Floor Speech by Senator Chuck Grassley on How the Senate Should Work
Delivered Monday, January 13, 2014
Senator McConnell has made a very important call to restore the Senate as the great deliberative body it was designed to be.
I would like to continue to add my voice to that call and expand on some observations I have made previously before the Senate.
The U.S. Senate is a unique body designed with a unique purpose in mind.
In Federalist Paper 62, attributed to the Father of the Constitution, James Madison, the unique role of the U.S. Senate is explained:
"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."
When Madison talks about "factious leaders" and "intemperate and pernicious resolutions" he basically means what we call partisanship and the "my way or the highway" approach to legislating that is all too common these days.
What might come as a shock to anyone who has followed the United States Senate lately is the fact that the Senate was specifically designed to check partisan passions and ensure that Americans of all stripes are fairly represented though a deliberative process.
Clearly the Senate is not fulfilling the role the Framers of the Constitution intended.
To find out what went wrong, we first have to examine how the Senate was supposed to function.
About this propensity of legislatures to be dominated by factious leaders acting intemperately, Madison goes on to say:
"Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations."
Note that in advocating for the creation of a Senate to counter this negative tendency, Madison references examples from proceedings within the United States.
Many state legislatures in the early days of our Republic were unicameral with frequent elections and weak executives.
This led to many instances where a temporary majority faction would gain control and quickly pass legislation that advantaged the majority at the expense of the minority.
The U.S. Senate has been called the greatest deliberative body in the world because it was specifically designed to proceed at a measured pace and to guarantee the rights of the minority party.
As James Madison wrote in Federalist Paper Number 10:
"Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that 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."
What's unique about the Senate is that the rules and traditions force senators to work together to prevent an "overbearing majority" from steamrolling the minority party.
Because the rules of the Senate are built around consensus, as opposed to the House of Representatives where the majority party dominates, it forces senators of all parties to listen to each other and work together.
At least that was true for most of my time in the Senate.
That has changed in recent years.
If anyone wonders why the tone in Washington has become so heated recently, the loss of the Senate as a deliberative body is certainly a big factor.
There's an apocryphal story, that may or may not be historically accurate, but which certainly depicts how the Senate was intended to function.
The story goes that when Jefferson returned from France where he was serving during the Constitutional Convention, he asked George Washington why the Senate had been created.
Washington replied by asking Jefferson "Why did you pour that tea into your saucer?"
"To cool it," said Jefferson.
"Even so," responded Washington, "we pour legislation into the senatorial saucer to cool it."
In the House of Representatives, the Rules Committee sets out the terms of debate for each bill.
If you want to offer an amendment in the House, you have to go hat in hand to the Rules Committee and ask permission.
If the House leadership doesn't like your amendment, you're out of luck.
By contrast, the Senate has a tradition of allowing extensive debate and amendments by any senator without prior approval by anybody.
However, that tradition has gone out the window under the current majority leadership.
We have seen an unprecedented abuse of cloture motions to cut off the deliberative process paired with a tactic called "filling the tree" to block amendments being considered.
The Senate Majority Leader has effectively become a one-man version of the House Rules Committee, dictating what amendments will be debated and which ones will never see the light of day.
He has done so again on the unemployment bill currently before the Senate.
In fact, he's been quite unashamed about saying that he is not going to allow any amendments.
This strips the ability of individual senators to effectively represent their state, regardless of party.
Blocking amendments also virtually guarantees that any legislation the Senate votes on will be more partisan in nature, violating the very purpose of the Senate according to James Madison.
By empowering the majority leader at the expense of individual senators, the people of the 50 states lose their voice in the Senate and party leaders get their way instead.
The people of Iowa sent me to the United States Senate to represent them, not to simply vote up or down on a purely partisan agenda dictated by the Majority Leader.
Everyone complains about the lack of bipartisanship these days, but there is no opportunity for individual senators to work together across the aisle when legislation is drafted on a partisan basis and amendments are blocked.
Bipartisanship requires giving individual senators a voice, regardless of party.
That's the only way to get things done in the Senate.
In the last decade, when I was Chairman of the Finance Committee, and Republicans controlled the Senate, we wanted to actually get things done.
In order for that to happen, we knew we had to accommodate the minority.
We had to have patience, humility, and respect for the minority, attributes that don't exist on the other side anymore.
And we had some major bipartisan accomplishments, from the largest tax cut in history to a Medicare prescription drug program to numerous trade agreements.
Those kind of major bills don't happen anymore.
The Senate rules provide that any senator may offer an amendment regardless of party affiliation.
Each senator represents hundreds of thousands to millions of Americans and each has an individual right to offer amendments for consideration.
The principle here isn't about political parties having their say, but duly elected senators participating in the legislative process.
Again, as part of our duty to represent the citizens of our respective states, each senator has an individual right to offer amendments.
This right cannot be outsourced to party leaders.
The longstanding tradition of the Senate is that members of the minority party, as well as rank and file members of the majority party, have an opportunity to offer amendments for a vote by the Senate.
The now routine practice of "filling the tree" to block amendments has been a major factor in the destruction on the Senate as a deliberative body.
This is usually combined with filing cloture to cut off further consideration of a bill, which has occurred to a truly unprecedented extent.
In a deliberative body, debate and amendments are essential so cloture should be rare and the abuse of cloture strikes to the very heart of the how the Senate is intended to operate.
It is important to note that the majority leader has tried to pass off the cloture motions he has filed, which are attempts by the majority party to silence the minority party, as Republican filibusters.
There seems to have been a concerted attempt to confuse cloture motions with filibusters but the Washington Post Fact Checker has caught the majority leader in this distortion, giving his claim of unprecedented Republican filibusters Two Pinocchios.
In fact, a report by the nonpartisan Congressional Research Service called "Cloture Attempts on Nominations: Data and Historical Development" by Richard S. Beth contains an entire section titled, "Cloture Motions Do Not Correspond with Filibusters."
The abuse of cloture, often combined with the blocking of amendments, prevents all Senators from doing what they were sent here to do, not just members of the minority party.
And, it's gotten even worse.
Even where the majority leader has decided he's going to be open to amendments, he has created, out of whole cloth, new restrictions to limit senators' rights.
First, he normally only opens up the amendment process if there's an agreement to limit amendments.
And, this is usually only a handful or so.
Then, he has magically determined that only "germane" or "relevant" amendments can be considered.
Of course, nowhere do the Senate rules require amendments to be germane, other than post cloture.
Senators elected in the last few years appear to be ignorant of this fact.
You'll hear some senators here argue against an amendment saying it's non-germane or non-relevant.
They've totally fallen for the majority leader's creative rulemaking, thus giving up one of their rights as a senator with which to represent their state.
I can't count how many non-germane or non-relevant amendments I had to allow votes on when I processed bills when Republicans were in charge.
They were usually tough, political votes, but we took them because we wanted to get things done.
You don't see that nowadays.
The current majority avoids tough votes at all costs.
And that's why they don't get much done.
The American people sent us here to represent them.
That means voting, not avoiding tough votes.
We sometimes hear that this is a question of majority rule versus minority obstruction.
Again, that ignores that each senator is elected to represent their state, not simply to be an agent of their party.
There are policies that have majority support in the Senate that have been denied a vote.
What happened during Senate debate on the budget resolution seems to prove that point.
The special rules for the Budget Resolution limit debate, so it can't be filibustered, but allow for unlimited amendments.
A Republican amendment to the Senate Budget Resolution in support of repealing the tax on life-saving medical devices in President Obama's health care law passed by an overwhelming 79 to 20, with more than half of Democrats voting with Republicans, rather than their party leader.
A Republican amendment in support of approval of the Keystone XL Pipeline to bring oil from Canada passed 62 to 37.
Votes like these that split the Democrats and hand a win to Republicans are exactly what the majority leader has been trying to avoid by blocking amendments.
That's why the Senate didn't take up a budget resolution for more than three years.
Until we put an end to the abuse of cloture and the blocking of amendments, the Senate cannot function as the Framers intended.
We must bring back the Senate as a deliberative body.
Our politics today desperately need the cooling saucer of the Senate.
The action by the majority leader to make it easier to consider nominations on a purely partisan basis went in the wrong direction.
In the face of bipartisan opposition and with no Republican votes, the so called "nuclear option" established a precedent effectively overruling the rules on the books.
A better move would be for the Senate to establish the precedent that filling the tree and abusing cloture to block a full amendment process is illegitimate.
It's time to restore the Senate so it can fulfill its Constitutional role.
Senator McConnell has made a thoughtful and well-reasoned appeal and I hope my colleagues will listen for the sake of this institution and the country as a whole.
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