The Filibuster – Protecting America from Bad Law

January 12, 2022

As prepared for delivery

Madam President,

The Senate is a peculiar institution. Despite what many might expect, Senators strive to be collegial even while they may hold strong political and policy disagreements. In fact, the Senate rules have strict prohibitions on insulting the character of another member or a state. That is because debate is a fundamental part of the Senate. That’s how this institution earned the moniker “the world’s greatest deliberative body.”

Some in this body, unfortunately, want to change all of that. They seek to trample over two centuries of precedent, procedure, and politeness. They are attempting to break the rules that require a two-thirds supermajority, sixty-seven votes, to change. They want to ignore that requirement and stiff-arm this historic institution to obliterate the requirement that those in the majority hear the voices of and work with those in the minority.

That requirement, colloquially known as the filibuster, is one of the most powerful restraints or checks on human nature in the entirety of our federal government. If the filibuster were removed, everything from regulatory structures, to tax rates, the size of the Supreme Court, the makeup of the military, the criminal code, and much, much more could change drastically every few years. Keeping track of the law and its fluctuating requirements would be impossible for the most capable of lawyers let alone the average American. Our business landscape would be obliterated under the ever-changing commands of the federal government. Americans would be worse off in every sense I can think of.

Our system is designed to control those whims and passions. Our Constitution was designed to protect the rights, voices, and influence of those not in the majority. Laws that significantly impact the lives of hundreds of millions of people should be difficult to pass.

In fact, the Senate has applied these principles into almost every mechanic of the institution. Most laws pass by unanimous consent or by simple voice vote after hearty consideration and frequent amendment through a process called the hotline. That would cease to function if the minority had no significant influence. Opportunities for amending these often smaller and less controversial bills would be foreclosed, crippling the careful consideration needed. Bills would have to be forced through often on party-line votes over the objection, suspicion, and protest of the minority.

But beyond building consensus and maintaining the function of the Senate, the filibuster serves as the keel on a very large ship. It prevents the waves and passions of each new election from drastically changing the laws of the country. It is a stabilizer that prevents our nation’s course from being jerked around to oscillating extremes.

I was asked recently if the Senate is broken. I responded by saying the only sense in which I believe the Senate is significantly broken is in its neglect of substantive debate and amendment. The filibuster protects the remaining debate, amendment, and consideration of the Members of this body. Removing the filibuster on the other hand, would irreparably break the Senate beyond recognition. The partisan vitriol and disregard for opposing Senators would eat away at this place and our republic.

Recently many Senate Democrats held these beliefs as well. In 2017, twenty-seven of them, including Vice President Harris, signed a letter urging the preservation of the filibuster. Many of them still serve today. I encourage them to consider their past advice.

Senator Schumer, the leader of this insidious current effort, has himself in the past given grave warnings about what this tactic of nuking the filibuster would bring. We have heard many of those quotes today. In one that sticks out in my mind particularly, he said attempts like that to remove the filibuster are “what we call abuse of power.”

Indeed, breaking the rules to grab power is an abuse. This attempt is so transparent that even Senator Schumer told the media that his members are concerned about losing their elections and their majority if they cannot use this tactic to federally take over our nation’s electoral system.

I would warn them that the American people see through this ploy. They know what is happening. They were promised a return to cordial politics. They were promised unity. This attempt mocks both of those promises.