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Floor Speech

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Mr. MERKLEY. Would my colleague yield to a question?

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Mr. MERKLEY. Thank you.

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Mr. MERKLEY. Mr. President, I was hoping my colleague would stay on the floor to have a little bit of discussion about the topic he just raised because there seemed to be some missing elements in his discussion.

And isn't that kind of what happens here, where we hear from our leadership about all of these terrible things the other side is doing, and we just kind of swallow that hook, line, and sinker, rather than actually looking at the record.

Now, one of the pieces left out of his story was 1974, 100 Senators on this floor said: We are going to create a special fast track, filibuster-free, for one single purpose: reducing the deficit. And think of Robert Byrd of West Virginia. And Robert Byrd was an adamant-- adamant--advocate for the filibuster. Unfortunately, he had been very supportive of using the filibuster to block civil rights bills. But, in general, he was dedicated to making sure that it stayed in place. And even he joined 99 other Senators to say: Hey, we should have a special fast track solely for reducing the deficit. That was 1974.

At that same time, that same bill created the Congressional Budget Office so we would use honest numbers in putting forward spending bills because if we are going to actually reduce the deficit, we have to quit using smoke and mirrors to pretend that what we are spending is less than it really is.

So let's go forward 22 years to 1996. And in 1996, we were in the middle of the first term of the Gingrich revolution. The election of 1994 had been of dramatic success for Republicans in the House, picking up dozens of seats with an agenda for America. And in that agenda was something called the line-item veto. And the line-item veto was the idea that we would delegate our constitutional responsibility of the power of the purse to the President of the United States of America and say the President can decide what is spent on what programs.

And the Supreme Court said: Oh, no. You can't do that. You have a constitutional responsibility under the separation of powers. Under the checks and balances, Congress, by law, establishes what must be spent on each program, not the President of the United States.

Certainly, the President gets a role. The President provides the budget. The President has to sign the spending bills. But Congress could not take the power assigned to it and simply hand it over to the Executive. That is the way you end up in a strongman state.

And so the Supreme Court wiped out, in 1996--well, they canceled, if you will, the line-item veto power that Congress tried to give the President.

And so the Republican team controlling the House and Senate said: Well, we have another idea, and that other idea is a balanced budget constitutional amendment. Now, that happens to require two-thirds of both bodies here to vote for it and then three-quarters of the States to do a constitutional amendment.

It easily flew through the House of Representatives. All very good. It came over to the Senate, and we needed 67 votes for that, and there were 66 votes. The 67th vote was potentially the chair of the Appropriations Committee, Senator Hatfield from Oregon, and Senator Hatfield said: This is a bad idea. Here is why it is a bad idea. Sometimes we are at war, and we need to spend more money. Sometimes we are in recession, and we need to spend more money. And we do decide every single year, and we are in the majority, Republican majority, we decide every single year how much is going to be spent through the spending bills, the appropriations bills. And we decide through the revenue bills how much is going to be raised. So we already have the power to do a balanced budget in the years that it should be balanced, but we need to retain the power to address these emergencies.

It is kind of an interesting story in that Senator Hatfield, for standing on this principle as the chair of the Appropriations Committee, was vilified--vilified--for defending the responsibility of the power of the purse held here. And, in fact, he was so vilified that he even received a message from his son-in-law with a picture of his granddaughter, saying: For her sake, you should do this.

He then went to the majority leader, Senator Dole, and said: If you feel so strongly this is right, and clearly I feel it is a mistake, I will resign. And Senator Dole decided, no, we are not going to ask you to resign. We are not going to suggest that is the right answer. And so it fell one vote short.

There is kind of an interesting twist to this story because Oregon did not have a law that allowed a Governor to appoint a replacement. So had Senator Hatfield resigned, there would have been 99 Senators, and then you would have only needed 66 votes for the balanced budget amendment. But that did not transpire because Senator Dole turned Senator Hatfield's offer down.

So then what happened? Well, a little bit of frustration among the Republican majority. Their line-item veto had been knocked down by the Supreme Court. Their constitutional amendment had not cleared the Senate. And they said: We really want to do a massive tax bill, particularly giving huge breaks for the richest Americans. And they said: Ah, but we can't do it. We can't get it done. Why not? Because the Democrats won't agree to massive tax breaks for the richest Americans. So we won't be able to get the 60 votes we need to be able to pursue this path.

And then what happened? Well, Majority Leader Dole and others conferred and said: Let's do a nuclear option. And let's take this strategy, this tool, that we created in 1974 to reduce deficits, and let's repurpose it and allow it to be used to increase deficits--of course, not at all what the 100 Senators had voted on in 1974.

Well, that was pretty dramatic to proceed to take a tool, reconciliation, invented in 1974 to reduce deficits and to say it can be used to increase deficits. Well, so dramatic, in fact, that it couldn't be done unless they overturned the opinion of their Parliamentarian. So they fired the Parliamentarian. That is what the Republicans did. They fired the Parliamentarian and they brought in a new Parliamentarian and his name was Robert Dove.

Now, Robert Dove had been here in 1974. He knew about why they passed this bill with 100 Senators to have a fast track with no filibuster was only for decreasing the deficits. But where had Mr. Dove been working? He had been working for the majority leader, Robert Dole. And so he took and he came in and he ruled--or provided the recommendation to the chair--that it was just fine to completely repurpose this 1974 tool called reconciliation for decreasing the deficits so it could be used to increase deficits. That was the nuclear option. Wow.

Now, my colleague didn't mention any of that. He talked about lighting the fuse. Lighting the fuse, as if Democrats had been degrading the structure of this institution. But I would suggest maybe there is responsibility on both sides of the aisle. What was done in 1996 was a dramatic--dramatic--well, contravention of the very core of the understanding that every Democrat and every Republican had agreed to. It was a deal broken--deal broken--in the exercise of power politics.

Or let's go forward to 2008, and this man named Barack Obama ran for President. He was a Member of the Senate, and he was elected. At that point, something dramatic happened, and that is the minority leader decided to undertake a dramatic blockade of President Obama's nominees. I mean, couldn't fill the National Labor Relations Board, couldn't get the Labor Secretary into place. The list went on and on and on.

Well, Democrats didn't respond with a nuclear option. They responded with: Let's work this out. Let's preserve the supermajority on nominations. But to preserve it, we can't abuse it in this fashion.

Just the number of blockades of nominations soared dramatically. This instrument that had really almost never been used on nominations, it started being used routinely on the Republican side of the aisle. That was left out of the speech you heard a few minute ago.

So we negotiated. We pleaded. It was like a 9-month process. And, finally, we all met in the Old Senate Chamber--no staff present. I don't know if there was anyone to even record the comments for history, and we basically talked to each other in very real terms about let's preserve this supermajority on nominations. But it can't be that the minority uses that as a blockade against a President to keep qualified people from being put into office. An agreement was reached that that blockade would be dialed back enormously.

I recall that a month or so into that, there was us on the verge of the minority blocking a very qualified individual that there was no justification for. I remember Senator McCain grabbing the arm of a fellow colleague coming down the aisle over here and saying: We mustn't do this. We agreed to not be irresponsible in blocking qualified people. And that person just got the 60 votes and went through.

All good and well, like we had resolved this conflict and preserved the supermajority, until the minority leader changed his mind and said: I don't care how qualified a nominee is from President Obama for the DC Circuit Court. We are going to block anyone--anyone--from being assigned to fill those seats.

Well, that was the final straw.

As much as Harry Reid tried to, as majority leader, say: Back off, don't do that; that is a violation of the agreement we reached in the Old Senate Chamber, the minority leader said: No, we are not going to allow Obama to put a single justice on the DC court.

A few arguments--policy arguments--were made by the minority leader to support the position. He said: I think they have enough justices already. We don't need to fill those additional positions. But that is not an argument that had ever been used here, that even though courts had a huge backlog, they didn't need the additional justices.

No, it was just a plain outpower move to block the President of the United States from putting people on the DC Circuit Court.

Why was that the target? Well, for one reason, the DC Circuit Court considers--a lot of the national issues go through the DC Circuit Court of Appeals. And for another, a lot of folks who eventually get nominated to the Supreme Court serve on the DC Circuit Court of Appeals. That makes it kind of a pretty important place.

But this pretty important place where justices consider pretty important issues and sometimes have a chance to be recognized as someone who might be a good candidate for the Supreme Court was blocked by the minority. And he has made all the efforts to undo that. The minority said: No, regardless of qualifications, we are going to back up the minority leader and not allow any justices to be appointed, no matter how qualified they are.

So I am just adding to the conversation that my colleague began--who proceeded to throw in kind of a dialogue of, say, all the obstruction here stems from one side of the aisle, the blue side of the aisle--I am suggesting that there have been moments where both sides have stretched their power. There have been moments when both sides have sought--and sometimes successfully--to resolve that conflict.

But in the end, there have been some big moments in which the Republicans have torn down the system. That may be true for the Democrats, as well. But it might be helpful to have a more balanced conversation.

And while we are at this dialogue, recognizing factors that have occurred on both sides of the aisle, let's talk about something else that never happened in U.S. history until it happened by the Republicans refusing to hold a debate and a vote on a Supreme Court nomination. It had never happened until the last year of the Obama administration when a vacancy became open due to an untimely death and the President nominated a candidate to fill that seat. And Republicans said: We are not even going to allow a debate or a vote--the first time in the history of the United States of America.

I was just reading a column the other day that referred to this as the ``stolen seat.'' I noticed it because that is what I called it at the time. I said this is wrong. Once one side steals a seat from a President, it will be horrifically difficult to fix that problem because if the Democrats have the same chance to do the same and balance things out, now you just have a tradition of stealing seats.

You have a Republican President and a Democratic majority that blocks debate on a nominee until the next election, hoping that you will keep that seat empty until there is a Democrat in the Oval Office. That just means we have locked in obstruction.

I came to this floor at 6 p.m. and started speaking and addressed my comments to the majority leader across the aisle and the minority leader and said: Please get together. There have been several recommendations for fixing this, because if this seat is stolen in this fashion--kept empty until the next President comes in--we will never be able to fix it. There is no path for fixing it.

I proceeded to make that plea through the night up until cloture ripened--that is a motion to close debate--ripened the following morning, 15\1/2\ hours later.

Why would I stand on this floor 15\1/2\ hours later? Because I was asking my Republican colleagues: Do not tear down this institution.

That is three examples of what the Republican side has done. It didn't come up in my colleague's speech.

Let's talk about a fourth. I see my colleague from Illinois is here and I am going to defer to him. The fourth was just recently in which, for the first time ever since the 1974 act, we passed a bill--I say we passed a bill--Republicans passed on a partisan line bill, a spending reconciliation bill that will create deficits beyond a 10-year window. They had already blown up the agreement from 1974 that there could be no deficits created in a 10-year window. They blew that up in 1996, as I referred to. Then they proceeded to blow up, just weeks ago, the second half, second pillar of that deal, that there would be no deficits after that 10-year period.

Then they blew up the third pillar of that 1974 act, which was: We would use honest numbers from the Congressional Budget Office in laying out what a bill costs.

I say to my colleague across the aisle who was speaking before me: You pointed out things that you feel Democrats stretched the boundaries and damaged this institution, but you left out enumerable cases that I have just pointed to. Isn't it time to not do one more damage to this institution and, instead, get together a group from each side to wrestle with the issue at hand?

It is my understanding that as of this moment, this day, there is almost exactly the same number of nominees that have been approved to date under the Trump administration as there were under the Biden administration, a similar number of days under his administration-- almost exactly the same number. I think the hyperbole across the aisle is profoundly exaggerated.

Let me yield to my colleague from Illinois, who stands ready to share a few thoughts.

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