Thanking Our Colleaguesby Senator Chuck Grassley
Posted on 2013-01-24
GRASSLEY. Mr. President, we are facing major changes in how the
Senate operates and even minor changes can have big consequences.
Since the Senator even from the smallest State represents hundreds of thousands of Americans, any change to how senators are able to represent their constituents' views is of great importance.
We have heard plenty of talk from the other side of the aisle about how the Senate's current dysfunction simply boils down to Republican abuse of the filibuster.
If you are a partisan Democrat and inclined to think the worst of Republicans, then that explanation may hold water for you.
On the other hand, those who are more fair minded will find themselves wondering if there isn't more to the story.
A fair analysis of what is wrong with the Senate must look at the situation from both sides.
From the Republican point of view, the main gripe with how the Senate has been operating recently is the inability of the minority party to offer amendments and receive a fair hearing for our ideas.
The Senate rules provide that any Senator may offer an amendment regardless of party affiliation.
The longstanding tradition of the Senate is that members of the minority party have an opportunity to offer amendments for a vote by the Senate, even if those votes don't fit the agenda of the leadership of the majority party.
Of course, if those amendments don't receive a majority of votes in the Senate, they cannot be passed.
No one is arguing for some sort of right of a minority of senators to advance a minority agenda.
However, it is not uncommon for an idea that comes from the minority party to attract votes from the majority party, even enough to pass.
This can be inconvenient or even embarrassing to the leadership of the majority party.
Perhaps there is a Republican amendment that would reveal a split within the Democratic caucus.
Perhaps a Republican might offer an amendment that has broad public support and it would be hard for certain Democrats to explain to the people they represent why they voted against it.
What's wrong with taking tough votes and showing the American people where you stand? Those who lecture us about majority rule can't have it both ways.
If an amendment gets the votes of 45 Republicans and 6 Democrats, that is a majority, but that is exactly the scenario the majority leader has been trying to avoid.
Minority amendments have routinely, systematically been blocked in recent years in the Senate.
The Majority Leader has consistently used a tactic called ``filling the tree'' where he offers blocker amendments that block any other senator from offering their own amendment unless he agrees to set his blocker amendments aside.
He is able to get in line first to put his blocker amendments in place because of a tradition that the Majority Leader has priority to be recognized by the presiding officer.
This doesn't appear anywhere in the Senate rules and it arguably contrary to the rules.
This so called filling the tree tactic used to be relatively rare, but it has become routine under this Democratic leadership.
So what are Republicans to do if they have amendments they want to offer? We can ask the majority leader to allow us to set aside his blocker amendments so we can offer an amendment.
His response has been to ask us what amendments we want to offer, and he will only agree to set aside his blocker amendments if he approves of the particular Republican amendment.
If there are amendments that he doesn't like, he says ``No.'' Then, with amendments blocked, he makes a motion to bring debate to a close, or ``cloture''.
When cloture is invoked, it sets up a limited time before a final vote must take place.
[[Page S268]] By keeping amendments blocked while running out that clock, the majority leader can force a final vote on a bill without having to consider any amendments.
Naturally, under these circumstances, members of the minority party who wish to offer amendments will vote against the motion to end debate and force a final vote until they have had an opportunity to have their amendments considered.
However, when Republicans vote against the majority leader's motion to end debate, we are accused of ``launching a filibuster''.
Many Americans may be surprised to learn that the Senate rules do not define what constitutes a filibuster.
The Merriam-Webster Dictionary defines a filibuster as ``the use of extreme dilatory tactics in an attempt to delay or prevent action especially in a legislative assembly.'' The fact is, a filibuster can refer to any procedure perceived as dilatory, which is in the eye of the beholder.
In the case I have described, if Republicans refuse to go along with the majority leader's attempt to deny Senators the right to offer amendments, is that an extreme dilatory tactic? I would say it is a logical response to an assault on our rights.
Republicans can't be expected to vote for the majority leader's motion to end consideration of a bill before we have had a chance to offer any amendments.
That brings us to the so called ``talking filibuster'' proposal that has been mentioned so much on the Senate floor.
Some have proposed that Senators be required to talk non-stop on the Senate floor or a final vote can be forced, even if there have been no amendments allowed.
In other words, when the majority leader has amendments blocked, if Republicans want to defend their basic right to offer amendments, they would have to go to the floor and debate non-stop.
That doesn't make any sense.
What does non-stop debate have to do with giving up your right to offer amendments? Here is where advocates of the so called ``talking filibuster'' confuse the issue.
As I mentioned, a filibuster can refer to any tactic perceived as dilatory, but when most Americans think of the filibuster, they think of Jimmy Stewart in the classic film Mr. Smith goes to Washington standing and talking without stopping for an extended period of time to delay proceedings and make a point. It just makes sense that if you want to engage in this type of filibuster, you should have to actually speak.
Some Senators would have us believe that somewhere along the line the filibuster was mysteriously transformed so Senators no longer had to talk on the floor of the Senate, but that is not the case.
The filibuster itself hasn't changed, just what we call a filibuster.
When Democrats complain about Republican filibusters, they aren't talking about Mr. Smith Goes to Washington filibusters.
They are talking about Republicans refusing to vote for the majority leader's motion to end consideration of bills without the opportunity for amendments.
Again, the rules and traditions of the Senate dictate that Senators have a right to offer amendment.
What justification can there be for forcing Senators to speak for hours on the floor or lose the right to offer amendments? That would just encourage the majority leader to block amendments even more and use this new tool to jam legislation through the Senate without considering alternative views. Such a situation would only make the underlying problem worse.
This isn't just Republicans saying this.
Listen to what the New York Times said: ``The use of filibusters has risen since the 1970s, especially when Republicans have been in the Senate minority. But the most recent spike of Republican filibusters has coincided with the Democrats' unprecedented moves to limit amendments on the Senate floor.'' The current majority has moved to cut off debate and amendments on a measure other than the motion to proceed over 100 times.
This doesn't even tell the whole story because much of the time, the Senate Majority Leader doesn't have to actually use his amendment blocking tactic.
He simply informs Republicans that he will block amendments, or refuses to commit to allow Republican amendments before making the motion to consider a bill.
Republicans can hardly be expected to vote in favor of taking up a bill under these conditions.
I should point out that it isn't just members of the minority party who have been affected by the blocking of amendments.
There have been far fewer opportunities for Democrat Senators to offer amendments in recent years than used to be the case.
Not all Democrats will agree with every aspect of a bill brought before the Senate by their own leadership.
Rank and file Democrats might also have ideas to improve a bill that had not yet been considered before being taken up by the Senate.
Those who claim to want to fix the dysfunction of the Senate but who focus only on the alleged dilatory tactics by the minority party and ignore the heavy handed tactics by the current majority party are at best only addressing half the problem.
Moreover, to the extent any change to the Senate rules strengthens the ability of the majority to steamroll the minority, partisanship will only get worse.
The rules of the Senate, which protect the rights of the minority, force the majority to work with the minority if they want to get things done.
As a result, the Senate has historically been a more bipartisan place than the House.
That is a positive feature of the Senate that we should not discard lightly.
The role the Senate was intended to play by our Founding Fathers is clear.
I have described before how the Senate, with its longer staggered terms and other features, was specifically structured to act as a check on the passions of temporary majorities as represented in the House of Representatives.
I won't go into detail on that subject again because it is already in the Congressional Record, but I quoted James Madison, the Father of the Constitution, at length.
I have heard some select quotes from the Federalist Papers also used by some on the other side to argue that the Framers of the Constitution actually favored a more strictly majoritarian system.
One common quote is from Federalist 58, which discusses how only a simple majority is required for a quorum in the House of Representatives. Madison explains that this is to prevent a situation where a minority of Members can halt action by walking out, as happened with Democrat State legislators during the redistricting fight in 2003 and more recently in Wisconsin during the debate about collective bargaining for public employees.
In context, I see nothing that would contradict the expressed concerns elsewhere in the Federalist Papers about tyranny of the majority.
I have also heard a reference to Federalist 75, which ironically discusses the supermajority requirement in the Constitution for ratifying treaties.
The discussion is about whether the supermajority ought to be two- thirds of Senators present or two-thirds voting, not whether there ought to be a supermajority requirement.
We can never know what the Framers would have thought of the cloture rule as it currently exists.
However, we know that the Senate was specifically intended to prevent the majority from steamrolling the minority.
The fact is, our Constitution is a compromise between a purely majoritarian system where the rights of the minority are threatened by what Madison called the ``superior force of an interested and overbearing majority'' and the system under the Articles of Confederation where nothing could be done unless it was practically unanimous.
Our goal should be to return to the tradition of the Senate as a deliberative body where all Senators have an opportunity to put forward proposals, and the Senate can work its collective will.
[[Page S269]] Any reform of the Senate rules must balance the interests of the majority with the rights of the minority, not tip the balance toward one or the other.
If we fail to strike that balance, partisanship will only get worse.
That is easier said than done.
I know several Senators put forward proposals that they think are fair and will fix the Senate.
However, it takes more than assurances that you are willing to live under the rules you are prepared to impose should you find yourself in the minority.
You can't say that for sure until you are in that position.
Any serious attempt at a fair approach to the Senate's problems must involve engaging members of the other party and addressing their legitimate concerns.
That means that any reform of the Senate rules must restore a full and open amendment process where individual senators of any party can offer amendments.
Does the deal before us meet that test? I am not sure.
The deal the two leaders have struck does include a guarantee of two amendments for the minority party, presumably picked by the minority leader.
That at least acknowledges the legitimate concerns on my side of the aisle about the blocking of amendments.
Two amendments is better than none, which is what we have had in practice.
It is also better than a unilateral rules changes imposed by the majority on an unwilling minority.
However, I have described how the right to offer amendments is a fundamental right of individual Senators representing their respective States.
There are 45 Republicans in the Senate, not 2.
It is also true that rank and file Democrats have plenty of proposals they have a right to put forward.
They shouldn't have to ask their leader's permission to do so any more than Republicans should.
Perhaps knowing that he will have to deal with two Republican amendments, the majority leader will decide to allow more bills to be considered under an open amendment process the way they should be. I hope so.
However, it is also possible that the majority leader will decide that there is no reason to ever go back to the traditional open amendment process now that we have this new process that only guarantees two amendments.
Two amendments could become the new ceiling rather than the floor.
If that is the case, we will have made the Senate more partisan and more dysfunctional.
It remains to be seen these changes will work in practice and I will be watching closely.