New Embrace of the Filibuster
Floor Speech of Sen. Chuck Grassley
Delivered Tuesday, Oct. 6, 2015
I would like to comment on the extraordinary about-face we have seen from many of my colleagues across the aisle with respect to the filibuster. Like Paul on the road to Damascus, they have seen the light and have now embraced the filibuster wholeheartedly. And, like many converts, they are very active in their new faith. Naturally, this has caused frustration for many Americans who wonder why we cannot address the pressing issues that we were elected to address. And, not surprisingly, the recent series of filibusters on legislation of enormous consequence for our nation has resulted in new calls for changes to Senate rules.
First, let’s take stock of where we are. It was just last year that the previous majority leader was abusing the cloture motion to shut down debate and amendments on virtually every single bill, even before debate had begun, all while blocking any amendments. Any senator who routinely votes for cloture motions under those circumstances is abdicating his or her responsibility to the people that elected that senator to offer and debate different ideas. Nevertheless, when those of us who were then in the minority voted against abdicating our responsibilities as senators, we had a parade of Democrat senators come to the floor and accuse us of that most dastardly deed, at least according to them, the filibuster. They repeatedly claimed that strict rule by the majority faction was the principle by which the Senate ought to operate, with little or no input from the minority party, just like in the House of Representatives.
We now have a majority that has tried to restore the Senate to function as a deliberative body, as it used to and as it was intended to by the Framers of the Constitution. For instance, last year, the previous majority leader didn’t bring a single individual appropriations bill to the floor of the Senate for consideration and a vote. By putting off appropriations until the end of the fiscal year, he calculated that the threat of being blamed for a government shutdown would force Republicans to accept a massive Omnibus bill containing policies that would otherwise be rejected. This year, the Senate Appropriations Committee has done its work and reported out each separate appropriations bill, all twelve of them, most on a bipartisan basis. Then, when the majority leader has attempted to bring them to the floor, he has been met with a Democrat filibuster of the motion to proceed to the bill. What is the justification for that? The majority leader is not blocking amendments. If there is something they wish to change or add to the bill, they can offer an amendment. We have to pass appropriations bills or the government shuts down, so why can’t we even bring them up for consideration?
The answer is, the Democratic leadership is up to its old games. By blocking the appropriations bills and threatening to blame us for a shutdown, they hope to bully us into busting open the spending caps that a majority in both the House and the Senate agreed to in the Budget Resolution earlier this year. So much for majority rule, which the Democrats claimed was such a deeply held principle only last year. They justify filibustering the appropriations bills because President Obama has threatened to veto them unless he gets more spending. That doesn’t make any sense. The first appropriations bill they filibustered was the Defense Appropriations Bill, not because that bill didn’t provide enough funding, but because they want to hold it hostage to extract additional spending in other areas. Now they are holding hostage the bill that funds the Department of Veterans Affairs. So they are holding hostage funding for our men and woman in combat and our veterans who have served our nation in order to protect the President from having to follow through on his threat to veto these bills. I understand that the President might not want to have to defend vetoing funding for our troops and veterans as a bargaining chip to extract additional deficit spending from Congress. But, protecting him from having to follow through with his threat is not a very good reason for a filibuster.
A similar thing happened with the filibuster of legislation to disapprove the Iran deal. A bipartisan majority in both the House and the Senate were in favor of legislation to block President Obama’s dangerous nuclear deal with Iran. Because the deal was set to go into effect unless Congress acted, the Democrats cannot claim their filibuster was needed for additional deliberation. It was a blatant attempt to run out the clock so the President would not have to use his veto pen. So clearly it’s not as though the Democrats have now grudgingly accepted the utility of the filibuster only in extraordinary circumstances. They have now embraced it so completely that they use it simply to prevent embarrassing the President.
In light of this, it is understandable that many in my party and in the grassroots have questioned whether we ought to get rid of the filibuster on legislation. After all, the Democrats unilaterally abolished the filibuster on nominations, contrary to Senate Rules. Well, they will have to live with that come 2017 when a Republican president is inaugurated. But, just as I think they will live to regret that move, I think those of us on my side of the aisle would ultimately regret the loss of the Senate as a deliberative body if we were to change the cloture rule for legislation. What would the Democrats do with unchecked power? We don’t have to guess. The Democrats briefly had the 60 votes needed to overcome any filibuster and they promptly rammed an unpopular healthcare law down the throats of an unwilling American public. They dismissed legitimate criticisms from Republicans and skepticism from citizens. They promised that Americans would like it once it had passed and we found out what’s in it. Well, Americans now know what was in it and the law hasn’t become any more popular.
So does that mean that we have to just accept that Obamacare and other aspects of the “fundamental transformation of America the President promised are here to stay? Of course not. But we must not be shortsighted. Keep in mind that the American Left was greatly influenced by the Progressive Movement in the early 20th century, which held that history is continually progressing toward a future of more governmental control over people’s lives, for their benefit of course. This led the early Progressives to reject the Declaration of Independence and its focus on individual liberty, and to oppose our Constitution’s system of checks and balances designed to protect that liberty, because it made it harder for government to act. It also means those on the Left play the long game, sometimes biding their time, sometimes accepting incremental progress toward their goals, and other times making radical changes when they see an opening. Those of us who are animated by the principle of individual liberty recognize that liberty is the exception in human history and threats to liberty must be fought constantly or we risk losing it. As such, we are impatient to correct every loss of liberty right away, as we should be. However, in doing so, we must be very careful not to break down those very safeguards that are in place to prevent government encroachment on individual liberty. If we are not careful, short term gains could lead to even greater loss of liberty in the future.
The President’s former chief of staff was famous for saying “You never let a serious crisis go to waste. And what I mean by that it's an opportunity to do things you think you could not do before.” In other words, we’ve seen a concerted effort to take advantage of momentary passions and temporary majorities to enact longstanding policy goals of more governmental intervention in the economy and the lives of Americans. Preventing such a power play is precisely the role the Senate was designed to play. Just listen to this passage from Federalist Number 62, “The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.”
That was written by James Madison, who is rightly called the Father of the Constitution. Madison prepared extensively for the Constitutional Convention by studying ancient republics and ancient and contemporary political philosophers. He came to the convention with what was called the Virginia Plan, which the convention used as the starting point for what became the U.S. Constitution. Madison also took extensive notes throughout the Constitutional Convention. In other words, when he speaks about the intent behind the structure of the Constitution, he ought to know better than anybody.
It’s true that Madison did not speak to the filibuster itself, and the Constitution leaves the rules of the House and the Senate up to each chamber, but you cannot read the Federalist Papers without a clear understanding that our system of government was intended to allow only measures that have broad and enduring support to become law. The Constitution was not designed to allow whatever faction happens to be in power to have a free hand to do whatever it wishes. As Madison said in Federalist Number 10, “…measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” In fact, in arguing for the necessity of the Senate in Federalist 63, Madison is quite critical of pure majoritarian democracies in ancient times and attributes their failure to the lack of a senate.
That said, I understand why some of my Republican colleagues in the House of Representatives are frustrated with the fact that many of the things they pass become stalled in the Senate. So am I, and we need to make sure those obstructing are held accountable. But, anyone who would change the Senate Rules to give the majority leader the power to ram any bill through the Senate on party line vote should ask whether they can trust that this power will be used fairly by future majority leaders. Remember, the previous majority leader tried to shut the minority party out of the legislative process at every stage. The Senate was routinely presented with bills, often written behind closed doors in the majority leader’s office, and told there would only be an up or down vote, with no amendments.
Moreover, what would conservatives gain by abolishing the filibuster? In the short run, we would have the emotional satisfaction of seeing President Obama have to use his veto pen, but that’s about it. In the long run, you can bet that modern day progressives will use those tools to impose all sorts of policies to expand the scope of government that would otherwise not make it through our constitutional system. If you want to know what some of those “intemperate and pernicious resolutions” Madison warned about might be, we need only look to the past. Had the Senate operated on a purely majoritarian basis in the past, our country would be in much worse shape than it is now.
For instance, if you think Obamacare is bad, we would have had a single payer, totally government run health care system if it weren’t for the 60 vote requirement. We would have the disastrous cap and trade bill in 2008 with its crony giveaways making special interests rich while destroying jobs for hardworking Americans. The list of items that would have passed the Senate goes on and on: The 2007 Immigration Amnesty Bill, The DISCLOSE Act to intimidate private groups that engage in political speech in 2010, the abolition of secret ballot elections for unions in 2007, prohibitions on businesses replacing striking employees in 1992, a bill to encourage public safety employees to unionize in 2010, the 1992 Clinton crime bill, drug price negotiations in Medicare Part D that amount to federal price controls in 2007, an amendment to the Constitution to cancel First Amendment protections for speech around election time in 2014, stripping religious liberty protections from Christian business owners who object to paying for drugs that can cause an abortion in 2014, President Obama’s second big-spending stimulus proposal in 2011, the so-called Buffett tax several times, a tax increase to pay local government employee salaries in 2011, and who knows how many other tax increases they would have passed if they knew they could get away with it. And, of course as Senator Alexander has argued, one of the first things the Democratic Leadership would do is follow the orders of their union bosses and outlaw the many right to work laws in the United States.
I know well what it is like in the majority and the minority in the Senate and I know things look very different from each perspective. I would ask my conservative colleagues who are frustrated that the current majority is not able to work its will to consider the example of history and look to the future. It is also interesting to observe the behavior of the many Democrats who had never experienced the minority before who have now gained a new perspective on the filibuster by supporting it every chance they get. And it didn’t take long. On the third vote the Senate took after the change in control, most of the Democrats, including some of the loudest critics of the filibuster, voted against cloture on a motion to proceed, which until that point they claimed to be an egregious and inappropriate abuse of Senate rules.
I know there are some Senate Democrats who still say they are opposed to the filibuster in principle, although apparently not in practice. It’s no good saying, “Stop me before I filibuster again.” If you think it’s wrong, don’t do it. It’s as simple as that. When Senator Wyden and I began to work on ending the practice of secret holds, we pledged to disclose any hold we placed in the Congressional Record, and did so for years before any rule required us to. The Senate Democrats have shown through their actions that they now fully support the Senate filibuster. I guarantee that the next time Republicans are in the minority, we too will see the necessity of this traditional protection against what Madison referred to as “the superior force of an interested and overbearing majority.”
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