Today, U.S. Senator Ben Sasse spoke on the Senate floor defending the Senate’s structure that protects minority voices from simple, partisan, and cynical majority rule.
Ben Sasse defending the Senate’s structure that protects minority voices
Sasse on the temptation of majority rule: “There’s an alarming trend in our time, and let’s be clear, it’s in both parties, it’s not just the Democrats who are now in the majority who are interested in this kind of new, more instant, more urgent, more winner-take-all kind of politics.”
On poisonous majority-rule politics: “If you want to see American politics become more brutal, if you want to see American politics become cruder, if we want to see American politics become more demagogic, then stripping away the mechanism that has forced us to work together, that would be the perfect recipe for bringing about this dystopian reality. If you want to see a politics that favors more candidates running for office with claims that they will be strong men and tyrants, then make politics nothing more than a contest of wills between people who spend their campaigns promising to spend the next two or four years simply making the other side pay. If you want to see the rights and interests of minority groups scorned, dismissed, and trampled, then establish a legislative process where minority voices don’t need to be heard at all. That’s what would happen if we end the super-majority requirements that have always dominated the Senate from its first day. If you want a lame, mean politics that aims only to own the libs or drink conservative tears, this is how you bring that crap show about. You’d set the Senate on fire.”
On short-term politics versus constitutional structure: “The bullies who want to permanently upend the way, our legislature works don’t understand that their short-term gain this or that bill will come at a long-term cost of the entire structure of the rights and interests of our constitutional balance. It doesn’t take a lot of courage to go to the current of the mob. But a lot of Senators who quietly want to resist this change, and there are many on that side of the aisle, who want to resist this change, you’re worried that going against the tide means watching dollars and votes flow away. It means getting screamed at in restaurants. It means that your self-interest is to avoid the short-term pain and ride the short-term wave. Let me tell you, this feels pretty familiar.”
On the need for Democrats to stand up to their base: “Nobody has to tell me how unpleasant it is to stand up and say things that are unpopular in your own party. Over the course of the past 5 years, I’ve been smeared and censured many times. I’ve been cussed out by lots of people who once supported me and called me a friend. None of that was particularly fun, but so what? The oath I took and the duty I swore were related to the point of being a United States Senator, which is that if you’re not willing to stand up to your own side every now and again, there is really no point in having this job.”
On the three anti-filibuster lies: “Whenever anyone, Republican or Democrat, has threatened to blow up the Senate super-majority requirements, they always have to tell themselves three lies. The first lie is that it might make right. The second lie is that the other side politically is your enemy and they must simply be beaten down. They can never possibly be persuaded. The third lie is that the federal government is the only government we have. None of these things are true.”
The full speech is available here and below.
Mr. President, the debate about the legislative filibuster is not a debate about S.1, or S.101, or S.901. No. This is a debate about nothing less than the nature and durability of American self-government. Quite apart from the wrestling over which particular bill was filibustered 8 years ago, or 4 years ago, or 2 years ago, or tomorrow, the decision about whether or not to eliminate the filibuster is the Senate’s most important policy debate in decades.
Eliminating the filibuster would obviously have all kinds of policy consequences – from tax rates and labor law to energy and infrastructure – but that’s not why this debate is so important. This isn’t fundamentally a debate about this or that policy.
The debate about the filibuster is deeper than that because it is a debate about how and whether we debate at all. That matters a whole lot in a country this big – in a continental nation – because it’s right at the heart of how peaceable self-government works at all. If we just blow that up, if we act as if it’s just a matter of time before the filibuster goes away and all we really have is just Red vs Blue jerseys anyway, if we just end the Senate’s rules as they’ve existed for 240 years, we will dramatically alter, not just this institution but our entire form of self-government. And, in the process, we would dramatically escalate the fevered pitch of America’s recent arguing.
We shouldn’t ignore the deep and long-term significance of what setting the Senate’s rules on fire would mean simply because terms like “super-majority requirements” doesn’t fit real neatly into our modern, made-for-cable-TV soap opera variety of politics as entertainment, politics as sports, even politics as religion. Super-majority requirements are a whole bunch of syllables and it just doesn’t make for great sound bites. But make no mistake, if we set the Senate’s rules on fire, we are going to cause dramatic, horrible consequences in American civic life.
Almost every single member of the new-minted Democratic majority in the Senate has resolved in recent weeks that the legislative filibuster needs to be abolished, or in their most recent focus-grouped term to be ‘reformed’ out of existence. This move would be directly contrary to over two centuries of tradition in this country and in this body. It would be directly contrary to the Founders’ explicit purposes for why this institution was created at all. And, it would be directly contrary to the words of dozens and dozens of the majority Senators just in the last 48 months.
This is not a mere procedural change. If they go through with this, an already-sick Senate would be committing institutional suicide. There really is no reason to be a United States Senator if the Senate doesn’t exist to foster real debate that is bigger than simple majority power.
This nuclear trigger would all-but-destroy the principle of consensus-building that the Senate demands, and thereby all-but-ensure that minority rights in this country would become subject to more and more fickle, more and more power-hungry, and inevitably more and more abusive simple majorities.
America is built on a number of seemingly small – but actually quite grand – ideas. One of the very best of those ideas – one of the most elegantly simple, so simple that we don’t regularly pause to reflect on it together and to teach it to our kids – and that’s the simple idea that, wherever possible, groups of different people should be allowed to make different rules for themselves. This is what our system of federalism is about. This is why we divide power both vertically and horizontally between the legislative, executive, and judicial branch, but then also across the 50 states versus the federal government.
It’s not actually an extravagant thought. Children on a playground kind of instinctively understand that if they can’t get one giant game of kickball together, it’s ok to let the playground divide up into a few different games of kickball and dodgeball. It’s a grand American tradition that when we don’t have to agree, we don’t have to agree about everything. It’s okay to allow some diversity. It’s okay for not all work place regulation to be exactly the same everywhere in the country.
And as it happens, America is a really big country – a continental nation – and we regularly don’t agree. Californians don’t always agree with Nebraskans. West Virginians don’t always agree with New Yorkers. People in regularly-sunny Miami don’t always see the world exactly the same as folks in regularly-wintry Boston do. Ohio State fans don’t have to wear the blue and gold of Michigan.
It’s a big country, full of disagreements, and so our principle is regularly that wherever we can protect and respect differences, we should.
We don’t force folks to wear the jerseys of the teams they don’t support. There’s no reason to. Here I feel like there’s some joke I should make about Oral Roberts versus Harbaugh in their relative competitions against Ohio State, but prudence probably recommends skipping that.
There are also circumstances, obviously, where we need to make big, wide-ranging, monopolistic government decisions.
There are times when we have to have one-size-fits-all rules.
But those one-size-fits-all obligations are not for everything – and even in those moments where they are required, we still want to work hard to protect the rights of minorities and dissenters. So, how do we respect their right and ability to make rules for varying communities across a nation of 330 million people from shore to shore? How do we allow as many as many people as possible to make divergent rules as they see fit?
Well, one of the ways we’ve done that in the Senate, is we have always made sure that here – we come from all across the country, east to west, north to south – and here we would be required to pass legislation not by 50 plus one, but by 50 plus 10. What that means is that most all of the time, even if you’re in a majority, you can’t just do everything you want. You can’t just pass one big compulsory law immediately without lots of debate, because you rarely have 50 plus 10.
You have to bring some people from across the aisle over to your side.
If you’re in the majority, it means that you have to learn the habit of sitting down with members of the minority. You have to talk to them, and it’s important that you have to listen to them.
When this process of compromise works and a bill is passed, you’ve then guaranteed that the new law has the stamp of approval of at least some representatives of the minority on that issue. And it means that they will become your allies against quickly undoing that law next year. They will become your allies because the process of compromise led you to listen to each other and say ‘instead of doing the 51 percent thing, what harder work might be required to get to the 60 percent thing?’ And, if the process of compromise breaks down, that’s a pretty important signal as well.
When we’re forced to make rules that are binding on diverse groups of people, it’s in everyone’s interests that you get as much buy-in as possible.
That makes it more likely that the new rule will be respected and followed beyond just this two-year congress. But, if you shove a rule-change through with a bare-knuckle majority, you ensure that 49 percent of the country is going to resent not just the rule — but you.
Pass laws today with a 50-plus-one majority and watch them be repealed tomorrow with a 50-plus-one majority. Our nation then would just pinball from one policy agenda to another. It makes politics too central in the life of the American people to allow fickle 51-49 majorities to change the whole direction of the nation.
Each election will become more do-or-die, more Flight 93-ish than the last.
Each campaign would descend further and further into tribal ugliness.
In a big, diverse country, the Senate exists to force lawmakers to build a healthy consensus before we try to make sweeping national, legal changes.
The Senate exists precisely to force this kind of consensus building. That is really why this institution exists. It’s how we guarantee that we do not have laws on the books that are respected by half of the country, and resented and hated or ignored by the other half of the country.
The Senate super-majority requirement has helped to ensure that big changes are not impulsive and narrow and instant, but rather deliberate and broadly accepted. But there’s an alarming trend in our time, and let’s be clear, it’s in both parties, it’s not just the Democrats who are now in the majority who are interested in this kind of new, more instant, more urgent, more winner-take-all kind of politics.
There’s a new trend toward the bare-knuckles belief that that is the only kind of politics that works. It’s the only kind of way you can go forward. Some of my colleagues, again, in both parties, have decided that if you have the power, you should wield it, and you should wield all of it with no constraint. They might use this or that particular bill as a stalking horse for the attempted power-grab, but let’s be clear: any particular bill is beside the point. It’s about the new ‘ends-justify-the-means’ principle, which is the principle that there are no principles except flexing your power as vigorously and as brutally and as instantly as you can for as long as you can cling to power. Some of the Republicans who have already spoken on the floor this last week have warned Democrats that they might very soon rue the day that they made this decision.
There’s an age-old self-delusion in power that says, ‘if you’re in the majority, you’ll never have to be in the minority again, so why would you want to respect any rules that have traditionally protected minorities. You’ll always be driving the bulldozer, never be in its path.’ This debate isn’t about policy. It isn’t about any specific bill.
You can listen to the activists on the outside that are agitating for it.
They’ve been transparent their purposes for the better part of a year, that they would use whatever bill they thought most politically-opportune at the moment they tried to end the filibuster. Books that are published on this topic in the last 60 days didn’t come about in the last 60 days. But we should remember that if this happens, if simple majoritarianism, if mere, raw exercise of power becomes what this body is about, we will have taken a step down a path toward the exercise of naked power that will be absolutely permanent. It cannot and will not ever be undone.
Once the super-majority rules, once the filibuster is gone, it will be gone forever because no one — it is self-evident to make this argument — no one is ever going to voluntarily surrender power when the other party just used simple majoritarian power against them. No one will ever restore super-majority requirements when they have a simple majority, and simple majority just became the rule against them.
If you want to see American politics become more brutal, if you want to see American politics become more crude, if we want to see American politics become more demagogic, then stripping away the mechanism that has forced us to work together, that would be the perfect recipe for bringing about this dystopian reality. If you want to see a politics that favors more candidates running for office with claims that they will be strongmen and tyrants, then make politics nothing more than a contest of wills between people who spend their campaigns promising to spend the next two or four years simply making the other side pay. If you want to see the rights and interests of minority groups scorned, dismissed and trampled, then establish a legislative process where minority voices don’t need to be heard at all. That’s what would happen if we end the super-majority requirements that have always dominated the Senate from its first day. If you want a lame, mean politics that aims only to own the libs or drink conservative tears, this is how you bring that crap show about. You’d set the Senate on fire.
All of you know this, though. Many of you have spoken in private about this being a rash move. Many of you have spoken in public about having been opposed to this before. I think of my friend, Brian Schatz, and I’m going to name him precisely because he’s a real friend, not a Washington friend where you claim someone’s your friend right before you try to rip their face off.
I actually like the guy a lot. I like working with the guy, and I’d like to keep working with the guy. But it turns out that if you make the Senate into the House of Representatives, there’s going to be almost no working together across the aisle because there’ll no longer be any incentive for it. All the politics that matter will happen in the private caucus lunches where 51 percent try to keep their 51 percent to do whatever they want when they walk back into public. The Senate is obviously not the greatest deliberative body in the world, but it still has a chance to recover. Set it on fire by ending super-majority requirements, and no one should ever utter the phrase, “great deliberative body” again because there’ll be no more deliberation in this body again.
Brian recently said that the filibuster is quote “stupid” and “paralyzing.” He also said “it’s time to trash the Jim Crow filibuster.” But just four years ago when Donald Trump was elected and House Republicans were itching to have the Senate eliminate the filibuster because Republicans controlled the House, the Senate and the White House, Senator Schatz and a bunch of his colleagues actually penned a public letter that defended the filibuster and all of its quote, “existing rules, practices and traditions,” close quote, precisely because it advanced the deliberative purposes of the Senate.
I don’t remember Senator Schatz then calling it the Jim-Crow filibuster when he wrote that letter, or when he was blocking Tim Scott’s police reform legislation last year by pointing to the Senate super-majority requirement rules.
I don’t remember Senator Schatz calling it stupid when he filibustered COVID relief in September and again in October under the Senate’s current rules. Look, I want to be clear, I’m not picking on Brian, I’m naming him precisely because I like him and afterwards we can argue about this, and other people that maybe I have less of a relationship with, it’d be less useful to cite them as people with whom I actually have a lot of comity and goodwill, but I do want to keep working with Brian, and in a simple majoritarian body, there won’t be bipartisan cooperation any more.
There isn’t much right now, but there’s still a chance for reform of this institution. Ending the filibuster is to end this institution. But to be clear, this isn’t about Senator Schatz. I could give a hours and hours-long speech going through all the flip-floppers in this chamber who had one position 48 months ago and now have a completely different position. I don’t need to name all of them, we should just say, “what changed?” We know what changed. The only thing that changed in the last two years is who’s in power. When Democrats were in the minority, you were fierce defenders of this “indefensible Senate prerogative.”
That was the language that was used. The filibuster was “standing between America and fascism,” we heard. But now, when you’ve got the slimmest majority, actually it’s just 50-50 and you need the VPs’ motorcade to break a tie, now the filibuster is standing between you and some of your legislative goals, and therefore it needs to be tossed out. But when you were using the filibuster to halt Senator Scott’s police reform bill, the filibuster was an essential American institution that forces compromise. But now that it can be occasionally used to resist a 51-50, straight majoritarian exercise of power, it’s supposedly exclusively a relic of slavery and a tool of Jim Crow. It’s nonsense and the people saying it know that it’s nonsense. They use the same rule last year and you weren’t racist when you used it last year. This is B.S. that has been focused grouped and particular bills are being used as the excuse to grab power that won’t just be for this bill, it will be forever. It will be the end of the Senate. Was the filibuster really a tool of Jim Crow when it was used against Tim Scott last year? I don’t think so. And I don’t think any of you think so.
If somebody wants to come to the floor and repent of their racism of having used the filibuster last year, please do. But it isn’t what it was happening so stop with the nonsense rhetoric that is just for an MSNBC soundbite tonight. It’s sad to watch so many of my colleagues who know better be bullied into this position of short sightedness. And they do know better because many of you say it in private. And you’re being bullied there by the fringes of your party. But part of the responsibility of being a U.S. Senator is to stand up to the extreme fringes of your party. Part of the responsibility of being a U.S. Senator is to say, “I know that people are angry, I know that people are yelling. I know that there are hot heads. But one of the jobs of the Senator and the job of hits body it tries to find a way to let cooler heads prevail.”
We already have an institution that is instantly responsive to majorities. You only have to walk 200 yards to see it. And there is nobody who serves in this body who wishes they served in that body. We know what it looks like to have a simple majoritarian body. And the House was designed to do that–it’s a good thing. The house was designed to reflect the energy of the people. If people are hot headed and want something done fast, and want their majority to act, they call on the house and they get a hearing. The Senate’s job and the Senate’s purpose is different. The House is allowed to act with a hot head precisely because the Senate exists to cool those passions.
The Senate exists to act with a cool head. Our job is not to cater to sudden and instant majorities and to changes in the wind. The Senate’s job is to enlarge and refine the House’s judgments and to try to build consensus that can last, so that the majority’s will can be advanced while the minority’s rights are also protected. The bullies who want to permanently upend the way our legislature works don’t understand that their short-term gain this or that bill will come at a long-term cost of the entire structure of the rights and interests of our constitutional balance. It doesn’t take a lot of courage to go with the current of the mob. But a lot of Senators who quietly want to resist this change, and there are many on that side of the aisle, who want to resist this change, you’re worried that going against the tide means watching dollars and votes flow away. It means getting screamed at in restaurants. It means that your self-interest is to avoid the short-term pain and ride the short-term wave. Let me tell you, this feels pretty familiar.
When I ran for this seat in 2014 as the first time, I’d run for anything in my life, one of the fundamental reasons I ran having never sought any office of any kind was because I thought the Senate had the chance to still be restored to its deliberative place in American life. We’re living through a digital revolution which is disrupting future work, future war, the nature of local community, the neural synapses and frontal lobe formation of our teens. The digital revolution is transforming American life everywhere, and this institution has the chance to help shape some of that for good instead of just to let the tide flow at full speed and consume this institution as well.
And so, I said I pledged — and when I said it to a largely red state in 2014, most people apparently didn’t think I meant it — I said I wasn’t running because I largely disagreed President Obama’s policies, but because I would defend the constitutional system of limited government and the Senate that exists for deliberative process even if someone in my own party came to power and urged instant, radical changes that disrespected large portions of America. I literally made the centerpiece of why I was running that I would resist someone in my own party who tried to do majoritarian instant stuff. And I can tell you, I can introduce you to a whole bunch of Republicans on the ground in Nebraska, who are really mad that when I said that I didn’t precisely say it 17 different ways where I named every person that they might later want to have all that instant power. After the 2016 elections, people started looking back at what I was saying the whole 2014 campaign and got uncomfortable for what they voted for. Nobody has to tell me how unpleasant it is to stand up and say things that are unpopular in your own party.
Over the course of the past 5 years, I’ve been smeared and censured many times. I’ve been cussed out by lots of people who once supported me and called me a friend. None of that was particularly fun, but so what? The oath I took and the duty I swore was related to the point of being a United States Senator, which is that if you’re not willing to stand up to your own side every now and again, there is really no point to having this job. The thing is, a lot of you know that. I’m not going to say that it’s the consensus position on your side of the aisle, but there are a whole bunch of people going along publicly with the rhetoric of ending the filibuster and ending super-majority requirements even as at the exact same time you tell me how much you regret the summer of 2013 decision to allow Harry Reid to end a much smaller Senate tradition about super-majority confirmations. Super-majoritarian conformations are a small item compared to the change that is being considered here. Harry Reid’s take no prisoners strategy of 2013 was something that was moved unanimously by the then majority party and many, many, many of you have talked to me in private about how much you regret it. Please consider the costs because this would be a much larger change.
Whenever anyone, Republican or Democrat, has threatened to blow up the Senate super-majority requirements, they always have to tell themselves three lies. The first lie is that might makes right. The second lie is that the other side politically is your enemy and they must simply be beaten down. They can never possibly be persuaded. The third lie is that the federal government is the only government we have. None of these things are true. I resisted a President nominally of my own party when he beat me up in private and in public for defending the filibuster when my party was in the majority. Republican Senate leaders stood up to him as well, despite lots of ridicule from House Republicans.
A lot of people in the House Republican caucus wanted much faster politics. But their passions were a poor guide to long-term wisdom for a nation this big and diverse. It is better for America’s hardest debates to be decided in a deliberative Senate rather than in the Thunder dome. Republicans in the majority held firm against blowing up the central structural pillar of this institution even when it would’ve benefitted us politically. In other words, we faced the same choice then as you face now. We decided that it was better to choose long term stability over short term legislative victories. It was the right choice for a nation this big and this diverse.
A lot of Republicans think that decision was naive. Their argument was “The other side hates us. They definitely will use all power against us whenever they can.’ and I know that many Democrat strategists on the outside, many people raising money, small dollar fundraising online, they’re making the exact same argument but this isn’t war. And we’re not supposed to be permanent enemies. We want a politics of debate and of verbal jousting rather than of physical violence. And one of the most urgent political tasks we face today is that it is possible for people who deeply disagree and who are polarized in our division, we can still work together for the common good. We urgently need to protect and strengthen not weaken and destroy the norms that force us to come together and cooperate. But we don’t need to be naive. We don’t need to believe that we will always sing kumbaya. We obviously don’t in this body. But that doesn’t mean we’re free to be naive in the other direction at well.
For every step we take that further divides, further infuriates and further inflames half of the country makes it far likelier that we will set a fire that we cannot put out. The American founders understood the problem we are facing. They were not naive about how politics work and what it took, what kind of labor and sweat and relational hand ringing and bread breaking it takes to be able to work together amicably. They were working from a personal experience of oppression, tyranny and violence. And so, they set out basic principles of federalism, localism and consensus building. Of supporting majorities but without sacrificing minorities.
And so, they established a framework in which these principals can be balanced that is responsive to changing conditions and needs. The founders’ concerns are still our concerns. But guess what? They built the Senate for this exact moment. We are constantly tussling on how to make sure every voice is heard and every person has a place.
We live in a divided time. We live in a divided nation. But they live in a divided time and a divided nation. So, they created the Senate as a space to deescalate red hot anger. To take a deep breath, rather than just assuming that a runaway majority of 50 percent plus 1 should advance whatever it wanted. Friends, colleagues, you know after the summer of 2013 the dominos were worse than you had expected. And many of you, I don’t know if it’s most, but many of you have talked about how much you regret the summer of 2013 decision. This decision is 100 times larger. Friends, please consider whether or not it is prudent to set the Senate on fire. It is the only deliberative structure we have in our government. And in a time where institutions are being consumed, let us not consume another.
Thank you, Mr. President.
Read this original document here.
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