibuster on issues that Democrats hold dear and
where Republicans hold a different position.
If we eliminate the 60-vote threshold to pass policies that
Republicans don't like, won't Republicans be able to use a majority
vote to pass policies that Democrats don't like?
That is true. That is the nature of democracy. That is what elections
are for--every 2 years for Members of the House, every 6 years for the
Senate, and every 4 years for the President. If the American people
don't like a law that we have passed, they get to go to the ballot box
to render a decision. That is the ultimate accountability in the
system, and we should not be erecting artificial rules to protect
ourselves from the majority views of the American people.
In fact, it is simply arrogant--arrogant--to invent a rule that
blocks the will of the American people. It is simply arrogant to say
that we Senators, not we the people, are the guardians of our
democracy, and we are going to come up with this rule that is not in
the Constitution to do that. That is what our current Senate rules do.

[[Page S242]]

Now, there is one major exception to the 60-vote rule to end a
filibuster on legislation. It is called the reconciliation process. I
believe that this major exception exposes the absurdity of the current
Senate rule itself. Most folks watching this debate may be justifiably
confused. They are watching the Senate and they are saying: It was
about a year ago that the Senate passed the American Rescue Plan with a
majority vote. It was a vote of 50 to 49. It was a major piece of
legislation responding to the pandemic emergency. Not a single
Republican Senator voted for it, but it passed. During the Trump
administration, Senate Republicans passed a major tax giveaway to the
rich by a vote of 51 to 48. Not a single Democrat voted for it.
Those laws contained major policy changes, but they could not be
blocked by a vote of a minority of 41 Senators. Why is that? It is
because in 1974, the Senate carved out a major exception to the
supermajority filibuster rule for legislation connected to the annual
budget process. That carve-out--that procedure--allowed for the passage
of the Trump tax law, for the American Rescue Plan, and earlier for the
Affordable Care Act.
So, colleagues, here we are maintaining this carve-out to the
filibuster rule that allows Donald Trump and Senate Republicans to pass
big tax cuts by a majority party-line vote. You can't block it with a
vote of 41. It allows us to pass important things like the American
Rescue Plan, using the same procedure.
But our rules don't allow us to pass rules to protect our democracy.
That is absurd. Anyone paying close attention to the rules would see
how absurd that is in a great democracy, and it needs to change and it
needs to change now.
Each day that we maintain the current undemocratic Senate rules that
allow 41 Senators to block the will of the majority, we allow State
legislatures to continue their assault on democracy and we prevent our
own democracy from working the way it was intended.
The American people sent us here to get things done, to move the
country forward, and the overwhelming majority are crying out for us to
protect the future of our democracy. That is why we must amend the
undemocratic rule that empowers 41 of 100 Senators to disempower the
majority of the people of our country.
And I support the proposal put forward by our colleague from Oregon,
Senator Merkley, that takes us back to the original design and intent
of the first Senate and the Framers--debate. Everyone gets a chance to
make their point. Convince your colleagues and convince the American
people. But as James Madison said, at the end of the day, a great
democracy must have a majority rule subject to the conditions already
applied and set out in our Constitution.
So I urge my colleagues to join us in restoring the Senate to its
original purpose and then to pass the Freedom to Vote Act, including
the John R. Lewis Voting Rights Advancement Act, to protect our
democracy.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SULLIVAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Kaine). Without objection, it is so
ordered.

____________________