[Congressional Record Volume 168, Number 11 (Tuesday, January 18, 2022)]
[Senate]
[Pages S261-S262]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





                               H.R. 5746

  Mr. KAINE. Madam President, one of the things that I sometimes regret 
about this body--and especially after hearing such an eloquent 
presentation from my colleague from California--is that we don't do 
enough dialogue here; it is a lot of monologues. Often, some of the 
best speeches that I have heard in this Chamber have been delivered to 
nearly empty Chambers because we don't sit and listen to one another, 
answer questions, engage, find the greater wisdom.
  I am excited that tomorrow will give us an opportunity to do that. I 
expect 50--hopefully, 60, 70, 80, 90, 100--Senators on the floor for a 
discussion about voting rights, which we have not been able to have 
since I joined the Senate in January of 2013. This is an enormously 
important topic. We have not had a floor debate on any voting rights 
bill since I came to the Senate in 2013.
  In this spirit of dialogue, I wanted to basically come and talk about 
Senate rules to respond to a question or a challenge that Republicans 
were making on the floor last week. They pointed out that I, along with 
a number of Democrats, had signed a letter in 2017, arguing, in their 
view, that we should not change the filibuster on legislation. They 
cited that, and they said: How can you stand on the floor now and 
contemplate changes to the filibuster rule?
  So what I wanted to do tonight is come to the floor and talk about 
2017, talk about things that have happened since 2017, and, frankly, 
explain why I haven't really changed the position that I articulated in 
the letter, but I have changed my views about whether the filibuster 
accomplishes the objective or cuts against it.
  Finally, what I want to do at the end of that, of answering their 
question about that letter, is to reassure them--to reassure them that 
what we will reach for tomorrow is not a blowing up of the filibuster.
  I heard my colleague from Alaska today say we wanted to blow up the 
filibuster. No. Let me reassure all Republicans that that is not what 
they are going to be asked to vote on tomorrow. They are going to be 
asked to restore the filibuster to what it was during the vast majority 
of the history of this body.
  Here is the operant quote from the letter of 2017 that I signed. It 
was in April of 2017, shortly after the Republicans had changed the 
Senate rules to ram through Neil Gorsuch after they had refused to even 
entertain the nomination of Merrick Garland to the Supreme Court. It 
was a bipartisan letter. ``We are united in our determination to 
preserve the ability of Members to engage in extended debate when bills 
are on the Senate floor''--``extended debate when bills are on the 
Senate floor.''
  Well, what has happened since that letter was written in April of 
2017?
  First, those of us in the room know, as for extended debate on the 
Senate floor, are you kidding? It almost never happens. The filibuster 
rule that some of us hoped might facilitate that has become an obstacle 
to it. In fact, you can't even get a bill on the Senate floor because 
the filibuster requirement, which was initially something about final 
passage, has been now imported even into proceeding to legislation. So 
when a majority of Members of the greatest deliberative body in the 
world decide they want to talk about a topic, they can't. It is like 
the 21st century's version of the gag rule, which prohibited 
discussions in Congress on items related to slavery during the 1830s 
and 1840s. There has been a gag rule prohibiting discussions of the 
voting rights bill and other civil rights legislation and other 
important priorities because you can't even get on the bill, much less 
have extended debate about it.

  When you do get on the bill, how many bills around here do we have 
extended debate on? Mostly, we are in a Chamber like this, with three 
people, and there is no real debate that is going on because the abuse 
of the filibuster leads a party to say: Well, gosh, if they can't get 
60 votes for something, we don't even have to show up. The old public 
filibuster of ``Mr. Smith Goes to Washington'' days has now turned to a 
secret, private filibuster where people can stay in their offices and 
never show their faces on the floor.
  So that notion of naive Senators like me in 2017, wherein we are 
determined to preserve the ability of Members to engage in extended 
debate when bills are on the Senate floor, has been undermined by the 
filibuster by making it hard to get bills on the floor and then 
guaranteeing, when they are on the floor, that nobody needs to show up.
  Other things have happened since 2017. I needn't go over them at 
length, but I will go over them.
  I didn't imagine that we would have a President who would lead an 
assault on American democracy, who would lie and claim he won the 
popular vote in 2016 when he didn't, who would claim there was massive 
fraud in the Virginia election in 2016 when there wasn't, and who would 
go to a foreign country and try to dig up dirt on a political opponent 
he feared in 2020. I didn't imagine that those things would happen.
  I didn't imagine that the President, having lost an election in 
November 2020, would encourage his followers to gather in DC to be 
wild. I didn't imagine that he would call the head of the Georgia 
elections and say: You have to find me thousands of votes so I can win. 
I didn't imagine those things.
  I didn't imagine that there would be a violent attack here that would 
injure 150 police officers, that there would be an effort to 
disenfranchise 80 million Americans and disrupt the peaceful transfer 
of power. I didn't imagine those things.
  I didn't imagine that States would do what my colleague from 
California has suggested: Look at what happened in 2020, embrace the 
Trump Big Lie, and decide then, boy, we have really got to carve this 
back. We have got to carve this back dramatically and make it harder 
for particular groups of people who live in particular cities or 
counties, based on whom they vote for, to vote. I didn't imagine those 
things.
  I will tell you something else I didn't imagine. I didn't imagine 
that we wouldn't get any help from the Republican Party in addressing 
these problems. The Republican Party throughout most of its history has 
been a great voting rights party. The 14th Amendment and the 15th 
Amendment only passed with Republican votes to guarantee people equal 
access to the ballot. When the 19th Amendment was passed, guaranteeing 
women the right to vote, it was in a Democratic administration, the 
Wilson administration, but Republicans were solidly on board. When the 
26th Amendment passed to give the franchise to 18-year-olds, it was in 
the Nixon administration, and Democrats and Republicans were on board.
  The Republican Party, from its origins, right before Lincoln was 
President, was always on the march and, frankly, usually leading the 
march to expand people's ability to participate in voting. There is no 
example that is more dramatic than the passage of the 1965 Voting 
Rights Act.
  There was a 60-day filibuster here on the Senate floor. At the end, 
it was broken. Republicans voted for the Voting Rights Act near 
unanimously. Democrats were strong but not as solid as the Republicans 
were. Then, over and over again in the years between 1965 and up 
through 2006, Republicans would vote unanimously or near unanimously to 
reauthorize the Voting Rights Act. But something changed between 2006 
and 2013. Something changed at about the time that Barack Obama was 
elected President of the United States.
  When the Supreme Court of the United States, in the Shelby case, 
gutted the preclearance provisions of the Voting Rights Act but told 
Congress ``You can fix it'' and we went back to all of the Republicans 
who had supported the Voting Rights Act from 1965 to 2006 and said 
``OK. The Supreme Court says here is what is wrong, and we can fix 
it,'' we have not been able to find any--any--Republican support save 
Lisa Murkowski of this Chamber, who is a cosponsor of the John Lewis 
Voting Rights Act, the restoration of preclearance.
  When I signed the letter in 2017, I could not have imagined that we 
could not have found any Republican support on any voting rights issue.
  I heard my colleague from Utah, Senator Romney, talk a second ago, 
and he said: Well, how come Democrats didn't do it? I started working 
with Republicans in July--months before we filed the Freedom to Vote 
Act. Could you do it this way? Could you do it that way? What about if 
we completely gave up the idea of any rule or filibuster reform. Would 
you then engage with us?

[[Page S262]]

How about unlimited amendments? How about give us a counterproposal?
  I have been in these discussions with Republican colleagues for 
months. Again, save Senator Murkowski on the John Lewis bill, there has 
been no help forthcoming to save our democracy, to save voting.
  So, when colleagues ask, ``Well, you signed a letter in 2017, and 
that letter said that we should preserve the ability of Members to 
engage in extended debate when bills are on the Senate floor. So why 
are you now contemplating rules changes?'' my answer to them is that I 
am contemplating rules changes to do exactly that. We don't have 
extended debate on the Senate floor. You can't get bills on the Senate 
floor. Our democracy is under attack, and voting is under attack. 
Contrary to the previous 150-year history of your party, you won't lift 
a finger to protect voting rights or protect the integrity of our 
elections, but because you won't doesn't mean we should not. In fact, 
if you won't, the burden is on our shoulders even more.
  Here is something else, I will be honest, that I have come to 
understand more about the filibuster since 2017. Then I want to 
conclude by offering some words of reassurance to my Republican 
colleagues.
  The fact that the filibuster is now used indiscriminately against 
everything does not cleanse it of the stench of its predominant use in 
our history to block civil rights legislation. I mean, now we use the 
filibuster to block what might be a nonconsequential appointment. We 
use it for everything. However, when the history of the filibuster is 
written in this Chamber, the pivotal, epic moments that will get 
remembered are Robert Byrd's 14-hour-and-13-minute speech to try to 
filibuster against the Civil Rights Act of 1964, Strom Thurmond's 
massive filibuster against civil rights laws, and Senators from 
Virginia--Senators who held the seat that I now occupy--filibustering 
against civil rights laws.
  You don't cleanse the stench from the filibuster by just suddenly 
using it for everything. You still have to acknowledge it has played a 
particular role in the Senate. Sadly, that role has usually been to the 
detriment of the kinds of people who couldn't see anybody who looked 
like them in the Senate.
  I occupy a seat that was occupied for 50 years by Harry Byrd, Sr., 
and Harry Byrd, Jr. It is called the Byrd seat in the Senate because 
the Byrd machine ran Virginia politics, and they kind of owned it. 
Harry Byrd, Sr., was Governor in the 1920s and came to the Senate when 
Carter Glass died in 1933 and stayed until he died in 1966. His son, 
Harry Byrd, Jr., was then appointed to the Senate until 1983. For 50 
years, the Byrds held the seat I now occupy.
  I was at the inauguration of our new Governor in Richmond on 
Saturday, and I walked by an empty place on the Capitol Square where, 
just 6 months ago, there was a statue of Harry Byrd, Sr.--the Governor 
who was a great highway builder and infrastructure guy; the Governor 
who came up with the idea and worked with President Roosevelt to build 
the Shenandoah National Park; the Governor who then, as Senator, led 
this Byrd machine and was viewed as the dominant figure in Virginia 
political life during the 20th century, together with his son, Harry 
Byrd, Jr.--but the statue was taken down. The statue was taken down 7 
months ago.
  The middle school that was named for Harry Byrd, Sr., in Henrico 
County was renamed 5 years ago to Quioccasin Middle School. Why was 
that? Highway builder, park developer, dominant political figure, his 
statue was taken down because of what he did in the U.S. Senate; that 
he would write the southern manifesto to rally Senators against Brown 
v. Board; that he would encourage Virginia public school systems--
again, this is as a Senator, not as a Governor; he encouraged Virginia 
public school systems--to shut down rather than integrate; that he 
would engage in one filibuster after the next against civil rights 
legislation, including the Voting Rights Acts, and never apologized, 
never admit he was wrong, unlike Robert Byrd, who was a Klansman before 
he was in the U.S. Senate and who filibustered famously against civil 
rights legislation until he had an epiphany in 1968 when he voted for 
the Fair Housing Act and apologized for the rest of his life and became 
a civil rights champion. Harry Byrd, Sr., used the filibuster for, 
frankly, what it has been used for around here--to exclude people from 
the democracy. And the tributes to Harry Byrd and the statues and the 
school names are all coming down.
  Even at the university in his own hometown, Shenandoah University in 
Winchester, which had named its business school after Harry Byrd, Jr., 
they wiped that name off, because the filibuster is not just like a 
Senate rule that can be used like anything else. It has been used for a 
particular purpose, and we can't be blind to that.
  But let me just say this, as I conclude. I want to offer my 
colleagues a reassurance--those who have asked why we are contemplating 
rules changes, those who signed the letter with us, because it was a 
bipartisan letter. It was led by Senators Coons and Collins, and many 
Republicans signed it. ``We are united in our determination to preserve 
the ability of Members to engage in extended debate when bills are on 
the Senate floor.'' For the first time in my Senate career, there is a 
voting rights bill on the Senate floor, and we will have a rules 
adjustment vote at the end of the day tomorrow, in all likelihood. And 
what will that vote be? Will the vote be to eliminate the filibuster? 
No. Will the vote be to abolish the filibuster? No. Will it be to 
weaken the filibuster? No.
  Here is the vote that we will vote on tomorrow: Should we change the 
secret filibuster that allows Members to just sit in their office and 
not take the floor and not explain their opposition to their colleagues 
and not have to face the American public? Should we change that secret 
filibuster into a public filibuster, the way it was done during the 
vast majority of Senate history, where Senators who went to block 
action by a majority should at least have to do the work, should at 
least have to come to the floor and explain to their colleagues and the 
American public why the majority should not act?
  For everyone on the Republican side who signed that letter saying we 
should have extended debate on the Senate floor and it should not be 
curtailed, we are giving you a chance to do exactly what you pledged to 
do. For every one in our own caucus who has expressed reticence about 
weakening or diminishing the filibuster, we are giving you exactly the 
thing that you said you wanted--an opportunity to have full debate that 
could go on for a very long time and not be curtailed. And the only 
thing we will require is that that debate actually happen in the view 
of the American public and your colleagues, a fundamental opportunity 
for all of us to do the right thing by Senate rules to accomplish the 
right thing for our democracy. I so welcome the chance to finally have 
this debate on the floor of the U.S. Senate.
  With that, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. MERKLEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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