Emergency Unemployment Compensation Extension Act

Floor Speech

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Mr. President, Senator McConnell has made a very important call to restore the Senate as the great deliberative body it was intended to be. I would like to continue to add my voice to that call. In fact, I am going to expand on some observations I made previously before the Senate, I believe in the month of December last year.

The Senate is a unique body designed with a very unique purpose in mind. In the Federalist Paper 62, attributed to the father of the Constitution James Madison, the unique role of the Senate is explained this way:

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 all too common these days.

What might come as a shock to anyone who has followed the 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 through a deliberative process. Clearly, the Senate is not fulfilling the role the Framers of the Constitution intended, in recent years.

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 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 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 that the rights of the minority party be protected.

James Madison wrote in Federalist Paper No. 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 minority party, but by the superior force of an interested and overbearing majority.

What is unique about the Senate is that the rules and traditions force Senators to work together to prevent Madison's ``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 to work together. While that was true most of my time in the Senate, it 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 is an apocryphal story which 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 supposedly replied by asking Jefferson, ``Why did you pour that tea into your saucer?''

``To cool it,'' Jefferson said.

Washington responded, ``Even so, 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 their permission. If the House leadership doesn't like your amendment, you are out of luck.

By contrast, the Senate has a tradition of allowing extensive debate and amendments by any Senator without prior approval from 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--blocking amendments from being considered. The Senate majority leader has effectively become a one-man version of the House Rules Committee, dictating which 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 this Senate. In fact, he has been quite unashamed about saying he is not going to allow any amendments. This strips the ability of individual Senators to effectively represent their State, regardless of political 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 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 is 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 and humility and respect for that minority--attributes that do not exist on the other side anymore. We had some major bipartisan accomplishments, from the largest tax cut in history to the Medicare prescription drug program, to numerous trade agreements. Those kinds of major bills do not seem to happen anymore.

The Senate rules provide that any Senator may offer an amendment regardless of party affiliation. Each Senator represents hundreds of thousands to, in the case of California, 36 million Americans, and each has an individual right to offer amendments for consideration. The principle here is not 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 and get votes in the Senate.

The now-routine practice of filling the tree to block amendments has been a major factor in the destruction of 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, debates and amendments are essential, so cloture should be rare. Abuse of cloture strikes to the very heart of how the Senate is intended to work.

It is important to note 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 nothing but 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,'' written by Richard S. Beth, contains an entire section entitled ``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 to do--not just Members of the minority party. It has even gotten worse. Even where the majority leader has decided he is going to be open to amendments, he has created out of whole cloth new restrictions to limit Senators' rights.

First, he normally only opens the amendment process if there is an agreement to limit amendments. This is usually only a handful or so of amendments. 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 postcloture. Senators elected in the last few years appear to be ignorant of that fact. We will hear some of my colleagues argue against an amendment saying it is nongermane or nonrelevant. They have fallen totally for the majority leader's creative rulemaking, thus giving up one of their rights as a Senator with which to represent their State.

I cannot count how many nongermane or nonrelevant 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 and that is the way the Senate operated. You do not see that nowadays. The current majority avoids tough votes at all costs. If you wonder why things do not get done around here in the Senate, that is one of the reasons they do not get done.

The American people sent us to get the work done and to represent our constituents and that means voting, not avoiding tough votes. We sometimes hear 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 one of the political parties. There are policies that have majority support in the Senate that have been denied a vote. Understand, we have been denied votes on amendments that even a majority of this Senate supports.

What happened during debate on a budget resolution proves my point. The special rules of the budget resolution limit debate so it cannot be filibustered, but it also allows for an unlimited number of amendments. A Republican amendment to the Senate Budget Committee in support of repealing the tax on lifesaving medical devices in President Obama's health care law passed by an overwhelming 79-to-20 vote, with more than half of the Democrats voting with the Republicans rather than their party leader.

We also had a Republican amendment in support of the approval of the Keystone XL Pipeline to bring oil from Canada, and that passed 62 to 37. Votes such as these that split the Democrats and hand a win to Republicans are exactly what the majority leader has been trying to avoid by blocking those very same amendments on legislation. Of course, that is probably the explanation of why we did not take up a budget resolution for more than 3 years prior to this year.

Until we put an end to the abuse of cloture and the blocking of amendments, the Senate cannot function as James Madison and the Framers of the Constitution intended. We must bring back the Senate as a deliberative body. Our politics today desperately need the cooling saucer of the Senate, as George Washington described the Senate to Jefferson. 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 is time to restore the Senate so it can fulfill its constitutional role. Senator McConnell has made a thoughtful and well-reasoned appeal. I hope my colleagues will listen for the sake of this institution, for the good of the country as a whole, and out of respect for the Framers of the Constitution who set up the Senate as a unique deliberative body.

I yield the floor.

I suggest the absence of a quorum.

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Mr. President, we are going to vote on the third of three nominees to the DC Circuit. Today it will be Judge Robert Wilkins. I will oppose the judge's nomination, just as I did when the Senate rejected the same nomination in November of last year.

This circuit, of course, is far and away the least busy in the country. This is one of the reasons why the Democrats blocked nominees to this very same circuit, based on the very same arguments regarding caseload, during the Bush administration. There were only two differences between then and now. Back then the caseload was even higher, and back then there was a Republican in the White House. Today, of course, there is a Democrat in the White House, and also a Democratic majority here in the Senate.

Today, by pushing this nomination for a circuit where there are not more judges needed based on caseload, I say that the Senate majority--meaning the Senate Democrats--do not want to play by the same rules they pioneered or by the same standards they established during the Bush administration.

Even though the Senate considered and rejected this nomination just a couple of months ago, today once again we will be voting on Judge Wilkins' confirmation. We will vote on the judge's nomination today because, on November 21, last year, the majority leader and the Senate majority invoked the so-called nuclear option. In one fell swoop, the majority leader did more damage to the institution than I have witnessed in more than 3 decades of service here in the Senate. In fact, when the majority leader broke the rules to change the rules last November and tossed aside two centuries of Senate history and precedent, he likely did more damage to this institution than any leader who preceded him.

It was a power grab. Of course it was a power grab. But it was more than that. It fundamentally has altered the way the Senate operates. It stripped the minority of its rights--under the rules, of course--but it was more than that as well. It cheapens the world's greatest deliberative body.

About 2 hours ago I spoke on this subject to the Senate based upon what James Madison said was the function of the Senate--to be a deliberative body, to bring stability to our political system, not to do things the same way the House of Representatives does.

As a result of the nuclear option, the Senate design has been forever altered, and it was done via brute force with zero buy-in from the minority. The result, as we have seen over the last 2 months, is less cooperation and more partisanship, something the people of this country abhor.

That is before you consider the current state of affairs regarding amendments here on the Senate floor. The majority leader routinely blocks all Senators from offering amendments by doing what we call ``filling the tree'' with amendments, and then sets aside his ``blocker amendments'' for only those amendments that the leader considers appropriate for us to discuss.

When you take into consideration the inability of Senators to offer amendments of their choosing and combine it with the leader's decision to strip the minority of their right to extend a debate on nominations, it becomes clear why today's Senate operates the way it does. There are two great rights Senators have: the right to debate and the right to amend. That is what makes us a deliberative body. That is what makes us so much different from the House of Representatives. By stripping away, on one hand, the right to extend the debate on nominations, and denying Senators, on the other hand, the right to offer amendments, the leader has taken those two rights and shredded them. It is to a point where some Members of this body don't even have a full appreciation for the way the institution used to operate.

Is it any wonder that it is difficult to get things done in today's Senate? Is it any wonder Senators don't feel compelled to work and consult together?

Today we will vote on a nomination the Senate rejected a couple of months ago. Now--perhaps because the other side is having a bit of buyer's remorse--some of my colleagues have been doing their best to rewrite history.

Senate Democrats claim that Republican opposition to the DC Circuit nominees was, in their words, unprecedented, but conveniently failed to mention that Senate Democrats set the standard during the Bush administration when they blocked qualified nominees to the DC Circuit based on caseload, which is the same argument I used, but in those days the caseload was even heavier than it is today.

As I have said, back then the caseload was higher. You can't say that too often. The fact is that DC is the most underworked circuit in the Nation.

I have given previous speeches on this subject, and I have given a lot of statistics, so I won't go through all those statistics again today, but with the most recent data released by the nonpartisan Administrative Office of the U.S. Courts, the numbers still show the DC Circuit has the fewest number of appeals filed and appeals terminated among all of the Federal circuit courts.

On a per-active-judge basis, the DC Circuit now has 111 total appeals filed per active judge. The national average is over three times higher, at 377. The busiest court, the Eleventh Circuit, comes in at over seven times higher than the DC Circuit, at 796. In other words, a Federal appellate judge sitting in Florida has a workload seven times heavier than the circuit judge sitting here in DC.

I hope people don't fall for the phony argument that cases in the DC Circuit are more complicated. There are other circuits that handle more of these so-called complex cases than even DC. The bottom line is the empirical data has shown, and continues to show, that these judges could have been better used in other circuits. I have a piece of legislation that would move these three judges from the DC Circuit to other circuits where the caseload is greater.

To confirm what the statistics show, early last year I decided to go straight to the source, the judges who serve in DC on this circuit. Before these nominations to the DC Circuit were even made, I submitted a questionnaire to each DC Circuit judge asking them about their workload. Their responses independently confirmed that the data showed that the court is severely underworked.

One judge responded: ``If any more judges were added now, there wouldn't be enough work to go around.'' I hope you understand that the vacancies that are being filled are going to cost the taxpayers $1 million-plus a year forever as long as these seats are filled.

After looking carefully at the data, and, of course, confirming my understanding with the judges themselves, I opposed these nominations based, in part, on the same standards established by the Democrats during the Bush administration when they blocked nominees to the DC Circuit. Then, of course, there was a Republican President, and now we have a Democratic President.

Of course, that wasn't the only reason for opposition to these nominees. For instance, gun rights supporters are opposed to Judge Wilkins, not based on caseload but because of the Dearth v. Holder case where Judge Wilkins held that nonresident U.S. citizens don't have the Second Amendment right to purchase a firearm.

The last nominee we confirmed to the DC Circuit was about the farthest thing from a mainstream nominee as you can get. I won't repeat everything I said about that nominee in previous speeches or what that nominee has said or written, but I will give one example. Consider former Professor Pillard's view on religious freedom. She argued that the Supreme Court case of Hosanna-Tabor Evangelical Lutheran Church, which challenged the so-called ``ministerial exception'' to employment discrimination represented--in her words--a ``substantial threat to the American rule of law.''

The Supreme Court, on appeal, rejected her view 9-0, and the Court held that ``it is impermissible for the government to contradict a church's determination of who can act as its ministers.''

Think about that. Former Professor Pillard argued the challenge to the ministerial exception to employment law represented a ``substantial threat to the American rule of law.'' Yet the Court rejected the view 9-0, and held ``it is impermissible for the government to contradict a church's determination of who can act as its ministers.''

Do my colleagues honestly believe it is within the mainstream to argue churches shouldn't be allowed to choose their own ministers? I don't believe it is in the mainstream.

We know these judges aren't needed. Far from it. We know these nominations aren't mainstream. Far from it. Then why did our Senate Democrats go to such lengths to stack this court? Why go so far as to change the Senate rules in order to fill these vacancies? Why go so far as to abuse and violate the Senate rules to change the rules? Well, because the President and his allies will do whatever it takes to get their way even if it means breaking Senate rules, silencing debate, circumventing Congress, or stacking the judicial deck in their favor to ensure that their executive actions are rubberstamped by the courts.

It is no secret the President has decided to circumvent Congress by relying heavily on Executive orders and regulatory action to carry out an unpopular agenda. We all heard the President pledge repeatedly, ``If Congress won't act, I will.'' What he means, of course, is that he is going to do it all by executive action. He won't go to Congress. He won't negotiate. In fact, he will go around Congress. He decided he doesn't need legislators to make these changes. He will just issue an Executive order or issue new agency rules.

As I have explained before, in effect, the President is saying: If the Senate won't confirm who I want, when I want them, then I will recess-appoint them when the Senate isn't even in session, or at another time, the President would say: If Congress won't pass cap-and-trade fee increases, then I will go around the Congress and do the same thing through administrative action at the Environmental Protection Agency or, again, if Congress won't pass gun control legislation, then I will issue a series of Executive orders. Quite simply, that is what the President means when he says: If Congress won't act, I will.

But remember. Under our system, it is the courts that provide a check on the President's powers. It is the courts that decide whether the President is acting unconstitutionally. So the only way the President's plan works is if he stacks the deck in his favor. The only way the President can successfully bypass Congress is if he stacks the courts with ideological allies who will rubberstamp these Executive orders. That is why it is so important for the President that he and his Senate allies stack the DC Circuit even though the DC Circuit doesn't have enough work, and it will be an additional $1 million for each of the three judges who are now being stacked into this court.

As I have said, in the last few weeks the other side has attempted to rewrite history in an effort to justify the actions they have taken, but the other side's effort to rewrite history isn't limited to the history of the DC Circuit in particular. It extends to the number of so-called filibusters during the past few years.

Several times last week the Senate majority claimed that the Republicans filibustered 20 of Obama's district court nominees. According to their narrative, only 23 nominees have been filibustered in the history of the Senate, and 20 occurred in the past 5 years. That is not remotely true, and the majority knows that. As near as I can tell, this claim is based on the number of times a cloture motion has been filed on district court nominees. Of course, everyone knows a cloture motion isn't a filibuster. A filibuster is a failure to end debate.

Nonetheless, let's look at those 20 nominees. Seventeen nominees were filed at one time back in March of 2012. That maneuver, of course, was a transparent effort to manufacture a crisis where no crisis existed. Every single one of these cloture motions was later withdrawn. As a result, not 1 of those 17 nominees even had a cloture vote, let alone a failed cloture vote.

In fact, of these 20 so-called filibusters of district court judges, the Senate held only 1 cloture vote on a district court judge, and that cloture vote passed the Senate. Yet the Senate majority still claims we filibustered 20 district court nominees. That is revisionist history if I have ever seen it.

Let's review the alleged Republican obstruction of the President's nominees. Since President Obama took office, the Senate has approved 218 of the President's lower court judicial nominees. That is 99 percent. So we have rejected only two. If the majority leader hadn't invoked the nuclear option, the number would have, in fact, been 5 instead of 2, but not 20, and not 34, as I have heard some claim. It would not have even been 10, which was the number the Senate majority blocked by the fifth year of President Bush's administration. Five nominees.

At the end of the day, the majority was willing to toss aside two centuries of Senate practice and tradition over just five judicial nominees.

So I continue to oppose this nominee, just as I did when the Senate rejected the nomination before the Senate Democrats broke the rules to change the rules.

This judgeship wasn't warranted before the majority leader and the Democrats invoked the misguided nuclear option, and it certainly hasn't suddenly become warranted in the weeks since that time.

I yield the floor.

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