Child Protection Improvements Act of 2017

Floor Speech

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Mr. ALEXANDER. Mr. President, I thank Senator Corker, Senator Flake, and the leaders, Senator McConnell and Senator Schumer, for their discussions. I thank the Vice President for his presence here today.

In my own view, government shutdowns ought not to be a part of budget negotiations any more than chemical weapons should be a part of warfare. We were elected to make the government run for taxpayers, not to shut it down. My hope is that this will put us on a path toward a result and will recognize the President's desire for increased border security, which we support and many Democrats support, and we can finish our appropriations process.

What I would like to do now is to say a few words about what was described in a very famous movie in which Jimmy Stewart played, ``Mr. Smith Goes to Washington,'' as democracy's finest show--the right to talk your head off in the legislative filibuster. Lest someone says, ``Well, Senator Alexander, you just announced you are not going to run for reelection in 2 years, so you are going to change your tune,'' I am not changing my tune.

The remarks I made in 2011 at the Heritage Foundation about the tradition of the legislative filibuster--perhaps the best known part of the U.S. Senate--can be found at https://www.alexander.senate.gov/ public/index.cfm/speechesfloorstatements?ID=23BE8F64-7708-4E5D-86AD- F1F8C7EE6F30.

You can also find Senator Susan Collins' letter regarding the legislative filibuster on April 7, 2017, at https:// www.collins.senate.gov/newsroom/senators-collins-coons-lead-effort- preserve-60-vote-threshold-legislation.

I would like to tell a story, Mr. Vice President.

In 1978, a young Utah Senator came here. He was conservative. He didn't know what he could not do, so he took on the Democratic establishment on its most important issue. Orrin Hatch was the Senator. He is our longest serving Republican Senator, and he is retiring this year. What he decided to do was to challenge the Democratic leadership that wanted to pass organized labor's major objective of the time. It was something that would have changed the relationship between employers and employees for years to come.

Now, at that time in 1978, there was a Democratic President, Jimmy Carter. There were 62 Democrat Senators--more than enough to pass a bill. There were 292 House Members. So, if Orrin Hatch had not been new and young and if he had known more about what he had been doing, he probably wouldn't have even tried this, but he did try it.

He won. He offered 1,200 amendments. Senator Byrd, who was the distinguished majority leader of the Senate, tried six times to cut off debate--we call that cloture here in the Senate--and he didn't get 60 votes. Six different times, he tried to cut that off. The end result was that the minority view--the Republican view at that time--prevailed against a Democratic President, a Democratic House, and a Democratic Senate. That happened before.

It happened in the 1960s. Everett Dirksen was the Republican leader of the U.S. Senate, sitting right over there. He had even fewer Republican Senators. When Orrin Hatch did his work in 1978, there were 38 Republican Senators, and Dirksen had fewer than that. Lyndon Johnson and George Meany and the American labor movement decided that they wanted, in effect, to make it illegal for any State to have a right-to- work law. That is what they wanted to do, and they thought they could do it except that the legislative filibuster was in place. At that time, it took 67 votes. Everett Dirksen toured the country, and he was able to defeat a measure that was supported by overwhelming Democratic majorities.

Now, why do I tell those stories? It is because the shoe is on the other foot right now. The Republicans are in charge.

We hear many people, including the President say: Get rid of the filibuster. Get rid of the legislative majority. Let's do it our way.

We should not do that. We have never done that in the U.S. Senate. The Senate has always been different.

One Senator said to me a few minutes ago that it is the whole reason he came to the Senate from the House. It was so that every time the majority got an idea, it wouldn't be like a freight train running through the Senate. One of the major purposes of the legislative filibuster is to protect the minority in this country.

A young Frenchman wandered through America in the 1830s. His name was Alexis de Tocqueville. He wrote a book, entitled ``Democracy in America,'' that is, maybe, the best book on democracy in America that has ever been written. It was very perceptive. He said that he saw, looking ahead, two potential problems for the American democracy. One, he said, was Russia. That was prescient. The other, he said, was the tyranny of the majority. Alexis de Tocqueville said in the 1830s that one of the great problems for our country might be the tyranny of the majority, and it is the U.S. Senate that is a bulwark to prevent the tyranny of the majority in the American democracy. It has been from the beginning, and it is today.

Now, some of our Republican friends and conservative friends and sometimes our Presidents say: Well, let's get rid of it. We might think about the fact that we Republicans, we conservatives, are usually the ones in the minority. We are usually the ones needing protection. Since World War II--nearly 70 years--Democrats have had complete control of the U.S. Government--they have had the Senate, they have had the House, they have had the Presidency--for 22 years, and Republicans have had it for 8 years. Democrats have had control 22 years, and we, 8 years. So democracy's finest hour--the right to talk your head off, the opportunity for extended debate--has benefited our side, Democrats could say, more than their side. So why should we be the ones who are trying to change it? In fact, we weren't.

In 1995, after the big Republican sweep--you know, we have these. One of us is in charge, and then the people get tired of us, and they put the other ones in charge. So in 1995, after the big Republican sweep, Republicans were in charge of the Senate, and a Democratic Senator said: Let's get rid of the legislative filibuster--at least change it. Every single Republican, even while the Republicans were completely in charge of the Senate, voted no.

The essence of the Senate is the right to extended debate, the right to talk our heads off, America's finest hour, and then we will vote when we think we are ready to stop debate. It used to be 67; now it is 60.

For a long time, there wasn't any limit on it; it just went on forever. President Wilson got mad about it a century ago, and so the Senate said: OK, we will debate until 67 of us think we should stop. Then we changed that, and now it is 60.

Some of the most eloquent defenses of the legislative filibuster came from the late Senator Byrd. I remember hearing his last speech he made in the Rules Committee where he said that the legislative filibuster is the necessary fence against the excesses of the popular will, the excesses of the Executive. It was the necessary fence, he said, and we should keep it.

This fractured Nation needs a consensus-building institution, and requiring 60 votes to pass major legislation is the discipline that forces us to come together.

I saw the Senator from Washington, Mrs. Murray, on the floor a little earlier. We worked on the legislation to fix No Child Left Behind. That wasn't easy to do. Everybody has an opinion about kindergarten through the 12th grade. We are all experts on education. Yet we worked and we worked and we worked, and finally we probably got 85 votes for that. You know what. We made some big changes, but people accepted it. It is a lasting solution. Teachers at 100,000 public schools don't have to worry about our zigging and zagging and changing Federal education policy for the next several years because we talked about it until we came to a conclusion about it and accepted it.

An example of the other way to do it is ObamaCare. Eight years ago, Democrats had the majority, so all the Democrats voted for it, and all the Republicans voted against it. What has happened? We have been trying to repeal it ever since it passed. It is just a constant state of agitation and a stalemate of debate.

The tradition has been different for nominations, and sometimes people get confused about that. The legislative filibuster is one thing; nominations are another thing. Until recently, they have always been decided by a majority vote. Now, they could have been decided by 60 votes, but they weren't--at least ever since a century ago.

I am not interested at this time in assigning blame to Democrats or to Republicans for what has happened on nominations, but the fact is that even though a Senator could have required 60 votes, there never has been a Cabinet member who was required to be confirmed by more than 51 votes. There never has been a Federal district judge who had to get 60 votes to be confirmed, and there never had been a Supreme Court Justice, with the exception of Justice Fortas.

I see the majority leader, and I would be glad to suspend.

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Mr. ALEXANDER. Madam President, I would agree with that. And we could get into a lively dispute among us about who shot John and who scratched whose back and whose fault it all is, whether the Democrats, who in 2003 began for the first time to require 60 votes for circuit judges, or the Republicans, who stopped a couple of President Obama's judges, are at fault. The fact is, I believe--I know for a fact that most of us believe we should keep the legislative filibuster.

How do I know that? Because Senator Collins, who is presiding at the moment, and Senator Coons, who will speak following my remarks, offered into the Record on April 7, 2017, a letter from 29 Republicans and 32 Democrats that said: We are mindful of the unique role the Senate plays in the legislative process. We are steadfastly committed to ensuring this great American institution continues to serve as the world's greatest deliberative body. Therefore, we are asking you to join us in opposing any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation before this body in the future.

That is 61 Senators on record about the legislative filibuster. So one reason the legislative filibuster is going to stay is because there are not the votes to change it.

As I come to a conclusion, let me offer a better reason not to change it and a reason why we should change it if we consider it in the right way. We have rules in this body. In order to change a standing rule of the Senate, it takes at least 60 votes to get cloture. It has been proposed--and both sides have before--to use what we call the nuclear option, which is a parliamentary maneuver that allows the Senate to change a rule without getting 60 votes.

This is a country that prizes the rule of law. I have heard President Trump say that. I have heard President Obama say that. I have heard most of us say that. I would ask, if we don't follow our own rules, why would we expect the American people to follow the rules we write? We are the main rule-writing organization in the United States of America. We ought to follow our own rules.

When we didn't and used the so-called nuclear option in 2013, a Democratic Senator who is greatly respected, Senator Levin, said that ``a Senate in which a majority can always change the rules is a Senate without any rules.'' A Senate in which the majority can always change the rules without following the rules is like a football game where the home team can say: If you gain 9 yards, that is a first down; or if they make a three-point shot and they need four, they count it as four. That is not the rule of law.

I make these remarks--and I hope the Senator from Delaware is still here and willing to stay--I make these remarks just to remind the country and to remind the Members of the Senate that 61 of us have already signed a letter saying that the legislative filibuster--the right to extended debate, the opportunity to talk your head off in defense of what you want, the ability of this body to function as a bulwark against the tyranny of the majority and, in this fractured country, as an institution that can produce a consensus that is lasting and accepted by most people--is the most valuable part of this body, and we ought not to trifle with it whether we are in the majority or in the minority, and we ought to make that clear.

If we ever do decide we want to talk about it and change it, we should follow the rules. We have rules. It takes at least 60 votes to change a standing rule.

I want to put a stop to this talk about breaking the rules to change the rules of the Senate. I will not vote to turn the Senate into a rule-breaking institution, and I hope that if that opportunity ever arises, my colleagues will vote the same way, as 61 of them did in the letter Senator Collins and Senator Coons signed.

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