Executive Session

EXECUTIVE SESSION

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Mr. McCONNELL. Mr. President, I have 10 unanimous consent requests for committees to meet during today's session of the Senate. They have the approval of the majority leader. I ask unanimous consent that these requests be agreed to and be printed in the RECORD.

The PRESIDING OFFICER. Is there objection? The Senator from Iowa.

Mr. HARKIN. Mr. President, on behalf of the Democratic leader, myself and, I might add, others on this side, because of the importance of the debate that is taking place on the Senate floor today, the Senate's attention ought to be turned to this and not to committee meetings, and therefore I object.

The PRESIDING OFFICER. The Senator objects.

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Mr. HARKIN. Mr. President, I yield myself such time as I may consume.

I rise today to speak about the prospect that at some point next week, according to all of the press reports and according to what I have heard on the floor, the majority leader of the Senate will take a course of action that has been dubbed the ``nuclear option.''

The majority leader will take a course of action that will tear down the rules by which we operate in the Senate, rules which have been laid down in some cases for almost 200 years, in some cases over 100 years.

I believe we should be taking our time in the Senate because of the effects that this step by the majority leader could have on how we represent our constituents. It can have such a profound effect that it behooves us all to think very deeply and carefully about it and to come to the floor to express our opinions.

By triggering this nuclear option, the majority leader would unleash forces he would regret and that everyone who loves this great Nation and its system of checks and balances would regret.

There is no question that by breaking the rules--that is what would happen, breaking the rules--the majority party would gain short-term advantage. They would be able to confirm every one of their judicial nominees, no matter how radical or out of the mainstream. But the long-term destructive consequences triggering the nuclear option would be profound for our system of Government.

For more than two centuries, Senate rules and traditions have respected the rights of the minority. That would be destroyed. For more than two centuries, thanks to those minority rights, the Senate has been a force for compromise, moderation, and reason. That would be destroyed.

For more than two centuries, the minority's power in the Senate has been essential to America's system of checks and balances. That would be destroyed. And something else of great importance would be destroyed: Respect for rules.

Playing by the rules is the American way. It is one of our core values. From childhood, we are taught to respect the rules, to follow the rules, to play by the rules. We are taught it is dishonorable to break the rules or to change the rules in the middle of the game, especially to gain an advantage or simply to win. Ask any child, and he or she will say that breaking the rules or changing the rules in the middle of the game is not only unfair, it is wrong.

America is a great country because playing by the rules and respecting rules is a core value. It is a way of life. It is at the heart of our athletics, our business dealings, our way of government. It is no exaggeration to say that if one destroys the idea of playing by the rules, then they invite distrust, disorder, and the disintegration of the American social fabric. They invite chaos, and chaos invites tyranny.

This is exactly why the Republican leadership's plan to resort to the nuclear option is so dangerous. Since 1790, the filibuster has been used in the Senate countless times, and nearly 100 years ago the Senate passed rule XXII, codifying the right of extended debate. We know what that rule says. It says that it takes 67 votes to change the Senate rules and 60 votes to cut off debate. Those are the rules. They are deeply conservative rules, rules that have been respected and honored for nearly a century, until now.

The Republican leadership is unhappy because a small number of judges, all of them I consider far out of the mainstream, have been filibustered by the minority. They are unhappy because they have been able to confirm only 95 percent of the President's judicial nominees and not 100 percent. This compares to only an 80-percent confirmation rate during the Clinton administration. The Republicans blocked 68 Clinton judicial nominees, including, I might add, Bonnie Campbell, from my State of Iowa.

Most of those nominees were blocked in the Judiciary Committee by just one Senator. Now, does the Republican leadership celebrate the fact that by playing by the rules they won 95 percent of the time? Do they now play by the rules and gather the votes necessary to change rule XXII governing filibusters? No.

They are going to employ a trick, a procedure, whereby the rules are overturned by one decision of the Presiding Officer backed by 51 votes. That will destroy the rules of the Senate. Now they say: Well, it only applies to judges now. It can apply to anything else down the pike.

Now, a mere 10 Bush nominees have been blocked, and what is the Republican leadership's response? It is to destroy the rules. Sweep aside more than 200 years of Senate tradition. In its place, they will make up their own rules, a new rule, that will allow them or any majority to change any rule at any time for any reason with only 51 votes. In other words, once the nuclear option is detonated and a new Senate precedent is established, this body will be subject to the whim of any group of 51 Senators who want to impose their will without any provisions for extended debate. Make no mistake, this will be the end of the Senate as we know it.

How ironic that this is being done by Senators who call themselves conservative. The truth is that resort to the nuclear option, breaking the rules, making up new rules convenient to the leadership, is a radical, unprecedented action with consequences that no one can predict. Because once the rules are broken and rules are made up as one goes along, seeds of anarchy, of chaos, are sown. An atmosphere of anything goes is created, and the end justifies the means.

We have already seen this in the actions of House Majority Leader Tom DeLay. We have an honored tradition that congressional redistricting occurs every 10 years after the decennial census, but the majority leader in the House wanted to increase his majority in the House. So what did he do? He tore up the rules and made up new rules, Tom DeLay's rules. But the real Tom DeLay rule is this: Anything goes. The end justifies the means. Situational ethics. I fear we are about to adopt that Tom DeLay rule in the Senate. This is profoundly bad news for this institution.

I am also concerned about the message it sends to businesspeople, to husbands and wives, to our people. The message is if our national leaders can break the rules as a matter of convenience, if they can write their own rules, impose them on others, then maybe it is okay for everyone else to behave just like that.

This is a deeply disturbing prospect. I implore the distinguished majority leader, Senator Frist, to consider the law of unintended consequences. He is threatening to break rule XXII in order to pass 100 percent of the President's judicial nominees. Once the rule is destroyed, and once the majority leader imposes a new rule to his liking, then who is to say where it will lead?

It will be like an out-of-control virus. If 51 Senators can change any rule at any time for any reason, then anything is possible. The metaphor Senators are using is a ``nuclear option,'' and I would say that is true, it is nuclear because it does blow up this place. But there may be another metaphor, too: that the majority leader is letting the genie out of the bottle and there will be no putting that genie back once it is out. It will wreak destruction in ways no one now can predict or foresee.

For example, once the Chair can make a determination about the rules and have that ruling upheld by 51 votes of the Senate, what is to say of the time-honored tradition we have in the Senate of a Senator being able to have the right of the floor and being able to speak for as long as he or she wants? That has been our right since the founding of the Senate. Once a Senator is recognized, that Senator can speak until they drop. I think the record is 24 or 25 hours, by former Senator Strom Thurmond.

Who is to say if, in the future, someone gets up to speak but people want to move on and do something, that after that person speaks for 5 or 10 hours the majority leader would be recognized and make a point of order that the person is speaking unconstitutionally? They have the 51 votes to uphold the motion and that is the end of it. So a Senator's right to have the floor is subject to whatever the Chair wants. We may get it; we may not. We may not be able to speak for an hour or 2 hours or whatever we want. The Chair may say to the Senator from Iowa, You can speak for 3 minutes and then you have to sit down.

They do that in the House of Representatives. They have a 5-minute rule. I know, I served there. But that is not the Senate.

I am just saying who knows what might happen. It is possible. If we go down this road that is the precedent that is set.

I do not know why the majority leader is doing this. Possibly what we are seeing here is an attempt to seize absolute power and unchecked control of all three branches of Government. The Republicans already control the executive branch. A majority of Supreme Court Justices are Republican nominees. So are the majority of judges on our Courts of Appeal, the circuit courts. Indeed, there is a Republican majority on 10 of the 12 circuits. Republicans have an iron grip on the House of Representatives. They have a 55-seat majority here in the Senate. Only one barrier now stands in the way of the Republican Party seizing absolute control of every aspect of our Government, all three branches, and that is the right of the minority in the Senate to filibuster.

By unleashing the nuclear option, the Republican leadership would crush this last remaining check on its power. The filibuster is a more than 200-year-old tradition in the Senate; it has withstood the test of time.

I do not believe the nuclear option reflects the desires or values of the American people. Americans are extremely wary of one-party dominance and control. This is a prime reason why so many voters split their ballots In the election last November. Republicans won the White House with less than 51 percent of the popular vote. The Republicans have a 52-percent majority in the House. They have a 55-percent majority here in the Senate. But they want to seize 100-percent control of the Government, including the third branch, the judicial branch.

It is not healthy for our country. It is not healthy for our democracy. I do not believe for 1 minute this power grab reflects the wishes of the American people. When it comes to government, there are certain values and principles that the vast majority of Americans share. We prize our system of checks and balances. We respect minority rights and dissent. We want to ensure that minorities are protected. We understand the danger of majorities acting without check or restraint, running roughshod over those who would disagree.

As a well-known minister once said:

Democracy exists not just when the majority rules, but when the minority is absolutely safe.

The rules of the Senate and the rule of extended debate give the minority that absolute safety. You take that away and you take away the minority rights in the Senate. Most Americans understand that checks and balances are the key to preserving our liberty.

James Madison wrote:

The accumulation of all powers, legislative, executive and judiciary, in the same hands may justly be pronounced the very definition of tyranny.

But that is exactly the goal of the Republican leadership today. They seek the accumulation of all power--legislative, executive, and judiciary--in the same hands, their hands. This is profoundly dangerous. By resorting to the nuclear option, the majority would break the rules in order to change the rules. Under the rules of the Senate, it takes 67 votes to change the rules, 60 votes to end debate on a judicial nominee. But by resorting to this parliamentary gimmick, this nuclear option, the majority would change this rule with only 51 votes. The result would be to destroy any check or restraining influence on the power of the majority. This is not the American way. It is certainly not the wishes of the American people.

In debate in the Constitutional Convention in Philadelphia, James Madison said the Senate would have two roles:

first, to protect the people against their rulers, secondly, to protect the people against the transient impressions into which they themselves might be led.

By attacking the filibuster, the Republican leaders would destroy the ability of the Senate to ``protect the people against their rulers.'' The Senate would lose its capacity to stand up to an

out-of-control majority. Instead, the Senate would be turned into a rubberstamp for the majority's agenda, just as the House is a rubberstamp for the majority's agenda right now. That would be a betrayal of the Senate's traditional role as envisioned by the Founding Fathers.

The Constitution gave Senators 6-year terms so they would not bend to the political passions of the moment. I remind my colleagues of the famous exchange between Thomas Jefferson and George Washington. On his return from France, Jefferson asked Washington at the breakfast table why he favored the creation of a second Chamber, the Senate.

Washington replied with the question, ``Why did you pour that coffee into your saucer?''

Jefferson said, ``To cool it.''

To which Washington reportedly said: ``Even so we pour legislation into the senatorial saucer to cool it.''

For two centuries that is exactly how the Senate has worked. Because of the tradition of free speech and minority rights, specifically because of the threat of filibuster, Senators have a strong incentive to act with moderation and restraint, to make compromises, to accommodate the legitimate concerns of the minority. That is exactly what the nuclear option would demolish.

The majority party in the Senate, whether Democratic or Republican, has always been frustrated by the minority's use of the filibuster. But I submit that frustration is the necessary byproduct of an effective system of checks and balances. It is the price we pay to safeguard minority rights.

For decades, a determined conservative minority used the filibuster to block civil rights legislation and deny an up-or-down vote to a liberal Supreme Court nominee, Abe Fortas. Progressives were extremely frustrated by this exercise of minority rights and minority power.

Now it is the Republicans' turn to be frustrated by the filibuster. They are frustrated because they can't get their way on judges 100 percent of the time. They have gotten their way on 95 percent of judicial nominees, but not 100 percent, and they believe this justifies breaking the rules, to get rid of the filibuster.

I submit the Republicans' very frustration is evidence that the system of checks and balances here in the Senate is healthy and working, working exactly as it should.

In 1995, I proposed to modify rule XXII in a way that would have given the minority an incentive to limit the use of the filibuster. It would not have taken it away. However, my proposal bore no resemblance to the nuclear option. First, I did not propose to break the Senate rules. I played strictly by the rules. I pursued my rule change through normal Senate procedures as a floor amendment. It would have taken the requisite 67 votes to pass on the floor, which is entirely appropriate when changing a time-honored Senate rule. By contrast, this nuclear option discards the rules. It would impose the Republicans' radical change with only 51 votes.

Ten years ago I proposed to modify the filibuster rule as a matter of principle. Today the Republican leadership wants to modify the filibuster as a matter of political expedience, to make it possible to stack the courts with radical judges. They are pursuing unchecked power, the absolute control of all three branches of Government. In this context, the filibuster takes on even new importance.

It is all that remains to check the majority's quest for absolute power.

By the way, I might note parenthetically that 24 current Republican Senators actually voted against my proposed change to the filibuster back in 1995. The distinguished majority leader, Mr. Frist, was one of those Republicans opposing any change to the filibuster. Indeed, as has been noted time and time again, the majority leader voted in the year 2000, 5 years ago, to sustain a filibuster of a Clinton nominee, as did many other Republicans.

Those same Republicans, who now say President Bush's judicial nominees have a constitutional right to an up-or-down vote on the Senate floor, denied that alleged right to scores and scores of President Clinton's judicial nominees, including, as I said earlier, a distinguished Iowan, Bonnie Campbell. Ms. Campbell, a former Iowa attorney general, respected Justice Department official, was nominated for the Eighth U.S. Circuit Court, but her nomination was blocked in committee.

Let's be clear. If the issue is denying nominees an up-or-down vote by the full Senate, there is no practical difference whatsoever between blocking a nominee in committee or by filibuster on the floor. During the Clinton years, Republicans blocked judicial nominees again and again and again. They did it in committee, they did it by blue slip, or they blocked them on the floor. It didn't matter. But the nominees were denied an up-or-down vote on the floor of the Senate.

The nuclear option is a flagrant abuse of power. The minority party, the Democrats, will resist it vigorously within the rules of the Senate. We have a responsibility, an oath of office to defend our constitutional system of checks and balances. We have a responsibility to defend the Senate's unique function as the last bastion of minority rights, as the last check on an abusive, out-of-control majority.

But this should not be just the responsibility of the minority party. It should be the responsibility of all Senators who respect the rules and traditions of this body. It should be the duty of all Senators who value our democratic principles, our system of checks and balances, protection of minority rights.

The very nature of the Senate as an institution is at stake. More than that, the very nature of how we operate as a government is at stake. As I said, when you destroy the rules by not following the rules, you invite chaos. Chaos invites tyranny.

This is the time to look beyond party, to look beyond short-term partisan advantage.

I have every hope there will be enough Senators, Democrats and Republicans alike, to disarm this destructive nuclear option. I have every hope that a critical mass of Senators will be true to the rules and traditions of this body and that we will act to preserve the integrity and independence of this great institution.

I yield the floor.

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