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Public Statements

Filibuster Rule

Floor Speech

Location: Washington, DC


SEN. ROBERTS: The Senate is the only place in government where the rights of a numerical minority are so protected. A minority can be right, and minority views can certainly improve legislation.


Mr. ROBERTS. Mr. President, I thank my colleagues for their pertinent remarks.

The Senator from Iowa said in the past he had entered into a colloquy with colleagues on our side of the aisle where they wandered over into each other's pastures. I am going to put down this microphone for a moment and speak from here in a gesture of bipartisanship on how we can improve the Senate.

I know we have heard a lot of talk about Robert C. Byrd, a beloved individual. I know the Presiding Officer was very close to the former Senator. The last time Bob Byrd spoke publicly was in the rules committee, when he rose to the occasion in a very passionate way. The chairman, of course, Chuck Schumer, the Senator from New York, with great deference recognized Senator Byrd. We were all on the edge of our chairs. The Senator from Tennessee has already gone over what Senator Byrd said at that time and previously. But I remember when I first came to the Senate, it was required that we go to school, so to speak, and Senator Byrd talked to all of the freshmen at that particular time.

The keeper of the institutional flame was the tag I put on Senator Byrd. My wife Franki and I became very close friends of the Senator. At any rate, he recounted the story attributed to Jefferson and Washington, he would tell every incoming class about the role of the people's House and perhaps what happened, when they put the coffee pot on in regards to legislation, that the coffee was so hot it would boil over, and it was the Senate's duty to act as the saucer, as folks did back in West Virginia in the earlier days, or Kansas or Iowa or Tennessee or Texas, that they would pour the coffee out in the saucer and let it cool off a little bit so they could put their biscuit in it and actually eat it, and then the legislation would pass.

The problem is, sometimes on our side maybe we want tea, maybe we want to start over. I think the Senator from Tennessee basically hit the nail on the head with the massive three. If we are going to talk about getting things done or not getting things done, there are three massive things that have happened with regard to legislation. I say ``massive'' because they were so overreaching, so overwhelming, we are now just learning what their implications are. The massive three are financial regulatory reform, the health care act, and the stimulus.

Now the health care act, I have a personal feeling about that in that I had 11 amendments, all on rationing.

By the way, the Senate never confirmed the nomination of Dr. Donald Berwick, the head of CMS, the Center for Medicare and Medicaid Services. We planned to ask a lot of questions to the doctor because of statements he made in the past. Obviously, that confirmation did not happen. He was a recess appointment. That is something I think we ought to deal with as well.

Now, the health care act, it was 12:30 in the morning in the Finance Committee. I had several amendments, all on rationing. Finally, we got to the last two. I said: Why don't we consider them en bloc? I had about a minute or two to explain each amendment. They were voted down automatically on a party-line vote. By the time we got to 12:30 or 1 o'clock and my amendments, I noticed Senator Schumer was in the room so I stuck on one of his amendments along with mine. It was defeated on a party-line vote. Then I let Senator Schumer know that we had defeated his amendment as well. He wasn't too happy with that.

I just showed that the process has broken down to the point that even in committee, if you had two amendments, if you had five, if you had one, you were simply ignored. Then the health care act came to the floor and worked its way. I think the Senator from Tennessee brought up the ``Grand Ole Opry.'' I saw it as making a bill behind closed doors. That is a famous country western song. We didn't like that process at all.

I finally had only one other recourse and that was to go to the reconciliation process, which I knew was not going to be successful, but I had several amendments, all were defeated. My main concerns about the health care bill were not allowed, as far as I was concerned, on the floor of the Senate, and that has happened a lot.

Now we are seeing an effort to repeal the health care act and also an effort to try to fix it, if we possibly can. I am not as upset about that as some people are because I think we could get the proper kind of debate, but the debate must proceed in regular order and under the standing rules of the Senate as a continuing body.

I am not going to go into the quotes by Senator Byrd. That has already been done by Senator Alexander. But I would like to quote Senator Dodd in his valedictory speech.

The history of this young democracy, the Framers decided, should not be written solely in the hand of the majority.

This isn't about the filibuster. That is the most important statement he made.

What will determine whether this institution works or not is whether each of the 100 Senators can work together.

How can we do that? Here is a classic example. Right before Christmas, there were several bills the majority wanted to pass without allowing the minority and the American people the right to debate or amend them. So the tree was filled, and that is the parliamentary language to say: I am sorry, we are going to cut off debate. In the first three years and four months of this majority, the use of filling the tree went up over 300 percent compared to the average for the previous 22 years. Ninety-eight times in the 110th Congress, cloture was filed the moment the question was raised on the floor. A debate was not even allowed to take place. So on one hand you can talk about filibusters; the other hand is filling the tree, or not allowing Members to offer amendments, and same day clotures.

The Senator from Tennessee offered the classic example. Let's go back to a few days ago, right before Christmas. The DREAM Act was a House bill. I know the Senate leadership wanted to pass it. It never had a legislative hearing in the House, never had a markup in the House. The Senate version of the DREAM Act had not had a markup since 2003. In sum, the DREAM Act, a controversial measure with very passionate beliefs on both sides of the aisle and within the parties as well had not had an amendment offered to it in either House of Congress either in committees or on the floor.

Some may believe the DREAM Act is perfect or certainly is the best bill possible and would not need any amendments to improve it. But, obviously, our constituents don't feel that way. It is a very controversial bill. Instead of addressing their concerns, the majority shut down debate and amendments and in the process shut down the rights of Americans to be heard. As a result, the minority refused to end debate and, obviously, there was a filibuster. It would be interesting to know, of the times that bills have been filibustered, what was being filibustered.

Contrast this with the approach taken on the 9/11 bill which the majority sought to pass just a few days later. The goal of providing help to the victims of 9/11 is one Members of both parties share, but Senate Republicans noted that the particular version of the bill Senate Democrats supported was problematic in regards to how much money we were spending and certainly would need improvement.

So we insisted on having our concerns addressed. Most of them were addressed with a revised bill on which we did provide input. That bill passed the Senate by unanimous consent, and even the proponents of the original legislation would admit that the final bill is a better one and now enjoys broader support due to the minority's input.

What I think the majority needs to do is involve the minority like it did on the 9/11 bill, not shut us out, not shut us down as it did on the DREAM Act and other acts.

If that happened, if we did not fill the tree, I think possibly 75 percent, 80 percent of the filibusters would go away. There are some who would like to filibuster anything, I know. But it gets back to what the Senator asked: Why are we here? It is important to pass legislation. But it is equally important to prevent bad legislation from passing or, if you have an alternative you would like to offer, to at least have the ability to do so.

In the last 2 years that process has simply broken down. Why can't we work together? That is what Senator Dodd said. He asked whether each of the 100 Senators can work together. That was on the question of filibusters.

We can stop this business of secret holds. It seems to me we could have a timely pace on nominations. It seems to me we could certainly end these recess appointments where people who should be confirmed have to go through the confirmation process instead of all of a sudden parachuting somebody in who is controversial and now we have over 100,000 regulations pouring out of the Department of HHS. Health care providers throughout the Nation--in Iowa, Tennessee, Kansas--are wondering what on Earth is happening.

When I go home, I don't get the question of why a bill didn't pass. I get the question: What on Earth are you guys doing back there passing all the legislation with all the regulatory stuff that I have to put up with, taxes I have to pay, et cetera, et cetera?

As a matter of fact, when they pose that question, I say: I am not a you guy; I am an us guy. Then we have a debate, but it is a debate that should have taken place on the floor of the Senate instead of on the plains of Kansas. Unfortunately, because of the majority, we were not able to have that debate here, on the floor.

The question I have for the distinguished Senator from Iowa--and I appreciate his reference to our work in previous farm bills. We were able to work it out. Sometimes it was very contentious, and sometimes the farm bill would come to the floor, and it would take a week and a half. Then we would have an appropriations bill, and then the appropriators would think they could rewrite the farm bill and take another week and a half. But we worked through it. Nobody filled the tree and said: I am sorry, you can't have that amendment.

I am making a speech instead of asking the question. I apologize for that.

I am in agreement on secret holds. I think there should be timely pace on nominations.

I do think we should go through the regular confirmation process.

But I do feel exactly as the Senator from Tennessee has put out, that once you get on this business of ending the filibuster or going down on the number of requisite votes, you are on a slippery slope, and then you are into the tyranny of the majority, and that is not what the Senate is all about.

I will stop at this point and ask the Senator from Iowa if he has any comments.


Mr. HARKIN. Madam President, I thank my friend from Kansas. I think he makes some good points.

I would say to my friend, I think we ought to go through processes in our committees to have hearings on nominees to flush out things such as that. So to that extent, the Senator from Kansas is right. We should not have, especially if there is any controversy at all--I suppose some of them are noncontroversial--but if there is some controversy out there, yes, I think the committees ought to have the responsibility to bring them forward. Let the committees question them. We did that in our HELP Committee, I say to my friend from Kansas. I am trying to remember the person we had--oh, a lot of controversy about Craig Becker, I think, who was going to the NLRB.

Mr. ROBERTS. If the Senator will yield, I think the Senator is exactly right. I am on the HELP Committee, as the Senator may recall, and I was trying to get one amendment to say that we would prohibit the use of rationing to achieve cost containment, and it involved several of the commissions that have been in the bill. I regret that bill sort of sat somewhere and collected dust. We never got a score. I thought it was, quite frankly, a better bill than the one in the Finance Committee.

I say to the Senator, you recognized me, and I had an opportunity to offer some amendments. At least there was some debate. And I think it was a much more bipartisan effort. So I give the chairman----

Mr. HARKIN. If it was out of our committee, obviously it was a better bill than coming out of the Finance Committee. But I say to my friend, again, that----

Mr. ROBERTS. Senator Cornyn wants to be heard, so I am going to be quiet and listen to you.

Mr. HARKIN. I thought there were some things we should talk about. I say to my friend, in listening to my friend from Kansas say this, it occurred to me that certain of his amendments were allowed. The Senator was allowed to debate them and offer them, but they were not adopted. It seems to me, as I have said before, the right of the minority ought to be to offer amendments, to have them considered, to have them voted on, but it does not mean it is the right of the minority to win every time on those amendments.

I say to my friend, on that financial services bill, I had an amendment too and I could not get it in. I was on the majority side, and they would not let me offer one either. So both sides have some legitimate points.

I also say to my friend from Kansas, and others, we can get into this tit for tat, who started it. I think we have to kind of quit that. I could come back and say: Well, yes, in the last 2 years, the tree was filled 44 times. In this last session, 44 times the tree was filled, but there were 136 filibusters. Why wouldn't there be 44 filibusters? Why were there 136? We can get into that tit for tat, who did what to whom. I wish to forget about all that. We could go back, probably, to the 18th century--tit for tat, who did what to whom at some point in time.

I ask my friend from Kansas, who has been here a long time--we served together in the House; my friend was chairman of the Agriculture Committee in the House. We have done a lot of legislation together--does my friend from Kansas feel the Senate is operating today in the best possible way? Does my friend from Kansas believe there could be some things done to make the Senate operate a little bit more openly and fairly with rights for the minority to be protected but without letting the minority--and I do not mean Republicans when I say ``minority,'' I mean whoever happens to be in the minority--to keep the minority from obstructing things? Does my friend feel there could be some changes made?

Mr. ROBERTS. I will answer the question, no. I do not think we are doing the job we could do, and we should do better, and I stand ready to work with all concerned to see if we can do that.

But my time is up, and I am going to cease here and allow the Senator from Texas to be recognized.


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