Filibuster

Floor Speech

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Mr. THUNE. Mr. President, once again, we are hearing chatter from some Democratic Senators about abolishing the filibuster. I had hoped we would move on from such talk after multiple Democratic Senators pledged to uphold the filibuster but apparently not. Apparently, some Democrats think that they can pressure or bully those Senators and other Democratic Senators who have expressed reservations into going back on their word.

Let me quote a former Senator on attempts to change filibuster rules in the Senate, and I am quoting:

We should make no mistake. This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power grab by the majority party. . . . Folks who want to see this change want to eliminate one of the procedural mechanisms designed for the express purpose of guaranteeing individual rights, and they also have a consequence, and would undermine the protections of a minority point of view in the heat of majority excess.

That was former Senator Joe Biden.

Here is what a current Senator had to say on eliminating the legislative filibuster, and again I quote:

I can tell you that would be the end of the Senate as it was originally devised and created going back to our Founding Fathers. We have to acknowledge our respect for the minority, and that is what the Senate tries to do in its composition and in its procedure.

That was a statement from the current Democratic whip in 2018.

In 2017, 33 Democratic Senators signed a letter urging that the legislative filibuster be preserved--2017.

Of course, Democrats have not limited their support of the filibuster to words; they have supported it by their actions. In the last Congress, Democrats set a record for forcing cloture votes, which is what has to happen in order to end a filibuster. They repeatedly used the filibuster when they disagreed with legislation that Republicans were advancing. They filibustered COVID relief. They filibustered police reform even though Senator Scott and Leader McConnell had committed to a robust, bipartisan amendment process. They filibustered pro-life legislation, and they made it very clear that they deeply regretted the fact that they could not filibuster judicial nominees--a situation, I would point out, of their own making. Even without the judicial filibuster, they used every tool at their disposal to slow down judicial nominations.

So, as of last year, Democrats' actions clearly demonstrated their firm support of the filibuster, but now that they have actually taken power here in Washington, albeit by the slimmest possible majority, they are pushing to get rid of it.

Democrats, of course, would like people to believe that this is a principled change; that all of a sudden, they have realized that it is really much better for the country if the majority party gets to do whatever it wants when it is in charge. Well, I just have to say, if you believe that, I have some nice oceanfront property in South Dakota to sell you.

I doubt that there is anyone anywhere in the country who seriously thinks that the Democrats' dramatic 180-degree turn on the filibuster is a principled reversal of their previous position. No, this isn't about principle. It is partisanship. It is political expediency. Democrats' principles haven't changed; their power in the Senate has. They are in charge now. They don't want anything holding them back, like that pesky Senate rule that they have used so often to their advantage.

The truth is, Democrats want a one-sided advantage. Last year, they were perfectly happy to exercise their rights as a minority and filibuster any Republican legislature they didn't like, but now that they are in charge, they want to deny the minority a right Democrats repeatedly exercised when they were in power. They are apparently too shortsighted to see that their proposal could be turned back on them in an instant.

When Democrats abolished the filibuster for judicial nominees, Leader McConnell warned Democrats that they would reap the whirlwind, and they did. Much to Democrats' horror, President Trump ended up being the chief beneficiary of the abolition of the filibuster for judicial nominees, appointing a vast number of conservative judges to the Federal bench.

Several Democratic Senators have openly admitted that they had made a mistake by abolishing the judicial filibuster. The junior Senator from Delaware came to the floor in April 2017 and said he regretted changing the rules in 2013. The senior Senator from Minnesota not only said she regretted changing the rules, she went so far as to say in 2018 that she would support bringing back the 60-vote requirement. Yet now Democrats are apparently ready to abolish--abolish--the legislative filibuster. How have they not learned their lesson? Unless Democrats are so arrogant as to think they will never again be in the minority.

Some Democrats have suggested that we need to abolish the filibuster because otherwise the Senate won't get anything done. Well, not quite. Not quite. It is not that the filibuster could prevent us from getting anything done; it is that it could prevent us from getting everything Democrats want done. That is a big difference.

The truth is, Democrats could easily get something done in the Senate if they were willing to actually work with Republicans. And by ``work with Republicans,'' I don't mean inviting Republicans to join their bills while excluding any meaningful Republican input. I don't mean threatening Republicans to support their bills on pain of having the filibuster abolished or substantially altered. No, I mean genuinely inviting Republicans to the table.

Now, it would mean the Democrats wouldn't get everything they want done, and, of course, Republicans certainly wouldn't get everything we want done, but we could get something done. In fact, we could get some pretty meaningful things done. We could negotiate an infrastructure bill. We could pass section 230 reform, like the bipartisan bill I introduced with Senator Schatz yesterday. We could pass police reform legislation, expand domestic manufacturing capacity, and protect election integrity. We could do all of that and more if Democrats would engage in genuine bipartisan negotiation.

Is it really too much to ask that Democrats find 10 Republicans to work with on major legislative items? Everyone would like to pass their unedited agenda just like they want it, but that is not how things are supposed to work, at least not in the U.S. Senate, and it is certainly not how it is supposed to work when, like Democrats, you barely have a majority. The Senate and, indeed, our whole system of government were designed to prevent a partisan majority from steamrolling through its unedited, unchecked agenda.

Let's just talk for a minute about the purpose of the Senate. Actually, let me take a step back and talk about the purpose of our whole system of government.

Our Founders established not a pure democracy, where the will of the majority reigns unchecked, but a democratic Republic. It was their intention to combine majority rule with representation and protection for the minority. Why? Because the Founders knew very well that it wasn't just Kings who could be tyrants. They knew that majorities could be tyrants, too, and that a majority of citizens could easily trample the rights of the minority. So they put safeguards in place throughout our government, checks and balances to keep the government in check and ensure that minority as well as majority rights were protected.

One of those safeguards was the U.S. Senate. Wary of, to quote Federalist 62, ``the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions,'' the Founders created the Senate as a check on the House of Representatives. They made the Senate smaller and Senators' terms of office longer, with the intention of creating a more stable, more thoughtful, and more deliberative legislative body to check ill-considered or intemperate legislation and attempts to curtail minority rights.

As time has gone on, the legislative filibuster has become a key tool in preserving the Founders' vision of the Senate. The filibuster does indeed make it harder to get legislation through the Senate, and that is a good thing. That is what the Founders intended. The Senate was not designed to be a rubberstamp for a partisan agenda; it was intended to check partisanship or, as the Founders might put it, faction.

Now, does the filibuster sometimes stop good legislation from getting passed? Of course it does. Last Congress, it stopped us from passing legislation to protect unborn babies who can feel pain from being killed by abortion. The failure of the Senate to pass that bill, I think, is a tragedy, but just as you don't abolish the burden of proof in criminal cases just because some criminal sometimes escapes justice for lack of evidence, you don't permanently remove protections for minority rights because you might be able to force through a good piece of legislation.

In 2005, when some Republicans were suggesting eliminating the filibuster for judicial nominees, then-Senator Joe Biden said:

I say to my friends on the Republican side: You may own the field right now, but you won't own it forever. I pray God when the Democrats take back control, we don't make the kind of naked power grab you are doing.

Fortunately, in 2005, Republicans didn't take that step. And in 2017 and 2018, when President Trump was pushing for Republicans, who were in the majority at the time, to abolish the legislative filibuster so he could push through our agenda and we could push through our agenda, we said no.

For the future of the Senate and our system of government, I pray that Democrats will make the same decision.

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