Restore the Senate Code to Protect Americans’ Fundamental Rights

Floor Speech, 01/19/2022


Mr. President, I compliment my colleagues from Maine and Georgia for engaging in perhaps the most substantive exchange I have ever witnessed in 13 years here in the Senate.


Earlier this evening, one of my colleagues from across the aisle said: Why are we going down this road? And there have been similar questions: Why is this so important? Why is this bill so important?


I will answer simply this: that dark money corrupts elections. If you and I donate more than $200 to a campaign, we record it, but if extraordinarily wealthy individuals donate hundreds of millions of dollars, they can do it with no attribution, corrupting the elections across this country.


Gerrymandering corrupts the system of equal representation. From the earliest debates in this Chamber, it was recognized that each of us has a stake in the integrity of the elections in other States so that the people of the United States experience equal representation. We do not have equal representation in the House today, and the gerrymandering going on now will increase that corruption.


Third and most importantly, the power to vote is the most significant right, guaranteeing each citizen a voice in the direction of our democracy. It is the soul of what it means to be a democratic republic. That power to vote is also the most important check in our system of checks and balances.


With rigged elections, leaders leaning toward autocracy can keep themselves in power, but with fair elections, undergirded by a free press, the people can vote out those autocratic leaders who ignore laws and undermine our institutions. It is the most important check in maintaining the integrity of our beloved Republic.


Let’s go back in time. The rules of the Senate were forged in the Confederation Congress experience. Our Founders were engaged, during the time they were writing our Constitution, in participating in the Confederation Congress that required a vote of 9 out of 13–two-thirds plus a bit–in order to pass any law. It prevented them from being able to pay the pensions of our veterans, and it prevented them from raising money for Shays’ Rebellion.


Our Founders who participated in that process said: This supermajority has paralyzed our ability to act. With that in mind, they wrote our Constitution so that legislation would be passed by a simple majority; that at the end of the debate, when all perspectives were duly considered, the perspective favored by the larger number would be accepted rather than the perspective favored by the smaller number.


So our Founders, leaving nothing to chance, warned us in their writings: Never adopt a supermajority.


They said–and I will quote James Madison–that when “the general good might require new laws . . . the principle of free government would be reversed. It would be no longer the majority that would rule: [It would be] the power transferred to the minority.” He went on to say the result would be “particular emergencies, to extort unreasonable indulgences.”


Hamilton said many similar things. “If a pertinacious minority can control the opinion of the majority,” the result will be “tedious delays; continual negotiation and intrigue; contemptible . . . compromises.” He noted that the “[supermajority’s] real operation is to embarrass the administration, to destroy the energy of the government.” Anyone who has seen the energy drained out of this Chamber by nothing happening day after day after day when we have important issues to face can understand just how right the Founders were.


So in writing up the guidelines and the vision for the initial Senate, our leaders came up with a Senate code, and that Senate code was, hear all perspectives–in fact, guaranteeing in rule IV of the original rules that every Senator would have the right to speak twice to a question.


In addition, they put into the rules a previous question just in case they couldn’t get the debate to wrap up so they could get to that all-important vote to determine where the greater number stood.


Thomas Jefferson put into the rule book, the manual for the rules in 1801: “No one is to speak impertinently or beside the question, superfluously or tediously.”


Hear the debate, consider all perspectives, and take the option the greater number favored.


That Senate code endured in a powerful fashion for a very long time.


In 1806, Aaron Burr was rewriting the rules, and he said: You know, we have never needed to use the previous question rule in the book because we hear every one, we hear those perspectives, we take a vote, and we go forward. So we don’t need the previous question. And it was dropped from the rule book.


When I hear the folks say the Senate never had a simple majority to close debate–they had the Senate code, and they had a rule, and then they said: We don’t need the rule because we have the Senate code.


That code continued to endure, and the full understanding of the Members of this Chamber was they had no right to prevent the Senate from getting to a final vote.


That code was so powerful that in the mid-1800s, when Senators started to speak at length in order to make it very difficult to get to a final vote, the press called it piracy.


You may wonder, where did the term “filibuster” come from? That term is a corruption of the term “freebooter,” the term for “piracy.” The piracy was Senators breaking the Senate code. That was the piracy. But, still, it happened on rare occasion, and the code was stretched but not really broken through the 1800s, except on civil rights.


What happened in our history on civil rights? Well, you had John C. Calhoun leading the ification movement that said: Hey, States don’t have to accept any given Federal law. They can choose and pick which ones they want.


Initially, that ification movement was in order to block laws that put tariffs on imported products that strengthened the North and cost more funds to the South, increased the prices of goods, but then it turned to the question of protecting slavery. ification continued and even went so far as to say States should have the right to secede if they don’t like those Federal laws. Then we had a civil war over that question, and that was the end of ification, but it was not the end of attacks on civil rights.


So what did we see after the Civil War? We saw a group of States make it harder for individuals to register to vote. We saw a group of States make it hard for Black Americans to get public accommodations. We saw a group of States make it easier to re-enslave Black Americans under the Black code, utilizing the slavery clause of the 13th Amendment.


Congress responded, the House responded, this Senate responded and said: No. We are here to defend the Constitution, that every person is created equal, and every person’s rights must be protected.


That is what this Chamber, the Senate, did in 1875.


The House passed the Civil Rights Act on public accommodations, guaranteeing access to all public accommodations for all Americans. The House voted 152 to 99. It came to the Senate, and the Senate voted 38 to 26, a simple majority.


Although there were Senators here who desperately hated public accommodation bills because it would end discrimination in the South, they did not filibuster because the Senate code said that after all views are heard, you can hold a simple majority vote.


The Senate code held, but it didn’t hold in 1891. In 1890, Henry Cabot Lodge, down the hall in the House, introduced what became known as the Lodge bill. It said: In order to protect the foundation of our Nation, there can be Federal supervision upon request to make sure registration is fair, to make sure the voting process is fair, and to make sure the counting process is fair.


The bill came here to the Senate, and a bipartisan group filibustered that bill, southern Democrats and western Senators known as the Silver Senators. They were anxious to get onto a bill about silver coinage to support the silver mining in the West. That bill was eventually tabled.


In 1891, the Senate code was broken on civil rights and continued to be broken through 1965. In 1922, the Dyer Anti-Lynching Act was filibustered. In 1934, the Costigan-Wagner anti-lynching act was filibustered. In 1942, the anti-poll tax bill that put a price on being able to access the ballot box–it was filibustered. And on and on.


With the exception of a 1-week delay in a bill for arming commercial ships in 1917, virtually every filibuster denied Black Americans the right to vote because in lieu of ification, there had to be a strategy for certain Senators to make sure that Black Americans didn’t get their civil rights. That is the sorry chapter of that part of our American history. Three generations through it, 1965 paid the price of denying opportunities.


The Senate code on every other issue essentially survived until 1971, within our lifetimes. In 1971, we started to see the filibuster go to not just 1 or 2 filibusters a year but to 12, a dozen–imagine that–and in 1974 to 32. That was just so outrageous because each one takes up a week, and so this Senate said: That is unacceptable, so we must reform the rules. It led to the March 1975 rule reform where they went from two-thirds of those voting to 60 Members voting.


Well, the result is, that law backfired. To quickly look at it, cloture on amendments–each one taking up a week–expanded from some 6 times in the entire decade of the 1960s to 143 times in the 2010s.


For a motion to proceed, which is the ability to prevent debate from ever happening–the filibuster to promote debate was used to kill debate on the motion to proceed. It was used 10 times in the 1960s and 175 times in the 2010s. And, on nominations, it went from once in the 1960s to 545 times in the 2010s.


How did it happen that it expanded in the 2010s? Well, it happened because a Republican minority decided that they were going to obstruct as many of President Obama’s nominations as possible. And the Democrats did the same thing to President Trump.


Each one of these takes up a week, an intervening day, 30 hours of debate, another hour of debate for every other Senator who wants to speak who didn’t get to–every single one. So when you have over 100 of these a year, it is impossible to have a Senate that works. The Senate has been broken.


And perhaps the top champion of breaking the Senate is the minority leader, who has engaged in the tactic of delay and obstruction, arguing he wanted to make sure–his top priority was making sure President Obama was never reelected, and stopping him from having an agenda and stopping him from putting people into office was the strategy. And Democrats took much the same approach to President Trump. So we have both done it, but the Senate is blown up now.


In that original Congress, the Senate, the first term, it said there were about four Cabinet members to confirm, plus Ambassadors and some judges–four. We have over a thousand positions now. It is completely out of sync. The gears don’t match.


And every time there is a filibuster on a nomination, it is another week lost. So the Senate is now paralyzed because here is the interesting prospect and the unfortunate reality of 60 votes. The interesting prospect is that a majority of less than 60 has to reach out to the minority to get something done. And that sounds like it is going to increase cooperation and negotiation, but the unfortunate reality, in our tribal, partisan politics, is the minority looks at that and says: If we can hold 41 Senators from agreeing to close debate, we can paralyze the majority. The overwhelming impact is paralysis and accentuation of partisanship of our current filibuster.


Today’s debate, it is not about filibuster versus no filibuster; it is about fixing a broken Senate. It is about the difference, as my colleague from Virginia has said, from the secret, no-show filibuster to the public, talking filibuster.


Before 1975, people who wanted to extend debate had to actually debate. What a notion. They had to show up. And that is painful and difficult to maintain continuous debate, and so there is an incentive to negotiate. But when there is a no-show, no-effort filibuster, where those who say they want to debate are off on vacation because 60 votes is required with or without them, there is no incentive to negotiate.


So if you believe the Senate should be a place that encourages negotiation, we need a public filibuster, not a secret, silent filibuster. If you believe that the public should be able to participate in our process, we need not a secret, silent filibuster but a public, talking filibuster. We are here, day after day, week after week. We are debating the issue. We are raising amendments. We are considering amendments. And what is the result? The citizens weigh in. They say: Finally, they are considering it. Finally, they are debating it. Finally, they are going to take a vote. Now we can weigh in effectively in this moment.


So this is about restoring, reinvigorating debate, restoring the public role, creating an incentive to negotiate, creating an incentive for both sides to work to reach an accommodation.


Now, my Republican friends have made much today of Democrats signing a letter saying that they are determined to “preserve the ability of Members to engage in extended debate”–interesting–“preserve the ability of Members to engage in extended debate.” To preserve the ability to engage in extended debate means we need the talking, public filibuster, not the secret, silent filibuster which requires no debate at all. So, to my Republican colleagues who signed this letter, this is your opportunity to do what you said. Vote for the principle that the majority leader is going to be laying out forthwith.

So, colleagues, if you believe in the Founders’ vision of this Senate, of hearing everyone and hearing everyone well but eventually getting to a final bill; if you believe in the Senate code, which stood up for so long, not even needing a rule to enforce it, except for civil rights it held up through 1971; if you want more debate and you want people who want a debate to have to show up to debate, support the talking filibuster.


If you believe there should be an incentive for both the majority and minority to negotiate, support the talking filibuster. If you believe the public should have the ability to see us debating issues, then support the talking filibuster.


My colleagues have said: We must defend the minority leverage. Amen to that. That is why, in 2011, I put forward in this Chamber the talking filibuster and said we need to defend the minority’s right to participate.


Today, we have another opportunity to defend the minority’s participation, to speak at length for at least twice on any given question, on through a complex bill. But that, colleagues, depends upon ending the era of the secret, silent source of partisanship and paralysis that we currently have and replacing it with the talking, public filibuster.


I encourage you all to stand today for the Senate to work and for the Senate, most importantly, to defend the fundamental rights of every American to access the ballot box.