National Defense Authorization Act for Fiscal Year 2021--Conference

Floor Speech

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Mr. LEE. Mr. President, article I, section 9, clause 7 of the Constitution makes clear that no money will be drawn from the Treasury except by an appropriation passed by Congress. Article I, section 7 of the Constitution likewise makes clear that you can't pass an appropriation or any other form of legislation without the same document, the same bill, the same proposal passing the House of Representatives and passing the Senate and then being submitted to the President for signature, veto, or acquiescence.

Over time, particularly in the last decade, it has become increasingly common for Congress to recognize the cumbersome nature of that process, which is cumbersome by design. It is sometimes easier to just circumvent the process, technically complying with its commands but doing so in a way that doesn't really invite or even allow for individual Members or their constituents to know what they are voting for when they vote on a spending bill. This is what we have come to refer to as governing by cliff in the spending context, and it has, sadly, become the status quo in Washington. It often provides Members with a simple binary choice when they are facing a spending bill.

When you come up against a spending cliff, it means a deadline, almost always one arbitrarily imposed by the previous spending bill. It is when you come up close to that and there is no spending bill on the floor until, maybe, a day or two or sometimes an hour or two or sometimes more like a minute or two. It is something that has been negotiated behind closed doors by only a small handful of Members of Congress, excluding everyone else in the House, everyone else in the Senate, and the hundreds of millions of people they collectively represent.

Sometimes that kind of legislation is brought forward--not just sometimes. Basically, it is every time. As my friend and colleague the Senator from Wisconsin noted a minute ago, I think this will mark the 37th consecutive time that Congress has passed something like this or it is, at least, the 37th time that Congress has passed something like this since Senator Johnson and I came to the Senate and were sworn into office in 2011.

The problem with this is that Members can't reasonably know what they are voting on in advance, and then they are given the simple binary choice to take it or leave it. You won't have any opportunity to amend it. You really won't even have the opportunity to read it or understand it, much less communicate its contents to your constituents, who will have to pay for it. You can vote for that in its entirety or you can vote against it, but if you vote against it and it doesn't pass, you will be blamed singlehandedly for shutting down the government regardless of whether you would have preferred to have brought up and, in fact, had tried for a long period of time to bring up spending bills prior to that last possible moment. This puts the American people and their elected lawmakers in the House and the Senate in an untenable position, one that I would analogize to a circumstance of an individual who lives in an outlying area.

Let's suppose that you move to an outlying area, one that is distant from any other town. Let's suppose that, on your first day of work after moving to that town, you are about to leave home, and you speak to your significant other on the phone, who informs you: Bring home bread, milk, and eggs when you stop by the store. Make sure you get those on your way home. Don't come home without them.

So you go to this grocery store in this outlying area that is distant from any other town. It is the only store in town. It is the only store, in fact, for hours in any direction. You go to the store, and you get your cart. You put in your bread. You get the milk, and you put in the eggs. Then you get to the checkout counter.

The checkout person says: OK. This is how much the eggs cost, the bread, and the milk, but there is a problem

What is the problem?

Well, you can't buy just these items.

Why can't I buy just these items?

I am not going to let you buy the bread or the milk or the eggs unless you also buy a half a ton of iron ore and a bucket of nails and a book about cowboy poetry. In fact, now that I think about it, you are going to have to buy one of every item in the store.

Nobody would want to live that way, and nobody would want to shop that way. Of course, that is never the way we would want to do business in our government; yet, in some ways, it kind of is because a small handful of people put together that shopping list, so to speak, and put it together in one bill. Those bills are often hundreds and, in some cases, thousands of pages long, and we usually have no more than a few hours to read them before they are passed into law.

That is where this legislation comes about. The End Government Shutdowns Act would force Congress to abandon this barbaric, binary form of appropriations. Perhaps more importantly, it would end the threat of the shutdown, which is very often the propellant, the fuel, for perpetuating this barbaric form of alienation--this barbaric form of the disenfranchisement of most of the people represented by most Democrats and most Republicans in the Senate and in the House of Representatives.

Look, I understand that none of this is easy, and I have nothing but profound respect and affection for my colleagues who are involved in writing these bills. That respect and affection should cut both ways, and it should mean that we have the opportunity to vote on spending bills before they hit us so that we are not left with this awful, untenable, binary choice between funding everything that a small handful of Members has foreordained or voting for nothing and being blamed for a shutdown.

We have to end the process of spending by cliff. This and only this, I believe, is something that could bring certainty to Americans and will allow for more time to bring these bills to the floor and will allow for the kind of transparency that the American people need, expect, and deserve but, for the last decade or two, have not received.

Mr. President, I yield my time back to my friend and colleague, Senator Johnson from Wisconsin.

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Mr. LEE. Mr. President, I have profound respect and admiration for both the Senator from Alabama and the Senator from Vermont. As you can tell from their remarks, they are congenial, collegial, and delightful people. They also have many decades of legislative experience between the two of them, and the country has been blessed by their gifts, their talents, and their willingness to work hard.

I want to respond to a couple of points made a moment ago, one suggesting, perhaps, that the answer to all of this is simply a desire to work together, as if that were somehow not what we have in mind.

We were also told a moment ago that they are almost finished with the appropriations process, that it is almost complete. Now, if that is the case, then I would ask the question, why haven't we been permitted to see it? Why haven't the other Members of the U.S. Senate been able to see that? It is a little bit hard for some of us to hear that if we all work together, we can get this done, when that is literally all we are asking.

I don't think any one of us supporting Senator Johnson's legislation is here saying that it is perfect or here saying that it would magically solve every problem in the world or even every problem in the U.S. Senate having to do with the spending process. We are not saying that. But what we are saying is that without it, we will stay stuck in the same closed-loop system.

So to suggest that there is somehow a lack of desire on our part or on the part of anyone who is not an appropriator or anyone who is not the chairman and ranking member of the Appropriations Committee, that this is somehow a product of a lack of desire and willingness to work together, that is not fair. That is not accurate. That is quite the opposite of the truth. What we are asking for is a seat at the table.

Article V of the Constitution outlines the procedure for amending the Constitution, for making changes to the structure of government that we have, what it may and may not do. Article VI of the Constitution preemptively disposes of any proposed constitutional amendment that would alter the principle of equal representation in the Senate. It is the one rule that cannot be changed. It is so fundamental to our system of government, to this system of government that has helped foster the development of the greatest civilization the world has ever known, that in this Chamber, every State has to be represented equally. That doesn't happen and, indeed, it can't happen when you have some of the most significant measures that will ever come before this body commandeered by one committee, the Committee on Appropriations.

Now, granted, as has been suggested in the last couple of speeches we have heard, we have some great talent among our members on the Appropriations Committee. We have great talent among the staffers on the Appropriations Committee. They work really hard. They are really smart. They are really determined, and they are highly specialized. That isn't the problem. The problem is that in most circumstances, because of the way we bring things up, most of us are completely disenfranchised from the process.

This doesn't mean that it is the fault of the Appropriations Committee. I don't believe that it is. It is, instead, a fault of the way in which we schedule votes and the fact that these things aren't brought up until the last possible minute, and then we are given this awful choice of, vote for a whole bunch of things that you don't necessarily support and can't even completely know about or vote against it and be blamed for a government shutdown.

That is all this bill is trying to do, is to get us out of that toxic loop--a loop that is the opposite of collegial, the opposite of respectful, and that is utterly incompatible with the principle of equal representation in the Senate--a principle that cannot be undone even by a constitutional amendment.

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Mr. LEE. Yes, I will.

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Mr. LEE. In response to the question, the answer is yes. Absolutely yes. That is exactly what we want. That is exactly what we deserve. And this is one of many manifestations of the fact that my friend, my distinguished colleague, the senior Senator from Vermont, has the benefit of many decades of experience in this body. He has been here at times when the Senate has functioned precisely like that, as it should. That is exactly what we want. That is how the Senate is supposed to function, and that is how it has functioned for most of the existence of our great Republic.

So that in and of itself would not only help address the problem, it would be the solution to the problem. That is why I insist this is not a problem that can be fairly laid at the feet of the individual members of the Appropriations Committee or even necessarily the chairman and ranking member of the Appropriations Committee. It is a problem with the way we schedule votes, and it is also a problem related to the first, with a lack of willingness to allow amendments to be brought.

The filibuster is itself maligned and often misunderstood, but the purpose of a filibuster from the very origins of this institution was to allow for theoretically unlimited debate, discussion, and opportunities for amendments to legislation. Nowhere would that be more important than in the case of where we are spending the public's money. That is what we are supposed to be doing. That is how it always did work in the past. The very reason why we have the filibuster rule to begin with is to allow for, to facilitate, to encourage unlimited debate, discussion, and amendments.

So, yes, I wish this legislation weren't necessary, but it is with precisely that objective in mind that we push this legislation. Why? Well, some of us have been here for many years, and in the case of Senator Johnson and myself, we have been here now for a decade. We have hoped for that exact type of scenario that Senator Leahy just described to come about, and I don't doubt Senator Leahy's sincerity one bit in raising that point. That is exactly what we need.

The incentives aren't there. The incentives on the part of those making these decisions to bring these things up with too little time for debate, amendment, or even reading the bill and discussing it with our constituents--those making that decision have forestalled the kind of debate and discussion that needs to occur. The incentive structure is such that those making that very decision are not going to want to relinquish that immense power, particularly if they can be a part of and even control what goes into that bill, who knows about it when, and then virtually guarantee passage on the Senate floor.

Something has to change in order to alter that incentive structure to bring about exactly the kind of dynamic Senator Leahy has described. Look, we can do this. It is not that hard. But we are going to have to adopt some changes to our procedures, and ultimately we owe it to our constituents not to bend unflinchingly and reflexively every single time somebody brings forward a spending bill at the very last minute.

I remember one of many moments in which this has occurred arose in March of 2018. We had been anticipating for many months a spending bill. We had a lot of conversations among and between Members about the need to debate, discuss, and amend spending legislation before it was brought to the floor. We had been assured that we would have more of an opportunity than we had in previous Congresses.

Then one Wednesday evening in March of 2018, we received an email. The email arrived at I believe about 8:30 or 8:45 in the evening. It told us that attached is a copy of a spending bill. We will be voting on this sometime in the Senate. We weren't told when. I opened the attachment. The attachment contained a 2,232-page spending bill spending well over $1 trillion.

We immediately started reviewing that. I divided up that legislation by section among my staff and then spent the entire night and the entire following day reviewing that legislation. We got a basic understanding of what it did but only rudimentary. A 2,232-page omnibus spending bill does not exactly read like a fast-paced novel.

To my great astonishment, before we were even finished reading that bill, much less before we had the opportunity to even conceive of or draft amendments, much less propose them, the House of Representatives passed that bill without amendment before lunch the next day. The Senate passed the same legislation about 12 or 13 hours later.

This process has repeated itself over and over again. We can't fool ourselves into believing that it is going to change without some alteration to procedure and to the set of incentives that perpetuate that vicious cycle--one that is no respecter of persons, no respecter of Republicans versus Democrats, liberals versus conservatives, or even Senators versus Representatives. It is just a fundamentally anti- American and undemocratic way of doing things. We can do better, and we must.

Cultural programs may represent and do, in fact, represent a tiny fraction of all Federal spending, but they are magnified many times over by virtue of their symbolic and their substantive impact. Culture is, of course, upstream from politics. It is more important, and it is more deserving of more of our attention.

For that reason, the Smithsonian Institution is more than just another line item in our Federal budget. It is one of the great cultural triumphs of our Republic. From the moment of our founding, the United States has faced an almost unique problem in history. How do we turn our huge Nation's cultural, religious, ethnic, and regional differences from a potential weakness into a real strength? The way our Nation has always achieved this is by creating institutions that unite Americans around shared interests and the mystic chords of collective memory.

The Constitution, the Senate itself, our free enterprise economy, our Armed Forces and public schools, Federalism, localism, the First Amendment, and even March Madness all fit this bill. They have the power to harness our individual and community differences to the common good of the whole Nation.

Now, the Smithsonian Institution does the exact same thing. It winds all the myriad strands of America's triumphant history into one imperfect but heroic story. Americans of every age, race, creed, and background come to Washington from all over the country to visit the Smithsonian museums--Natural History, American History, Air and Space, American Art, the National Zoo. Within the walls of the Smithsonian museum, just like at the National Gallery of Art or the great memorials that dot this city, there is no us and them. There is only us.

So my objection to the creation of a new Smithsonian museum or series of museums based on group identity--what Theodore Roosevelt called ``hyphenated Americanism''--is not a matter of budgetary or legislative technicalities. It is a matter of national unity and cultural inclusion.

Now, we have seen in recent years what happens when we indulge the cultural and identity balkanization of our national community. The so- called critical theory undergirding this movement does not celebrate diversity. It weaponizes diversity. It sharpens all those hyphens into so many knives and daggers. It has turned our college campuses into grievance pageants and loosed Orwellian mobs to cancel anyone daring to express an original thought. Especially at the end of such a fraying, fracturing year, Congress should not splinter one of the national institutional cornerstones of our distinct national identity.

The Smithsonian Institution should not have an exclusive Museum of American Latino History or a Museum of Women's History or a Museum of Americans Men's History or Mormon History or Asian American History or Catholic History. American history is an inclusive story that should unite us--us.

The Senator from New Jersey is absolutely right that the history of American Latinos is a vital part of America's history. So, of course, is the history of American women, who have written more than half of the American story, going all the way back to Plymouth Rock. Their stories are our stories, and they are stories that emphatically should be told by the Smithsonian Institution at the Museum of American History, period. No hyphen.

Now, the Senator from New Jersey is well aware of my stingy views on Federal spending, but if American Latino or American women's history are being underrepresented at the Museum of American History, that is a problem, and that is the problem that we should address here. I will happily work with him or anyone else to correct those problems, even if it means more money, more exhibits, new floors or wings.

I understand what my colleagues are trying to do and why, and I respect what they are trying to do, and I even share their interest in ensuring that these stories are told. But the last thing we need is to further divide an already divided Nation with an array of segregated, separate-but-equal museums for hyphenated identity groups.

At this moment in the history of our diverse Nation, we need our Federal Government and the Smithsonian Institution itself to pull us closer together and not further apart.

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Mr. LEE. Madam President, I want to be clear about something. All racial, ethnic, religious groups in America are worthy of celebration, even to the extent of having their own museums. Indeed, many of them already do--in many instances, institutions and museums that are not part of or funded by the Federal Government in whole or in part. If we had more museums and fewer tweets, America would certainly be better off.

This isn't about whether such museums should exist or not. This is about the Smithsonian Institution, which is itself federally funded. I understand that they also raise a significant portion of their money, but there is a brand that comes along with the Smithsonian Institution and a lot of money that is taken from the American people in the form of tax revenue. So, as a result of that, the Smithsonian Institution has a unique role and responsibility in our culture and as a repository and teller of America's national story.

Now, it is absolutely true that African Americans and American Indians have a unique place in that story in that they were rather uniquely, deliberately, and systemically excluded from it. Unlike many other groups, they were persecuted and they were essentially written out of our national story and even had their own stories virtually erased--not simply by our culture or evolving values, but by that very same government, this same Federal Government.

It is, therefore, uniquely appropriate that the Federal Government provide the funding to recover and tell those communities' specific stories today at dedicated museums in the specific context of having been so long excluded from our national community and our national story.

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Mr. LEE. Madam President, if the Smithsonian Institution in its report in 1994 in fact acknowledged that it systematically excluded the stories of any one segment in American society, I struggle to understand why the only response to that has to be a separate, siloed museum. Why not direct them, when telling our national story at the National Museum of American History, to tell that story there. If we have to expand it, we will do that. If we have to add more floor space and more staff and more research, let's do that. But the fact that they have identified their own failure over time doesn't mean that they themselves should then get to decide that we have a separate, siloed museum.
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