Motion to Discharge
Floor Speech
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Mr. MERKLEY. Madam President, not too long ago, we had a vote on whether or not to start a debate on the John Lewis Voting Rights Act. And the majority said, yes, start the debate.
Then why aren't we here in that debate?
Well, the simple answer is we have a process whereby you have to have 60--a supermajority of the Senate decide to start a debate. In other words, there is ability to exercise a veto over whether or not a bill is worthy for consideration on this floor, even if it is supported by the majority of legislators.
That effort is really about destroying the ability of this Senate to address the big issues facing America.
What bigger issue is there in a Republic than stopping billionaires from buying elections; to stop gerrymandering from destroying equal representation; to stop State laws that create prejudicial barriers designed to target specific groups to keep them from voting; barriers at the ballot box to steal the right to vote? What bigger, more fundamental issues are there than that?
Yet we can't even start a debate. In fact, we spend a lot of time debating whether to debate, and that is wasted time on the floor.
So, truly, that vote we took was symbolic of two things. The first is that we are failing to address one of the biggest issues we face in this Nation: the integrity of our election system, the corruption of our election system.
And, second, that this Senate has become dysfunctional.
When Ben Franklin was walking out of the Constitutional Convention, he was asked by a woman what kind of government they had created--a Monarchy or a Republic? And he is reported to have responded: A Republic, if you can keep it.
We have strived through 234 years to keep that Republic through war, through depression, through social unrest, through global pandemic. We fought for 234 years to ensure that, as expressed by Lincoln at Gettysburg, ``government of the people, by the people, for the people, shall not perish from the earth.'' But, as the American philosopher John Dewey once said, ``Democracy has to be born anew every generation.''
It is up to each generation to take up the cause and fight to protect the foundations of our Republic. We are facing a moment of crisis once again when this institution has veered far afield from that time when it was declared to be the world's greatest deliberative body. Now it is perhaps the world's most dysfunctional legislative body--unwilling and unable to even debate, let alone vote, on the biggest issue of our time: the defense of our Republic from the corrupting forces of power, of billionaires buying elections, of gerrymandering, and certainly of barriers at the ballot box.
So we have a responsibility to take up this cause, to understand its source, and to address it, to restore the Senate as a deliberative body.
One of the ways to evaluate our dysfunction is to look at the trend and number of amendments considered on the U.S. Senate floor.
In the 109th session of Congress, 2005 to 2007, there were 314 amendments. In the 116th, the 2 years just passed, there were 26. So 314 amendments to 26. And most of the amendments that were allowed of those 26 went to just 2 Members, so most Members had no opportunity to offer amendments.
The trends in cloture filings--that is a motion to close debate--give us some understanding of what has happened. They were extremely rare in the past because the Senate understood it was a simple majority body. That is the way the Founders designed it. So very rarely there had to be an effort to actually close debate because Members went on forever speaking, but it was rare--in 1910 through 1919, just three times; in 1930 through 1940, four times; and in 1950 to 1960, two times. But then, in 1970 forward, things changed. From 1970 to 1975, there were 57 filings to close debate in 4 years versus 34 from 1910 forward to 1970.
This explosion--and that was just on policy legislation--led to a reform in 1975. The rule for closing debate--the old rule of two-thirds of Senators voting was changed to three-fifths of Senators duly chosen or sworn. That is 60 votes regardless of how many people were on the floor voting.
That rule change was started, if you will--generated just in those years from 1970 to 1974 where you had these 57 cloture motions, which is nothing compared to today--nothing--which I will expand on.
But that 1975 rule change--because instead of saying it was a percentage of those present and voting, instead, it was a percentage of the Senate, it means that, unwittingly, we transformed the way that you delay things in order to exercise leverage.
We had, under the old rule, a public process where you had to take the floor as I am right now and speak at length in order to delay while your teammates worked to negotiate an amendment, negotiate a compromise, make sure the public had read the bill, make sure the press had seen the bill, make sure the Senators had vetted the bill. All those are valuable. That delay in order to improve the process is valuable.
Under the old rule, it was a public process. The whole Nation saw it, and they could judge whether you were a champion or whether you were a disaster, and you got that feedback. Under that old rule, it was not just a public process, but it took enormous energy.
Under the new rule--a no-show. It is not necessary to show up for debate and not necessary to show up to vote. It is a no-show, no-effort veto that transformed this Senate. Well, the result was that it made it so easy to obstruct that people decided to obstruct a lot. That 1975 cloture rule backfired by creating this no-show, no-effort obstruction.
Let me give you a sense of this. During the period 1960 through 1970, there were some 25 cloture motions to close debate, but in the next decade, over 100 in the seventies; in the eighties, over 200; in the nineties, over 300; in the 2000s, over 400; and in 2010 through 2020, 1,029 motions to close debate. That is the disaster we are living in right now. Instead of it just being ``Let's slow things down on final passage,'' it became ``Let's slow things down on amendments.'' So we went from zero cloture motions on amendments from 1920 through 1960 to 143 just in one 10-year period. It expanded to nominations. We went from zero from 1910 through 1960 to 545 during 2010 through 2020. In motions to proceed to legislation, we went from zero during the fifties to 175 in 2010.
So this process of a supermajority vote to proceed expanded from being rare to being common. It expanded from being on final passage of legislation to everything--amendments, motions to proceed--every aspect of the work we do here.
Now, here is the very strange thing: This use of a supermajority would absolutely have astounded and appalled our Founders. Our Founders were operating under the Confederation Congress at the time they were writing the Constitution. The Confederation Congress had a requirement for a supermajority, and that supermajority paralyzed the Confederation Congress. They were not able to raise an army to put down Shays' Rebellion. They were not able to raise money to pay for the Revolutionary War veterans.
So our Founders said: Whatever you do, don't adopt a supermajority.
We have Hamilton writing:
If two thirds of the whole number of members had been required . . . the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder.
Hamilton, in another Federalist paper, wrote:
If a pertinacious minority can control . . . [the] majority . . . tedious delays; continual negotiation and intrigue; contemptible compromises of the public good [will result].
Then we have Madison, who said:
In all cases where justice or the general good might require new laws . . . or active measures . . . the fundamental principle of free government would be reversed [under a supermajority]. It would be no longer the majority that would rule: the power would be transferred to the minority.
He is pointing out that it stands the very structure of a legislative body on its head.
He went on to note that the result of the supermajority--remember, they were experiencing this under the Confederation Congress--is to produce the following: that the ``minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.''
Here, are our Founders saying: We experienced the supermajority. Don't ever do it.
They wrote the Constitution so a supermajority was reserved only for special circumstances, like evicting Members, like considering a treaty, like overruling a Presidential veto.
So why are we here today doing exactly what the Founders said not to do and experiencing exactly the results that they had experienced under the Confederation Congress?
My friends, we have a responsibility to restore the function of this body. We need to streamline the nomination process. Think about how a nomination works. You vote to go to executive session. You have a motion to proceed to a nomination. You vote on proceeding. You hold a debate, you hold a vote, and then you proceed it, and then you hold a debate, and then you vote, and then you have 2 hours of postdebate, and then finally a vote. That is a crazy system to be able to consider a nomination. It takes up huge amounts of our time when a simple vote to proceed, limited debate, simple vote to proceed to on the floor, simple time to consider it, and a vote on whether or not you are going to allow the person to fill the position the person has been nominated for--this sort of streamlining would save us all a tremendous amount of time that could be dedicated to actual debate and actual amendments.
Then there is this use of a supermajority on motions to proceed to legislation, using a blockade to prevent debate, not to facilitate debate, as is sometimes argued for the supermajority--that it can slow things down, facilitate debate, make sure bills are read, make sure there is a chance of negotiation--no, to prevent debate. We shouldn't spend time debating whether to debate. Let's just have a set hour to consider whether to move to a bill, and then we either move to it or we don't.
How about amendments? I noted the collapse of the ability of Senators to amend. Senators in the minority want to do amendments. Senators in the majority want to do amendments. We all have ideas and thoughts on how to change things and improve things. We want to make our case, but we don't get to do it here anymore.
Don't we have a bipartisan, vested interest in restoring amendments to the deliberations of the Senate? You know, I was pondering this question because we seem to be locked in a cycle where, given partisan differences in the Nation--partisan differences that are increased by social media and increased by cable television--we just can't seem to come together to be able to make this place work as it is supposed to, as it is our responsibility to do. But we have gotten to the point where we are utterly--utterly--damaging the United States of America.
You know, the President of China, President Xi, is saying: Hey, there is a world competition between democratic republics and an authoritarian world. Look what we have done in China. We went from bicycles, and then we had cars and traffic jams, and now we have bullet trains, 16,000-mile bullet trains. Look what we are accomplishing. Look how many millions are lifted out of poverty. Look how paralyzed the United States is.
Why is the United States paralyzed? Because this Chamber cannot discuss a simple debate and vote like every State legislature across this country does.
Colleagues, let's come together. Let's restore debate. Let's restore amendments. Let's save and savor and improve the ability of the minority to participate in the process, but let's also remember that balance of the Senate involves getting to a final decision, a simple majority vote as the Founders had intended.
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