H.R. 5746

Floor Speech

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Mr. MERKLEY. Mr. President, I think I will start just by returning to the 1800s and a Senator from Massachusetts, Senator Sumner. Senator Sumner later played a key role in the civil rights debate, which is why I am returning to that story. I think it is a story about the Senate floor.

Sumner gave a speech about Kansas being admitted into the Union, and he was a Republican Senator who called out two Democratic Senators, insulting one of them. And a Representative from the House of Representatives, on the other end of this corridor, came over here. His name was Preston Brooks, and he took considerable offense, and he proceeded to come to the Senate floor and cane Senator Sumner. Senator Sumner was gravely injured, but he did recover--recovering slowly. He served for another 18 years, which leads me to the fact that he proceeded to put forward civil rights legislation in 1875--in 1875--150 years ago--almost 150 years ago, 145 years ago.

And so he argued after the Civil War that our Black Americans were being discriminated against and it needed to end; that anyone should go into any public accommodation and be treated equally here in the United States of America--a Constitution that says: All men--and let's include women--are created equally.

So he put forward this bill, and it said that every person gets equal access to theaters, to public schools, to churches, to cemeteries, equal opportunity to serve in jury duty, and that any suits brought in this regard would be tried in Federal court, not State court, so we could enforce a Federal standard of nondiscrimination across this land.

Sumner died of a heart attack in 1874. He had put forward this originally as an amendment--actually, an introduction in 1870, as a bill. He died before it could be passed. As he was dying, he pleaded with Frederick Douglass and others at his bedside: You must take care of my civil rights bill.

In the months following his death, the Senate did act, and they supported that bill, and it was passed into law in 1875. At that moment, it would be hard to envision that, after I was born, we would still be fighting for equal access to public accommodations. The Senate passed that bill and made it into law in 1875. But the Supreme Court of the United States struck down that law 8 years later. Boom--equal access in America supported by the elected Representatives in the House and the Senate was blown to smithereens by a Supreme Court of the United States of America.

Well, that did set the stage for another civil rights battle, and it was 1890. It was after Benjamin Harrison's successful Presidential campaign, in which he promised election reform and election integrity because, you see, anyone looking at our Republic would know that we are all affected, no matter what State we come from, by the integrity of the elections in the other States. There has to be integrity in all of them for this U.S. Senate to have integrity. There has to be integrity in all of the State elections for that House of Representatives down the hall to have integrity.

So Benjamin Harrison was elected campaigning on this type of reform. And there was a Senator, Senator George Hoar, who championed amendments or an attempt to bolster national protections for Federal elections. It was particularly targeted at stopping voter suppression that had really arisen in the southern part of the United States following the Civil War. So this bill, known commonly as the Lodge bill, also known as the federal elections bill, passed the House of Representatives in 1890.

What did this bill do? It allowed citizens from any district to petition a Federal circuit court to appoint Federal supervisors for congressional elections in case of efforts to suppress the vote by local officials. It permitted the Federal Government to appoint supervisors to oversee all phases of Federal elections, including voter registration and the certification of the election results to make sure there were no shenanigans at the State level that would corrupt the core vision of equal representation, the core foundation of integrity of elections. It is the foundation of the vision of the legitimacy and the production of government of, by, and for the people.

And this bill even enabled Federal election supervisors to request deputy U.S. marshals, as necessary, to protect the ballot box for every citizen to have access. It passed the House of Representatives, and it came here to the Senate, and it failed because they couldn't get unanimous consent to close debate. At that time, there was no cloture motion.

The Senators, in 1805, had gotten rid of the prior question rule, which would have allowed debate to be closed because they had a social contract. That social contract was that we listen to everyone to get their perspectives. People can speak, not once, but twice on a question. They can speak for as long we wanted to listen to everyone and then we take a vote. That was the social contract.

But this filibuster broke that social contract because everyone was listened to, but you couldn't get unanimous consent to close debate and so the bill died. It had the support of the people of the United States of America through their elected representatives down the hall. It had the support of this Senate to protect the fundamental right to vote in our Nation by the majority of this body here in the U.S. Senate. But the social contract was broken to block Black Americans from voting; to allow States and local election officials to rig the registration system so you could never sign up; to allow intimidators to gather at the polls to keep Black Americans from getting through them to put their ballot in the box.

I would like to say that all traces of inequality in voting are gone from America. I would like to say that. And, indeed, that was reasonably true--reasonably true--through the recent years, before the Supreme Court gutted the Voting Rights Act, because any changes in your voting rules had to be preapproved in States that engaged in these intimidating practice. I say ``reasonably true'' because the real fact is there was still a significant blemish in our elections, and that is, on election day, in certain States and certain precincts, there was a game being played to make it harder for some citizens to vote than other citizens to vote.

The game worked like this: If you have an area where you want low turnout, you proceed to create a big precinct so that there are a lot of people who have to go to that one place to vote. And if you have a desire to encourage the people in another precinct to vote, a White precinct, you create smaller precincts so the voting line won't be as long.

And then there were other tricks like, for example, understaffing the voting precinct where it is predominantly Black Americans to make it harder for them to vote and making sure you staff really well the precinct where you want the White Americans to vote.

And there were other tricks, as well. For example, relocating the voting location in the Black precinct so that people go to the wrong place, or putting it where parking is virtually impossible so it is much harder to get to the poll, or putting out false information about the date and the location of the voting.

These things are all wrong. Voter suppression exists today. And it was powerful to see how a couple tools have greatly reduced those tricks and traps.

One of those tools is early voting. If you have an early voting period, it is hard to create long lines. It is hard to sustain wrong information about where to go. It is very difficult to deny people the ability to vote simply by having too few staffers.

Even more so, vote-by-mail is powerful. Now, we have Republican States like Utah that have vote-by-mail, and they love it. And it elects Republicans. You have more blue States like Oregon that have vote-by-mail, and they love it. That is my home State.

I was really struck, when I was first running for the Oregon State Legislature--it was 1998, and we still voted at the precincts' voting polls, except the Republican Party had said: We can increase turnout if we get all the Republicans to sign up for absentee ballots. So they got a high percentage of Republicans to sign up for absentee ballots. Then the Democrats said: Well, OK, yes, we can get Democrats to sign up for absentee ballots. So 50 percent of the electorate in 1998 in Oregon was voting by mail and 50 percent, polls.

As I went door to door in my first race for the Oregon House and asked people what they liked and didn't like, they normally said: What I really hate is that we have too many potholes, and I am not happy with city hall. What I really like is my absentee ballot.

I would say: Well, why is that?

They would say: Well, you know, I don't have to worry about where to park, and I don't have to worry about long lines. Do you know what else? It is a complicated set of issues under the initiative system we have in Oregon, and I can be able to sit at my table, study them, discuss them with my spouse, and have my children come to the table and see what we are doing.

Well, these two tools really opened the doors to the election process in the last election, and the response of my Republican colleagues was: Oh, no, we can't let that happen. We don't want those people to vote. We better rein in vote-by-mail. We better rein in voter registration.

Georgia got rid of voter registration in between the main election and the runoff because 70,000-plus Georgians registered in that period, and they think it helped Democrats more than Republicans. So, in a prejudicial way, they said: Let's make registration harder.

Well, it is not acceptable in our country to erect barriers for targeted communities--not for Black Americans, not for Hispanic Americans, not for college students, not for young voters, and not for Native American reservations--not for anyone.

But why are those groups being targeted in a surgical way by the strategies in State after State after State with Republican legislatures and Republican Governors? Because those constituencies tend to vote more often for Democrats than Republicans. So they are stealing the vote of millions of Americans. They are corrupting the election process for millions of Americans.

We stand here today in the Senate with the same issue we were debating in 1890 and 1891. The House had set national standards so every American could vote, and the Senate would not give unanimous consent to get to a final vote and contributed to eight-plus decades of discrimination in our country, of corrupted elections in our country-- until the Voting Rights Act of 1965.

I see a colleague here preparing to speak, and I haven't even begun my real speech yet. I am going to close to hand the floor to him, my colleague from Maryland, but let me summarize a couple points before I do so.

I believe the Senate is far better off when the minority has the power to slow things down. I think that is value, to be able to have leverage to get amendments; to be able to negotiate a compromise; to be able to make sure a technical bill has been examined by experts and you understand what it really does; to make sure we have seen all the provisions; to make sure the public has seen all the provisions; to make sure the press has been able to investigate the provisions. All of that is incredibly positive, and it is why, whether I have been in the minority or been in the majority, I have argued we need to sustain 60 votes to close debate, and I still hold that position now--60 votes to close debate by a vote.

There have traditionally been four ways that a debate on the floor comes to a conclusion.

The first is a break in the debate. At that point, I was struck when I asked the experts ``Is the Chair allowed to call the question?'' and I was told that not only can they call the question, they have a responsibility to call the question when there is a break in the debate. So a break in the debate is one.

The second is by unanimous consent. Everyone agrees we have been at this long enough. Let's do four more amendments and then go to final passage, and there is a unanimous consent agreement to do that. We still do that quite often.

The third is to have a vote on closing debate, and we have to get 60 votes. It is not a ratio of those who show up to vote. So the irony is, those who want a debate often don't show up. You can have a vote 59 to 5, and the 59 lose. You have to get 60 votes.

The fourth is rule XIX, which says every Senator gets to speak twice. Now, as far as I am aware, there has never been a debate in the U.S. Senate that was finally brought to a close by everyone using up their two speeches, but it always hovers there, saying there is an eventual ability to vote on the question.

These are the four traditional strategies. We need to apply those four strategies to a period of debate addressing final passage of the bill. The cloture motion would still be there. The possibility of a UC would still be there. A break in the debate would still be a break in the debate, and a UC would be a UC. All four tools would still be there, but we would be addressing final passage.

The problem we have--a little kind of behind-the-scenes complexity of Senate rules--is that in the modern Senate, there is always a pending amendment. So you can't actually get to final passage unless you have a period of debate dedicated to final passage, and breaking the debate would call the question on the amendment, not final passage.

This means that those who want more debate could hold the floor for weeks and weeks on something they are determined to keep presenting to the American public, but it brings in the public. It brings in the public. They can weigh in on whether we are heroes or whether we are bums. They can weigh in on amendments we say we are going to bring up the next day. They can help us understand how folks back home feel.

There is no public in the no-show, no-effort, invisible filibuster we have had since 1975. There is no public, and there are no amendments because amendments require a supermajority to close debate. Someone says: Well, I am not going to agree to that until my amendment gets up. There is no longer a social contract: You do your amendment. I will do my amendment. We will all do them. They will be on topic.

It is gone. So the number of amendments has dropped tenfold between the 109th Congress and the 116th Congress. The number of amendments dropped more than tenfold over that time period. Instead, the floor managers negotiate. The leaders negotiate. They produce a list and then ask everyone to agree to that list, and someone objects: You left out my amendment.

So we--a room full of former House Members and industry leaders, former Governors, former speakers of their State house or presidents of their State senate; all of this talent sitting around here--do nothing day after day after day while the invisible, no-show, no-effort filibuster destroys debate in the Senate of the United States of America.

It is our responsibility to restore debate in this Chamber, to restore amendments. The advantages of the restoration are, No. 1, that you have amendments; No. 2, that you have public debate; and No. 3, perhaps the most important, you have an incentive for both sides to negotiate, because under the no-show, no-effort, invisible filibuster that we have had since 1975, the minority of either side says: You know, if I can get 41 of our minority Members to agree not to close debate, and all they have to do is not even show up to vote or show up to vote if they like but vote no, then the majority can never get anything done, and won't that enhance our political power in the minority party?

That is an almost irresistible temptation in the tribal, partisan warfare of today. So each minority is tempted into basically exercising a veto over the majority party's policy agenda. That is ``an eye for an eye makes the whole world blind,'' strategy. The Democrats sabotage the Republican majority. The Republicans sabotage the Democratic majority. But under the public filibuster, not only is the public involved, but the minority has to maintain continuous debate, which can be hard, so they have an incentive to negotiate. The majority, seeing the time burned up that they need for other things, other policy bills and nominations, they have an incentive to negotiate. So you get amendments. You get the public involved. Most important, you recreate an incentive to negotiate. That is the reinvigorated filibuster strategy, the talking filibuster.

Call it the public filibuster or just call it extended debate on final passage of the bill. Whatever you call it, it is better than the paralysis and partisanship that are destroying the Senate's ability to address the questions that face this Nation, and there is no more important question than defending the right of every citizen to vote.

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