National Defense Authorization Act For Fiscal Year 2016

Floor Speech

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Mr. President, 2 months ago I came to the Senate floor in my capacity as President pro tempore to speak to my colleagues about the importance of maintaining decorum and respect in this body. I reminded them that decorum is essential to the proper functioning of the Senate and to its unique role in our constitutional structure. The Framers designed the Senate to be an institution of deliberation and reason, where Members would work to promote consensus and the common good rather than their own narrow, partisan interests. Today I rise once more in my capacity as President pro tempore, this time to discuss another defining feature of this body--the right to extended debate.
The Framers designed the Senate to serve as a necessary fence against the fickleness and passion that drives hasty lawmaking--what Edmund Randolph called the turbulence and follies of democracy. James Madison in turn described the Senate as a bulwark against what he called the transient impressions into which the people may from time to time be led. Senators were to refine the popular will to wisdom and sound judgment, reaching measured conclusions about how best to address the Nation's challenges. It is no accident that passing bills through this body takes time. The Framers intended the Senate to be the cooler, more deliberate, more reasoned branch. As Madison once said, the Senate was to ``consist in its proceedings with more coolness, with more system, and with more wisdom than the [House of Representatives].''

Key to the Senate's deliberative nature is its relatively small size, which enables a much more thoroughgoing debate and greater opportunity for individual Members to improve legislative proposals. Longer, staggered terms also give Members flexibility to resist initially popular yet ultimately unwise legislation, and statewide constituencies require Senators to appeal to a broader set of interests than do narrow, more homogenous House districts. To these constitutional characteristics, the Senate has added a number of traditions--some formal, others informal--that have enhanced its deliberative character. Foremost among these traditions is the right to extend debate--what we today call the filibuster.

For many years--indeed, for the first 130 years of this body's existence--there was no formal way to cut off debate. Senators could, in theory, speak as long as they wanted, on whatever subject they wanted. In 1917, the Senate adopted the first cloture rule, which required a two-thirds vote to end debate. Filibusters remained rare, although they were used from time to time to delay legislation. In 1975, under the leadership of Majority Leader Mike Mansfield, the Senate lowered the cloture threshold from two-thirds to three-fifths, where it has remained ever since, with the notable exception of Senate Democrats' unilateral decision last Congress to lower the cloture threshold for most nominations to a simple majority vote. The cloture threshold for legislative filibusters remains three-fifths.

Now, one may wonder why a device that allows a minority of Senators to delay or block legislation is a good thing. My friends and colleagues, the junior Senator from Oregon and the senior Senator from New Mexico spoke on the Senate floor last week about the importance of majority rule and the need to allow legislation to proceed.

I do not deny that obstructionism can be a serious problem. Obstinately refusing to allow any legislation to move forward or requiring complete capitulation by opponents is not statesmanship, and it is not what the Framers had in mind. But when exercised properly, the right to extended debate can measurably improve policy.

The filibuster furthers two of the Senate's key purposes. First, it helps to guard against intemperate impulses that may from time to time infect our political order. Second, it facilitates the process of refining the popular will.

The way in which the filibuster guards against intemperate impulses is obvious. By requiring a supermajority to pass major legislation, the filibuster ensures that a narrow partisan majority swept into office through a fluke election does not go about unravelling vast swaths of America's legal architecture. The filibuster also ensures that the same narrow majority does not run riot with new, pie-in-the-sky ideas that cost billions of dollars while producing little discernible benefit.

I would point my colleagues to two major, extremely controversial measures that passed the House in 2009 but went nowhere in the Senate: the cap-and-trade energy tax and the so-called public option for health insurance. Speaker Pelosi was barely able to ram through cap and trade by a vote of 219 to 212. The public option passed by an even slimmer margin of 220 to 215. These two pieces of legislation received little consideration in this body because there were nowhere near enough votes for cloture. Absent the filibuster, however, it is likely both would have passed the Senate and become law. Had that occurred, a temporary electoral victory would have wrought fundamental changes to American energy policy and put our Nation even more firmly on the path to government-run health care.

Many on the left may point to the failure of cap and trade and of the public option in 2009 as reasons to eliminate, not preserve, the filibuster. After all, it prevented progressives from achieving two of their most sought-after policy goals. But consider what happened a mere 2 years later, in the very next election: Voters delivered President Obama and the Democratic Party a sharp rebuke, voting out of office the highest number of Democratic officeholders in generations. Voters disapproved of the Democrats' policymaking, and registered their disapproval at the polls. Note, too, that the Democrats lost their majority in the House--the body that passed cap and trade and the public option--but retained their majority in the Senate--the body that never even took up either proposal.

The filibuster prevented a transient Democratic majority from enacting far-reaching reforms that a majority of voters ultimately opposed. It didn't prevent all reforms. After all, the Democratic majority still managed to enact many of its policy priorities. But the filibuster prevented other extreme measures from becoming law and stopped a short-lived congressional majority from running roughshod over longstanding principles of federalism, free enterprise, and limited government.

To my friends from Oregon and New Mexico and to others who argue that the filibuster is anti-democratic, I would say that it is in fact the opposite. The filibuster ensures that fundamental change comes only through sustained victories at the ballot box. It typically takes two or three successive victories at the polls to build a filibuster-proof majority. This multiyear window gives the public time to evaluate the majority's platform and to determine whether it is in fact the better course of action.

If by democracy one means to win at all costs, perhaps one could say the filibuster is anti-democratic. But if democracy, as I believe, instead means the system for transforming the people's preferences into law, then the filibuster is not anti-democratic at all. Rather, it preserves the people's preferences until they decide emphatically, and with the benefit of review, that it is time for significant change.

I have also said that the filibuster facilitates the process of refining the popular will. It does this in two ways. First, it gives opponents of a particular piece of legislation additional time to explain why the legislation is misguided or how it could be improved. It also gives proponents of the legislation additional time to explain why the objections are unfounded. This helps to increase understanding on both sides and also offers opportunities to correct problems with particular provisions.

Second, by requiring 60 votes in order to proceed on controversial issues, the filibuster ensures increased buy-in. The process of refining the public will works only if Senators actually pay attention to legislation and devote their resources to examining it. By requiring 60 Senators to assent to legislation rather than a bare majority, the filibuster ensures that no bill passes this body without first garnering broad support. The process of getting to 60 requires more scrutiny, more investigation, and more consensus than the process of getting to a bare majority. It also decreases the likelihood of deeply flawed legislation making it to the President's desk because more Senators have to agree that the legislation warrants passage.

To the extent there are problems with the filibuster, they are not problems with the filibuster itself but with how it has sometimes been used in recent years, as a matter of fact. In April of this year, I spoke on the floor about the need for mutual restraint in the Senate, about the need for both sides to exercise discretion in wielding the powers of the majority and the minority. Yes, the filibuster can be a tool for improving legislation and winning important promises from the Executive, but it can also be abused for narrow partisan ends. It can be used to bring business to a halt for irrelevant or unimportant purposes or merely to make a point. It can be used to win an unsavory favor for a particular individual or constituency, and it can be used to create false narratives about the majority's ability to govern.
From time to time we hear calls--including by Members of this body--to strip the minority of certain rights. Lately, there have been calls by some in the media, on the campaign trail, and on the other side of the Capitol to eliminate the filibuster. Though these calls to abolish the filibuster may be instinctively appealing, we should reject them. Without the filibuster and other important minority rights, the Senate would lose its unique character. It would become less a body marked by deliberation and reasoned debate and more a body where the majority gets whatever it wants. Indeed, stripped of minority rights, the Senate would merely duplicate the work of the House of Representatives. That may be advantageous for the current Senate majority, but it would not fulfill the constitutional design in creating a second House of Congress where the popular will would be refined through prudent judgment.

Those who call on the Senate to abolish the filibuster should keep in mind that this is not the first Congress to face institutional challenges. Indeed, I would urge my colleagues to recall the example of Mike Mansfield, the late Senator from Montana, whom I referenced earlier. Senator Mansfield served as Senate majority leader from 1961 to 1977, longer than any other Senator in history. During Senator Mansfield's time as majority leader, the Nation confronted a number of difficult, divisive issues. Chief among these were debates over school integration and civil rights, which deeply split the Democratic caucus. Near the beginning of his tenure, when a determined minority stalled President Kennedy's legislative priorities, Senator Mansfield faced great pressure from within his own party to exert the majority's power more assertively. In an act of great courage, Senator Mansfield resisted the calls of his colleagues to bend Senate rules. Though tempted by the prospect of important political victories, he instead counselled that the remedy to gridlock ``lies not in the seeking of shortcuts, not in the cracking of nonexistent whips, not in wheeling and dealing, but in an honest facing of the situation and a resolution of it by the Senate itself, by accommodation, by respect for one another, [and] by mutual restraint.''

Senator Mansfield was absolutely right. For the Senate to function effectively, Senators of all stripes must practice mutual restraint--Republican and Democrat, conservative and liberal, majority and minority alike.

The solution to our current strife is not to change the rules but to follow them and to wield them only as necessary to improve legislation. Cooperation, not going nuclear, is what will restore this body to proper functioning. Going nuclear will only hollow out this institution and infect more of what we do with puerile partisan poison.

I wish to close by quoting two great statesmen who loved the Senate and who truly understood its unique role in our constitutional system. The first quote is from the first Adlai Stevenson, who served as Vice President from 1893 to 1897. In his farewell address to the Senate, Vice President Stevenson said the following:

In this Chamber alone are preserved without restraint two essentials of wise legislation and good government: the right of amendment and of debate. Great evils often result from hasty legislation; [but] rarely from the delay which follows full discussion and deliberation.

Vice President Stevenson understood that deliberation and reasoned debate lead to better policy outcomes than the headlong rush to action. Delay rarely causes great evils. More commonly, it helps to avoid them.

The second quote comes from a man familiar to all of us, the late Senator Robert C. Byrd of West Virginia. Senator Byrd, who served in this body longer than any other Senator in history and who spent the vast majority of his 51 years in the Senate in the majority, said this about the filibuster and minority rights: ``[A]s long as the Senate retains the power to amend and the power of unlimited debate, the liberties of the people will remain secure.''

Senator Byrd recognized that the Senate's cooling function serves as a crucial check on transient majority impulses and on the often misguided desire to act quickly and to act at all costs.

The filibuster is a key bulwark against error and against the ability of short-lived political majorities to work fundamental changes to our Nation. Although it can be deeply frustrating--particularly when misused and overused by an intransigent partisan Senate minority--the filibuster is an important element of the Senate's character and institutional structure. I urge my colleagues to resist calls to abolish the filibuster. Whatever we might win in the way of short-term political gain would be overwhelmed by the enduring, irreparable damage we would do to the Senate as an institution.

I knew Mike Mansfield. I visited with him in Tokyo when he was the Ambassador to Japan. He was a great leader. He was a great human being.

I also knew very well Senator Robert C. Byrd. There were times when I led the fight against labor law reform in 1977, 1978, where I was hard-pressed to like Senator Byrd because he used every tool at his disposal--procedural and otherwise--to try to put that bill forward, which would have changed the whole character of America for the worse.

I was young. I didn't realize how important that man really was. But as I continued to serve in the Senate and saw his devotion to the Senate, his devotion to the Senate rules, his fairness when he dealt with both sides, I got to really respect his understanding of the procedural votes.

I venture to say I don't know that anybody has ever had that full capacity as much as he did, with the possible exception of Senator Allen of Alabama, who I greatly admired also. He stood right over there on that side of the floor and took on his own party time after time. The filibuster was a very important instrument at that time, especially since Mr. Byrd was a very strong personality.

The longer I served in the Senate, the more I appreciated Senator Byrd and his devotion to the rules, the Constitution, and the Senate itself. He cared for the Senate.

I can remember him sitting right here in this chair. I went up to him and I said: Bob, I love you. This was right before he died. He looked like he was going to cry, and he said: ORRIN, I love you too. That meant so much to me because in the early days we were principal adversaries. He had more power than I could dream of.

We ended up winning on labor law reform through a miraculous sixth cloture vote. It was a great loss to Senator Byrd. He was not particularly enamored with me for the first number of years. But as we served together, fought together, and worked together, I gained tremendous experience from him and from his ability. I gained a great appreciation for Senator Byrd and his abilities and his dedication to the rules of the Senate and his dedication to not changing them and keeping those rules alive, and those rules have existed for almost a century.

Nobody I know of felt more sad when he had to leave the Senate than I did. Keep in mind, that was after a lot of blood and guts fighting here on the floor where I, as a young freshman Senator, had to take it on the chin regularly because he knew the rules better than I did and he had power that was much stronger than anybody on this side of the aisle. He had a very forceful presence.

I will just say this: He believed in the rules, and he lived by the rules. Even when he lost, he was a gentleman. I think that man did more for the Senate in many ways than very few other Senators did.

Let's not get so rambunctious about passing anything we want to pass around here. Let's think these rules through. The more you think, the more you realize these rules are here for a reason, and they have been here a long time for a reason and have functioned amazingly well and stopped the majority from running over the minority.

Every once in a while, the Democrats are in the minority, although not very often. Over the last number of years, they had the majority around 22 times and we had it maybe 6 times. I can say this: There are Democrats on the other side who really know these rules are very important, and I hope they prevail as we move on to even more difficult problems and processes in the future and in the time to come. This is a great body. It remains great in large measure because of its rules and because of the people who serve here. We should all respect the rules, and we should all respect each other for the privilege of serving in the U.S. Senate.

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