Making Emergency Supplemental Appropriations for the Fiscal Year Ending September 30, 2014

Floor Speech

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Mr. HATCH. Madam President, in recent days I have twice spoken here on the floor--not about a particular issue, bill, or nomination pending before the Senate, but about the Senate itself.

While issues, bills, nominations, and even partisan majorities come and go, the Senate as an institution must remain--and remain not only in some tattered form, some distorted shadow of its former self, but, rather, the Senate must remain as it was designed to be. The political winds may blow, but the institution must stand strong.

Unfortunately, in my 38 years of service in this body I have never seen it weaker than it is today. There once was a consensus here not only about the need to keep this institution strong but also about how to do it. That consensus evolved from how the Framers designed this body so that it could play its unique role in the system of government they inspirationally crafted.

James Madison, for example, remarked at the 1787 Constitutional Convention that the Senate's proceedings could have more coolness, more system, and more wisdom than the House of Representatives. He was not talking about coolness in the way our teenagers talk about it today. The House is designed for more or less direct expression of the popular will and operates by simple majority. By contrast, the Senate is designed for deliberation. For more than two centuries it has operated by a supermajority and even unanimous consent. This fundamental difference between the House and the Senate is by express design and not historical accident. It is the conjunction of the two that makes the legislative branch work in the manner the Framers intended. This basic principle of bicameralism is above politics and above party.

This longstanding consensus about the importance of the Senate's unique design and how it must operate to fulfill its constitutional role has all but fallen apart over the last few years. I began addressing this problem in earnest last week and will continue to do so in the weeks ahead and, I might add, in the months to come, urging my colleagues to heed history's wisdom and change course.

I am not alone in this endeavor. My friend the senior Senator from Tennessee has also spoken with great passion on this issue and developed a thoughtful assessment of the Senate's institutional decay. Two longtime colleagues in this body--one Democrat and one Republican--offered similar critiques when leaving the Senate in the last few years.

For 30 years I served in this body with my friend from Connecticut, Senator Christopher Dodd. In his final speech on the Senate floor on November 30, 2010, he observed that the Senate was established as a place where every Member's voice could be heard and where a deliberation and even dissent would be valued and respected. Senator Dodd explained that ``our Founders were concerned not only with what was legislated, but, just as importantly, with how we legislated.'' He urged Senators to resist the temptation to abandon the Senate's longstanding traditions to make it ``more like the House of Representatives, where the majority can essentially bend the minority to its will.''

Two years later Senator Olympia Snowe concluded her three terms in the Senate representing the State of Maine in this body with a reflection on the state of the Senate. She observed that a commitment to the rights of the minority helped ensure that the Senate would be a body where all voices are heard. Senator Snowe concluded, however, that ``the Senate is not living up to what the Founding Fathers envisioned,'' in large part by ignoring the minority's rights.

Senator Dodd concluded his Senate service in the majority while Senator Snowe concluded hers in the minority, but their assessment was the same--a leading Democrat and a leading Republican. That is what a consensus looks like. They shared an understanding of the unique role the Senate was designed to play in our system of government, and they knew from experience that the Senate is not operating by that design today.

Diagnosing our current institutional ills and prescribing a path back to health must begin by recognizing the primacy of the Senate's purpose, design, and place in our system of government. Without the anchor of these principles, which have throughout the Senate's history been shared throughout this body, across all partisan and ideological lines, the gamesmanship of politics and the quest for power will decimate our deliberate contribution to the legislative process. Unfortunately, that is exactly what is happening today.

In my previous remarks, I noted that many of the sage students of the Senate--from Vice President Adlai Stevenson in the 19th century to Robert C. Byrd of West Virginia in our time--all identified the same two features as critical to the Senate's proper functioning: the right of amendment and the right to debate. It is not difficult to see how they serve the critical function of setting the Senate apart from the House. These rights temper majority rule. They emphasize individuals over parties and factions. They ensure that all voices can be heard. They encourage deliberation and, yes, even beneficial compromise. These rights secure a substantive role for all Senators--even those in the minority--in how the Senate legislates, a feature that does not exist in how the House operates.

During my service throughout the past four decades, the Senate has often lived up to these ideals. For example, I worked with the junior Senator from Iowa on the Americans with Disabilities Act, which the Senate in 1989 passed by a vote of 76 to 8. At that time Democrats held 55 Senate seats, just as they do today. This body addressed amendments on the floor offered by both Democrats and Republicans on issues ranging from tax credits for small businesses to accessibility of buses. On a single day in September of 1989, the Senate adopted nearly twice as many minority amendments to this single bill than the Senate today has adopted in more than a year.

Today the majority leader uses his right to priority recognition to eliminate virtually all opportunities for amendments unless he agrees to them, and even then he generally stops amendments. He has used this procedural maneuver--called filling the amendment tree--more than twice as often as the previous six majority leaders combined.

There is a time when you can fill the amendment tree, and that is after there has been a full and fair debate on all the reasonable amendments Members have brought to the floor and it is when a reasonable time has been given to a bill and there have been a number of votes.

Yet, when he was in the minority, even he condemned this tactic as ``a very bad practice.'' He explained that ``it runs against the basic nature of the Senate.'' He was right then, but he is wrong now. Perhaps the majority leader has reconsidered what he believes to be the basic nature of the Senate. Perhaps he now believes that denying the minority's right to offer amendments is a very good rather than a very bad practice. If he does, then I think he, of all people, owes the Senate an explanation. I don't think he believes that; otherwise, such an about-face is nothing more than a desire to rig the rules so he can win all the games, and in the process he is destroying the Senate itself. When I say games, I don't really mean games. It is so he can win all the votes. He can put the Senate on any motion he wants to without any real rights for the minority, and in the process he is destroying the Senate itself, destroying the institutional characteristics the Founders thought critical to our government's design, and destroying precisely those practices and traditions that have enabled the Senate to serve the common good throughout our Nation's history.

The other defining feature of this body--the right to unlimited debate--is also under attack. By empowering the minority, that right has always annoyed the majority whether we have been in the minority or whether we have been in the majority and vice versa. But a little history can provide a lot of perspective for us today.

For more than a century, ending debate on anything required unanimous consent. A single Senator could prevent a final vote on a matter by preventing an end to debate. The Senate adopted a rule in 1917 that lowered the threshold to two-thirds. Not until 1975 was the threshold lowered to three-fifths, where it stands today.

It is easier to end debate today than ever before in the Senate's history, but that is not enough for the current majority. Urged on by many of the 34 Senators who have not yet ever served in the minority, the majority apparently does not want any obstacle whatsoever to stand in its way--not even full and fair debate.

Last November the majority leader used a parliamentary maneuver to lower the threshold for any debate on most nominations from a supermajority to a simple majority. It took him only a few short minutes to end more than 200 years of Senate practice and effectively eliminate the minority's role in the confirmation process.

As I have detailed here on the Senate floor and in print, the minority leader's reasons for this revolution amounted to filibuster fraud. At the time he invoked the so-called nuclear option, the Senate had confirmed 98 percent of President Obama's nominations, and filibusters, of course, were on the decline. But 98 percent was not good enough for the majority.

I noted the current majority leader's about-face regarding the right to offer amendments. He defended that right when in the minority and actively suppressed it when in the majority. Similarly, when he was in the minority, he voted more than two dozen times for filibusters of Republican judicial nominees. The Democrats were the ones who started that. Then, last November, once in the majority, he abolished the right to debate nominations.

While the majority leader effectively neutralized the Senate cloture rule to stop the minority from debating nominations, he has also used that rule to stop the minority from debating legislation. He again uses his right of priority recognition to bring up a bill and, at the very same time, file a motion to end debate. But it makes no sense to speak of ending debate--ending what he wrongly characterizes as a Republican filibuster--when such debate had no chance to begin with. The majority leader uses this cloture rule not to end debate but to prevent it altogether.

Just like the practice of filling the amendment tree, the majority leader is using his position to prevent debate far more often than any of his predecessors. Unlike the current majority leader, most Senators on the other side of the aisle have never served in the minority. Most Senators in both parties--56, to be exact--have served here only under the current leadership. Unfortunately, this means that most Senators serving today have only witnessed leadership that prefers power to principle and is rapidly dismantling the longstanding practices and traditions of an institution that took centuries to build. The only leadership that most Senators serving today have experienced uses parliamentary maneuvers to deny senatorial rights so that the partisan ends justify the procedural means.

The current Senate leadership is wrong. The road we are on today leads only to one destination. Just as maintaining the integrity and foundation of the Senate's design and operation is essential to its proper role in our system of government, attacking that integrity and dismantling that foundation can only destroy that proper role. Since the Senate's proper role is essential for protecting the liberties of the American people, destroying those longstanding practices and traditions puts our liberties at risk.

The minority leader spoke here in January about the state of the Senate and noted that what many call partisanship today is nothing new. But what I have been addressing in recent days is not the result of that ideological competition but how that competition is conducted.

At the beginning of my first term, there were only 38 Republican Senators--not even enough to end debate under Senate rules. Democrats have not been in such a small minority in nearly 60 years.

According to the Brookings Institution and American Enterprise Institute, 42 percent of all rollcall votes during my first 2 years here were so-called party unity votes, in which a majority of each party sticks together and votes in opposite ways. That means a majority of votes involve Senators reaching across the aisle.

In the last several years under the current leadership, however, even though the margin between the parties is narrower, the percentage of such party unity votes has risen to 62 percent. This trend of retreating to partisan corners is yet another indication that this body is becoming like the House and, therefore, abandoning the tradition of unlimited debate and amendment at the core of the Senate's identity.

The way Senator Snowe described it, the great challenge is to create and maintain a system ``that gives our elected officials reasons to look past their differences and find common ground if their initial party positions fail to garner sufficient support.'' The Senate's design provided those reasons and those incentives, and undermining that design destroys them.

Building is much harder and takes much longer than destroying. The current leadership's recklessness in choosing power over principle is dismantling what took centuries to establish.

That does not, however, mean it cannot be changed. Senator Dodd suggested a formula for a better course when he distinguished what we legislate from how we legislate. Restoring the Senate as the world's greatest deliberative body requires recommitting ourselves to the principles of how we legislate so that we can properly discuss and debate what we should legislate.

We must first restore the longstanding consensus about the rules, procedures, and traditions governing how the Senate is run. Only on that firm footing can we discuss, deliberate, and legislate in a constructive manner.

In addition to restoring many of this body's fundamental rights for amendment and debate, the minority leader spoke in January about restoring a vigorous and meaningful committee process. These elements of our legislative process are related and they are complementary.

Increasingly, bills are drafted in the leader's office and taken directly to the full Senate for consideration where the majority leader will immediately fill the amendment tree and file a motion to end debate. In my 38 years in this body, I have never seen a consolidation of so much power in so few hands.

America's Founders were right in the principles of government they laid out and in the institutional design they built on those principles. But they did so at the beginning of this journey, creating the blueprint before anything had been built. I fear that returning to the right path may be even harder than embarking on it.

The majority today has engaged in a hostile takeover of the Senate for one simple reason: aggrandizing power. But remember the axiom that power tends to corrupt. It makes principle harder to see, fainter to hear, and tougher to grasp, and it makes principle very difficult to restore. Restoration will require believing in something greater than power, something more important than the bill or nomination on the calendar, something more significant than the latest polling numbers. It will require holding fast to a system that can provide power today but take that power away tomorrow.

Winston Churchill famously said, ``Democracy is the worst form of government except for those other forms that have been tried from time to time.'' There is certainly wisdom in that, but consider when Churchill said it. He was speaking on the floor of the British House of Commons on November 11, 1947, 2 years after his party lost half its seats in Parliament and the Labor Party led its first majority government. Churchill expressed his faith in the very form of government that had turned his party into a small minority.

We continue on the path the current Senate leadership has charted at our peril, not just the peril of this institution but the peril of our system of government and the liberties it makes possible for the American people. This may sound like a grand statement, but remember what Senator Byrd repeatedly told us--remember what he said: ``So long as the Senate's defining features such as the rights of amendments and debate remain intact, the liberties of the people are secure.''

There is perhaps no greater statement of principle regarding this Nation than our Declaration of Independence, which asserts that the government exists to secure the inalienable rights of the people. That is why we are here, and that should be our reason to change course--not simply partisan advantage or ideological superiority but liberty. The liberty we enjoy in America did not occur by chance. It will not survive by neglect, and it cannot thrive by preferring power over principle.

My staff and I recently visited the National Archives and saw the words engraved beneath in one of the statues at the entrance: ``Eternal vigilance is the price of liberty.''

I hope we can turn this around. I hope the leadership of the majority will wake up and realize that some day they may be in the minority. I don't know when, but some day they will be. If they were treated as we are being treated, I can just hear the fulminations up and down in the Senate. All I can say is that these principles are more important than either party. They are more important than either party, and whether Democrats or Republicans like them or not, the fact is, this is the greatest deliberative body in the world that is no longer the greatest deliberative body in the world, and that is because of what is going on. I hope we can end that and begin anew.

I think everybody enjoyed the debate over the highway bill. For once, we were able to have at least four amendments--on both sides, by the way. And I have to say it was kind of a thrill to vote again on amendments. It was kind of a thrill to pass a piece of legislation the right way. Whether a person likes or doesn't like the legislation, it was thrilling to be here. I would like to see more of that happening so that everybody here will feel that not only are they a part of the Senate but they are helping to keep the Senate the vibrant place it always has been up until now.

I yield the floor.

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Mr. HATCH. I thank my dear friend for his kind remarks, and I understand how much zeal he has for the things he does here on the floor. He is a fine man, and I really appreciate it.

Madam President, earlier today--just a little while ago, in fact--the House of Representatives once again passed legislation extending funding for the Federal highway trust fund. This is the latest step in the process for which the final outcome has been known for some time. The bill the House passed today is virtually identical to the one they passed last week. It is basically the very same bill.

Earlier this week the Senate passed its own version of the highway bill and sent it to the House. Of course, we did so knowing full well the House would not accept the Senate bill. I don't think there was ever any real doubt in this Chamber as to what was going to happen, but in my view it is good that the Senate acted.

I was particularly pleased to see that the version of the highway bill reported by the Senate Finance Committee received such strong bipartisan support when it came up for a vote. Senator Wyden and I worked hard on that bill. The effort was bipartisan from the outset, and in the end we produced a product that both parties could support. Of course, I was a little less pleased that the Senate on the very next vote opted to strike the Finance Committee's language and replace it with what is, in my view, a less viable vehicle for funding the highway trust fund, but in the end that is the direction a majority of the Senators decided to go, and I accepted it and am proud of everybody who participated.

As I said, it is good that the Senate acted. But now the House has acted again. It is good that the Senate had some amendments for a change, and I think we all felt good about that. I felt a renewed spirit in the Senate because of this since it had been a year without having real amendments in a real process. Of course there were only four of them, but compared to what we have had over the last year, that still was an amazing occurrence. But now the House has acted again, and although there are likely to be a number of Senators who do not like the House bill, there doesn't appear to be enough time for the Senate to try once again to go in a different direction.

As we all know, we are on the verge of a crisis with regard to funding for the highway trust fund. Congress needs to act immediately to prevent a shortfall in the trust fund and to ensure that the States can continue to plan and implement their highway projects. Thousands of jobs are at stake. If Congress doesn't pass a bill and get it to the President before we leave for recess, we will be doing a great disservice to a lot of people. We all know this. It is not a secret. It is not a surprise.

As far as I can see, the only viable solution before the Senate today is to take up the House bill and pass it as is. Once again, we have all known this was the most likely outcome for some time now. It is time we accept it and move on. That is not to say that I am disappointed that we have to pass the House bill. As I said a number of times, if you compare the House bill with the one reported by the Senate Finance Committee--which, once again, received broad bipartisan support when it was voted on in the Senate earlier this week--you will see that the bills are not all that far apart in terms of policy.

The core funding mechanisms are the same.

The principal difference is that the Senate bill raises some revenue through some tax compliance provisions that are not in the House bill. The House bill goes a little further on pension smoothing than the Finance Committee bill does, and this has brought heartburn to a number of us in both bodies.

These are not fundamental differences. Any Senator who supported the Finance Committee's bill should be able to support the House bill, which is a good thing, because as I said we don't have many other options if we want to get this done before the recess.

I plan to support the House-passed highway bill. I urge all of my colleagues in the Senate to do the same.

Finally, I wish to take a moment to address a major setback we encountered with regard to the temporary highway extension that passed in the Senate earlier this week. As we learned yesterday, the Senate-passed bill has a shortfall of about $2.4 billion due to a drafting error. Some have suggested that this error originated in the Finance Committee's version of the legislation. However, anyone who takes the time to compare our language with that of the subsequently passed substitute amendment will find this is not the case.

I am not here to point fingers or try to embarrass anyone, but I will say these are the types of mistakes that happen when tax policy is written outside of the tax-writing committee, and we should all be careful of that.

The Finance Committee has an open and transparent process that allows for all of our numbers to be scrutinized well in advance. The committee has all the necessary expertise at its disposal to prevent these types of mishaps.

I am well aware that mistakes happen. I would just like to suggest that fewer of these types of mistakes will happen in the future if the Finance Committee is allowed to do its work when it comes to writing tax policy. That is all I have to say on that matter.

Once again, we are at a critical juncture. We need to get a temporary highway bill over the finish line. As far as I can see, the only way to do that is for us to take up and pass the House bill. As I stated earlier, this should not be a difficult lift. I think we can get this done in short order.

It was a lot of fun to be on the floor--for the first time in about a year--where anybody who wanted to at least had a shot at being able to bring up an amendment for a vote. Four of our colleagues did get amendments up, and they were thrilled. Isn't it amazing we were thrilled about something the Senate ought to be doing every time we bring up a bill? We can get both sides together on a limited number of amendments, but we should not have either side demanding to approve or disapprove the amendments in advance, and that has been happening all too often in the Senate with the way it is being run.

I love all of my colleagues. I love my friends on the other side. There is no use trying to kid about it, I care for everybody in this body, and I cared for everybody I have served with. I admit that occasionally there have been Members whom I cared a little less for than most of the others, but the fact is this is a great body. We have had some great people on both sides of the aisle over the 38 years I have been in the Senate.

We need to allow our committees to work. Let's allow our individual Senators to work too. Let's understand that we don't all come from the same State or the same jurisdiction. Each of us has a desire to represent his or her jurisdiction in the best possible manner. Frankly, we need to get this Senate back to where it is the greatest deliberative body in the world rather than just something that is run for the benefit of the majority. I don't want it to run for the benefit of the minority either.

We can get together--just as we did on this bill--and do much better around here than we have been doing. I hope that as we go into the future, everybody in this body will want to work better together and quit playing politics with everything.

We understand this is a political body, and we understand there will be politics played from time to time. It is kind of fun sometimes but not on everything, and especially not when it prevents what the Senate is truly all about, which is wide-open debates and wide-open amendments, and we certainly need to find a bipartisan way of working together.

I particularly enjoyed working with Senator Wyden. He has made a distinguished effort to try to make things as bipartisan as he can, and that is hard to do around here anymore in both the House and Senate. The House is supposed to be a body that fights over everything, I guess, because it is a majoritarian body. But even then the House has had many Democratic amendments they could have stopped. While they have had many amendments, we have basically been stopped from being able to act as the Senate should act, which is to allow people the right to bring up their amendments and try to make points that maybe all of us would do well to consider from time to time.

I am grateful I am a Member of this body, and I am grateful for the people I have served with all these years on both sides of the aisle. In all the time I have been here, there were only two people whom I thought had no redeeming value. I should not have said that, I guess, but there were two people whom I thought truly didn't have the Senate at heart and truly didn't do what I thought they should do. I have loved all the rest and appreciated them very much.

I appreciate the leadership on both sides, but I just hope we can get past all of this bickering and start running the Senate as it has always been run. A lot of it started when you break the rules to change the rules, and this is what happens. It was a real mistake on the part of the majority to do that. They might not think so because they are packing the Federal courts with judges--most of whom would have gotten through. About 98 percent of the President's nominees were getting through and very few were even contested. The fact is that some have gotten through and others should never have gotten through to the Federal bench, and it is because of breaking the rules to change the rules. It is not right for either side to do that, but it has been done. Let's overcome it, and let's be the most deliberative body in the world today, and I think we can do it.

I yield the floor and suggest the absence of a quorum.

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