National Defense Authorization Act for Fiscal Year 2016

Floor Speech

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Mr. GRASSLEY. Mr. President, I come to the floor to comment on an extraordinary about-face that we have seen from many of my colleagues across the aisle with respect to the filibuster. When I say ``across the aisle,'' I mean an about-face on the part of Democrats who see the filibuster differently now than they did over the last 4 or 5 years. But now, like Paul on the road to Damascus, they have seen the light and have now embraced the filibuster wholeheartedly, and like many converts, they are very active in their faith.

Naturally, this has caused frustration for many Americans who wonder why we cannot address the pressing issues we were elected to address, and there are a lot of frustrated Members of the Senate as well. I am one of those frustrated Members. When we have an opportunity for the Senate to function as James Madison said it should function, I don't understand why we cannot have it function that way. Not surprisingly, the recent series of filibusters on legislation of enormous consequences for our Nation has resulted in new calls for changes to the Senate rules.

First, I would like to take stock of where we are right now. It was just last year that the previous majority leader was abusing the cloture motion to shut down debate and amendments on virtually every single bill, even before the debate had begun, all while blocking any amendments. Any Senator who routinely votes for cloture motions under those circumstances is obviously abdicating his or her responsibility to the people who elected that Senator to offer and debate any number of different ideas. That is what the Senate is all about.

Nevertheless, when those of us who were then in the minority voted against abdicating our responsibilities as Senators, we had a parade of Democratic Senators come to the floor and accuse us of that most dastardly deed, at least according to them, the filibuster. They repeatedly claimed that strict rule by the majority faction was the principle by which the Senate ought to operate with little or no input from the minority party; in other words, have it operate just like the House of Representatives.

We now have a majority--a Republican majority--that has tried to restore the Senate to function as a deliberative body, as it used to and as it was intended to by the Framers of the Constitution. For instance, last year the previous majority leader didn't bring a single, individual appropriations bill to the floor of the Senate for consideration and vote. By putting off appropriations until the end of the fiscal year, that leader calculated that the threat of being blamed for a government shutdown would force Republicans to accept a massive omnibus bill containing policies that would otherwise be rejected.

This year things are different. The Senate appropriators have done their work and reported out each separate appropriations bill--can you imagine, all 12 of those appropriations bills--and most of them on a bipartisan basis. Then, when the majority leader has attempted to bring them to the floor, Senator McConnell, the majority leader, has been met with a Democratic filibuster of the motion even to proceed to the bill.

What is the justification of that on the part of today's minority? The majority leader Senator McConnell is not blocking amendments. In fact, he is even inviting amendments. So if there is something that the minority wishes to change or add to a bill, they can do it simply by participating in the process and offering amendments. After all, isn't that what the Senate is all about? We have to pass appropriations bills or the government will shut down, so why can't we even bring appropriations bills up for consideration?

Well, the answer is quite obvious: The Democratic leadership is up to those old games they used to keep the Senate from debating appropriations bills that they did over the last 5 years.

By blocking appropriations bills and threatening to blame us for the shutdown, they hope and believe they can bully us into busting open the spending caps that a majority in both the House and Senate agreed to in the budget resolution earlier this year. So much, then, for majority rule, which the Democrats claim was such a deeply held principle, as they expressed it only last year and years before that.

They justify filibustering the appropriations bills because President Obama has threatened to veto them unless he gets more spending. That doesn't make any sense.

The first appropriations bill they filibustered was the Defense appropriations bill--not because that bill didn't provide enough funding but because they want to hold it hostage to extract additional spending in other areas. Now they are holding hostage the bill that funds the Department of Veterans Affairs. So they are holding hostage funding for our men and women in combat and our veterans who have served our Nation in order to protect the President from having to follow through on his threat to veto these bills.

I understand that the President might not want to have to defend vetoing funding for our troops and veterans as a bargaining chip to extract additional spending from the Congress, but protecting the President from having to follow through with his threat is not a very good reason for a filibuster.

A similar thing happened with the filibuster of legislation to disprove the Iran deal. A bipartisan majority in both the House and the Senate was in favor of legislation to block President Obama's nuclear deal with Iran. Because the deal was set to go into effect unless Congress acted, the Democrats cannot claim their filibuster was needed for additional deliberation. It was a blatant attempt to run out the clock so the President would not have to use his veto pen.

So clearly it is not as though Democrats have now grudgingly accepted the utility of the filibuster only in extraordinary circumstances; they have now embraced it so completely that they used it simply to prevent embarrassing the President.

In light of this, it is understandable that many in my political party and even in the grassroots are questioning whether we ought to get rid of the filibuster on legislation. This is an expression of the frustration by a lot of conservatives that I hear from in the grassroots of Iowa, and they hear it in the other body as well.

The argument goes kind of like this: After all, the Democrats unilaterally abolished the filibuster on nominations, contrary to Senate rules. Well, they will have to live with that come 2017 when the Republican President is inaugurated, as I hope. But just as I think they will live to regret that move, I think those of us on my side of the aisle would ultimately regret the loss of the Senate as a deliberative body if we were to change the cloture rule for legislation. What would the Democrats do with unchecked power? We don't have to guess. The Democrats briefly had the 60 votes needed to overcome any filibuster, and they promptly ran the unpopular health care law down the throats of an unwilling American public. They dismissed legitimate criticism from Republicans and skepticism from citizens of America. They promised that Americans would like it once it had passed and when we found out what is in it. Well, Americans now know what is in the health care law, and the law hasn't become any more popular.

So does that mean we have to just accept that ObamaCare and other aspects of ``the fundamental transformation of America'' the President promised are here to stay? Of course not. But we must not be shortsighted. I think a lot of the people who are conservatives, such as the grassroots of America, who are frustrated, as a lot of us in this body are frustrated, would be shortsighted if they consider changing how the Senate operates.

Keep in mind that the American left was greatly influenced by the progressive movement in the early 20th century which held that history is continually progressing toward a future of more governmental control over people's lives--for the people's benefit, of course. Now, most of us don't buy that--those who hold to the principle of limited government--but there are a lot of people today who are buying it. We hear it in the Presidential campaigns, particularly of the other political party.

This led the progressives of the early 20th century to reject the Declaration of Independence and focus on individual liberty and to oppose our Constitution's system of checks and balances designed to protect that liberty because it made it harder for the government to act. That comes from the philosophy that government always knows best. It also means that those on the left played the long game, sometimes biding their time, sometimes accepting incremental progress toward their goals, and other times making radical changes when they see an opening.

Those of us who are animated by the principle of individual liberty recognize that liberty is the exception in human history, and threats to liberty must be fought constantly or we risk losing liberty and freedom. As such, we are impatient to correct every loss of liberty right away, as we should be. However, in doing so, we must be very careful not to break down those very safeguards that are in place to prevent government encroachment on individual liberty. If we are not careful, then short-term gains could lead to even greater loss of liberty in the future.

The President's former Chief of Staff was famous for saying something like this, and hopefully I am quoting him accurately: ``You never let a serious crisis go to waste, and what I mean by that, it's an opportunity to do things you think you could not do before.''

In other words, we have seen a concerted effort to take advantage of momentary passions and temporary majorities to enact longstanding policy goals of more governmental intervention in the economy and intervention in the lives of Americans. Preventing such a power play is precisely the role the Senate was designed to play. Just listen to this passage from Federalist No. 62: ``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.''

Of course, that was written by James Madison, who is rightly called the father of the Constitution. Madison prepared extensively for the Constitutional Convention by studying ancient republics and ancient and contemporary political philosophers. He came to the convention with what was called the Virginia plan, which the convention used as a starting point for what became the U.S. Constitution. Madison also took extensive notes throughout the Constitutional Convention.

In other words, I think that when he speaks about the intent behind the structure of the U.S. Constitution, he ought to know better than anybody, and that is particularly as he writes about the function of the Senate in our Constitution system.

It is true that Madison did not speak to the filibuster itself, and the Constitution leaves the rules of the House and Senate up to each Chamber, but you cannot read the Federalist papers without a clear understanding that our system of government was intended to allow only measures that have broad and enduring support to actually get into law. The Constitution was not designed to allow whatever faction happens to be in power to have a free hand to do whatever it wishes.

As Madison said in Federalist No. 10, ``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.''

Where that minority is protected is in the U.S. Senate--the only place in our political system. In fact, in arguing for the necessity of the Senate in Federalist Paper No. 63, Madison is quite critical of pure majoritarian democracies in ancient times and attributes their failure to the lack of something we call the U.S. Senate.

That said, I understand why some of my Republican colleagues in the House of Representatives are frustrated with the fact that many of the things they pass become stalled here in the Senate. I say to them that a lot of us on this side of the aisle share that frustration. So I and we need to make sure those obstructing are held accountable. But anyone who would change the Senate rules to give the majority leader the power to ram any bill through the Senate on a party-line vote should then ask whether they can trust that this power will be used fairly by future majority leaders. Remember that the previous majority leader tried to shut the minority out of the legislative process at almost every stage. The Senate was routinely presented with bills often written behind closed doors in the majority leader's office and told that there would be only an up-or-down vote with no amendments.

Moreover, what would conservatives gain by abolishing the filibuster? I want people to think about what might happen if the filibuster is abolished. In the short term, we would have the emotional satisfaction of seeing President Obama use his veto pen, but that is about it. In the long run, you can bet that modern-day progressives will use those tools to impose all sorts of policies to expand the scope of government that would otherwise not make it through our constitutional system.

If you want to know what some of those ``intemperate and pernicious resolutions'' that Madison warned us about might be, we need only look to the past. I will list a whole bunch of things that could be the law of the land today.

Had the Senate operated on a purely majoritarian basis in the past, our country would be in much worse shape than it is now. For instance, if you think ObamaCare is bad, we would have had a single-payer, totally government-run health care system if it weren't for the 60-vote requirement. We would have had the disastrous cap-and-trade bill in 2008 with its crony giveaways, making special interests rich while destroying jobs for hard-working Americans. The list of items that would have passed the Senate goes on and on--the 2007 immigration amnesty bill; the DISCLOSE Act to intimidate private groups who engage in political speech that was brought up in 2010; the abolition of secret ballot elections for unions in 2007; the prohibition on businesses replacing striking employees that was brought up in 1992; a bill to encourage public safety employees to unionize in 2010; the 1992 Clinton crime bill; drug price negotiations in Medicare Part D that amount to Federal price controls in 2007; an amendment to the Constitution to cancel First Amendment protections for speech around election time in 2014; stripping religious liberty protections from Christian business owners who object to paying for drugs that can cause an abortion in 2014; President Obama's second big-spending stimulus proposal in 2011; the so-called Buffett tax would have been passed several times by now; the tax increase to pay local government employee salaries in 2011; and who knows how many other tax increases they would have passed if they knew they could get away with it. Of course, we heard a few weeks ago a speech by Senator Alexander, who has argued that one of the first things the Democratic leadership would do is follow the orders of union bosses and outlaw the many right-to-work laws we have in the United States, forcing associations against the will of some people.

This Senator knows well what it is like in the majority and what it is like being in the minority in the Senate, and I know things look very different from each perspective. I would ask my conservative colleagues who are frustrated that the current majority is not able to work its will to consider the example of history and look to the future.

It is also interesting to observe the behavior of the many Democrats who had never experienced a minority before who have now gained a new perspective on the filibuster and the power of the minority and the protection of the minority by supporting the filibuster every chance they get--and it
didn't take long. On the third vote in the Senate this year--after the change of control, that is--most of the Democrats, including the loudest critics of the filibuster, voted against cloture on a motion to proceed, which until that point they claimed to be an egregious and inappropriate abuse of Senate rules. I know there are some Senate Democrats who still say they are opposed to the filibuster even in principle, although apparently not in practice. It is no good saying ``Stop me before I filibuster again.'' If you think it is wrong, don't do it. It is as simple as that.

When Senator Wyden and I began to work on ending the practice of secret holds, we pledged to disclose any hold that we placed on a bill in the Congressional Record, and we did that for years before finally getting the rules changed so that every Member had to do that.

The Senate Democrats have shown through their actions that they now fully support the Senate filibuster. I guarantee that the next time Republicans are in the minority, we, too, will see the necessity of this traditional protection against what Madison referred to as ``the superior force of an interested and overbearing majority.''

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