Senate Floor Statement on Proposed 'Nuclear Option'

As prepared for delivery

Thursday, November 21, 2013

WASHINGTON – Sen. Carl Levin, D-Mich., voted today against the use of the so-called "nuclear option" to change the Senate rules. Below are Levin’s remarks as prepared for delivery on the Senate floor:

Since its creation, the United States Senate has been uniquely committed to protecting the rights of minorities. It has done so in part through its rules governing debate. Its rules protect the right of members to speak until a super-majority is ready to end debate and to proceed to a vote on the matter before it. Matters are then decided by a majority vote, except for treaties, veto overrides and certain points of order.

Of particular importance in protecting minority rights is Senate Rule 22, which requires a supermajority of two-thirds of Senators to end debate on any proposal to amend the Senate Rules. In the past, a few Senate majorities, frustrated by their inability to get certain bills and nominations to a vote, have threatened to ignore this two-thirds requirement and instead to change one or more debate rules by a simple majority. Because that step would change the Senate into a legislative body where the majority can, whenever it wishes, change the rules, it has been dubbed the “nuclear option.”

Arguments about the nuclear option are not new. This question has been debated for decades. Confronting the same question in 1949, Senator Arthur Vandenberg, a giant of the Senate and one of my predecessors from Michigan, said that if the majority can change the rules at will, “there are no rules except the transient, unregulated wishes of a majority of whatever quorum is temporarily in control of the Senate.” Changing the rules, in violation of the rules, by a simple majority vote is not a one-time action. If a Senate majority demonstrates it can make such a change once, there are no rules that bind 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 have avoided taking those nuclear steps in the past, sometimes barely. And I am 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.

Today, we once again are moving down a destructive path. The issue 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 most judicial positions. This is not about the ends, but means. Pursuing the nuclear option in this manner removes an important check on majority overreach which is central to our system of government. As Senator Vandenberg warned us, 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 gain.

Republicans have filibustered three eminently qualified nominees to the Circuit Court of Appeals for the District of Columbia. They make no pretense of 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. This is, to be kind, 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.

I do not want anyone to mistake my meaning here: The actions of Senate Republicans on this matter are 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 circumstances 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 now willing to break the rules of the Senate in order to change those rules.

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

Back then, Senator Kennedy called the Republican plan a “preemptive nuclear strike,” and said: “neither the Constitution, nor Senate Rules, nor Senate precedents, nor American history, provide any justification for selectively nullifying the use of the filibuster. Equally important, 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 clear provisions of applicable Senate Rules and unquestioned precedents.”

And here is what then-Senator Biden said during that 2005 fight: “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. I say to my friends on the Republican side, you may own the field right now but you won’t own it forever. And I pray to God when the Democrats take back control, we don’t make the kind of naked power grab you are doing.”

So my position today is consistent with the position that I took, and that every Senate Democrat took, during that 2005 fight to preserve the rights of the Senate minority. I cannot ignore that history.

Nor can I ignore the fact that Democrats have used the filibuster on many occasions to advance or protect policies we believe in. When Republicans controlled the White House, the Senate, and the House of Representatives from 2003 to 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 special-interest efforts to limit Americans’ right to seek justice in our courts when they are 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.

We don’t even need 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 in the last year, these protections prevented adoption of an amendment that would have essentially prevented the EPA from protecting waters under the Clean Water Act; an amendment to allow loaded and concealed weapons on lands managed by the Army Corps of Engineers; and would allow some individuals who were deemed mentally incompetent access to firearms. That’s just in the last year. Removing these minority protections risks that, in the future, important civil and political rights might disappear because a majority agree that they should.

Just as I have implored my Democratic colleagues to consider the implications of a nuclear option that would establish the precedent that the majority can change the rules at will, it is just as urgent for my Republican colleagues to end the abuse of rules allowing for extended debate that are 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 filibusterers filibuster. Let the Majority Leader bring nominations before the Senate, and let the Senate majority force the filibusterers to come to the floor to 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 one week, or just one weekend, or even just one night to force the filibusterers to filibuster. In 2010, in testimony before the Rules Committee on this subject, 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. … Now, unbelievably, just the whisper of opposition brings the ‘world’s greatest deliberative body’ to a grinding halt. … Forceful confrontation to a threat to filibuster is undoubtedly the antidote to the malady.”

Before a Senate majority assumes a power that 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, 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.

I know there are some on my side of the aisle who do not believe we can force filibusterers to the floor under the current rules. So let me read the colloquy between the Majority Leader and Republican Leader in January of this year:

Mr. REID: In addition to the standing order, I will enforce existing rules to make the Senate operate more efficiently. After reasonable notice, I will insist that any Senator who objects to consent requests or threatens to filibuster come to the floor and exercises his or her rights himself or herself. This will apply to all objections to 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…Finally, we will also announce that when the majority leader or bill manager has reasonably alerted the body of the intention to do so and the Senate is not in a quorum call and there is no order of the Senate to the contrary, the Presiding Officer may ask if there is further debate, and if no Senator seeks recognition, the Presiding Officer may put the question to a vote. This is consistent with precedent of the Senate and with Riddick’s Senate Procedure, 1992. See page 716 in Riddick’s and footnotes 385 and 386 on page 764. This can be done pre-cloture or post-cloture on any amendment, bill, resolution, or nomination.

Mr. McCONNELL: This is consistent with the precedent of the Senate with the understanding that Senators are given the timely notification of the Presiding Officer’s intention so that they will be able to come to the floor to exercise their rights under the rules. (Congressional Record S273, January 24, 2013)

In that formal conversation, both the Democratic and Republican Leaders of the Senate showed how the current rules can be used to force filibusterers to filibuster, to come to the floor and talk. They are right. All we need is the willingness to use those rules.

The best alternative is to amend our Rules, as provided for in the Rules, so that they embody the 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 most Senators support that proposal. We should change the Senate Rules, through the process the Rules provide, to ensure a vote on executive branch nominations without the threat of a filibuster. This would avoid a nuclear option that would violate our precedents and do great damage to this institution. In fact, amending our rules in this manner would prevent what I think all of us fear: yet another nuclear showdown at some future date prompted by yet another confrontation over executive branch nominees. If there is bipartisan agreement on other improvements to the Rules, other ways we can improve or modernize our procedures, we should make those improvements as well.

There is no justification for the Republican attempts to deny this President the ability to discharge his duties. Those who have followed this cynical policy, whether or not they acknowledge it, are contributors to the loss of protections for the Senate minority.  Given a tool of great power, requiring great responsibility, they have recklessly abused it. They will pay the price now, but eventually, the nation will.

In the short term, judges will be confirmed who should be confirmed. But when the precedent is set that a majority can change the rules at will on judges, that precedent will be used to change the rules on consideration of legislation, and down the road, the hard-won protections and benefits for our people’s health and welfare will be less secure.

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