As delivered: Levin Senate floor remarks on 'nuclear option'

Thursday, November 21, 2013

WASHINGTON -- Sen. Carl Levin, D-Mich., delivered the following remarks today on the Senate floor: 

Mr. Levin: Mr. President, in the past, a few Senate majorities, frustrated by their inability to get certain bills and nominations to a vote, have threatened to ignore the rules and to change them by fiat and to change rules to a majority vote change. Rule 22 of the Senate requires two-thirds of the Senate to amend our rules. A new precedent has thousand been set, which is that a majority can now change the rules. Because that step will change the rule into a legislative body that the majority, whenever it wishes, can change the rules, it has been dubbed the nuclear option.

Arguments about the nuclear option are not new. Senator Arthur Vandenberg, confronting the same question in 1949, Senator Vandenberg, who was a giant of the Senate, one of my predecessors from Michigan, said that if the majority can change the rules at will -- quote -- "there are no rules except the transient unregulated wishes of a majority of whatever quorum is temporarily in control of the Senate."

Now, Senator Vandenberg, when he took that position, was arguing against changing the rules by fiat, although he favored the rule change that was being considered. Overruling the ruling of the chair, as we have now down, by a simple majority is not a one-time action. If a Senate majority demonstrates it can make such a change once, there are no rules which binds a majority and all future majorities will feel free to exercise the same power, not just on judges and executive appointments but on legislation.

We've avoided taking these steps in the past, these nuclear steps, but we've avoided them sometimes barely. I'm glad that we avoided the possible use of the nuclear option again earlier this year when our leaders agreed on a path allowing the Senate to proceed to a vote on the president's nominees for several unfilled vacancies in his administration. But today we are once again moving down a destructive path.

The issue, Mr. President, is not whether to change the rules. I support changing the rules to allow a president to get a vote on nominees to executive and to most judicial positions. What this is all about is ends and means. Pursuing the nuclear option in this manner removes an important check on majority overreach. As Senator Vandenberg said, if a Senate majority decides to pursue its aims unrestrained by the rules, we will have sacrificed a professed, vital principle for the sake of momentary convenience.

Republicans have filibustered three eminently qualified nominees to the Circuit Court of Appeals for the District of Columbia. They make no pretense of the argument that these nominees are unqualified. The mere nomination of qualified judges by this President, they say, qualifies as court-packing. It is the latest attempt by Republicans, having lost two presidential elections, to seek preventing the duly elected President from fulfilling his constitutional duties.

The thin veneer of substance laid over this partisan obstruction is the claim that the D.C. Circuit has too many judges. To be kind, this is a debatable proposition, one for which there is ample contrary evidence and surely one that falls far short of the need to provoke a constitutional battle. Republicans know they cannot succeed in passing legislation to reduce the size of the court, so presented with a statutory and constitutional reality they do not like, they have decided to ignore that reality and decided that they can obstruct the president's nominees for no substantive reason.

So let nobody mistake my meaning. The actions of the Senate Republicans in these matters have been irresponsible. These actions put short-term partisan interest ahead of the good of the nation and the future of this Senate as a unique institution, and it is deeply dispiriting to see so many Republican colleagues who have in the past pledged to filibuster judicial nominees only in extraordinary circumstance engaged in such partisan gamesmanship. Whatever their motivations, the repercussions of their actions are clear. They are contributing to the destruction of an important check against majority overreach and to the frustration of those willing to break the rules to change the rules. Those of us who are unwilling to do that have now seen it occur before our eyes. The chair was overruled earlier today.

So why do I not join my Democratic colleagues in supporting the method by which they propose to change the rules? My opposition to the use of the nuclear option to change the rules of the Senate is not a defense of the current abuse of the rules. My opposition to the nuclear option is not new. Republicans threatened in 2005 to use the nuclear option in a dispute over judicial nominees. I strongly opposed their plans, just as Senator Kennedy did, Senator Biden did, Senator Byrd did, and just about every Senate democrat did, including democrats still in the Senate today.

Back then, Senator Kennedy called the Republican plan -- quote -- "a preemptive nuclear strike." he said, “Neither the Constitution nore Senate rules nor Senate precedents nor American history provide any justification for selectively nullifying the use of the filibuster. Equally important, he said, “Neither the Constitution nor the rules nor the precedents nor history provide any permissible means for a bare majority of the Senate to take that radical step without breaking or ignoring three kids of applicable rules and unquestioned precedents.”

And here's what then-Senator Biden said during that 2005 fight, quote, "The nuclear option abandons America's sense of fair play. It's the one thing this country stands for: not tilting the playing field on the side of those who control and own the field." And he said, "I say to my friends on the Republican side, you may own the field right now but you won't own it forever." And he concluded, "I pray to God when the Democrats take back control we don't make the same kind of naked power grab that you are doing."

My position today is consistent with the position that I took then, that every Senate democrat took then, and that's just back in 2005. That was to preserve the rights of the Senate minority. I can't ignore that.

Nor can I ignore the fact that Democrats have used the filibuster on many occasions to advance or protect policies that we believe in. When Republicans controlled the White House, the Senate and the House of Representatives from 2003-2006, it was a Democratic minority in the Senate that blocked a series of bills that would have severely restricted the reproductive rights of women. It was a Democratic minority in the Senate that beat back efforts to limit Americans' rights to seek justice in our courts when they're harmed by corporate or medical wrongdoing. It was a Democratic minority in the Senate that stopped the nominations of some to the federal courts who we believed would not provide fair and unbiased judgment. Without the protections afforded the Senate minority, total repeal of the estate tax would have passed the Senate in 2006.

And we don't have to go back to 2006 to find examples of Senate Democrats using the rules of the Senate to stop passage of what many of us deemed bad legislation. Just this year, these recollections prevented an adoption of an amendment that would have essentially prevented the EPA from protecting waters under the Clean Water Act. We stopped an amendment to allow loaded and concealed weapons on lands managed by the Army Corps of Engineers as a minority with minority votes. As minority votes, we stopped legislation that would have allowed some individuals who were deemed mentally incompetent access to firearms. That's just the last year. Removing these minority protections risks that in the future important civil and political rights might just disappear because a majority agree that they should.

And let us not kid ourselves. The fact that we changed the rules today just to apply to judges and executive nominations does not mean the same precedent won't be used tomorrow or the next year or the year after to provide for the end of a filibuster on legislation, on bills that are before us, and on amendments.

Just as I've implored my Democratic colleagues to consider the implications of a nuclear option that would establish the precedent that a majority can change the rules at will, it is just as urgent for my Republican colleagues to end the abuse of the rules which allow extended debate that were intended on rules that were intended to be invoked rarely. Some of my Democratic colleagues may rightfully ask, "If a Democratic majority cannot initially muster a supermajority to end filibusters or change the rules, then what can the majority do?"

The rules give us the path and that is to make the filibusters filibuster. Let the majority leader bring nominations before the Senate. Let the Senate majority force the filibusterers to come to the floor to force the filibuster. The current rules of the Senate allow the presiding officer to put the pending question to a vote when no senator seeks recognition. Let us, as the Senate majority, dedicate a week or a weekend or even a night to force the filibusterers to filibuster.

In 2010, in testimony before the rules committee on this subject, this is what Senator Byrd said, "Does the difficulty reside in the construction of our rules or does it reside in the ease of circumventing them? A true filibuster is a fight, not a threat, not a bluff." And then he said, "now, unbelievably, just the whisper of opposition brings the world's greatest deliberative body to a grinding halt." And then he said, "forceful confrontation to a threat to filibuster is undoubtedly the antidote to the malady.”

We have not used that antidote to the malady which besets this body, allowing the mere threat of a filibuster to succeed without challenging that threat, without telling the filibusters, go ahead, filibuster. We've got rules that protect us. And when you pause and when  there's no one else here, 3:00 on the fourth day or the fifth day or the sixth day, the chair can put the question. The American people will then see in a dramatic way the obstruction which has taken place in this body.

No Senate majority before us has assumed to change the rules at the will of the majority. Before we do something that cannot easily be undone -- and we have now done it -- before we discard the uniqueness of this great institution, let us use the current rules and precedents of the Senate to end the abuse of the filibuster. Surely we owe that much to this great and unique institution.

There was a conversation, which was a formal conversation, between the Majority and the Republican leaders just last January, and here's what the Majority Leader said, "In addition to the standing order," which is what we had adopted, "I will enforce existing rules to make the Senate operate more efficiently. After reasonable notice, I will insist," he said, "that any Senator who objects to consent requests or threatens to filibuster come to the floor and exercise his or her rights himself or herself. This will apply to all objections and unanimous consent requests. Senators should be required to come to the floor and participate in the legislative process, to voice objections, engage in debate, or offer amendments. And finally," he said, "we will also announce that when the Majority Leader or bill manager has reasonably alerted the body of the intention to do so, the Senate is not in a quorum call and there's no order of the Senate to the contrary, the presiding officer may ask if there's any further debate, and if no Senator seeks recognition, the presiding officer may put the question to a vote." He said, our Majority Leader, that "this is consistent with the precedent of the Senate and with Riddick's Senate procedure."

What this showed again is that if we in the majority have the willpower -- as much willpower as has been shown by some obstructionists in this body -- if we have an equal amount of will as they have shown, that the current rules before this change today can be used to force filibusterers to filibuster, to come to the floored and talk. All we need to do is to use the rules, to take the weekend off, to take the week that we hope for a recess and use it to come back here, to take the recess itself, if necessary, during the summer -- for a month, if necessary -- to try to preserve what is so essential to this body, its uniqueness; which is that the majority cannot change the rules whenever it wants.

The House of Representatives can change the rules whenever it wants. It's called a Rules Committee. They can adopt and modify the rules at any time -- and they do. This body has not done that. We've resisted it. We've come close to doing it, but we've never done it -- until today.

Do I want to amend the rules? I want to amend these rules with all my heart. I want to embody a principle that a President, regardless of party, should be able to get a vote on his or her nominees to executive positions and to district and circuit courts. I believe in that. I think most senators believe in that. We need to change the rules. But to change it in the way we changed it today means there are no rules except as the majority wants them. It is a very major shift in the very nature of this institution if the majority can do whatever it wants by changing the rules whenever it wants, with a method that has not been used before in this body to change the very rules of this body.

We should have avoid add nuclear option. We should have avoided violating our precedents. We should have avoided changing and creating a precedent, which can be used in the same way on legislation. It may give comfort to some today: “But this is only on judges, this is only on executive appointments.” This precedent can equally available to a majority that wants to change the rules relative to the legislative process.

Madam President, those who have abused these rules -- mainly on the other side of the aisle -- whether they acknowledge it or not, are contributors to the loss of protections which we see today for the Senate minority. Given a tool of great power, requiring great responsibility, they have recklessly abused it. But now I am afraid that it won't just be them that will pay the price.

In the short term, judges will be confirmed who should be confirmed. But when the precedent is set, the majority of this body can change the rules at will -- which is what the majority did today -- if it can be changed on judges or on other nominees, this precedent is going to be used, I fear, to change the rules on consideration of legislation. And down the road -- we don't know how far down the road; we never know that in a democracy -- but, down the road, the hard-won protections and benefits for our people's health and welfare will be lost.