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Public Statements

Hearing Of The Senate Committee On Rules And Administration - Examining The Filibuster: History Of The Filibuster 1789-2008

Statement

By:
Date:
Location: Washington, DC

Mr. Chairman,
I have long revered the rules and precedents of this body, but I have also championed
reforms when I thought them necessary. In 1975 as Senate Majority Whip, I sponsored
changes to Rule XXII, reducing the threshold for cloture from two-thirds of Senators
"present and voting," to three-fifths of Senators "duly chosen and sworn." In 1979 as
Senate Majority Leader, I sponsored additional changes to clarify the intent of Rule XXII,
and to eliminate post-cloture filibusters. In 1986 as Senate Minority Leader, I sponsored
further changes, reducing post-cloture debate from 100 hours to 30 hours. In 2007, I
authored a change to Rule XXVIII, to make it more difficult to include new matter that
had not been debated in either house of Congress in a conference report, by requiring
sixty votes.
I have tried to achieve these ends by working within the Senate rules. I am not for
circumventing the rules, nor am I for changing the rules as an option of first resort.
Having served in the Senate for more than fifty years, and served in both the majority
and minority, I know that majorities change. Senators who advocate for rule changes
today may have to live under those changes in the minority tomorrow. We should
remain open to changes in the Senate rules, but not to the detriment of the institution's
character or purpose.
The filibuster is a powerful tool, and it ought to be invoked only in the most
extraordinary circumstances. Senators, to a degree, have abused their right to debate,
objecting to routine business and exhausting the patience of their colleagues. But
before we get all steamed up, demanding radical changes to the Senate rules, let's read
the rules and make sure we understand what we are talking about.
In recent months, we have seen measures introduced in the U.S. Senate -- one to
gradually reduce the threshold for cloture to a simple majority, and another to require
the Senate to adopt its rules anew at the beginning of each Congress. There is also the
procedural gambit advocated by some, to have the Vice President assume the chair, and
to have a majority codify his ruling to do away with the filibuster. These are not new
proposals, and the arguments for them are as old as the cloture rule.

It does not take much imagination to decry long-winded speeches and obstruction and
advocate for changes to the rules. It does take time and experience to understand the
rules and how they bolster the historical significance of the Senate.
I oppose cloture by a simple majority, because I believe it would immediately destroy
the uniqueness of this institution. In the hands of a tyrannical majority and leadership,
that kind of emasculation of the cloture rule would mean that minority rights would
cease to exist in the U.S. Senate.
The U.S. Senate is not the U.S. House of Representatives, and was never intended to
function like the House. The Senate is a forum of the states, where regardless of size or
population all states have an equal voice. One must also realize that a majority of states
may not actually represent a majority of opinion in the country. In the Senate, states
like West Virginia are equal to states like California, Texas, and New York. Yet, without
the protection of unlimited debate, small states like West Virginia might be trampled
underfoot.
Take away the right of unlimited speech by the representatives of the people, and one
tampers with the fundamental checks and balances forged by the framers.
I hope Senators will take a moment to recall why the devices of extended debate and
amendments are so important to our freedoms. The Senate is the only place in
government where the rights of a numerical minority are so protected. Majorities
change with elections. A minority can be right, and minority views can certainly
improve legislation. As U.S. Senator George Hoar explained in his 1897 article, "Has the
Senate Degenerated?", the Constitution's Framers intentionally designed the Senate to
be a deliberative forum in which "the sober second thought of the people might find
expression."
During my tenure in Congress, I have witnessed bitter fights over Vietnam and
McCarthyism. In the decades before that, I remember Senators denouncing the New
Deal as socialism and communism. Bitter partisan periods in our history are nothing
new.

If something seems wrong with the Senate from time to time, we, the members, might
try looking in the mirror. Additional efforts toward civility and patience, and
accommodation on both sides, may do us more lasting good than any actual change in
the rules. There is no challenge we must confront that dwarfs the challenges our
predecessors faced. If they found a way forward without damaging the Senate's
ultimate purpose, I am confident that we can too.
If the Senate rules are being abused, it does not necessarily follow that the solution is to
change the rules. Senators are obliged to exercise their best judgment when invoking
their right to extended debate. They also should be obliged to actually filibuster, that is
go to the Floor and talk, instead of finding less strenuous ways to accomplish the same
end. If the rules are abused, and Senators exhaust the patience of their colleagues, such
actions can invite draconian measures. But those measures themselves can, in the long
run, be as detrimental to the role of the institution and to the rights of the American
people as the abuse of the rules.
Extended deliberation and debate -- when employed judiciously -- protect every Senator,
and the interests of their constituency, and are essential to the protection of the
liberties of a free people.


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