Statement Of Senator Patrick Leahy In Support of the Compromise on Senate Rules Reform

As Submitted To The Congressional Record

During my 38 years in the Senate, I have served with Democratic majorities and Republican majorities, during Republican administrations and Democratic ones.  Whether in the majority or the minority, whether the Chairman or Ranking Member of a Committee, I have always stood for the protection of the rights of the minority.  Even when the minority has voted differently than I have or opposed what I have supported, I have defended their rights and held to my belief that the best traditions of the Senate would win out and that the 100 of us who stand in the shoes of over 300 million Americans would do the right thing. 

Yet over the last four years, Senate Republicans have come dangerously close to changing something central to the character of the Senate and threatening its ability to do its work for the American people.

As a caucus, instead of trying to work with us on efforts to help the American people at a time of economic challenges, Senate Republicans have engaged in an across-the-board procedural barricade.  On issue after issue, from the DISCLOSE Act to efforts to curb massive subsidies for big oil companies, from the American Jobs Act to the Paycheck Fairness Act, from legislation to help small businesses to providing support for our veterans, Senate Republicans have relied on the unprecedented use of the filibuster to thwart the majority from making progress.  They have long since crossed the line from use of the Senate rules to abuse of the rules, exploiting them to undermine our ability to solve national problems. 

Filibusters that were once used rarely have now become a common occurrence, with Senate Republicans raising procedural barriers to even considering legislation or voting on the kinds of noncontroversial nominations the Senate once confirmed regularly and quickly by unanimous consent.  The leader has been required to file cloture just to ensure that the Senate makes any progress at all to address our national and economic security, and a supermajority of the Senate is now needed even to force a vote on mundane issues. 

That is not how the Senate should work or has worked.  The Senate is built on a tradition of comity, with rules that only function based on the kind of consent commonly and traditionally given.  The rules are not built to aid and abet senators using across-the-board filibusters and obstruction at every turn.  The Senate does not function if an entire caucus takes every opportunity to use obscure procedural loopholes to stand in the way of a vote because they might disagree with the result.  Without serious steps to curtail these abuses, the approach taken the last four years by Senate Republicans risks turning the rules of the Senate into a farce, and calls into question the ability of the Senate to perform its constitutional functions. 

In an earlier period of Senate history, when the filibuster was widely regarded as having become too great an obstacle for long-overdue reforms – for which there was a wide and general national consensus – I had the honor of playing a small part as a freshman senator during Senator Walter Mondale’s heroic and successful efforts to lower the cloture bar from 67 votes to 60 votes.  Then, as now, reform came through arduous, bipartisan negotiation.

I am hopeful that the agreement reached today by the Majority Leader and the Republican Leader represents that kind of serious step toward restoring the tradition of the Senate and its ability to work for the American people.  I am hopeful that the Republican senators who join today with Senate Democrats follow through on the commitment they are making to curtail the abuse of Senate rules and practices that have marked the last four years. 

The progress we are making today is a credit to Senator Merkley, Senator Udall, Senator Harkin and others whose efforts to reform the Senate rules are justified by the abuses we have seen.  The diligence and energy of these reformers provided the impetus for the agreement reached today by the Majority Leader and the Republican Leader.  In my view the agreement does not go far enough to address abuses, and I wish it included more of the commonsense proposals put forward by the reformers to make the Senate run more efficiently.  As I did at the beginning of the last Congress, I support their proposals to put the burden of maintaining a filibuster on those seeking to obstruct the Senate, rather than on those seeking to overcome the obstruction.  However, I am willing to accept today’s agreement as a meaningful compromise with concessions by both sides that will have the support of senators from both parties, rather than the support of only one party.  I will support it because it can be adopted by a supermajority vote instead of the kind of extended and damaging floor fight over the rules that would undermine any progress we hope to make.  With so many urgent issues to tackle for the American people, we cannot risk giving opponents of progress another excuse for inaction. 

I am encouraged by the verbal agreement between the Majority Leader and the Republican Leader to change the practices of how the Senate handles filibusters.  Under this agreement, the bill managers and leadership would call on senators who are threatening a filibuster to come to the floor, which will properly put the burden of a filibuster on those seeking to obstruct, rather than those seeking to make progress. The leaders will also press that post-cloture debate time be used for debate, and will bring votes to produce a quorum to avoid delay.  These commonsense steps will help build on today’s rules changes to help curtail the abuses we have seen and restore the Senate’s ability to work for the American people.

I also believe the Standing Order that is part of today’s agreement will give the Majority Leader new tools for overcoming the wholesale Republican obstruction of President Obama’s judicial nominations.  As Chairman of the Judiciary Committee, I have been especially concerned about the damage being done by Republican obstruction to the Senate’s unique responsibility for ensuring that the Judicial Branch has the judges it needs to do its job.  Over the last four years, Senate Republicans have abandoned this constitutional responsibility, using unprecedented filibusters to delay and obstruct President Obama from appointing to the Federal bench even judicial nominations that have bipartisan support.   As a result of this brand of Republican obstruction, we begin President Obama’s second term with the Judiciary nearly 20 percent below where it needs to be in terms of judges, and a prescription for overburdened courts and a Federal justice system that does not serve the interests of the American people.

Senate Republicans have already forced the Majority Leader to file cloture on 30 of President Obama’s judicial nominations, almost all of which were noncontroversial and were ultimately confirmed overwhelmingly.  Yet the Senate rules give the minority the ability to demand 30 hours of floor time even after a supermajority of the Senate has voted to end the filibuster of a judicial nomination.  This extended debate time is meant to give the Senate a chance to consider amendments that are germane to a bill so it serves no purpose for judicial nominations.  Rather, it has been used by Senate Republicans as a threat to obstruct the Senate for days just to get to a vote on each of these noncontroversial nominations.  Such an approach has made it easier for a silent minority of Senate Republicans to make the costs too high for the Majority Leader to push for votes on nominees and has led directly to the unnecessary and damaging backlog of judicial nominations we have seen for years on the Senate Calendar. 

The agreement reached today has a good chance of curtailing this type of abuse of the rules in this Congress by reducing this extended debate time after the end of a filibuster on district court nominations from 30 hours to two hours.  I believe this change will increase the ability of the Majority Leader to push for votes on district court nominations, where the threat by Senate Republicans of extended debate time has been particularly damaging.

Federal district court judges hear cases from litigants across the country and handle the vast majority of the caseload of the Federal courts.  Nominations to fill these critical positions, whether made by a Democratic or Republican President, have always been considered with deference to the home state senators who know the nominees and their states best, and have been confirmed promptly with that support.  Never before in the 38 years I have been in the Senate have I seen anything like what has happened in the last four years, when we have seen district court nominees blocked for months and opposed for no good reason.  Senate Republicans have politicized even these traditionally non-partisan positions, needlessly stalling them for months with no explanation. 

Until 2009, senators deferred to the President and to home state senators on district court nominees.  During the eight years that George W. Bush served as President, only five of his district court nominees received any opposition on the floor.  In just four years, Senate Republicans have voted against 39 of President Obama’s district court nominees, and the Majority Leader has been forced to file cloture on 20 of them, with many more left to linger month after month without a vote on the Senate Calendar due to the threat by Republicans to require half a legislative week or more just to confirm one of them.  As a result, it has taken the Senate more than three times as long to vote on President Obama’s district court nominees as it did to vote on President Bush’s.

The agreement reached today will blunt the ability of Senate Republicans to block important legislation and district court nominations without accountability merely by the threat of burning so much Senate time.  I wish that the proposal also applied to Federal circuit court or Supreme Court nominations, where the extended post-cloture debate time also serves no purpose.  But the progress I believe we will make as a result of this bipartisan compromise is a good first step towards helping us reduce the extended backlog of judicial nominations created by Republican obstruction and should result in more judges serving the American people.

There is no question that the reforms sought by many Democratic senators are justified by the extended and unprecedented abuse of the Senate rules and practices by Senate Republicans that began when President Obama took office.  However, I hope that by reaching this bipartisan agreement we build a foundation for restoring the Senate’s ability to fulfill its constitutional duties and do its work for the American people.  Now the burden is on Senate Republicans to work with us rather than hide behind an abuse of the rules to block progress.

The American people want Congress to be able to solve national problems like disaster relief, comprehensive immigration reform, and the reauthorization of the Violence Against Women Act.  They want us to work together on commonsense solutions to reduce gun violence and to ensure that all Americans have access to a working Federal court system.   I hope that today’s bipartisan compromise holds the promise of getting more done to help the American people.  I look forward to working with those on both sides of the aisle in the coming months.

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