[Senate Hearing 111-706]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 111-706
 
                        EXAMINING THE FILIBUSTER 

=======================================================================

                                HEARINGS

                               before the

                           COMMITTEE ON RULES
                           AND ADMINISTRATION
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION



                               ----------                              

      April 22, 2010; May 19, 2010; June 23, 2010; July 28, 2010;
                     and September 22 and 29, 2010

                               ----------                              



























                        EXAMINING THE FILIBUSTER


























                                                        S. Hrg. 111-706

                        EXAMINING THE FILIBUSTER

=======================================================================

                                HEARINGS

                               before the

                           COMMITTEE ON RULES
                           AND ADMINISTRATION
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

      APRIL 22, 2010; MAY 19, 2010; JUNE 23, 2010; JULY 28, 2010;
                     AND SEPTEMBER 22 AND 29, 2010

                               __________

    Printed for the use of the Committee on Rules and Administration


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                COMMITTEE ON RULES AND ADMINISTRATION *

                 CHARLES E. SCHUMER, New York, Chairman

DANIEL K. INOUYE, Hawaii             ROBERT F. BENNETT, Utah
CHRISTOPHER J. DODD, Connecticut     MITCH McCONNELL, Kentucky
DIANNE FEINSTEIN, California         THAD COCHRAN, Mississippi
RICHARD J. DURBIN, Illinois          KAY BAILEY HUTCHISON, Texas
BEN NELSON, Nebraska                 SAXBY CHAMBLISS, Georgia
PATTY MURRAY, Washington             LAMAR ALEXANDER, Tennessee
MARK L. PRYOR, Arkansas              JOHN ENSIGN, Nevada
TOM UDALL, New Mexico                PAT ROBERTS, Kansas
MARK R. WARNER, Virginia
JOE MANCHIN III, West Virginia

                 Jean Parvin Bordewich, Staff Director
               Mary Suit Jones, Republican Staff Director

                Jennifer Griffith, Deputy Staff Director
                      Jason A. Abel, Chief Counsel
        Adam D. Ambrogi, Administrative and Legislative Counsel
                 Veronica Gillespie, Elections Counsel
   Carole Blessington, Administrative Assistant to the Staff Director
                          Sonia Gill, Counsel
                       Julia Richardson, Counsel
                  Josh Brekenfeld, Professional Staff
                    Lauryn Bruck, Professional Staff

             Shaun Parkin, Republican Deputy Staff Director
                Paul Vinovich, Republican Chief Counsel
             Michael Merrell, Republican Elections Counsel
               Abbie Platt, Republican Professional Staff
               Trish Kent, Republican Professional Staff
            Rachel Creviston, Republican Professional Staff

                     Lynden Armstrong, Chief Clerk
                  Matthew McGowan, Professional Staff

* Senator Robert C. Byrd, West Virginia, was a member of the Committee 
    during the 111th Congress until his death on June 28, 2010. Senator 
    Carte P. Goodwin, West Virginia, was a member of the Committee 
    during the 111th Congress from July 20, 2010, until November 15, 
    2010.

Note: Archived webcasts of all hearings and an electronic version of 
    this report are available at http://rules.senate.gov.


























                            C O N T E N T S

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                             April 22, 2010
     EXAMINING THE FILIBUSTER: HISTORY OF THE FILIBUSTER 1789-2008
                         Opening Statement of:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York....................................................     1
Hon. Mitch McConnell, Republican Leader, a U.S. Senator from the
  Commonwealth of Kentucky.......................................     4
Hon. Tom Udall, a U.S. Senator from the State of New Mexico......     7
Hon. Lamar Alexander, a U.S. Senator from the State of Tennessee.     8
Hon. Pat Roberts, a U.S. Senator from the State of Kansas........    10
Hon. Saxby Chambliss, a U.S. Senator from the State of Georgia...    14

                             Testimony of:

Ms. Sarah A. Binder, Professor, Department of Political Science, 
  George Washington University, Washington, DC...................    17
Mr. Gregory J. Wawro, Associate Professor, Department of 
  Political Science, Columbia University, New York, NY...........    19
Mr. Robert B. Dove, Parliamentarian Emeritus, U.S. Senate, Falls 
  Church, VA.....................................................    21
Mr. Stanley I. Bach, Retired, Senior Specialist in the 
  Legislative Process, Congressional Research Service, 
  Washington, DC.................................................    23

                         Prepared Statement of:

Hon. Robert Bennett, Ranking Member, a U.S. Senator from the 
  State of Utah..................................................    38
Hon. Robert C. Byrd, a U.S. Senator from the State of West 
  Virginia.......................................................    41
Ms. Sarah A. Binder, Professor, Department of Political Science, 
  George Washington University, Washington, DC...................    45
Mr. Gregory J. Wawro, Associate Professor, Department of 
  Political Science, Columbia University, New York, NY...........    50
Mr. Robert B. Dove, Parliamentarian Emeritus, U.S. Senate, Falls 
  Church, VA.....................................................    61
Mr. Stanley I. Bach, Retired, Senior Specialist in the 
  Legislative Process, Congressional Research Service, 
  Washington, DC.................................................    67

                 Materials Submitted for the Record of:

Senator Harry Reid, ``The Nuclear Option,'' The Good Fight, 
  Submitted by Senator Lamar Alexander...........................    79
Statement of Senator Byrd, Orientation for New Senators, 
  Submitted by Senator Lamar Alexander...........................   102
Mimi Murray Digby Marziani and Diana Lee, Statement for the 
  Record, Brennan Center for Justice, New York, NY...............   108
Emmet J. Bondurant, Statement for the Record, Common Cause, 
  Washington, DC.................................................   113

                      Questions for the Record of:

Hon. Tom Udall, a U.S. Senator from the State of New Mexico, to 
  Committee witnesses............................................   118
                              ----------                              

                              May 19, 2010
             EXAMINING THE FILIBUSTER: THE FILIBUSTER TODAY
                          AND ITS CONSEQUENCES
                         Opening Statement of:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York....................................................   137
Hon. Robert Bennett, Ranking Member, a U.S. Senator from the 
  State of Utah..................................................   139
Hon. Lamar Alexander, U.S. Senator from the State of Tennessee...   141
Hon. Pat Roberts, a U.S. Senator from the State of Kansas........   142
Hon. Richard J. Durbin, a U.S. Senator from the State of Illinois   143
Introduction of Hon. Walter F. Mondale by Hon. Amy Klobuchar, a 
  U.S. Senator from the State of Minnesota.......................   144
Hon. Tom Udall, a U.S. Senator from the State of New Mexico......   156
Hon. Robert C. Byrd, a U.S. Senator from the State of West 
  Virginia.......................................................   160

                             Testimony of:

The Honorable Walter F. Mondale, Dorsey & Whitney LLP, 
  Minneapolis, MN................................................   145
The Honorable Don Nickles, Chairman & CEO, The Nickles Group,
  Washington, DC.................................................   148
Mr. Steven S. Smith, Kate M. Gregg Professor of Social Sciences, 
  Washington University, St. Louis, MO...........................   166
Mr. Norman J. Ornstein, Resident Scholar, American Enterprise 
  Institute for Public Policy Research, Washington, DC...........   168

                         Prepared Statement of:

Hon. Robert Bennett, Ranking Member, a U.S. Senator from the 
  State of Utah..................................................   176
Hon. Tom Udall, a U.S. Senator from the State of New Mexico......   177
The Honorable Walter F. Mondale, Dorsey & Whitney LLP, 
  Minneapolis, MN................................................   179
The Honorable Don Nickles, Chairman & CEO, The Nickles Group,
  Washington, DC.................................................   185
Mr. Steven S. Smith, Kate M. Gregg Professor of Social Sciences, 
  Washington University, St. Louis, MO...........................   188
Mr. Norman J. Ornstein, Resident Scholar, American Enterprise 
  Institute for Public Policy Research Washington, DC............   193

                 Materials Submitted for the Record of:

Congressional Research Service, Memorandum, ``Days of Senate
  Consideration of Various Questions Before Filing of Cloture,'' 
  May 17, 2010, Submitted by Senator Robert Bennett..............   197
Congressional Research Service, Memorandum, ``Measures on Which
  Opportunities for the Floor Amendment Were Limited by the 
  Senate
  Majority Leader or His Designee Filling or Partially Filling 
  the Amendment Tree: 1985-2010,'' May 18, 2010, Submitted by 
  Senator Robert Bennett.........................................   223
Congressional Research Service, Memorandum, ``Measures Placed on 
  the
  Senate Calendar Via Senate Rule XIV,'' May 17, 2010, Submitted 
  by
  Senator Robert Bennett.........................................   242
Introduction of Hon. Walter F. Mondale by Hon. Charles E. 
  Schumer,
  Chairman, a U.S. Senator from the State of New York............   245
Brennan Center for Justice, New York, NY.........................   248
Scott Lilly, ``From Deliberation to Dysfunction,'' Center for 
  American Progress Action Fund, March 2010, Washington, DC......   256
Panel presented at the Center for American Progress Action Fund,
  ``Deliberation, Obstruction or Dysfunction?,'' March 12, 2010, 
  Washington, DC.................................................   273

                      Questions for the Record of:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York, to Committee witnesses............................   306
Hon. Tom Udall, a U.S. Senator from the State of New Mexico, to 
  Committee witnesses............................................   313
                              ----------                              

                             June 23, 2010
  EXAMINING THE FILIBUSTER: SILENT FILIBUSTERS, HOLDS AND THE SENATE 
                          CONFIRMATION PROCESS
                         Opening Statement of:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York....................................................   321
Hon. Robert Bennett, Ranking Member, a U.S. Senator from the 
  State of Utah..................................................   323
Hon. Tom Udall, a U.S. Senator from the State of New Mexico......   330
Hon. Lamar Alexander, U.S. Senator from the State of Tennessee...   332
Hon. Mark Warner, U.S. Senator from the Commonwealth of Virginia.   334

                             Testimony of:

Hon. Ron Wyden, a U.S. Senator from the State of Oregon..........   325
Hon. Chuck Grassley, a U.S. Senator from the State of Iowa.......   327
Hon. Claire McCaskill, a U.S. Senator from the State of Missouri.   328
Mr. G. Calvin Mackenzie, Goldfarb Family Distinguished Professor 
  of
  Government, Department of Government, Colby College, 
  Waterville, ME.................................................   336
Mr. W. Lee Rawls, Faculty, National War College, Adjunct 
  Professor, College of William and Mary, Kensington, MD.........   337
Mr. Thomas E. Mann, Senior Fellow, Governance Studies, The W. 
  Averell Harriman Chair,The Brookings Institution, Washington, 
  DC.............................................................   339

                         Prepared Statement of:

Hon. Robert C. Byrd, a U.S. Senator from the State of West 
  Virginia.......................................................   354
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York....................................................   357
Hon. Tom Udall, a U.S. Senator from the State of New Mexico......   359
Hon. Ron Wyden, a U.S. Senator from the State of Oregon..........   362
Hon. Chuck Grassley, a U.S. Senator from the State of Iowa.......   366
Mr. G. Calvin Mackenzie, Goldfarb Family Distinguished Professor 
  of
  Government, Department of Government, Colby College, 
  Waterville, ME.................................................   369
Mr. W. Lee Rawls, Faculty, National War College, Adjunct 
  Professor, College of William and Mary, Kensington, MD.........   378
Mr. Thomas E. Mann, Senior Fellow, Governance Studies, The W. 
  Averell Harriman Chair, The Brookings Institution, Washington, 
  DC.............................................................   383

                 Materials Submitted for the Record of:

Roll Call, ``In Senate, `Motion to Proceed' Should Be Non-
  Debatable,'' Charles A. Stevenson, Submitted by Senator Tom 
  Udall..........................................................   388

                      Questions for the Record of:

Hon. Tom Udall, a U.S. Senator from the State of New Mexico, to 
  Committee witnesses............................................   390
                              ----------                              

                             July 28, 2010
   EXAMINING THE FILIBUSTER: LEGISLATIVE PROPOSALS TO CHANGE SENATE 
                               PROCEDURES

                              ----------                              

                         Opening Statement of:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York....................................................   392
Hon. Robert Bennett, Ranking Member, a U.S. Senator from the 
  State of Utah..................................................   394

                             Testimony of:

Hon. Frank Lautenberg, a U.S. Senator from the State of New 
  Jersey.........................................................   395
Hon. Michael Bennet, a U.S. Senator from the State of Colorado...   397
Mr. Gregory Koger, Associate Professor Political Science, 
  University of Miami, Coral Gables, FL..........................   400
Ms. Barbara Sinclair, Marvin Hoffenberg Professor of American 
  Politics Emerita, Department of Political Science, University 
  of California, Los
  Angeles, CA....................................................   402
Ms. Elizabeth Rybicki, Analyst on the Congress and Legislative 
  Process, Congressional Research Service, Library of Congress, 
  Washington, DC.................................................   403

                         Prepared Statement of:

Hon. Tom Udall, a U.S. Senator from the State of New Mexico......   420
Hon. Frank Lautenberg, a U.S. Senator from the State of New 
  Jersey.........................................................   422
Hon. Michael Bennet, a U.S. Senator from the State of Colorado...   424
Mr. Gregory Koger, Associate Professor Political Science, 
  University of Miami, Coral Gables, FL..........................   434
Ms. Barbara Sinclair, Marvin Hoffenberg Professor of American 
  Politics Emerita, Department of Political Science, University 
  of California, Los
  Angeles, CA....................................................   442
Ms. Elizabeth Rybicki, Analyst on the Congress and Legislative 
  Process, Congressional Research Service, Library of Congress, 
  Washington, DC.................................................   449

                           September 22, 2010
   EXAMINING THE FILIBUSTER: LEGISLATIVE PROPOSALS TO CHANGE SENATE 
                               PROCEDURES

                              ----------                              

                         Opening Statement of:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York....................................................   465
Hon. Robert Bennett, Ranking Member, a U.S. Senator from the 
  State of Utah..................................................   467
Hon. Lamar Alexander, U.S. Senator from the State of Tennessee...   474
Hon. Pat Roberts, a U.S. Senator from the State of Kansas........   476

                             Testimony of:

Hon. Tom Harkin, a U.S. Senator from the State of Iowa...........   469
Hon. Tom Udall, a U.S. Senator from the State of New Mexico......   471
Ms. Mimi Murray Digby Marziani, Counsel/Katz Fellow, Democracy 
  Program, Brennan Center for Justice at NYU School of Law, New 
  York, NY.......................................................   479
Mr. Robert B. Dove, Parliamentarian Emeritus, U.S. Senate, Falls 
  Church, VA.....................................................   481
Mr. Steven S. Smith, Director, Weidenbaum Center on the Economy,
  Government, and Public Policy, Washington University, St. 
  Louis, MO......................................................   482

                         Prepared Statement of:

Hon. Tom Harkin, a U.S. Senator from the State of Iowa...........   500
Hon. Tom Udall, a U.S. Senator from the State of New Mexico......   504
Hon. Pat Roberts, a U.S. Senator from the State of Kansas........   515
Ms. Mimi Murray Digby Marziani, Counsel/Katz Fellow, Democracy 
  Program, Brennan Center for Justice at NYU School of Law, New 
  York, NY.......................................................   517
Mr. Robert B. Dove, Parliamentarian Emeritus, U.S. Senate, Falls 
  Church, VA.....................................................   532
Mr. Steven S. Smith, Director, Weidenbaum Center on the Economy,
  Government, and Public Policy, Washington University, St. 
  Louis, MO......................................................   544

                Statements Submitted for the Record of:

Scott Lilly, ``From Deliberation to Dysfunction,'' Center for 
  American Progress Action Fund, March 2010, Washington, DC......   555
Center for American Progress, ``Minority Rules,'' Ian Millhiser, 
  September 29, 2010, Washington, DC.............................   571
Center for American Progress, ``The Tyranny of the Timepiece,'' 
  Ian Millhiser, September 28, 2010, Washington, DC..............   578
Aaron-Andrew Bruhl, Assistant Professor of Law, University of 
  Houston Law Center, Houston, TX................................   586

                      Questions for the Record of:

Hon. Tom Udall, a U.S. Senator from the State of New Mexico to 
  Committee witnesses............................................   589

                           September 29, 2010
EXAMINING THE FILIBUSTER: IDEAS TO REDUCE DELAY AND ENCOURAGE DEBATE IN 
                               THE SENATE
                         Opening Statement of:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York....................................................   591
Hon. Robert Bennett, Ranking Member, a U.S. Senator from the 
  State of Utah..................................................   595
Hon. Christopher J. Dodd, a U.S. Senator from the State of 
  Connecticut....................................................   595

                             Testimony of:

Hon. Judd Gregg, a U.S. Senator from the State of New Hampshire..   598
Mr. Marty Paone, Executive Vice President, Prime Policy Group,
  Washington, DC.................................................   606
Mr. Norman J. Ornstein, Resident Scholar, American Enterprise 
  Institute for Public Policy Research, Washington, DC...........   608

                         Prepared Statement of:

Hon. Tom Udall, a U.S. Senator from the State of New Mexico......   626
Mr. Marty Paone, Executive Vice President, Prime Policy Group,
  Washington, DC.................................................   650
Mr. Norman J. Ornstein, Resident Scholar, American Enterprise 
  Institute for Public Policy Research, Washington, DC...........   654

                      Questions for the Record of:

Hon. Tom Udall, a U.S. Senator from the State of New Mexico, to 
  Committee witnesses............................................   656


     EXAMINING THE FILIBUSTER: HISTORY OF THE FILIBUSTER 1789-2008

                              ----------                              


                        THURSDAY, APRIL 22, 2010

                      United States Senate,
             Committee on Rules and Administration,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:05 a.m., in 
Room SR-301, Russell Senate Office Building, Hon. Charles E. 
Schumer, Chairman of the committee, presiding.
    Present: Senators Schumer, Udall, Bennett, McConnell, 
Chambliss, Alexander, and Roberts.
    Staff present: Jean Bordewich, Staff Director; Jason Abel, 
Chief Counsel; Veronica Gillespie, Elections Counsel; Adam 
Ambrogi, Administrative and Legislative Counsel; Sonia Gill, 
Counsel; Julia Richardson, Counsel; Lauryn Bruck, Professional 
Staff; Carole Blessington, Executive Assistant to the Staff 
Director; Lynden Armstrong, Chief Clerk; Matthew McGowan, 
Professional Staff; Mary Jones, Republican Staff Director; 
Shaun Parkin, Republican Deputy Staff Director; Paul Vinovich, 
Republican Chief Counsel; Michael Merrell, Republican Counsel; 
Abbie Platt, Republican Professional Staff; Trish Kent, 
Republican Professional Staff; and Rachel Creviston, Republican 
Professional Staff.

             OPENING STATEMENT OF CHAIRMAN SCHUMER

    Chairman Schumer. The hearing will come to order.
    First, I would like to acknowledge the fact that Senator 
Bennett is planning to be here but he will be a little late. So 
Senator Alexander is taking over the ranking position until 
Senator Bennett gets here.
    I thank my colleagues for being here. We will do opening 
statements and then we will go to the witnesses.
    So I want to thank everyone for coming. I want to thank 
Senator Bennett, of course, and my other colleagues for 
participating in the hearing. I especially want to thank two 
people. One is Senator Robert C. Byrd, who could not be here 
today, but I want to thank him for his interest in our hearing 
and for the statement he is submitting for the record. As we 
know, he is sort of the guardian of the Senate and the Senate 
Rules, and Senator Byrd has shown an active role here.
    At the other end of the spectrum, the person who really 
encouraged me and convinced me that it was a good idea to have 
a series of hearings on this issue is Senator Tom Udall of 
Mexico. He has not been here quite as long as Senator Byrd but 
we know that he has the tremendous potential to be one of the 
people so knowledgeable about how the Senate works and he is 
already an outstanding Senator.
    This is the first in this series of hearing by the Rules 
Committee to examine the filibuster. It is a topic we hear a 
lot about from our constituents, from our colleagues, from the 
press. That is because filibusters and cloture motions have 
escalated in recent year to unprecedented levels.
    In the first half of the 20th Century filibusters and 
filibuster threats were relatively rare events. From the 1920s 
through the 1950s, an average of about ten cloture motions were 
filed per decade, and of course, not every cloture motion is to 
cut off a filibuster.
    That number almost tripled to 28 during the 1960s, the era 
of controversial civil rights legislation. But after that, 
things really started to take off. A total of 358 cloture 
motions were filed in the 1990s and from 2001 to 2009 there 
were 435 cloture motions filed.
    Clearly the filibuster has changed over the years. Not only 
is it used a lot more now but the threat of filibusters has 
become an almost daily fact of life in the Senate, influencing 
how we handle virtually everything debated on the Senate floor.
    The filibuster used to be the exception to the rule. In 
today's Senate, it is becoming a straitjacket. So especially 
during the last decade there has been a lot of interest and 
concern and frustration from both parties about where we are in 
terms of getting things done in the Senate.
    There are many people saying we need to change the rules to 
make it easier to get cloture or to handle Senate business 
efficiently. Four such Senate resolutions have been introduced 
in this Congress including one by our Rules Committee 
colleague, Senator Udall, which we will hear about at future 
hearings.
    Others say we should not change the rules. As chairman of 
the Rules Committee, I intend to take a thoughtful, thorough 
approach to this topic.
    Since I joined the Senate in 1999, I have seen the use of 
filibuster continue to increase under both Republican and 
Democratic majorities. So it is not just one party doing it. In 
2005 we had a near crisis over the so-called nuclear or 
constitutional option, a crisis that ended when a bipartisan 
group of senators came together to find a middle ground.
    The truth is both parties have a love-hate relationship 
with the filibuster depending on if you are in the majority or 
in the minority at the time. But this is not healthy for the 
Senate as an institution. The last Rules Committee hearing on 
the filibuster was on June 5, 2003, under then Chairman Trent 
Lott. A resolution was proposed by Majority Leader Frist to 
amend the Standing Rules of the Senate to allow a simple 
majority of 51 votes to end debate on judicial nominees.
    In reflecting on the substance of that hearing, it is clear 
that our statements on whether or not to change the cloture 
rule usually coincided with whether or not we were in the 
majority or the minority.
    I was a member of this Committee in 2003 as were many of my 
colleagues here, both Democrat and Republican. Not surprisingly 
the words we spoke then might not reflect how we feel today 
when our majority and minority roles are reversed.
    I am sure my colleagues could quote us opposing filibuster 
reform just as I could quote them in favor of such reform. But 
that is not the point of these hearings.
    The fact is that all of us on both sides of the aisle 
struggled with the same questions. What does the Constitution 
say about ending debate or allowing unlimited debate in the 
Senate? What does it say about how Senate rules can be changed? 
What are the rights of the majority; what are the rights of the 
minority? When does respect for the rights of the other members 
of this body become a disregard for the needs of the majority 
of Americans to have us act?
    We all know that those of us in the minority in one 
Congress will be in the majority in another and vice versa. 
What we seek is a path towards civility, deliberation, and 
consensus that eventually at the proper time leads to the best 
decisions we can make collectively for our country.
    Only by carefully exploring these issues can we answer the 
question: should we change the Senate rules and if so, how and 
when. Knowing the history of debate in the Senate and the 
efforts to limit it is the first step.
    So we are starting our hearings today with an examination 
of the history of the filibuster from 1789 to 2008. We will 
start at the beginning. What does the Constitution say about 
the Senate? Since there was no procedural rule to cut off 
debate for most of the 19th century, how did that affect 
decision-making in the Senate? What eventually prompted 
adoption of the cloture rule in 1917 that for the first time in 
the Senate allowed Senators by a two-thirds supermajority to 
vote and end debate?
    Our witnesses will describe how the cloture rule and the 
filibuster were used during the 20th Century in debates on 
civil rights and the push for filibuster reform in the 1970s 
that lowered the threshold for cloture to 60 votes.
    Finally, we will hear about the modern era of the Senate, 
including the impact of filibusters and cloture motions in 
every decade since the 1970s as the use of the filibuster 
escalated drastically.
    Our historical overview will end in 2008 before the start 
of the current Congress. Today's hearing will establish a 
common understanding for future hearings and discussions. I 
hope that informs members of this Committee, the Senate and the 
public at large about the development of the filibuster and 
efforts of the Senate over more than two centuries to manage it 
and deal with its consequences.
    In our next hearing we will look at the filibuster in this 
Congress, examining issues such as whether it is more difficult 
for the Senate to complete its regular business now than in 
previous eras and the impact of the filibuster on other 
branches of government.
    In subsequent hearings, we will hear about proposals for 
changes in Senate rules related to the filibuster and consider 
what kinds of changes, if any, are needed.
    I hope all of us on this Committee come to these hearings 
with an open mind, willing to consider the ideas and 
suggestions presented to us. I look forward to listening to our 
witnesses who have come to share their knowledge and experience 
with us.
    Now with the permission of the members, we are very honored 
to have Leader McConnell with us and I would turn to him to 
make the first statement.

  OPENING STATEMENT OF THE HONORABLE MITCH McCONNELL, A U.S. 
                     SENATOR FROM KENTUCKY

    Senator McConnell. Thank you very much, Mr. Chairman. I 
appreciate the opportunity to be here and make some 
observations about this extremely important topic.
    Before giving my prepared comments, I would point out that 
I believe it was Washington. It certainly was one of our 
founders who was quoted as saying at the constitutional 
convention the Senate was going to be like the saucer under the 
tea cup, and the tea was going to slosh out and cool off, and 
the Senate, he anticipated, would be a place where passions 
would be reined in and presumably progress would be made in the 
political center.
    It seems to me if you look back over the 200-year history 
of our country, the Senate has certainly forced solutions to 
the middle and most observers would argue that has been good 
for the country.
    We read the newspapers and I think understand what these 
hearings are about. Some members of the Democratic conference 
would like to eliminate the Senate's long-standing tradition of 
the freedom to debate and amend legislation.
    This in turn would eliminate the requirement that 
controversial legislation achieve more than just a bare 
majority support here in the Senate. It probably comes as no 
surprise to anyone that I am not in favor of such a proposal. I 
never have been, including more challengingly, of course, when 
I was in the majority.
    The reason is best described by one of our Senate 
colleagues who once wisely said the following, ``Let us clearly 
understand one thing. The Constitution's framers never intended 
for the Senate to function like the House of Representatives. 
The Senate was intended to take the long view and to be able to 
resist, if need be, the passions of the often intemperate 
House. Few, if any, upper chambers in the history of the 
western world have possessed the Senate's absolute right to 
unlimited debate and to amend or block legislation passed by a 
lower house. I have said that, as long as the Senate retains 
the power to amend and the power of unlimited debate, the 
liberties of the people will remain secure.''
    That, of course, was Senator Byrd. He delivered those 
remarks in 1997. He was right then and he is right again when 
he reaffirmed his belief in those principles this year.
    Here is what he wrote in a dear-colleague letter, quote, 
``I believe that efforts to change or reinterpreted the rules 
in order to facilitate expeditious action by a simple majority 
are grossly misguided. The Senate is the only place in 
government where the rights of a numerical minority are so 
protected. Majorities change with elections. A minority can be 
right. A minority's views can certainly improve legislation. 
Extended deliberation and debate are essential to the 
protection of liberties of a free people.'' That was Robert 
Byrd this year.
    Now why are some in Senator Byrd's own party proposing to 
disregard his counsel? The most disingenuous thing I have heard 
is that the Senate's rules must be changed so the, quote, 
``democratic process'' will work.
    I submit that the effort to change the rules is not about 
democracy at all. It is not about doing what a majority of the 
American people want. It is about power.
    If it were truly about doing what a majority of Americans 
wanted, the Democratic majority in the Senate would not have 
muscled through a health spending bill that a majority of 
Americans opposed and opposed by very wide margins.
    When the bill finally passed the Senate by the narrowest of 
margins, 39 percent of Americans favored it while 59 percent 
opposed it. Other surveys had similar results.
    So this was not about giving the majority of Americans what 
it wanted. It was about power. That is what this is about. It 
is about a political party or a faction of a political party 
that is frustrated that it cannot do whatever it wants whenever 
it wants precisely the way it wants to do it. That is what this 
is about.
    So rather than throw out 200 years of Senate tradition and 
practice and throw away the very principles of which Senator 
Byrd has reminded us, I would like to suggest a less radical 
and more productive solution to those who would like the Senate 
to function differently.
    First, at the risk of sounding like Yogi Berra, the virtue 
of a supermajority requirement for legislation is that a bill 
that passes enjoys supermajority support, which helps ensure 
that most Americans will actually support it.
    When the Democratic majority has reached out to the 
minority, which does not mean trying to pick off a few 
Republicans, we have had success. I hope we can have another 
one with the financial regulatory reform bill and in other 
areas, but that requires the majority to meet us in the middle.
    My second suggestion is not run the Senator floor like the 
House. The Senate's tradition of freedom to amend has been a 
lot less free over the last few years.
    Take a look at this chart and you will see, if I can see 
it, you will see that since assuming control of the Senate the 
Democratic majority has been engaged in what my friend the 
majority leader once called a very bad practice.
    And according to CRS it has been engaging in it to an 
unprecedented extent. What I am talking about is the majority 
repeatedly blocking Senators in the minority from offering 
amendments by filling out the so-called amendment tree.
    As you can see, the practice of filling up the amendment 
tree has gone up dramatically in the last three years. All 
majority leaders have done it occasionally, but this majority 
has done it to an unprecedented extent.
    Senator Frist did it 12 times in four years. By contrast, 
Senator Reid has done it more than twice as often, 26 times in 
a little over three years. In fact, the current majority has 
blocked the minority from offering amendments almost as often 
as the last five majority leaders combined.
    I would say to my friends in the majority I know why, 
because members are complaining about having to cast tough 
votes. They really hate it. And the leader of the majority is 
always pounded upon. I remember having a similar experience 
when we were in the majority. Members coming up and saying why 
do we have to cast all these tough votes. Of course, the only 
way to avoid that is to shut the minority out by filing up the 
tree and filing cloture.
    So if the Democratic majority wants to generate inflated 
cloture vote numbers for political purposes, well, go ahead and 
keep treating the minority as if they were serving in the 
House.
    But if you truly do not like all the cloture votes, then 
let your colleagues in the minority offer amendments. True, 
there may be some votes you would rather not cast, but that is 
not anything new.
    What is new is the unprecedented extent to which the 
majority is avoiding have to vote on amendments. As my good 
friend the majority whip likes to say, if you do not like 
fighting fires, then do not become a fireman; and if you do not 
like casting tough votes, then do not run for the U.S. Senate. 
That is Senator Durbin.
    Finally some of the testimony states that one's view of the 
filibuster depends on where one sits. It is true that I opposed 
filibustering judicial nominees; we opposed that when we were 
in the majority. But I opposed doing so when I was in the 
minority as well, that is, filibustering judges. And I opposed 
doing so regardless of who was in the White House.
    During the Clinton Administration, I put my votes where my 
mouth was and repeatedly voted with my Democratic colleagues to 
advance a nominee, to invoke cloture, if you will, when a 
minority of those in my party would not consent to do so, even 
though I opposed the nominee and later voted against him or 
her. Not surprisingly, I was also against my Democratic 
colleagues not giving President Bush's judicial nominees an up 
or down vote.
    In short, I was against expanding use of the filibuster 
into an area in which it traditionally--traditionally--had not 
been used. One can agree with that view or not. But it is one 
thing to disagree with expanding the use of the filibuster into 
a non-traditional area regardless of who is the President and 
who is in the minority.
    It is another thing to be for expanding the filibuster into 
judicial nominations when one is in the minority, but to turn 
around and urge it its elimination altogether when one is in 
the majority.
    When it comes to preserving the right to extended debate on 
legislation, Republicans have been surprisingly consistent. On 
January 5, 1995, after having just been voted into the 
congressional majority for the first time in 40 years, Senate 
Republicans walked onto the Senate floor to cast their first 
vote. It was on Senator Harkin's proposal to sequentially 
reduce the cloture requirement to a simple majority. This is 
right after Republicans took control of both the House and the 
Senate for the first time in 40 years. We were a rambunctious 
and a new majority.
    Even though it was in our short-term legislative interest 
to support Senator Harkin, all Republicans, every single one, 
voted against his proposal, every single one. So did the 
current vice president, the current Senate Majority Leader and 
not surprisingly, the current Senate president pro tem. That 
was the right position in 1995, and it is the right position 
today.
    In sum, the founders purposefully crafted the Senate to be 
a deliberate, thoughtful body. A supermajority requirement to 
cut off the right to debate ensures that wise purpose. 
Eliminating it is a bad idea.
    Mr. Chairman, I want to thank you for allowing me to give 
my thoughts on this at the beginning of the hearing, and I wish 
you well. I think this is an important subject, and I commend 
you for holding the hearings.
    Chairman Schumer. Thank you, Mr. Leader, and you are 
welcome at any time to take part in what will be a series of 
hearings on this issue.
    Senator Udall.

 OPENING STATEMENT OF THE HONORABLE TOM UDALL, A U.S. SENATOR 
                        FROM NEW MEXICO

    Senator Udall. Thank you, Chairman Schumer, and thank you 
for your kind statements in your opening and thank you for 
holding this hearing.
    Filibuster reform is an issue that has received a great 
deal of attention recently. Today's hearing as well as future 
hearings will allow us to take a rational and deliberative 
approach to reforming not just the filibuster but, other rules 
that are hampering this body. Today is about looking at our 
past, but also provides guidance for the future.
    Critics of reforming the filibuster argue that it will 
destroy the uniqueness of the Senate. They say it will turn the 
Senate into the House of Representatives.
    But today we will hear that the filibuster has been amended 
over the years, and this body not only survived the reforms, 
but was better for them. We will hear from our witnesses about 
the creation of the cloture rule in 1917 and the history of its 
reforms over the many decades.
    I would like to focus on one part of that history. In the 
1940S and 1950s, the civil rights debate was raging in the 
Senate and a minority of Senators opposed to the legislation 
were regularly using the filibuster as a weapon of the 
obstruction.
    In 1953, a bipartisan group of Senators decided they had 
had enough. Led by my predecessor, New Mexico's Clinton 
Anderson, they attempted to reform the filibuster. Article 1 
Section 5 of the Constitution states that each house may 
determine the rules of its proceedings.
    As such, Anderson argued that any rule adopted by one 
Senate that prohibits a succeeding Senate from establishing its 
own rules is unconstitutional. But this is precisely what Rule 
22 does.
    Currently we are operating under rules approved by a 
previous Senate that require an affirmative vote of two-thirds 
of Senators to end a filibuster on any rules change.
    Anderson's argument became known as the constitutional 
option, which I believe is very different from the nuclear 
option. On the first day of Congress in 1953, Anderson moved 
that the Senate immediately consider the adoption of rules for 
the Senate of the 83rd Congress.
    His motion was tabled, but he introduced it again at the 
beginning of the 85th of Congress. In the course of that 
debate, Senator Hubert Humphrey presented a parliamentary 
inquiry to Vice President Nixon, who was presiding over the 
Senate.
    Nixon understood the inquiry to address the basic question, 
do the rules of the Senate continue from one Congress to the 
next. Noting that there had never been a direct ruling on this 
question from the chair, Nixon stated, and I quote, ``Any 
provision of the Senate rules adopted in a previous Congress 
which has the expressed or practical effect of denying the 
majority of the Senate in a new Congress the right to adopt 
rules under which it desires to proceed is, in the opinion of 
the chair, unconstitutional.'' End quote.
    Despite Nixon's opinion, Anderson's motion again was 
tabled. Anderson raised the constitutional option once more at 
the start of the 86th Congress, this time with the support of 
more than two dozen Senators. But to prevent Anderson's motion 
from receiving a vote, Majority Leader Johnson came forward 
with his own compromise.
    He proposed changes to Rule 22 to reduce the required vote 
for cloture to two-thirds of Senators present and voting.
    As our witnesses will discuss, this was not the last change 
to the filibuster rule. Reform efforts have continued and 
occasionally succeeded since 1959. The constitutional option 
has served as a catalyst for change. As the junior Senator from 
New Mexico, I have the honor of serving in Clinton Anderson's 
former seat, and I have the desire to continue his commitment 
to the Senate and his dedication to the principles that in each 
new Congress the Senate has the constitutional right to 
determine its own rules by a simple majority vote.
    It is time again for reform. There are many great 
traditions in this body that should be kept and respected, but 
stubbornly clinging to ineffective and unproductive procedure 
should not be one of them.
    We should not limit our reform efforts to the filibuster, 
but look at all the rules. We can, and should, ensure that 
minority rights are protected and that the Senate remains a 
uniquely deliberative body but we must also ensure it is a 
functional body, regardless of which party is in the majority.
    Thank you again, Mr. Chairman. I am looking forward to 
these very important hearings.
    Chairman Schumer. Senator Alexander.

  OPENING STATEMENT OF THE HONORABLE LAMAR ALEXANDER, A U.S. 
                     SENATOR FROM TENNESSEE

    Senator Alexander. Thanks, Mr. Chairman. Thanks for having 
the hearing.
    President Lyndon Johnson called the Republican minority 
leader, Everett Dirksen every afternoon at 5 PM not for any 
particular reason. That was the kind of relationship that they 
had even though Senator Dirksen had fewer Republican Senators 
on his side then than Senator McConnell has today.
    Why did he do that? The civil right bill, Senator Udall 
mentioned the civil rights bills provided maybe an answer to 
that. I think it is because the President knew that not only 
did he need to get the civil rights bills passed--he had 
already passed one when he was majority leader--but in 1964 and 
1968 he needed to get the country to accept them.
    We have seen with health care debate that, as soon as it 
was passed by a bare majority, suddenly all over the country 
there is a campaign to repeal it. Lyndon Johnson I think wanted 
to avoid that in an even more controversial set of 
legislations.
    So he had the bills written in 1964 and 1968 in the 
Republican leader's office. He had to get 67 votes to pass 
those bills. That was inefficient. A Democratic majority could 
have pushed it through but maybe the founders were wise to say 
that there ought to be a process here of checks and balances in 
Washington, that in this big constitutionally decentralized 
country that we need, when we make big changes, to present the 
American people with something in which they have confidence.
    I think of the financial reform bill today. Senator 
Chambliss is working on that. We need certainty in our country 
in financial matters. I cannot think of a better way to do it 
than for the President to come out with a large number of 
Republicans and Democrats and say, okay, we are going to 
rewrite the rules and these are going to be the rules for the 
next five or ten years because we have a consensus on it. I 
think that would be important to the world. It might be the 
tipping point in terms of helping the economy get going again.
    So the majority has a choice. Do we ram it through or do we 
get consensus? Alexis de Tocqueville wrote the book that most 
Americans think is the best book on the American democracy, and 
in it he saw two great threats down the road to the American 
democracy. He wrote this in the 1830s as a very young man.
    One was Russia. He was awfully right about that. The other 
was what he called the tyranny of the majority. He wondered how 
a purely democratic country would work, whether it would 
overrun the ideas of the minority. That is why we have the 
United States Senate, to provide those checks and balances.
    Senator Schumer talked about the number of times the 
minority obstructs legislation. We in the minority could say it 
another way. We could say that is the number of times the 
majority has tried to cut off our right to debate, our right to 
offer amendments which is the essence of the Senate.
    The only thing different about the Senate is the almost 
absolute right of unlimited debate and unlimited amendment, and 
if you get rid of that, you get rid of the Senate.
    Senator Reid's book, the Majority Leader, Chapter 7, that 
he wrote recently. This is what he said about the Republican 
majority leader.
    ``I could not believe Bill Frist was going to do this. He 
decided to pursue a rules change,'' said Senator Reid, ``that 
would kill the filibuster for judicial nominations. Once you 
open that Pandora's box, it is just a matter of time before a 
Senate leader who could not get his way on something moved to 
eliminate the filibuster for regular business as well and that 
simply put would be the end of the United States Senate.''
    It would be, and I think it is very helpful to have the 
history here. Before we get bogged down in different rules and 
different current events, I think we need to understand what 
James Madison meant when he talked about a fence, a necessary 
fence against the danger of passion in the country of the 
Democratic majority.
    Senator Byrd's comments in his orientation comments to new 
Senators in 1996. ``Let us clearly understand one thing. The 
Constitution's framers never intended the Senate to function 
like the House of Representatives.''
    I saw in the newspaper it said a third of the Democratic 
Senators today are in their first term. I am sure for a new 
Senator full of vim and vigor the idea is let us get things 
moving, let us get things going.
    But we saw in the so-called nuclear option a few years ago 
when Republicans tried to do just exactly what Senator Udall 
said, cooler heads prevailed and said we do not want to do 
that. I do not want to create a Senate that is incapable of 
requiring a consensus on major issues so the country will have 
confidence in what is being done in Washington.
    Senator Byrd said in his letter on February 23rd of this 
year, I hope the Senators will take a moment to recall why we 
have extended debate and amendments. The Senate is a place in 
government where the rights of a numerical minority are 
protected. Minorities change with elections. A minority can be 
right and minority views can certainly improve legislation.
    Mr. Chairman, I ask unanimous consent since my time is now 
up to include the record Chapter 7 of Senator Reid's book, 
called The Nuclear Option. I think it provides a useful 
perspective, and I would like to include in the record also the 
remarks of Senator Byrd at the orientation of new Senators. He 
used to do that every time. He has not been able to do it the 
last couple of times. But it is a remarkable expression of 
understanding of why we have a Senate and why we require a 
consensus instead of a majority. I bought enough copies for 
every member of the Committee if they would like to have one.
    Thank you, Mr. Chairman, for holding the hearing.
    Chairman Schumer. Thank you, and I thank you for the 
statement.
    Would Senator Roberts, Senator Chambliss like to make 
opening statements? Senator Roberts was here first and then 
Senator Chambliss.
    Senator Roberts. Thanks to the thoughtful and careful 
Chairman of the Committee for holding this hearing to examine 
the role of the Senate and the legislative process. I am 
currently in my third term as a Senator.
    Chairman Schumer. Excuse me. Without objection, Senator 
Alexander's additions will be added to the record.
    Senator Alexander. Thank you.
    Chairman Schumer. Sorry to interrupt.
    [The information follows:]

OPENING STATEMENT OF THE HONORABLE PAT ROBERTS, A U.S. SENATOR 
                          FROM KANSAS

    Senator Roberts. No problem. I am currently in my third 
term as a Senator. Before this, I served in the House of 
Representatives for eight terms for 16 years as the Congressman 
for Kansas's big First District.
    We were in the minority for so many years my main role was 
to set picks for the Chairman during basketball contests. We 
Republicans never got to get the ball to shoot but we were 
always instructed to pass it.
    Chairman Schumer. If the gentleman would yield. He was the 
best ``pick setter'' that I have ever come across in my 59 
years of playing basketball.
    Senator Roberts. I have retired as a result of that as a 
matter of fact.
    [Laughter.]
    Chairman Schumer. But as such I have had first-hand 
experience in both the houses of Congress, their rules and 
their respective constitutional roles. I might add two years as 
administrative assistant for Frank Carlson, who was a great 
friend of Clinton Anderson of New Mexico, and basically 12 
years as an aid to my predecessor in the House. So as bucket 
toter or a staff member I think I pretty well covered the 
waterfront.
    This hearing is about more than the filibuster. It seems to 
me it is about the institutional role of the Senate and its 
function in the legislative process.
    It is clear that the founding fathers intended to create a 
system of checks and balances. The legislative upon the 
executive. The judicial upon the legislative. And even within 
the Congress, the Senate upon the House.
    I served as a Congressman in both the majority and the 
minority. I can testify that the majority is better. I can 
testify firsthand that the House is the institution for the 
will of the majority.
    However, I think it is useful to highlight some recent 
trends in the House operations in order to distinguish the 
importance of the Senate.
    From the 104th Congress to the 109th, a period of 12 years, 
the percentage of bills brought to the floor with an open 
amendment rules range from 58 percent in the 104th to 19 
percent in the 109th, with an average over the entire period of 
about 41 percent, almost 50.
    By contrast, the number of bills with open amendment rules 
on the floor in the 110th Congress was 14 percent and one 
percent, one percent as of March 19 in this year in the current 
Congress with an average of seven and half percent overall in 
three years and four months.
    So as the open amendment process atrophies in the House, 
the percentage of closed rules has inevitably soared. In the 
104th Congress to the 109th, the percentage of bills brought to 
the floor with closed rules range from 14 percent in the 104th 
to 32 percent in 109th with an average over the period of 22 
and a half percent.
    By contrast, the number of bills with closed rules on the 
floor in the 110th Congress was 36 percent and then an 
unprecedented 31 percent as of March 19 as of this year in the 
current Congress with an average between the two of 33 and a 
half percent.
    These numbers, Mr. Chairman, demonstrate the level of 
cooperation in the House has dropped precipitously, if not off 
the cliff. It is most striking because public opinion polls are 
overwhelmingly opposed to the legislation coming out of the 
Congress if you believe the polls and you think that is 
important.
    I understand fully that the motivation of individual 
members and their agenda or their ideology plays an important 
role, and different parties think obviously in regards to the 
importance of legislation or the agenda and that public polls 
should be considered but certainly should not be the deciding 
factor.
    But in its most recent average of polling data from 
different sources, Real Clear Politics, that is an outfit that 
is an independent nonpartisan polling institute, shows that 
nearly 53 percent of Americans are opposed to the recently 
passed Health Care Reform bill and only 40 percent roughly are 
in favor of it.
    I know that either party would explain if we could explain 
it more they would be for it; and the other party would say if 
you explain it more, more would be against it. I understand 
that.
    But at any rate, only 40 percent roughly were in favor of 
it. We could discuss other controversial proposals that have 
happened in the past. The American people oppose like the cap 
and trade, immigration, federal bailouts, deficit spending.
    But it might be easier to sum it all up in a real clear 
politics average of polls on whether Americans feel the country 
is headed in the right direction. The most recent poll average 
shows that almost 60 percent of Americans think we are on the 
wrong track. Only 37 percent roughly think we are on the right 
track.
    There is a clear disconnect at least publicly or in the 
image and the polling between what is being pursued and what 
the American people want.
    To whom can the American people turn when the House 
majority runs rough shod over the minority and public opinion. 
You can go back to the New Deal or you can go back to the Great 
Society or you can go back to eight years under Eisenhower or 
you can go back to any period of history and say the same kind 
of thing.
    The answer is the Senate. The founding fathers had the 
foresight to create an institution that was based not on 
majority rule but where each state regardless of size or 
population had two Senators to speak out on their behalf. It is 
that power to speak, the right to unlimited debate that is the 
hallmark of this body.
    The 63rd article from the federalist papers attributed to 
James Madison explains the necessity of the Senate as an 
institution that, quote, ``sometimes be necessary as a defense 
to the people. What bitter anguish would not the people of 
Athens have often escaped if their government had contained so 
provident a safeguard against the tyranny of their own 
passions. Popular liberty might then have escaped the indelible 
reproach of decreeing to the same citizenry the hemlock on one 
day and statues on the next.''
    I might also indicate, Mr. Chairman, that if you erect a 
statute on one day you might find a lot of pigeons on the next 
day.
    I know, Mr. Chairman, I have several other comments to 
make. Perhaps I should simply insert that in the record or, if 
the Chairman grant me, I would try to expedite this very 
quickly. It is the Chairman's call.
    Chairman Schumer. The gentleman's time is the extended.
    Senator Roberts. The filibuster is the essence of the 
Senate. It is not a tool of obstructionism or dysfunction. It 
is meant to foster greater consultation, consensus and 
cooperation between the parties. It is a means for the minority 
to make its voice heard and to contribute to debate and amend 
legislation before the Senate.
    In this way, it is impossible to abuse the filibuster 
because it is an expression of the people against majority's 
attempt to shut them out of the process. Only in the House does 
the majority take all. And as the numbers show, the majority 
appears to be taking, if not devouring, more and more in the 
last few years. It is disheartening to see some members of the 
Senate, often new and unaccustomed to culture of comity and 
compromise, attempt to rewrite the rules of this chamber to be 
more like the House.
    Cloture is an instrument to cut off debate when the 
majority is not interested in compromise. From the 107th to the 
109th Congress, there were an average of 57 cloture motions 
filed per Congress. In the 110th Congress alone there were 152. 
That is 152 instances of the majority seeking to cut off 
debate.
    It is a 267 percent increase over the average over the 
previous three Congresses. Of those 152 cloture motions, 97 
were filed the moment the question was raised on the floor. 
That is nearly 64 percent cloture motions were filed before a 
debate was even allowed to take place. The average for the 
previous three Congresses was 29 percent.
    We need to consider, Mr. Chairman, the times the majority 
brought a bill to the floor and used a parliamentary tactic 
called filling the tree to prevent the minority from offering 
amendments.
    From the 99th to the 109th Congress, a period of 22 years, 
the majority filled the tree a total of 36 times, averaging a 
little over three per Congress. This contrasts sharply with 
110th to the present Congress, a period of roughly three years 
and four months in which the majority filled the tree 26 times 
with an average of 13 times per Congress.
    We could go on and on with other instruments that have been 
used by the majority to circumvent regular order in the past 
and in the present, stifle the majority, and force unwanted 
legislation on the people.
    They include the abuse of the reconciliation process. Mr. 
Chairman, I remember trying to get order to introduce and 
explain in one minute an amendment that you offered and that 
was passed in the Finance Committee, trying to point out it was 
bipartisan and having agreement other than members shouting 
regular order when I reached the end of my comments, and yet it 
was defeated on a party line vote.
    That is just not right. It really is not right. Both of us 
agreed on the merits of the proposal and yet during 
reconciliation that was not possible, at any rate by bypassing 
the Committee through the use of the Rule 14 and the use of the 
amendments between the houses also known as ping-pong instead 
of conference committees to resolve differences in the 
legislation.
    I might add as a conferee on the farm bill there were 61 
members. I think I would have preferred ping-pong at that 
particular moment.
    The filibuster, the right of unlimited debate is synonymous 
with the Senate. It is what the founders intended. I have 
several quotes from current members and I think we have already 
had the intent of that so I will skip through that, except for 
Senator Kennedy who on May 5, 2005, said, ``The Senate rules 
have allowed the minority to make itself heard as long as 
necessary to stimulate debate and compromise and even to 
prevent actions that would undermine the balance of powers or 
that a minority of Senators strongly oppose on principle. In 
short, neither the Constitution nor Senate rules nor Senate 
precedents nor American history provide any justification for 
selectively nullifying the use of the filibuster.''
    Chairman Schumer. Thank you, Senator Roberts.
    Senator Chambliss.

 OPENING STATEMENT OF THE HONORABLE C. SAXBY CHAMBLISS, A U.S. 
                      SENATOR FROM GEORGIA

    Senator Chambliss. Thank you very much, Mr. Chairman. 
Thanks for holding this hearing. I am pleased to have the 
opportunity this morning to address the need to protect the 
fundamental role of this sacred legislative body.
    Our Nation's history is not only riddled with evidence of 
the intent of the framers to preserve the intended differences 
and structural or procedural design of the House and the Senate 
but also examples of our government's lawmaking powers where 
these differences have preserved and had protected the voice of 
the minority.
    There are those that may argue that the creation of the 
filibuster is not so rooted in the framers design of this 
institution but rather evolved over the early course of our 
history unintentionally.
    While some evidence may infer such an argument about the 
technical evolution of the filibuster and the Senate rules, the 
concept of a single legislative branch divided among two houses 
in electoral duration, representative composition, and rule-
making procedure could not have been more prevalent or 
purposefully on the minds of our founders and later historical 
giants of the Senate. These things all the filibuster serves to 
protect.
    Having begun my tenure in the United States Congress as a 
member of the House of Representatives and now serving my 
second term in the Senate, I am both sorely and fondly aware of 
the differences and legislative process between both houses of 
Congress.
    One of the certainties of the Senate body is a frustration 
of the majority in the minority's right to protect from a 
repressively enacted agenda at complete disregard of the 
minority will.
    Dysfunctional, gridlocked, stymied are often unavoidable 
characterizations of a majority's inability to move a one-sided 
partisan agenda through this legislative body without 
impediments.
    However, it is these legislative hurdles that are the 
reason this body is regarded as a guardian of checks and 
balances, and separation of powers. Any reform effort which 
attempts to weaken the protections of minority rights and 
further enable fast-tracked legislating threatens not only the 
balance of our bicameral design but also the separation of 
powers within a single party majority among executive and 
legislative branches.
    It is no secret that the filibuster can be the majority's 
greatest enemy and a minority's best friend. Yet it is most 
important to remember this when the political winds shift, and 
once majority party finds itself in the minority.
    There are a few party purists on the hypocrisy of blaming 
the other side of the aisle for obstructionism or a party of 
no. But we must strive to see past a polarizing politics and 
recall that both sides serve in an institution that was 
designed for purposes of balance, that but for the flaws of 
impetuous men, limitations would not be necessary, that rules 
to govern how we govern protect the rights of those we are sent 
here to represent.
    In the face of misguided calls for reform of Senate 
procedure, I am often reminded not only of Madison's 
description of the need for the Senate to service as an anchor 
of government but also that of Jefferson's exclamation that 
that government which is best governs least.
    And I would yield the rest of my time to Senator Roberts if 
he wants to enter his quotes, Mr. Chairman, or I would yield 
back to you, whichever your prefer.
    Chairman Schumer. I think I prefer you yielding back to me. 
But we will add anything Senator Roberts wishes to add for the 
record.
    Senator Roberts. Mr. Chairman, I would just say, and this 
is a personal statement. I did not write this out. But if you 
look back in the history of the House Agriculture Committee, 
the sometimes powerful House Agriculture Committee, you will 
find Stenholm Roberts amendments so prevalent probably more of 
those than any other in 20 years, and then we had the 
revolution and all of a sudden it was Roberts Stenholm. There 
was the difference.
    Charlie and I worked together. He was a great Democrat 
Congressman, and I have never used the word ``Democrat''. He 
was just a great Congressman. I will not say how he referred to 
me.
    But at any rate we knew on the Ad Committee we either had 
to hang together or hang separately. I think that was the way I 
tried very hard to represent Kansas.
    Came to the Senate. There were some trying times in House 
when we had the bank and the restaurant and the post office and 
all of that, and I understand all of that, and it became very 
partisan.
    But you come to the Senate and I must admit in this last 
year its been terribly frustrating. I serve on the Health 
Committee. I serve on the Finance Committee. You know about the 
jurisdiction of those Committees. You know the hours we put in. 
I even put them in when I had pneumonia.
    And eleven amendments on rationing, could never get them 
done, never made an order. Always some parliamentary situation. 
Tried on reconciliation. Could not get there.
    It is a situation where those of us in the minority who 
have worked in the past both in the majority and in the 
minority have come to feel that we have been shut out.
    I know that other people feel the same way when they have 
been in that kind of situation. But suiting up for the ball 
game and the coach never sends you in, that is something that 
you do not like to see.
    So from my standpoint I would really hope that we would, 
regardless of what we do in terms of alleged reform, let us see 
what lurks behind the banner of reform or if you wave that 
banner, you can be hoisted on your own petard.
    Chairman Schumer. Thank you, Senator.
    Let me just say before we go to our witnesses, there is 
large frustration on both sides and we are trying to handle 
these hearings in not a partisan way but in a way to try to 
break through that, and each side has legitimate concerns, very 
lofty concerns by my four colleagues here.
    They are a little less lofty when you realize things like 
the Marine Mammal Commission is filibustered, members to that, 
members to the Tennessee Valley Authority (TVA) board of 
directors, the member of the Farm Credit Bureau Administration 
even after they passed out of Committee by unanimous votes.
    So there is frustration on both sides, and maybe these 
series of hearings, and that is what we are going to have, can 
break through that.
    I understand yours. I think you understand ours. But to 
just continue in this direction, I think, will not make any of 
us more effective Senators, more effective Senators. So that is 
the purpose of the hearing.
    And you still set good picks.
    I am now going to call on our witnesses and introduce them.
    Our witnesses today are Dr. Sarah Binder. She is a Senior 
Fellow at the Brookings Institution, as well as Professor of 
Political Science at George Washington University where she 
specializes in Congress and legislative politics. She is the 
author of several books including, Stalemate: Causes and 
Consequences of Legislative Gridlock.
    Dr. Gregory Wawro is an Associate Professor in the 
Political Science Department at Columbia University. He is the 
co-author of the book, Filibuster:: Obstruction in Lawmaking in 
the U.S. Senate. He did his undergraduate work at Penn State 
and received a PhD at Cornell.
    Dr. Dove, someone we all know and welcome back, has served 
as Senate Parliamentarian for 13 years and now holds the title 
of Parliamentarian Emeritus of the Senate, and is a Professor 
at GW Graduate School of Political Management, and counsel to 
the law firm Patton Boggs.
    Dr. Stanley Bach was Senior Specialists in Legislative 
Process for the Congressional Research Service for over 25 
years. Since retiring, he served as a consultant in 
parliamentary development and legislative strengthening 
programs to governments around the world. A 2005 paper he 
authored on the rules of procedure for nationalist assemblies 
was used in Iraq.
    I thank the witnesses for being here. I thank them for 
listening to our statements which I think again were heart-felt 
but also well done. You may each proceed. I think we will 
proceed from my left to my right. So you may begin Ms. Binder. 
Your entire statements will be read into the record. If you 
could try to limit your comments to five minutes. I am not 
going to be quite as lenient with you as I was with Senator 
Roberts. Each has seven minutes, excuse me, seven minutes.

STATEMENT OF SARAH A. BINDER, DEPARTMENT OF POLITICAL SCIENCE, 
                  GEORGE WASHINGTON UNIVERSITY

    Ms. Binder. Thank you, Chairman Schumer, Ranking Member 
Alexander, members of the Committee. I appreciate the 
opportunity to testify today about the filibuster.
    I want to offer three arguments. First, historical lore 
says the filibuster was part of the original design of the 
Senate. Not true. When we scour early history, we discover that 
the filibuster was created by mistake.
    Second, we often call the 19th Century Senate a Golden Age 
of the deliberation but the Golden Age was not so golden. 
Senate leaders the 1840s were already trying to adopt a cloture 
rule but most such efforts to bar the filibuster were 
themselves filibustered.
    Third, creation of the cloture rule in 1917 was not a 
statement of the Senate's love of supermajority rules. Instead 
it was the product of hard-nosed bargaining with an obstructive 
minority. Short-term, pragmatic politics shaped contests to 
change Senate Rules.
    Allow me to elaborate. First on the origins of the 
filibuster, we have many received wisdoms about the filibuster. 
Most of them turn out not to be true. The most persistent myth 
is that the filibuster was part of the founding fathers 
constitutional vision for the Senate. It is said the upper 
chamber was designed to be a slow moving deliberative body that 
cherished minority rights.
    In this version of history, the filibuster was a critical 
part of the framers' Senate. But when we dig into history of 
Congress, it seems the filibuster was created by mistake. The 
House and Senate rule books in 1789 were nearly identical. Both 
rule books included what is known as the previous question 
motion. The House kept their motion. Today it empowers a 
majority to cut off debate. The Senate no longer has that rule.
    What happened to that rule? In 1805 Vice President Aaron 
Burr, freshly indicted for murdering Hamilton, was presiding 
over the Senate and he offered this advice. He said something 
like this.
    You are a great deliberative body but a truly great Senate 
would have a cleaner rule book and yours is a mess. You have 
lots of rules that do the same thing. And he singles out the 
previous question motion.
    Today we know a simple majority in the House uses the 
motion to cut off debate but in 1805 neither chamber used the 
rule that way. Majorities were still experimenting.
    And so when Aaron Burr said, ``Get rid of the previous 
question motion,'' the Senate did not think twice. When 
Senators met in 1806, they dropped the motion from the rule 
book. Why? Not because Senators we think in 1806 sought to 
protect minority rights and extended debate. They seemed to get 
rid of the rule by mistake because Aaron Burr told them to.
    Once the rule was gone, Senators still did not filibuster. 
Deletion of the rule made possible the filibuster because the 
Senate had no rule to cut off a majority by debate. It took 
several decades until the minority exploited lax limits on 
debate leading to the first real live filibuster in 1837.
    Second, the not so Golden Age of the Senate. Conventional 
treatments of the Senate glorified the 19th Century as the 
Golden Age. We say filibusters were reserved for great issues 
of the day and that all Senators cherished extended debate.
    That view I think misreads history in several ways. First, 
there were very few filibusters before the Civil War. Why so 
few? First, the Senate operated by majority rule. Senators 
expected matters would be brought to a vote. Second, the Senate 
did not have a lot of work to do in those years so there was 
plenty of time to wait out the opposition. Third, voting 
coalitions in this early Senate were not nearly as polarized as 
they would later become.
    That changes by mid-century. The Senate grew larger, more 
polarized. It had more work to do. And people started paying 
attention to it. By the 1880s almost every Congress began to 
experience at least one bout of obstructionism over civil 
rights, election law, even appointment of Senate officers, not 
all of these great issues of the date.
    There is a second reason the Senate was not in a Golden 
Age. When filibusters did occur, leaders tried to ban them. 
Senate leaders tried and failed repeatedly over the course of 
19th and early 20th Centuries to reinstate the previous 
question motion.
    More often than not, Senators gave up on their quest for 
filibuster reform when they saw that opponents would kill it by 
filibuster because it would put the majority's other priorities 
at risk.
    Instead, leaders adopted innovation such as the unanimous 
consent agreements, a fallback for managing a chamber prone to 
filibuster.
    Third, the adoption of cloture. Why was reform possible a 
1917 when it had eluded leaders for decades and why did the 
Senate choose a supermajority cloture rule rather than simple 
majority cloture?
    First, the conditions for reform. After several 
unsuccessful efforts to create a cloture rule in the 1900s, we 
get a perfect storm of March 1917. A pivotal issue, a President 
at the bully pulpit, a very attentive press, a public engaged 
in that fight for reform.
    At the outset of World War I, Republican Senators 
successfully had filibustered President Wilson's proposal to 
arm merchant ships, leading Wilson in March that year to 
famously brand obstructionists, quote, a little group of 
willful little men.
    He demanded the Senate create a cloture rule, and the press 
dubbed the rule a war measure, and the public (with all due 
respect) burned Senators in effigy around the country.
    Adoption of Rule 22 occurred because Wilson and the 
Democrats framed that rule as a matter of national security. 
They fused procedure with a policy and they used the bully 
pulpit to shame Senators into reform.
    Second, why did Senators select a supermajority rule? A 
bipartisan committee met that year to negotiate the form of the 
rule. Five of six Democrats wanted a simple majority rule. One 
Republican wanted a supermajority rule. One Republican wanted 
no rule.
    So negotiators cut a deal. Cloture would require two-thirds 
of Senators voting. Opponents promised not to block the 
proposal and supporters promised to give up on their own plan 
for simple majority cloture, a proposal that had the support of 
roughly 40 Senators. The cloture rule was then adopted 76 to 
three.
    We can draw at least three lessons from this history. 
First, the history of extended debate in the Senate belies the 
received wisdom that the filibuster was an original 
constitutional feature of the Senate. The filibuster is more 
accurately viewed as the unanticipated consequence of an early 
change in Senate rules.
    Second, there are conditions that can lead a bipartisan 
supermajority to agree to change the rules. However, the 
minority often holds the upper hand in these contests, given 
the high barrier to reform imposed by Senate rules.
    Third, and finally, Senators in 1917 chose a supermajority 
cloture rule because a minority blocked more radical reform. 
Short-terms pragmatic considerations almost always shape the 
contest over Senate rules.
    Thank you.
    [The prepared statement of Ms. Binder follows:]
    Chairman Schumer. Thank you, Ms. Binder.
    Mr. Wawro.

STATEMENT OF GREGORY J. WAWRO, ASSOCIATE PROFESSOR, DEPARTMENT 
           OF POLITICAL SCIENCE, COLUMBIA UNIVERSITY

    Mr. Wawro. Chairman Schumer, Ranking Member Alexander and 
members of the Committee. I appreciate the opportunity to 
participate in this hearing and contribute to the discussion of 
history of the filibuster.
    I have been asked to discuss the period from 1917 to 1975 a 
critical period in history of the filibuster that is book-ended 
by two major reforms in the Senate the first being the adoption 
of the cloture rule in 1917, which has been very ably discussed 
by Professor Binder--and the second being the reform in the 
1975 that lowered the cloture threshold to three-fifths of the 
Senate.
    During this period, the use and perception of filibusters 
in the Senate changed significantly. Prior to this period, 
parliamentary obstruction was viewed as less than legitimate, 
and Senators rarely resorted to it. Between 1917 and 1975, the 
filibuster became deeply embedded in the fabric of the 
institution and became accepted by Senators as a legitimate 
tactic for shaping the course of law making.
    Filibusters expanded in scope and number and were employed 
by a broad range of Senators on an ever widening array of 
legislation. Still, it is important to keep in mind that 
filibusters remained relatively few in number when compared to 
the contemporary Senate.
    Three important qualitative changes in the use of 
filibusters occurred during this period. The first was the use 
of the filibuster to inhibit repeatedly and systematically the 
passage of a specific class of legislation, namely, civil 
rights reform.
    The second was the development of the strategy of using 
filibusters to consistently block efforts to reform rules 
concerning filibusters. The third was the extension of 
filibusters to Supreme Court nominations.
    I will focus on the first two changes in my statement today 
but would be happy to discuss the third if any Committee 
members have questions about it.
    While filibusters undoubtedly altered the course of law 
making in important ways, it cannot be said that they rendered 
the Senate dysfunctional during this period. Despite the 
quantitative and qualitative expansion in the use of the 
filibuster, the Senate still managed to enact significant 
legislation addressing some of the most pressing problems of 
the day.
    Evidence indicates that Senators generally built larger 
coalitions in support of legislation in order to preempt the 
use of filibusters. The substantial ideological overlap that 
existed between the parties at this time in part made it easier 
to build larger coalitions.
    Nevertheless, the adoption of the cloture rule, Rule 22, in 
1917, which required two-thirds of Senators present and voting 
to end debate, did not make it necessary to legislate by 
supermajorities. Although the percentage of significant laws 
that were passed with fewer than two-thirds coalitions in favor 
declined, many pieces of significant legislation were enacted 
by fairly narrow majorities in the decades following the 
reform.
    Opponents of a bill did not always resort to filibustering 
nor was it assumed that cloture would have to be invoked 
routinely on significant and controversial legislation--with 
civil rights bills constituting the key exception.
    Even when minorities conducted filibusters, it was not 
always necessary to invoke cloture since proponents could 
engage opponents in a war of attrition to wear them down, 
forcing them to relent and allow legislation to move forward.
    As such, majorities that fell short of two-thirds but felt 
more intensely about legislation than the relevant minority 
could generally still manage to change policy. This is the key 
difference between the impact of the filibuster during the 
period in question and the impact of the filibuster in the 
contemporary Senate.
    The extreme demands on both the agenda of the Senate and 
the personal schedules of individual Senators mean that it is 
no longer a viable strategy to fight extended wars of attrition 
to overcome an obstructive minority.
    Although the filibuster was used relatively infrequently 
during this period, its repeated use against civil rights 
legislation prompted numerous attempts to change Rule 22 to 
lower the threshold required for cloture. In fact, the passage 
of civil rights reform became deeply entwined with cloture 
reform.
    By the 1950s it had become virtually a biennial ritual to 
attempt cloture reform at the beginning of a new Congress. Only 
three attempts to change Rule 22 were successful however.
    The first occurred in 1949 when the Senate adopted a 
compromise proposal that allowed for the application of cloture 
to any measure, motion, or matter pending before the Senate, 
excepting a motion to take up a rules change in exchange for 
raising the threshold for invoking closure to two-thirds of the 
entire membership.
    Prior to this reform, it was not clear that cloture was 
even applicable to several important items of Senate business, 
including nominations.
    The second reform occurred in 1959 when the Senate adopted 
a resolution that changed the cloture threshold to two-thirds 
present and voting, permitted cloture to apply to rules 
changes, and explicitly affirmed in the rules that the Senate 
was a continuing body.
    The third reform occurred in 1975 when the cloture 
threshold was changed to three-fifths of the Senate membership. 
However, two-thirds of the chamber would still be necessary to 
invoke cloture on a proposal to change the rules.
    During the many attempts to reform Rule 22, opponents of 
reform resorted to strategies of obstruction to inhibit the 
attempts, taking advantage of the fact that resolutions to 
change the rules themselves could be filibustered. Thus reform 
efforts often involved attempts to establish precedents via 
rulings from the chair that would enable a simple majority to 
invoke cloture on proposed rules changes at the beginning of a 
Congress.
    The only time that such a precedent was established was 
during the reform attempt of 1975 but the precedent was 
reversed a few days later by a vote of the Senate as part of a 
compromise.
    To conclude, it is generally accepted that the contemporary 
Senate has become a supermajoritarian institution. The 
foundation for the supermajority Senate was laid with the 
adoption of the cloture rule in 1917 and its refinement in 
1975. However, between 1917 and 1975 the Senate did not have 
the supermajoritarian character that is has today.
    Neither the use of filibusters nor the use of the cloture 
was a part of the Senate's day-to-day functions. However, 
toward the end of this period, the stage was set for 
filibusters and cloture voters to become routine in the Senate, 
marking a fundamental and profound change in the operation of 
the institution.
    Thank you, Mr. Chairman. I look forward to the Committee's 
questions.
    [The prepared statement of Mr. Wawro attached]
    Chairman Schumer. Thank you, Mr. Wawro.
    Mr. Dove.

  STATEMENT OF ROBERT B. DOVE, PARLIAMENTARIAN EMERITUS, U.S. 
                             SENATE

    Mr. Dove. Thank you, Mr. Chairman and members of the 
Committee. I am particularly pleased to be here with Professor 
Binder. We both teach classes at George Washington. I use her 
text in my class and I tell my students that the reason that I 
want them to read the text and to read her conclusions are that 
I so profoundly disagree with them. I think they should see 
both sides of it.
    But I am not an opponent of the Senate filibuster. The 
reason that I am not I think comes from the three periods that 
I worked for United States Senate. First from 1966 to 1986, I 
was in the Senate parliamentarian's office working first under 
the parliamentarian who hired me, Floyd Riddick, and then under 
Murray Zweben, and then the final six years of that period I 
was the parliamentarian.
    In that period of 20 years, I must say my views on the 
filibuster changed, and they were probably as influenced by 
anyone as much as by Floyd Riddick. Floyd Riddick was a student 
of the Senate. He came to found the Daily Digest in the 1940s, 
became assistant parliamentarian in 1951, and was the reason I 
was at the Senate.
    I had done my PhD under the same professor at Duke that he 
had worked under. I feel like I was schooled at his knee as he 
talked about what was happening with the filibuster in that 
period. Some very interesting things were happening with regard 
to the filibuster in that period.
    The year after I came the Vice President of the United 
States, Hubert Humphrey, and the Senator from South Dakota at 
that time, George McGovern, came up with a strategy to change 
the filibuster rule, a strategy which would involve the Vice 
President ruling that a resolution which had not yet been 
adopted would be enforced by the chair, a resolution to change 
the filibuster rule, and it would be enforced on the basis that 
a point of order against it had been tabled.
    I did not see the logic of the situation at the time but I 
must say I was young and I really thought this was a way of 
cutting the Gordian knot, a phrase that Senator Javits used on 
the floor, and was secretly behind it. The parliamentarian was 
not, and the Vice President was not ruling based on the advice 
of the parliamentarian.
    The Vice President did so rule. The Vice President was 
overturned by the Senate so that attempt came to naught.
    Two years later in 1969 in the final days of Vice President 
Hubert Humphrey's time as Vice President, he came up with 
another way of changing Rule 22. He said from the chair that if 
a cloture motion was voted on, quote, at the beginning of the 
Congress which had never had any significance in the Senate in 
the past and the vote was by majority, that he would rule that 
cloture had been invoked on a rules change, and he so rule. And 
once again the Senate overturned him. So that attempt came to 
naught.
    Then in 1975 Vice President Nelson Rockefeller together 
with Senator Walter Mondale of Minnesota and Senator Pearson of 
Kansas managed to do what Vice President Hubert Humphrey and 
Senator McGovern had tried to do only they did it successfully 
this time or I would say semi-successfully.
    Yes, the Vice President ruled that the resolution could not 
be debated and for days the Senate had no debate but it had 
votes, and the only way the Vice President was able to shut 
that down was to start refusing to recognize Senators.
    I had some qualms about that at the time. Evidently the 
Vice President had qualms about that because he came back two 
weeks afterward to apologize to the Senate for refusing to 
recognize Senators. But of course at that point it was a little 
late. The rule had been changed.
    What I saw after that was that a significant minority of 
the Senate feeling that they have been crushed in an 
illegitimate fashion began to look for holes in the cloture 
rule. There were holes in the cloture rule. They were 
demonstrated in 1977 in a filibuster on the Natural Gas Act and 
it was not until 1979 that the cloture rule was amended to end 
those holes by putting an overall cap on the post cloture 
period of 100 hours and then later in the mid-80s a 30-hour 
cap.
    Those changes basically were pursued and achieved in the 
normal course of things. What I remember about the filibuster 
are two instances. One was a fight very soon after the 1975 
filibuster rule had been changed. A fight over a Senate seat 
from New Hampshire. A fight between John Durkin and Louis 
Wyman.
    And having just changed the filibuster rule to make it 60, 
there was the view that the Democrats who then have controlled 
62 seats in the Senate would probably be able to ram through 
the seating of John Durkin with their 62 votes and cloture but 
they were not because three Democrats went off the reservation 
and refused to vote with them.
    So that election contest ended with the seat being declared 
vacant. A new election occurring which John Durkin, the 
Democrat, won. And I will contrast that with the fight in the 
House over that McCloskey seat from Indiana when basically the 
Democrats rammed through the seating of someone that the 
Republican minority felt was being illegitimately seated and I 
frankly the scars of that lasted for years.
    I like the Senate of 1975 which refused to do that to seat 
John Durkin better than what the House did with the McCloskey 
seat.
    [The prepared statement of Mr. Dove follows:]
    Chairman Schumer. Thank you, Mr. Dove.
    Last but not least, Mr. Bach.

STATEMENT OF STANLEY I. BACH, RETIRED, SENIOR SPECIALIST IN THE 
      LEGISLATIVE PROCESS, CONGRESSIONAL RESEARCH SERVICE

    Mr. Bach. Thank you, Mr. Chairman, Senator Bennett, and 
members of the Committee. It is a great pleasure and honor to 
be back before the Committee after an absence of many years and 
particularly to be in this company. I have great respect for 
the scholarship of Professor Binder and Professor Wawro. And as 
for the gentleman to my immediate right he said that he learned 
at Dr. Riddick's knee. I think I can say that most of what I 
know about the Senate I learned at Bob Dove's knee when I was 
just a boy. So I am particularly happy to be in the company of 
my teacher.
    Much of what I was going to talk about already has been 
covered in one way or another in the statements that have 
already been made, so I can abbreviate some of that.
    Basically what I want to do is to focus on the more recent 
period in Senate history and essentially to remind members of 
this Committee of some developments and trends with which I am 
sure you already are familiar.
    First as has been noted, since the mid-70s, there have been 
three formal changes in Rule 22 and no changes since. The 1975 
adoption of the current requirement to invoke cloture of three-
fifths of the Senators duly chosen and sworn has been mentioned 
as has the amendment that came four years later to impose a 
100-hour cap on post cloture consideration.
    Before then and since, there has always been the limit of 
one hour of debate per Senator after cloture has been invoked, 
but during the period after 1975, we saw the growth of what 
became known as the post cloture filibuster which led to the 
imposition of the cap on consideration as well as on debate 100 
hours of post-cloture consideration.
    Then in 1985, I think as part of the resolution to 
authorize television coverage of the Senate's floor 
proceedings, the 100-hour cap was reduced to a 30-hour cap. In 
a sense that was the dog that did not bark. The 1985 amendment 
to Rule 22 evoked very little controversy, very little 
contention, probably because between 1979 and 1985 the Senate 
had never actually used all 100 hours. In fact, when I retired 
from CRS in 2002, the Senate had not at that point actually 
used all of the 30 hours that are available under the current 
rule. I understand that is no longer the case but it had been 
as of the early years of this decade.
    In addition, there have been a several important 
developments affecting the Senate's precedents and practices 
that I do want to touch on briefly. Bob Dove mentioned the 1977 
debate on the natural gas deregulation bill. I sort of cut my 
teeth on Senate procedure by trying to explain to myself 
everything that had happened to that bill.
    In the course of the Senate's consideration of that bill, a 
series of rulings were made which vested considerably more 
power and discretion in the hands of the presiding officer.
    Much of this has become less relevant today because of the 
100-hour and then the 30-hour cap on post-cloture 
consideration, but under those precedents the presiding officer 
actually was empowered to rule as dilatory such matters as 
amendments, certain motions, quorum calls, points of order, and 
appeals of rulings of the chair.
    So it was really quite an extraordinary moment. Fortunately 
it has not been necessary to invoke those precedents very often 
since.
    In regard to changes in practice, I would want to emphasize 
two developments. One is the greater incidence of cloture 
motions and votes in relation to the motion to proceed.
    The second is the greater incidence of cloture motions and 
votes in connection with the three motions that can be 
necessary for the Senate to send a bill to conference with the 
House.
    Let me give you a few numbers. With regard to the motion to 
proceed, from 1983 through 2006, there was an average of eight 
cloture motions per year filed on motions to proceed.
    During the following two years, 2007 and 2008, that average 
jumped from about eight to about 30 per year. That is a 
significant development by anyone's reckoning.
    I do not have similar data with respect to the motions to 
go to conference. All I can say is that at the beginning of 
this new millennium my colleagues and I at CRS were aware that 
these three normally routine steps that typically were taken by 
unanimous consent could, if required, be taken as three 
separate motions, each of which would be fully debatable under 
the Senate's rules.
    We wondered if and when this storm cloud on the horizon 
would actually break over the Senate and I think we have begun 
to see that happen.
    Now let me draw your attention briefly to two tables in my 
prepared statement on pages 8 and 10. The table on page 8 
documents the number of cloture motions that have been filed in 
the Senate. If you compare the 1960s with the 1980s and then 
with the current decade--which is not yet over and so the data 
for which remains incomplete--the number of cloture motions 
filed in the Senate jumped from 28 in the 1960s to 207 during 
the 1980s to more than 435 during the present decade--one 
cloture motion for every member of the House of 
Representatives.
    Another way of slicing reality is to look not at the number 
of cloture motions filed and voted on, but on the number of 
discrete items of legislative and executive business that 
provoked one or more cloture motions because, as you know, you 
can have multiple cloture motions on a bill in addition to the 
cloture motions on the motion to take up the bill, on the 
motions to send it to conference, on the conference report, and 
so on.
    That is addressed briefly in the table on page 10. Again if 
we compare the same three decades of the 1960s, the 1980s, and 
the current decade, the number of items of business that gave 
rise to one or more cloture motions grew from 16 in the 1960s 
to 91 in the 1980s to 223 during the decade that is not yet 
completed.
    Mr. Chairman, I think there is a lot to be said for a 
bicameral legislature in which somewhat different decision 
rules are associated with each house.
    The House of Representatives, as Senator Roberts has 
emphasized, is unquestionably a majority-rule institution. In 
the House there is really not much need for the majority to 
compromise with the minority if the majority is sufficiently 
unified to provide 218 votes from among its own membership. Nor 
for that matter is there much incentive for the minority to 
work with the majority if the alternative is an effective 
campaign issue that the minority thinks it can use to become 
the new majority after the next election.
    If I can conclude with one further thought, Mr. Chairman, 
the dynamics of the Senate obviously are different, so but let 
me ask a not entirely rhetorical question, and that is, why do 
Senators filibuster? If the purpose and intent of a filibuster 
is to exercise a minority veto over legislation or a nomination 
or whatever, then I think defending recent practice is, in my 
view, an up-hill climb.
    If, on the other hand, the objective of filibustering or 
the threat of filibustering is to give the majority an 
incentive to take better account of policy interests and 
preferences that it might if the majority were left solely to 
its own devices, then I think filibustering becomes much easier 
for me to justify.
    So as the members of this Committee think about the subject 
of today's hearing and ask where do we go from here or is there 
anything that we need to do about this, I think a useful 
starting point is to ask whether the usual purpose of 
filibusters today is more balanced legislation or no 
legislation at all.
    Thank you very much.
    [The prepared statement of Mr. Bach follows:]
    Chairman Schumer. Thank you. I just want to thank our four 
witnesses. This hearing is a little different than the ones we 
usually have in that we went into a lot of history. I think it 
was great and helpful.
    Let me begin with a few questions. I am going to try to 
limit the questions to five minutes each because we do have a 
vote at noon.
    The first question I guess is for Mr. Bach. Using your 
distinction which I think is a valid one, could you draw a 
distinction between filibusters of nominees because you cannot 
really compromise the nominee per se as opposed to filibusters 
on legislation? One of the things that frustrates us is that 
just about every nominee, I named some of them before, even 
when they pass out of Committee by unanimous vote are 
filibustered.
    Mr. Bach. You start with the easy one, Mr. Chairman. The 
last time I was in this room was to attend the 2003 hearing on 
S.Res 138 which the Committee then reported.
    There are two distinctions I think to be drawn between 
filibustering on legislative business and filibustering on 
nominations. First, as you say, you cannot compromise on a 
nomination. So I think the threat of filibustering a nomination 
becomes particularly important because what you want to try to 
do is to use your influence before the President actually 
submits the nomination. You want that negotiation to occur in 
advance.
    The other difference in a sense makes filibustering on 
nominations more justifiable than filibustering bills because 
the bill you enact today you can amend or repeal tomorrow. If 
you discover you made a mistake on a bill you live with that 
mistake only as long as it takes for the Congress and the 
President to recognize it.
    When you confirm a judicial nominee, on the other hand, it 
is an appointment during good behavior and that can last for 
decades. It is essentially impossible to remedy a mistake on a 
judicial nomination whereas you can remedy mistakes on 
legislation much more easily.
    Chairman Schumer. Right. That cuts against your first 
point.
    Mr. Bach. Yes.
    Chairman Schumer. To Mr. Wawro and Mr. Dove. So there was a 
period in 1975 where the chair ruled and that held. And then I 
think one mentioned that the actual resolution that was passed 
had so many holes in it that people were required--can you fill 
us in a little more particularly, Professor Wawro, but I would 
like to hear from Mr. Dove too, about those few days. You 
called it, I do not know, I think Mr. Dove said it was more 
than a few days, between the ruling of the chair initially and 
the actual rule that was passed.
    Mr. Wawro. I have the exact dates in my written statement. 
The resolution in question was Senate Resolution 4, and by this 
time, as I said in my statement, there was essentially a 
biennial ritual where senators tried to pass cloture reform by 
seeking rulings from the chair to invoke cloture by a majority.
    Prior to this reform attempt, there had not been a 
committed majority in the Senate who wanted to establish a 
precedent that would enable majority cloture on a rules change.
    When the precedent that was established, it was established 
by a very narrow vote, 51 to 42. My reading of the situation is 
that after the precedent was established that Senators were 
concerned about what they had done and it was an unanticipated 
result to an extent.
    There was a filibuster that ensued after the precedent had 
been established that tried to prevent the resolution from 
moving forward. It was several days later. I do not recall the 
exact date that but a compromise was worked out whereby the 
cloture would be changed to three-fifth of the Senate except 
for a rules change which still required two-thirds of the 
Senate. But the Senate did actually go through the exercise of 
reversing the precedent and then voting for cloture by a 
supermajority.
    Chairman Schumer. In a sense that is because they had 
buyers' remorse?
    Mr. Wawro. That is my reading of the situation. There was 
also some concern about how long the filibuster that followed 
the establishing of the precedent would have lasted.
    Chairman Schumer. Mr. Dove and Mr. Bach, just your comments 
on that brief period.
    Mr. Dove. The majority leader at the time was Senator Mike 
Mansfield, and he had a lot of questions frankly about what was 
happening on the Senate floor. It was on his suggestion that 
the Senate backup and by unanimous consent in effect undo what 
they had done and then do it in the normal course of things.
    There was indeed a feeling that perhaps what the Senate had 
done had some problems.
    You said holes in the rule they adopted.
    Chairman Schumer. I think you mentioned that.
    Mr. Dove. The holes were not in the rule they adopted. The 
holes were in the rule as it existed because just changing the 
number, that is all they did in 1975 was change the number, had 
nothing to do with the fact that if you wanted after cloture to 
extend the time you could do it very easily through votes, 
through having amendments read, and it was two Democratic 
Senators, Senators Abourezk of South Dakota and Metzenbaum of 
Ohio who demonstrated what two Senators could do on natural gas 
filibuster as they filed I believe 800 amendments. And after a 
week of either voting or quorum calls, they had used about 
three minutes of their one hour and it was clear that post-
cloture filibuster could go on for months.
    Chairman Schumer. You agree with Mr. Dove. I see you are 
nodding your head, Mr. Bach. I do not want to go over my time.
    Mr. Bach. What Mr. Dove is pointing to are the elements of 
the post-cloture filibuster which then were the impetus for the 
imposition of the consideration caps that came in 1979 and 
1985.
    I also think a point that deserves emphasis is that a 
number of the changes in the cloture rule that have taken place 
have been the result of compromise: change in one direction 
combined with change in another direction. I think what 
happened in 1975 affected the question of who was going to have 
how much leverage in the negotiations for the compromise that 
eventually resulted.
    Chairman Schumer. Thanks. I want to thank the witnesses. I 
just want to say because I will not speak again that it is 
clear from the history that some people try to say the 
filibuster is fixed, unchanging, going way back if not from the 
Constitution from the early days, and that is clearly not so. 
Your testimony makes that very clear.
    Senator Bennett.
    Senator Bennett. I am a late arrival. If either of my 
colleagues wants to go ahead first I will be happy to yield to 
either one of them.
    Senator Roberts. Unless you would rather we go first.
    Senator Bennett. I am always ready to speak. You know that. 
It is in a Senator's genes.
    Chairman Schumer. Senator Bennett.
    Senator Roberts. I have already gone way over my time as 
described by the chairman. So please.
    Senator Bennett. All right. It is probably a good thing 
that Senator Roberts and I are sufficiently separated by space 
so we will not be confused for one being the other. We each get 
recognized as the other as we walk these hollowed halls.
    I have been fascinated by the historical review and have a 
little bit of history of my own to put here because my father 
was a Senator from 1951 through 1974. So the change you are 
talking about occurred just after he left the Senate. All the 
time he was here it was two-thirds of the Senators present and 
voting.
    The maneuvering to influence the outcome had to do with how 
many Senators you could keep off the floor as much as it did 
with how many people you could get to vote the way you wanted. 
Many times that was part of the legislative strategy.
    We know it is going to embarrass you if you vote this way 
or that way and you can accomplish what we want by not showing 
up and that will be less embarrassing to you back home with 
your constituents.
    So I think the rule change that said it is a constitutional 
supermajority of all the Senators duly sworn is a step in the 
level of accountability for one's position with respect to a 
piece of legislation. So I would applaud that change on that 
basis.
    Mr. Bach, I am interested in your dichotomy here which I 
agree with that if it is used strictly for obstruction, it is 
different than if it is used to try to get a bipartisan 
solution, and without getting into any of the details of where 
we are right now, I will say that in this present Congress we 
have seen examples of both where it was used absolutely to stop 
a piece of legislation and it was used absolutely to force the 
majority to come to the table in an effort to get a good piece 
of legislation.
    I will not fill in the gaps of the kind of legislation am 
talking about. But I would like your reaction. You are 
political junkies or you would not be teaching political 
science wherever it is you are.
    My experience is that there is a political price to be paid 
either way. That is, that a party that decides we are going to 
use the filibuster simply for obstruction runs a political risk 
of being punished by the voters who say we do not like that or 
can reap a political benefit when voters say we want you to 
stop this at all costs, and it becomes a political strategic 
decision on the part of the leader of the minority party.
    Do we run the risk of losing the approbation of the people 
by being seen as obstructionist or do we gain the approbation 
of the people by being seen as principled and standing up 
against a bad piece of legislation?
    So that ultimately the public will make the decision and 
punish or reward the party on its strategic decision to use the 
filibuster and therefore the filibuster becomes a significant 
weapon, two edged sword if you will, in the arsenal of 
politicians that gives it, in my view, a kind of legitimacy as 
something that should stay in the rules.
    I would like your reactions to that particular view.
    Ms. Binder. I would answer your question this way, the 
question really who pays the cost for obstruction or with 
perceived obstruction, I typically say that majorities tend to 
be blamed for failure to govern rather than minorities feeling 
the cost of public concern.
    Having said that, it may depend quite a bit on what issue 
is at stake and how much the public is paying attention, and on 
a highly charged issue in a period where partisans tend to 
divide, majority party members or partisans tend to blame the 
minority for blocking and partisans of the minority tend to 
blame the majority for trying to cut off the minority.
    Of course that is the problem we face in the Senate today 
on very highly charged issues. Stepping back though, more often 
than not it does seem that majorities are quite often blamed 
for failure to govern.
    Senator Bennett. Thank you.
    Chairman Schumer. Time is up but we will let them answer.
    Senator Bennett. Yes, any others?
    Mr. Bach. Senator Bennett, I take your point. There will be 
instances, I am sure, where it is politically advantageous to 
be Horatio at the bridge, trying to kill legislation entirely.
    I do not think that is going to happen very often though; 
take the health care debate or the current debate over 
financial regulation.
    If you ask the American people if they are satisfied with 
the status quo, in both cases they will probably say no. So 
there is underlying support for some kind of legislation, and I 
think that even when the intent of a filibuster is the kill, it 
very often may be caste in terms of an attempt to get the 
majority to compromise.
    And the problem that we have from the outside is that we 
are not really able not being able really to judge the merits 
of the arguments from each side, the minority saying that the 
majority refuses to compromise, and the majority claiming that 
the minority asks too much.
    We cannot judge that unless we are in the room when these 
discussions are going on. What I think we can say is that this 
is what the media will report as partisan bickering and that 
does not serve the reputation of the Senate well.
    Mr. Wawro. If I could give a political sciencey answer to 
your question, I do not think we have a very good answer to 
this question because, despite all of the research that have 
been devoted to the filibuster, we lack in-depth studies about 
how it plays out in the court of public opinion. We do have 
surveys that go back to the 1930s that ask questions about 
filibusters and filibuster reform but we do not have the kind 
of systematic analysis that I, as a political scientist, would 
like to see to reach a definitive conclusion about who really 
pays the price in a very general sense.
    Senator Bennett. Thank you very much.
    Chairman Schumer. Senator Udall.
    Senator Udall. Thank you, Senator Schumer.
    Back in 2005 Senator Hatch wrote an article and I want to 
just quote a portion of that and get our first two witnesses 
opinion, maybe to the two parts of it.
    He said in the article, ``The Senate exercises its 
constitutional authority to determine its procedural rules, 
either implicitly or explicitly. Once a new Congress begins, 
operating under existing laws implicitly adopts them by 
acquiescence. The Senate explicitly determines its rules by 
formally amending them, and then the procedure depends on its 
timing. After Rule 22 has been adopted by acquiescence it 
requires 67 votes for cloture on a rules change. Before the 
Senate adopts Rule 22 by acquiescence, however, ordinary 
parliamentary rules apply and a simple majority can invoke 
cloture and change Senate rules.''
    And then he says in conclusion.
    ``Both conservative and liberal legal scholars agree that a 
simple majority can change Senate rules at the beginning of the 
new Congress.'' end quote.
    I am wondering, Professor Binder and Wawro, do you have an 
opinion on Senator Hatch? Do you agree with Senator Hatch on 
that point?
    Ms. Binder. I think the answer comes down to how the Senate 
itself interprets that power. As the debates in 1975 played out 
over whether the Senate is a continuing body or not, we see 
votes both ways.
    We have seen a majority endorse precisely the position of 
Senator Hatch in 2005, and we have seen perhaps a buyers' 
remorse stepping back from that once everyone understands the 
implications of living in a Senate where a majority can do 
that. It is clearly technically feasible and it has been 
politically feasible but the questions at any given moment is 
the Senate willing to take that vote again.
    Senator Udall. So basically what you are saying is that it 
is a constitutional issue and then the Senate determines 
constitutional issues, the Senate itself as a body determines 
that constitutional issue?
    Ms. Binder. Yes, because the Constitution says the House 
and Senate shall adopt their own rules.
    Senator Udall. Yes, Article I Section 5 of the Constitution 
says each house may determine the rules of its proceedings. So 
it all flows from out of that.
    Ms. Binder. Yes, and the question is in the Senate at any 
given time is a majority willing to endorse that interpretation 
of the rules.
    Senator Udall. There is nothing in the Constitution about a 
filibuster or the Rule 22 provision, things like that.
    Ms. Binder. Correct.
    Senator Udall. Please.
    Mr. Wawro. I would just say one of the great dilemmas of 
democratic institutions is that it is important to have rules 
that constrain the behavior of individuals who are members of 
those institutions but members of those institutions can change 
their own rules.
    The Senate did put in its rules a provision that explicitly 
affirmed that it is a continuing body. The Senate did this as 
part of a compromise that reformed rules concerning the 
filibuster. But if the Senate wanted to change its rules with 
respect to that provision, it can do that.
    There may be some issues with the parliamentary maneuvering 
that might be necessary to make such a change and some concerns 
about departures from Senate tradition that this might entail. 
But the Senate has in its power to make the decision itself 
over what its rules are at any given moment.
    Senator Udall. By a majority vote?
    Mr. Wawro. By a majority vote simply because the Senate 
operates on the basis that precedents can be established by 
simple majorities to fill in gray areas in the rules--aspects 
of procedure that are not clearly established either in the 
Constitution or in the Senate's rules. All you need is a 
majority vote to be able to do that.
    Senator Udall. Let me ask you both one additional question 
on a long-standing constitutional principle and that principle 
is that one Congress cannot bind a subsequent Congress.
    The simple example could be that you do it in terms of 
rules or you do it in terms of a piece of legislation and say 
in the legislation we pass that no future Congress can change 
this law unless you have 75 votes. That is a long-standing 
constitutional principle, is it not?
    Ms. Binder. I am not a constitutional scholar. So I would 
probably send that to Mr. Dove.
    Senator Udall. I want to ask him a different question.
    Ms. Binder. I will answer it as a political scientist. The 
chamber has the right to set its rules. Sometimes rules get 
entrenched because the rules themselves cause a barrier to 
changing them. It is not unconstitutional to create a barrier 
that is very hard to overcome.
    Chairman Schumer. One more question.
    Mr. Dove. Could I answer that?
    Senator Udall. Yes.
    Mr. Dove. Because I helped right the Congressional Budget 
Act of 1974 which binds the Senate in spite of the fact that it 
is not re-adopted every Congress. If your premise is correct, 
that that Congress in 1974 had no right to bind the Congress of 
today, then the whole reconciliation process is gone.
    Senator Udall. It is not my premise. It is in Supreme Court 
cases repeated over and over and over again.
    Mr. Bach, do you have an opinion on that? And please on any 
of the things said earlier.
    Mr. Bach. There is an interesting and tricky problem here 
which is a problem of both principle and practice.
    In the House of Representatives as many of you know, one of 
the things the House does on the first day of the new Congress 
is to adopt its rules. But that leaves this question: under 
what rules does the House debate the resolution to adopt its 
rules?
    This is not a problem in current practice because it has 
all become routinized. But there was a day especially back in 
the 19th Century when the House could go on for days and days 
to elect a speaker which it would do before adopting its rules.
    As I recall, the precedents of the House try to deal with 
this by saying that the House is then governed by general 
parliamentary law, just as Senator Hatch referred to ordinary 
parliamentary rules.
    Well, I would really enjoy finding the book which tells me 
what general parliamentary law is or what the ordinary 
parliamentary rules are. Roberts Rules? Mason's Rules? Whose 
rules? So you run into a logical problem: how are you going to 
conduct the deliberations over what the rules of the House or 
the Senate will be if they are adopted anew at the beginning of 
a Congress?
    Senator Udall. They do not seem to have much problem in the 
House. Thank you for your courtesies, Senator Schumer.
    Chairman Schumer. No. My pleasure. The question I am just 
going to ask and leave out hanging there is to Mr. Dove. Maybe 
he can answer it for the record.
    You mean the Senate could not undo, that we are bound to 
the Budget Reconciliation Act? It keeps going from Senate to 
Senate if we do not change it but let us say and you can answer 
this in writing, all of you. Let us say the Reconciliation Act, 
the Senate by 51 votes said we are undoing it? What would 
happen?
    Mr. Dove. Of course they can do that but they have not done 
anything about either reconfirming it or trying to change it 
since 1974.
    Chairman Schumer. It is a different issue though according 
to Senator Udall's question if they tried to change, it as 
opposed to it continuing without an attempt to change it. 
Right?
    Mr. Dove. Certainly they can change it, yes.
    Chairman Schumer. Senator Alexander.
    Senator Alexander. Thank you, Mr. Chairman.
    Mr. Bach, unless the majority believes the minority is 
willing to kill a bill, how can it persuade the majority to 
take it seriously in changing the bill? When you said a 
filibuster might be all right if you are only going to do it to 
improve the bill but the way you get the attention of the 
majority is to say, if you do not, we will kill it.
    Mr. Bach. This is the issue that Senator Bennett raised 
earlier, what is the minority's true intention, to kill or to 
compromise.
    Senator Alexander. How are you going to determine that? 
That is just a matter of human nature.
    Mr. Bach. No one on the outside can determine that. That is 
a question that only Senators can determine in looking at what 
they and their colleagues are doing.
    Senator Alexander. But is it not a fairly simple rule of 
human nature that if you do not think I am serious you are not 
going to pay any attention to me.
    Mr. Bach. Yes, it is.
    Senator Alexander. We all know that. Look at the financial 
reform bill debate right now. Forty-one Republicans have signed 
a letter saying, you know, we might filibuster this if you do 
not let us have some participation in making it a better bill.
    If the Democrats think there is no chance to we will do 
that--the only reason we think we are getting a chance at some 
participation is they think we might actually do that.
    So, Ms. Binder, your view, well, let me read this again. 
Senator Reid said, the majority leader, when talking about 2005 
which has been mentioned a couple of times, Bill Frist was 
pursuing a rules change that would kill the filibuster for 
judicial nominations. Once you open that Pandora's box, it was 
just a matter of time before a Senate leader who could not get 
his way on something moved to eliminate the filibuster for 
regular business as well, and that, simply put, would be the 
end of the United States.
    Do you disagree that?
    Ms. Binder. The planned of the 2005 use of the 
constitutional option were quite different than the other 
options.
    Senator Alexander. Do you agree or disagree with Senator 
Reid?
    Ms. Binder. I am not sure how quite to answer that one. It 
is clearly within the power of the Senate to reform by ruling 
as opposed to changing the rules.
    Senator Alexander. So you agree there is nothing 
unconstitutional about having filibusters, right?
    Ms. Binder. Correct.
    Senator Alexander. But we are going down the basic function 
of the Senate and Senator Reid, a majority leader, been here a 
long time, says, this is the end of the Senate if we change the 
filibuster rule.
    Do you not disagree with that? I mean the whole point of 
your testimony seems to me to be is that the filibuster is bad 
for the Senate.
    Ms. Binder. The point of my testimony is to point out that 
the filibuster was not an original constitutional feature. That 
it has been changed and that the majorities have struggled with 
minorities over time to put supermajority rules in place.
    Senator Alexander. I heard that but you characterized it 
all as obstructionism instead of protection of minority rights. 
Did you think it would have been a good idea in 2005 for 
President Bush to be able to put just a steady series of super 
conservative judges on the court without the Democrats being 
able to slow that down?
    Ms. Binder. I thought at the time that the proposed use of 
nuclear constitutional option to reinterpret precedent was the 
wrong way to use the nuclear option.
    Senator Alexander. So you opposed changing the filibuster 
in 2005?
    Ms. Binder. Through the mechanisms that were proposed at 
the time which would be reinterpret Rule 22 in a way that did 
not match up with the actual language of Rule 22.
    Senator Alexander. But you wrote an article, did you not, 
saying filibusters are a great American tradition in 2005?
    Ms. Binder. That was the title put on by the editor.
    Senator Alexander. I have that happen to me too. It just 
seems to me your testimony is very much at variance with that 
of Senator Byrd's though about the Senate, Senator Reid's 
thought about the Senate, and that may be fine but you think 
they are wrong as a matter of history, and my sense is that you 
see anything other than a majority view as obstructionism.
    Ms. Binder. On the first, we disagree about how history is 
read. I read it differently than Senator Byrd.
    Senator Alexander. Mr. Dove, if the filibuster were ended, 
what would be the way in which the Senate then could continue 
to protect minority rights?
    Mr. Dove. It could not.
    Chairman Schumer. On that note we would go to Mr. Roberts.
    Senator Roberts. Well, if it could not, we would be in a 
hell of a shape, and the reason I say that is that I was 
interested in Bob Dove's reference to the situation in the 
State of Indiana back in the 1980s where Frank McCloskey was 
the incumbent and Rick McIntyre was the challenger. The 
secretary of state of Indiana certified Mr. McIntyre as the 
duly elected member from that district.
    However, when it came time to seat him, he was denied that 
and the matter was referred to the House Administration 
Committee of which I was a member, and a subcommittee was sent 
to Indiana to see if they could not come up with the precise 
number of votes that would determine the election.
    Mr. Leon Panetta, who got his first experience in covert 
activities, was the Democrat leader and Mr. Bill Thomas, who 
had a reputation of certainly stating his opinion, was the 
minority representative.
    As soon as Mr. McCloskey went ahead in the recount, the 
exercise was terminated and it was decided that Mr. McCloskey 
had won. Mr. Thomas brought back several voters who were not 
counted, stood them in the House Administration Committee room 
and tried to point out that this was a very severe violation of 
the rights of the State of Indiana and certainly Mr. McIntyre.
    That really caused a ruckus and Republicans were wearing 
buttons at that times saying thou shalt not steel. The speaker 
at that time, Tip O'Neill said you will not wear these buttons 
on the floor of the House which we did anyway.
    My remarks were such that I said I will take off my button 
now so I can speak but, and then went into my not tirade but 
certainly my point of view.
    That meant that we left the dock of the secretaries of 
state all over the country declaring who would be the winner 
and who would not, and that the House Administration Committee, 
if the vote were close enough, less than one percent, or one 
percent, the committee would decide that, and obviously the 
majority would declare the majority candidate the winner.
    Then came Idaho and Idaho had a very close vote and the 
Republican lost and the Democrat won, and I was appointed to go 
to Idaho along with a member of California to recount the 
election.
    I made the suggestion to Bob Michael and to Billy Pitts at 
that particular time his stalwart assistant that that was not 
what we should do as a party. That if we left the dock of 
secretaries of state determining elections, we were in deep 
water indeed and that that would not be in the best interest of 
the House, and so we denied or we declined to go, and obviously 
the Democrat won and we had quite a discussion as to why Mr. 
Roberts did not want to go to California by some of our 
stalwarts.
    Basically we walked out of the House of Representatives, 
and we walked out for several days. That was not a good thing 
and it also led to elections of leadership in the House who 
basically said we were declaring war on the majority.
    I am not sure that was a good thing. As a matter of fact, I 
am very sure that was not a good thing but that is what 
happened and it got into a very partisan kind of situation to 
say the least. I would not want to see that happen in the 
Senate of the United States.
    Mr. Dove, the current majority of 59 members is the largest 
held by either party in over 30 years. I think I am right. Is 
that correct?
    Mr. Dove. The answer is yes.
    Senator Roberts. Would you say that those Congresses with 
smaller majorities were more or less functional than the 
current Congress?
    Mr. Dove. Okay. To me all Congresses are functional. The 
Senate rules are perfect, as I was told by Floyd Riddick; and 
if they are all changed tomorrow, they are still perfect.
    So I do not want to start qualifying Congresses by being 
functional but I do emphasize the difference in the fight over 
the New Hampshire seat and the Indiana seat and say it was the 
filibuster that saved the Senate from what the House did with 
the McCloskey seat.
    Senator Roberts. Already you have gotten to my point that I 
was trying to bring up.
    Chairman Schumer. Time has expired, Pat.
    Senator Roberts. I thought you would say that as a matter 
of fact.
    Chairman Schumer. I know that people would like to do other 
questions but this type of hearing does lend itself to written 
questions because lots of these are historical. So on behalf of 
the Rules Committee, I am going to first thank our witnesses 
for their presentations this morning.
    They have certainly helped us better understand the history 
of the Senate as it relates to the filibuster and I want to 
thank my colleagues on the Rules Committee who were here today. 
This is really a good opening hearing.
    We will continue on the subject including getting to more 
specific proposals Senator Udall and others have those for 
future hearings.
    The record will remain open for five business days for 
additional statements and questions from Rules Committee 
members. And since there is no further business before the 
Committee, the Committee is adjourned subject to the call of 
the chair.
    [Whereupon, at 12:05 p.m., the Committee was adjourned.]




















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  EXAMINING THE FILIBUSTER: THE FILIBUSTER TODAY AND ITS CONSEQUENCES

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                        WEDNESDAY, MAY 19, 2010

                      United States Senate,
             Committee on Rules and Administration,
                                                    Washington, DC.
    The committee met, pursuant to notice, , at 10:10 a.m., in 
Room 301, Russell Senate Office Building, Hon. Charles E. 
Schumer, Chairman of the committee, presiding.
    Present: Senators Schumer, Byrd, Durbin, Udall, Bennett, 
Alexander, and Roberts.
    Staff present: Jean Parvin Bordewich, Staff Director; Jason 
Abel, Chief Counsel; Veronica Gillespie, Elections Counsel; 
Adam Ambrogi, Counsel; Sonia Gill, Counsel; Julia Richardson, 
Counsel; Lauryn Bruck, Professional Staff; Carole Blessington, 
Executive Assistant to the Staff Director; Lynden Armstrong, 
Chief Clerk; Matthew McGowan, Professional Staff; Justin 
Perkins, Staff Assistant; Mary Jones, Republican Staff 
Director; Shaun Parkin, Republican Staff Director; Paul 
Vinovich, Republican Chief Counsel; Michael Merrell, Republican 
Counsel; Trish Kent, Republican Professional Staff; and Rachel 
Creviston, Republican Professional Staff.

             OPENING STATEMENT OF CHAIRMAN SCHUMER

    Chairman Schumer. Our hearing will come to order, and I 
will begin with my opening statement while we wait for Senator 
Klobuchar.
    I want thank everyone for coming. I want to thank my good 
friend, Ranking Member Bennett, who has been just an invaluable 
and fair member of this committee, not only under my 
Chairmanship, but long before it.
    I also want to especially thank Senator Byrd for his 
continued interest and participation in these hearings. His 
dedication of leadership, his unsurpassed knowledge of the 
Senate Rules and procedures have benefitted us all and we are 
really very, very fortunate that he will be joining us later in 
the hearing. So I ask unanimous consent that when Senator Byrd 
arrives, he be permitted to read his opening statement without 
objection.
    Now, we have here as one of our distinguished witnesses the 
former Senator from Oklahoma and Republican Whip, Don Nickles, 
a friend of both of ours. He served for 24 years admirably in 
this body. We welcome you, Senator Nickles, and thank you for 
having your time with us.
    Second, there is no former living Senator who can give us 
more insight into the evolution of the filibuster and the 
cloture rule than our first witness, who we are so honored to 
have, and that is former Vice President and former Senator 
Walter Mondale. As everyone knows, he was 42nd Vice President 
of the United States. He served two terms in the Senate 
representing Minnesota.
    In early 1975, Senator Mondale, together with Senator Byrd, 
successfully led the bipartisan debate which resulted in 
amending Senate Rule 22, the cloture rule, to reduce the number 
of Senators needed to invoke cloture. The Senate first 
determined it could change its own rules by a simple majority, 
and voted three times to set that precedent. Reaction to that 
precedent, which was later rescinded, resulted in a compromise. 
The Senate agreed to move from two-thirds of the Senators 
present and voting to the current 60-vote threshold for cloture 
that still exists, as we all know, today.
    In 1977, Mr. Mondale, as Vice President, serving also as 
President of the Senate, and Majority Leader Robert Byrd played 
a crucial role in shutting down the post-cloture filibuster of 
a natural gas deregulation bill. This action became the main 
catalyst for efforts in 1979 to limit post-cloture debate time.
    There is a great deal of debate between those who believe 
that under the Constitution, a majority of the Senate can 
change its rules and those who disagree. Today, we will see a 
glimpse of the Senate at a time when it did face and vote on 
that very issue, and it is very important to look at it because 
it hadn't happened before.
    This is the second in a series of hearings by this 
committee to examine the filibuster. The purpose is to listen 
and learn so that we can later consider whether the Senate 
should make any changes in its rules and procedures, and if so, 
which ones. I have not settled on nor ruled out any course of 
action myself, but as Chairman of the Rules Committee, I 
believe we need to fully and fairly assess where the Senate is 
today and whether we can make it better.
    One thing is certain, however. In recent years, the 
escalating use of the filibuster has drastically changed the 
way the Senate works. Our first hearing on April 22 explored 
the history of the filibuster. We now focus on the filibuster 
today and its consequences for the Senate, for all three 
branches of government, and ultimately for the American people.
    We learned in our first hearing that the use of filibusters 
has reached unprecedented levels. The chart to my right, 
prepared from facts supplied by the Congressional Research 
Service, shows that the use of cloture motions has escalated 
rapidly in recent Congresses. Cloture motion counts are useful 
because they represent a response to filibuster tactics, actual 
filibusters, threats, or realistic expectations of them.
    During the first period which you see here, from 1917 to 
1971, there was an average of 1.1 cloture motions filed per 
year. The next period is from 1971 to 1993, where there was an 
average of 21 filibusters per year. In the period from 1993 to 
2007, that number increased by almost a third to an average of 
37 cloture motions per year. And then we come to the 110th and 
the beginning of the 111th Congress. We are now averaging more 
than 70 cloture motions per year. That is an average of two per 
week when we are in session.
    Before I call on the rest of my colleagues for their 
statements, I want to highlight a few statistics about where we 
stand with our legislative, executive, judicial branches, and 
the filibuster. In the legislative branch, not every bill that 
passes the House could or should pass the Senate. But as we 
know, members of the House have been complaining regularly and 
rapidly, at least on our side of the aisle, that its bills 
stall out in the Senate, and the numbers indicate there is some 
truth to that. According to the statistics maintained by the 
Senate Library, there have been 400 bills passed by the House 
in this Congress that have not been considered by the Senate. 
Of those, 184 passed by voice vote. Another 149 passed with the 
majority of House Republicans voting yes on a roll call vote, 
indicating a high degree of bipartisan support, at least for 
those over 300 bills.
    The filibuster is also creating problems for the executive 
branch. For example, for fiscal year 2010, half of all non-
defense spending, $290 billion, was appropriated without legal 
authority because Congress hadn't reauthorized the programs. 
Dozens of Presidential appointments are also being delayed or 
blocked from floor consideration. Many of these were approved 
unanimously by both Democrats and Republicans in committee and 
are stuck on the executive calendar because of holds. That 
means executive agencies don't have the leadership and 
expertise to do their jobs well. Key national priorities are 
also being undermined. Even nominees to important national 
security positions are unreasonably delayed by holds and 
filibuster threats in this Congress. This is dangerous at a 
time when we need a Federal Government using all its resources 
to fight terrorism and protect our country.
    And finally, there is the judicial branch. Today, 102 
Federal judgeships are vacant, a problem which has consequences 
for Americans from all walks of life, direct or, more likely, 
indirect. President Obama has submitted nominations to fill 41 
of those. More than half, 24, have been reported out of the 
Judiciary Committee yet languish on the calendar. Of those, 20 
were approved by the Judiciary Committee with bipartisan, often 
unanimous, support. What is holding them up? Too often, it is 
the threat of a filibuster by one or a few Senators. It is true 
that the Senate increasingly scrutinizes judicial nominations. 
I myself opposed some of President Bush's nominations to the 
bench. However, at this point in George Bush's Presidency, the 
Democratic minority Senate had confirmed 52 Federal circuit and 
district court judges, but today, the Senate has approved only 
20 of President Obama's, even when candidates have strong 
bipartisan committee support. So without enough judges to staff 
the Federal judiciary, businesses and individuals alike may 
feel pushed to give up or settle rather than wait years for 
their day in court.
    These are but a few examples of the consequences of the 
filibuster. So I hope today's hearings help inform members of 
this committee, the Senate, and the public at large about the 
use of the filibuster and how it affects our government and our 
nation today.
    I look forward to listening to our witnesses, and now I am 
going to turn over the podium, of course, to, again, a man for 
whom I have the utmost respect as both a Senator and as a 
person, Robert Bennett.

 OPENING STATEMENT OF THE HONORABLE ROBERT F. BENNETT, A U.S. 
                       SENATOR FROM UTAH

    Senator Bennett. Thank you very much, Mr. Chairman. I 
appreciate your chart. Maybe you want to leave it up there, 
because I am going to have a comment or two.
    Chairman Schumer. Great.
    Senator Bennett. I appreciate your holding this series of 
hearings and the opportunity to offer some introductory 
remarks. The majority has chosen to focus on what it believes 
to be the abuse of the filibuster by the minority, but these 
hearings have also revealed how the Majority Leader can abuse 
the rules of the Senate to limit debate and amendment.
    At our first hearing, we saw how the leadership tactic of 
filling the tree to prevent consideration of amendments really 
works, and you referred to the Congressional Research Service, 
Mr. Chairman. We went there, as well, and they have a report to 
which I will be referring that talks about how the Majority 
Leader can use the tactic of filling the tree in order to avoid 
allowing the minority to offer amendments, and we go back 25 
years, that is to 1985, when the Majority Leader was Bob Dole 
and document the number of times that the Majority Leader, from 
Dole to Byrd to Mitchell to Dole to Lott to Daschle to Frist to 
Reid have used this tactic. We have studied the abuses of the 
Senate rules by the majority, that is, the use of Senate Rule 
14 to bypass regular order and avoid committee consideration, 
and the decreasing time between the introduction of a matter 
and the filing of a cloture petition.
    Here are some of the statistics, and we go back to the 
numbers you show on your chart. During the 109th Congress, Rule 
14 was used a total of 11 times. In the 110th Congress, that 
number grew to 30. CRS reveals that since January of 2007, the 
majority has filed cloture the same day that the matter was 
offered to the Senate, so that cloture was filed prematurely. 
Before there was even any threat of a filibuster, a cloture 
petition that would end up in that large bar that is at the end 
of your chart was filed before the minority had even an 
opportunity to make any comment.
    Here is the pattern. The current Majority Leader has used 
this tactic at a rate more than double that of his predecessor 
and five times as often as the last five Majority Leaders 
combined. So you have all of that building up to the time where 
now we have a situation where either Rule 14 or the filing of a 
cloture petition and filling the tree occurs immediately in 
order to make sure the minority does not have any opportunity 
to offer any amendments.
    This has gone unnoticed by the media. I am interested to 
track the media. They were very, very much opposed to 
filibuster when the Republicans were in charge, very much 
defending it as a tool of truth and wisdom once the Democrats 
got in charge--or the other way around, depending on which side 
of the media----
    Chairman Schumer. No, no, no. You were right the first 
time.
    Senator Bennett [continuing]. Okay. Whichever it might be. 
And so these hearings are very valuable to let us look at this 
thing and I appreciate very much the willingness of Vice 
President Mondale and Senator Nickles to come give us their 
views on this matter and look forward to hearing what they have 
to say.
    Chairman Schumer. Thank you. All I would say, and I 
emphasized this at our first hearing, this is not--there is 
plenty of blame to go around, if it is blame. Systems changed 
because of the actions of both parties, and the actions seem to 
switch when each party is in the minority or the majority. And 
the question is, for the good of the Senate over a longer 
period of time, should we change anything. But you are 
certainly right to bring up what you bring up, Senator Bennett, 
and I think it should contribute constructively to the debate.
    Senator Bennett. Thank you. I ask unanimous consent that 
the CRS memoranda to which I referred be made a part of the 
record.
    [The information of Senator Bennett submitted for the 
record]
    Chairman Schumer. Without objection.
    Usually, I like to let everybody give opening statements, 
but we have the Vice President and Senator Nickles waiting. 
What is your pleasure, Senators Alexander and Roberts? Do you 
want to make a couple of brief remarks?
    Senator Alexander. How about one minute?
    Chairman Schumer. Great. Whatever you need.
    Senator Alexander. I don't know if Senator Roberts can 
speak for one minute.
    Senator Roberts. Well, I plan to, as usual, shine the light 
of truth into darkness. That may take a minute and a half.
    [Laughter.]

  OPENING STATEMENT OF THE HONORABLE LAMAR ALEXANDER, A U.S. 
                     SENATOR FROM TENNESSEE

    Senator Alexander. Mr. Chairman and Senator Bennett, thank 
you for the hearing and we look forward to hearing the former 
Vice President and colleagues and Senator Nickles.
    I would only say two things. One is, it is interesting to 
me how the Chairman defines a filibuster. A filibuster by his 
definition is anytime the majority seeks to cut off debate or 
to stop the minority from offering amendments. In Senator 
Nickles's testimony, he points out that between January 2007 
and April 2010, cloture was filed 141 times on the same day a 
matter, measure, or motion was brought to the Senate floor. So 
the Senate is supposed to be defined by the capacity for 
virtually unlimited debate or unlimited amendment, so if you 
count filibusters by saying these bad Republicans who happen 
now to be in the minority have filibustered, the definition of 
a filibuster is any time we try to shut the Republicans up.
    Well, that happened when the Republicans were in charge, 
and I can vividly remember Senator Byrd's words to me in our 
first class, and he will be here to speak for himself. He said, 
sometimes, the minority may be right.
    And as we reflect back upon the time when President Bush 
was here and the Republicans were in charge of the Congress, 
maybe our Democratic friends would think that maybe they were 
right about privatizing Social Security. They used the 
filibuster to prevent President Bush and the Republican Party 
from privatizing Social Security. They might say that the 
country is better off after the great recession because they 
used the filibuster. Maybe they were right. They slowed down 
and prevented a whole number of other important measures, from 
tort reform to the appointment of conservative judges. Maybe 
they were right.
    So I think we should not define filibuster by the number of 
times the majority seeks to cut off debate, and I think we 
ought to recognize Senator Byrd's advice that sometimes the 
minority may be right.
    Thank you, Mr. Chairman.
    Chairman Schumer. Senator Roberts.

OPENING STATEMENT OF THE HONORABLE PAT ROBERTS, A U.S. SENATOR 
                          FROM KANSAS

    Senator Roberts. Thank you, Mr. Chairman.
    At the last hearing, we detailed--and thank you for your 
leadership on this--the marked decline on open amendment rules 
in the House and the soaring increase in the closed amendment 
rules for legislation brought up before that body. To whom can 
the American people turn when the House majority runs roughshod 
over the minority and the wishes of the public? That is the 
Senate. The Framers of the Constitution certainly intended 
that.
    There is a temptation, I think, on the part of some members 
in this chamber to make the Senate more like the House, to do 
away with the procedures and the precedents intended to foster 
compromise and comity.
    Since 2007, there has been an unprecedented rise in the 
parliamentary tactics by the majority to circumvent what we 
call regular order, and that data is indisputable. I encourage 
anyone interested in the subject to witness the trend over the 
last three-and-a-half years that is characterized by an 
increase in the Rule use of 14 to bypass committees, a decrease 
in the use of conference committees to resolve legislation, and 
a drastic rise in the use by the Majority Leader of a tactic 
called filling the tree, which prevents the minority from 
offering amendments. The use of filling the tree is more than 
double that of the previous leader and exponentially greater 
than the norm of the last decade.
    I think these trends are alarm bells. Some critics charge 
the minority with obstruction and point to the number of 
cloture motions filed in the last three-and-a-half years as 
evidence of, quote, filibustering. The use of cloture, which is 
an instrument to cut off debate, does not really correlate with 
objections from the minority. A great many cloture motions, far 
more than in any previous Congress, are filed the moment the 
question is raised on the floor. Thus, debate is cut off before 
it can even begin.
    Worse yet, there seems to be a growing inclination 
intentionally to conflate the term filibuster with holds. 
Everybody knows holds are an informal process by which a 
Senator submits notice that they object to a unanimous consent 
request. Typically, a hold is used to prevent a nomination or a 
piece of legislation from passing the chamber without debate or 
a recorded vote. A hold does not prohibit the Majority Leader 
from bringing a question to the floor.
    I would like to reiterate in closing--over my two minutes, 
I apologize to the Vice President and to Senator Nickles--the 
framers of the Constitution had the foresight to create an 
institution that was based not on majority rule, but where each 
State, regardless of size, had two Senators to speak out on 
their behalf, to debate, and to offer amendments. For anyone 
who doubts that this is what the Framers intended, I encourage 
them to revisit the Federalist Papers Number 10, attributed to 
James Madison. He states, ``Complaints are everywhere heard 
that the public good is disregarded in the conflicts of rival 
parties and that measures are too often decided not according 
to the rules of justice and the rights of the minority party, 
but by the superior force of an interested and overbearing 
majority,'' and that is true whether it is Republicans or 
Democrats.
    Mr. Chairman, the filibuster is an indispensable tool for 
controlling the effects of partisanship and factionalism 
because it compels the majority, regardless of party, to meet 
the minority and the American people in the center in order to 
forge a national policy that is based on consensus instead of 
discord. When Don Nickles came up to shake my hand, who has 
been a longtime friend, he said, what is happening? And I said, 
this place is broken. Help.
    With that, Mr. Chairman, I thank you very much, and I 
apologize to the gentlemen who are waiting patiently.
    Chairman Schumer. I think your concluding lines would find 
favor with the majority of Senators, whatever our diagnosis is, 
and that is the reason we are having these hearings.
    Senator Durbin, our Democratic Floor Leader.

 OPENING STATEMENT OF THE HONORABLE RICHARD J. DURBIN, A U.S. 
                     SENATOR FROM ILLINOIS

    Senator Durbin. Thank you, Mr. Chairman. It is good to see 
the Vice President and I thank all of you who are here to 
testify today.
    I am completing a book now which is a biography of Mike 
Mansfield and his tenure as the Majority Leader and there was 
an interesting early chapter there in 1963, when there was a 
debate in the Senate over the Satellite Communications Act and 
Wayne Morse initiated a filibuster against the Satellite 
Communications Act. It became a celebrated cause because the 
Democratic majority was split. The Southern Democrats, who had 
argued you should never cut off debate, because they didn't 
want to go to the civil rights votes, were in a quandary 
because they wanted to move to the satellite bill and it meant 
that they had to cut off debate, vote cloture against Wayne 
Morse's filibuster on the satellite bill.
    Ultimately, they made the decision to go forward and over 
70 Senators voted for cloture to stop the filibuster by Wayne 
Morse. That is an interesting footnote, but the closing 
sentence was, I thought, the most memorable part. It was the 
fifth time in the history of the Senate there had ever been a 
motion for cloture, 1963, the fifth time.
    And so this institution which we are a part of and which 
respects the rights of minorities within the institution has 
functioned throughout its history respectful of minorities, but 
has not gone to the extremes we have now reached where we are 
now using the cloture motions and filibusters as commonplace. 
So we have gone beyond deliberation to somewhere near deadlock. 
For some, that complements their political philosophy. They 
don't want the Senate to do anything, and I guess that is an 
approach that can be served by this use of the rules. But I 
don't think it serves our purpose in society at large or our 
purpose in this nation, where we are expected to deliberate but 
to decide.
    In the last six weeks, I can tell you what our business has 
been. We spent one entire week in the Senate debating on 
whether we would extend unemployment compensation by four 
weeks. We spent the next week in the Senate debating five 
nominees, all of whom passed with more than 60 votes. So there 
clearly was very little controversy associated with them. And 
now we are on our fourth week on the Wall Street reform bill, 
which we hope to invoke cloture on this afternoon. At this 
pace, there are so many major issues facing this nation and the 
Senate that cannot be considered. I think it is part of a 
strategy. Unfortunately, the rules complement that strategy and 
benefit that strategy.
    Now, I have been on the other side of this argument, as 
well. I was a whip when we were in the minority position with 
45 votes and I needed to find 41, when necessary, to stop 
cloture. So I know that you have to look at this from both 
sides of the perspective.
    But I do believe that we have reached a point now where the 
American people are losing faith in this institution and I 
don't think, whatever our purpose may be, that if that is the 
ultimate result, that we are serving our democracy. We have got 
to find a reasonable way to respect the minority but to stop 
what I think is clearly a destined gridlock for this great 
institution.
    Thank you, Mr. Chairman.
    Chairman Schumer. Thank you, Senator Durbin.
    And now, I will ask unanimous consent that my introductory 
remarks be added to the record, because we have someone far 
better at introducing the Vice President.
    [The prepared statement of Chairman Schumer submitted for 
the record]
    Chairman Schumer. So we would ask Senator Klobuchar and, of 
course, Vice President Mondale to take their seats at the 
table. Senator Klobuchar.

  INTRODUCTION OF HON. WALTER F. MONDALE BY THE HONORABLE AMY 
            KLOBUCHAR, A U.S. SENATOR FROM MINNESOTA

    Senator Klobuchar. Thank you very much, Mr. Chairman, 
members of the committee, Senator Nickles.
    It is such an honor to be here to introduce the Vice 
President. As you can imagine, he is revered in our State, and 
you should know that my first job in Washington was as an 
intern, and my first assignment as his intern was to do a 
furniture inventory of all of the Vice President's furniture as 
well as his staff's. It was a project that took two weeks. I 
wrote down the serial numbers of every piece of furniture, and 
I can tell you that I tell students, take your internship 
seriously, since that was my first job in Washington and this 
was my second job in Washington.
    [Laughter.]
    Senator Klobuchar. I will also tell the members of the 
committee that nothing was missing----
    [Laughter.]
    Senator Klobuchar [continuing]. So you have a very 
honorable witness here with you.
    You think about the Vice President's career and everything 
he has done, the crusading Attorney General in Minnesota, a 
leader in the United States Senate, a Vice President who really 
defined the role of the modern Vice President, the Ambassador 
to Japan. When I was there recently, they referred to him in 
Japanese, which I will not attempt, as ``The Big Man,'' he was 
so respected when he was in Japan. And he made that very 
courageous decision when Paul Wellstone tragically died to have 
to take up the mantle for our party with only a week remaining 
in the election. And while he was not successful, he handled 
it, as he has done everything in his life, with such civility 
and such dignity.
    One part of his biography that is often overlooked that you 
will hear about today is when he was in the Senate, frustrated 
with the lack of getting things done, as Senator Durbin so 
eloquently spoke about, and decided to take on the power 
structure. It is really an amazing story, and he was, in fact, 
successful--maybe not successful enough, as we see where we are 
right now, but at that time, he made a major change, and so I 
am sure he will enlighten the committee with his stories and 
knowledge, and it is my honor to introduce the Vice President.
    Chairman Schumer. Vice President, your entire statement 
will be added to the record, and you may proceed as you wish.

 STATEMENT OF HON. WALTER F. MONDALE, DORSEY AND WHITNEY LLP, 
                        MINNEAPOLIS, MN

    Mr. Mondale. Thank you, Senator Klobuchar, for your 
kindness in introducing me today. We are very proud of Amy in 
Minnesota, and from what I understand, the nation shares that 
pride today, and I am honored that she would be present with me 
at the commencement of this hearing.
    Mr. Chairman, I am very grateful to the committee for 
conducting these hearings on the need to reform the rules to 
protect debate and deliberation, so central to the unique role 
of the U.S. Senate, while removing flaws in the procedures that 
experience has proven fuel obstruction and paralysis.
    Perhaps I was asked to testify because of my involvement in 
the successful bipartisan battle to reform Rule 22 in the 94th 
Congress, where we reduced the number of members required to 
invoke cloture from a maximum of 67 to 60. At about the same 
time, led by Senator Byrd, we changed the post-cloture rules so 
that at a time certain following cloture, the Senate would have 
to vote on the underlying measure, because we were developing 
at that time a post-cloture filibuster technique which led to 
endless delay.
    My cosponsor, Jim Pearson from Kansas, a Republican, and I 
called up our proposal at the very opening of Congress. Our 
strategy was based on the constitutional right of the Senate to 
propound its own rules by a majority vote. Vice President 
Rockefeller, ruling from the Chair, supported our position. The 
Majority Leader, Mike Mansfield, a wonderful human being and 
leader, appealed the Chair's initial ruling, an appeal we then 
successfully moved to table on a non-debatable motion.
    In that long and sometimes bitter fight--I think we were on 
the floor for a month or more--the Senate on three separate 
occasions voted to sustain the constitutional option, the 
principle that a majority vote could change the rules. After 
the sense of the Senate became clear, Mike Mansfield and Bob 
Byrd, also with Russell Long, working with the Republican 
leadership, reached the negotiated compromise that I just 
outlined, and those are basically the rules that govern the 
Senate today.
    As we completed that process, an argument occurred about 
whether the Senate, in reaching the compromise rules, erased 
the effect of the majority-vote motions to table that I 
referred to earlier. I think Senator Cranston said it best when 
he said, ``Upholding the [eventually successful]Mansfield point 
of order only adds one tree to a jungle of precedents we reside 
in. But above and beyond that jungle stands the Constitution, 
and no precedent can reverse the fact that the Constitution 
supercedes the rules of the Senate that the constitutional 
right to make its rules cannot be challenged.''
    At about the same time, Senator Byrd, who was the key 
leader in these rules reforms, said that at any time that 51 
Senators are determined to change the rule and have a friendly 
presiding officer, and if the leadership joins them, that rule 
can be changed and Senators can be faced with majority cloture.
    That constitutional precedent remains today. Some argue 
that the rules themselves require a two-thirds vote for any 
amendment, but as I said earlier, I think the Constitution 
answers that question: a determined majority can change the 
rules.
    We took that bold step in 1975 to reduce the cloture 
requirement because we had become paralyzed. We were in a ditch 
in the Senate and many of us saw an abuse of the rules. Jim 
Allen of Alabama was a rules wizard. He had a coterie of allies 
who began the march toward what we see today, the use of 
cloture to paralyze the Senate, preventing it from acting on 
any issue that a motivated minority might seek to block. The 
constitutional remedy was invoked by majority rule in 1975, and 
the compromise was adopted by a large bipartisan vote.
    While the circumstances then differ in detail from what you 
confront today, fundamentally, what we see now is the logical 
extension of the paralysis we faced then. The Senate, in fact, 
has evolved into a super-majority legislative body. The ever-
present threat of filibuster has greatly enhanced the ability 
of a single Senator, simply through a hold on a nominee or a 
measure, to prevent any consideration and to do so secretly. 
Many members of the Senate have said that this body is in 
crisis. Many scholars have said that the crisis is more severe 
than it has ever been before.
    I am heartened to see, particularly among newer members of 
the Senate, and I hope in the Senate at large, that there is a 
growing demand for rules reform, and I hope these rules will be 
ready for adoption at least by the beginning of the next 
session.
    Let me just mention two suggestions that I have. One, 
weaken the power of holds by making a motion to proceed either 
non-debatable or debatable for a limited number of time, say, 
two hours. This change has been suggested many times over the 
years, but today's Senate demonstrates how badly it is needed. 
The rules should provide that the consideration of any nominee 
or the debate on any measure can begin -begin, not end-by a 
traditional motion to proceed requiring only a majority vote.
    Secondly, I would hope that the joint leadership could 
shape a reformed Rule 22, as we did in 1975, that would reduce 
the number of Senators required for cloture from the present 60 
to, say, somewhere between 58 and 55. There is no magic number. 
You will notice I do not want to get rid of the filibuster, but 
as I will argue, I think we need a different number.
    Then, we tried to find the line that would assure 
deliberation and prevent debilitation. The number 60 worked for 
us then, but in this harshly partisan Senate of today, I 
believe it is a hill too high. However, it would worry me to 
reduce the cloture requirement all the way down to a simple 
majority to end debate. It might be more efficient, but the 
Senate has a much higher calling. It must ventilate tough 
issues. It must protect the integrity of our courts. You must 
shape the fundamental compromises reflecting our Federal 
system. And at times of great passion, you must help us find 
our way, lead us forward, and hold us together.
    I served in the Senate during the most perilous times of 
executive abuse, when wars were begun and escalated, when funds 
were spent or withheld, when civil liberties and civil rights 
were under assault--all with little public awareness; and no 
accountability to the legislative branch--and it was only when 
basically here in the Senate that Senators stood up and used 
their special stature that we began to make a change. And that 
is why I don't want to get rid of the filibuster entirely.
    Ironically, however, the use of that right as now practiced 
threatens the credibility of the Senate and its procedures and, 
I think, adds to the incivility that we discuss. The filibuster 
should not be used to frustrate the very purpose of the Senate 
procedures, to foster discussion, even extended discussion, to 
enhance public understanding.
    The constitutional authority to advise and consent found in 
the Senate for Presidential nominations is one of the Senate's 
most important responsibilities. Yet there can be no consent 
without debate and there can be no debate if a minority of 
Senators, even a single Senator, can bar the Senate from giving 
its consent. Under the same constitutional provisions that give 
the Senate the power to change Rule 22 by majority vote, it can 
change its procedures for bringing nominations to the floor.
    The Senate's leadership should have the authority, 
sustained by a majority and a ruling of the presiding officer, 
if necessary, to bring nominations to the Senate. In addition, 
the Senate's leadership has the ability to suspend until a 
particular nomination has been resolved the two-track system 
that has permitted more filibusters, in effect if not in name.
    One of the things we did back in 1975, in addition to 
reducing the number required for cloture, was to institute the 
two-track system. So the old idea that if you wanted to 
filibuster, you had to get on the floor and make a spectacle of 
yourself, ``Mr. Smith Goes to Washington,'' and the whole 
nation and the world can see what you were doing had been 
replaced by a more subtle, silent filibuster that allowed for 
more efficiency in getting the huge backlog of Senate business 
conducted, but it had a negative side effect because it reduced 
almost all public attention and public responsibility for 
instituting filibusters and now the holds that, in my opinion, 
are based upon the filibuster.
    I am going to submit the rest of my testimony for the 
record, but let me just close with one statement. When the 
restored Old Senate Chambers were dedicated here some years 
ago, I think Howard Baker was selected to speak at those 
ceremonies for the Republicans and Tom Eagleton was selected to 
speak for the Democrats. And Senator Eagleton pointed out the 
unique and even sacred role that the Senate has in sustaining 
the values and the laws and the unity of our country.
    He said, ``Here in this room has been sheltered the 
structural side of our democratic government for decades. The 
government's life force, what makes it work and endure, is our 
capacity to accommodate differences and to find a way beyond 
parochial, partisan, and ideological concerns to live together 
as a free nation.'' I think that is the Senate's unique role, 
and that is why the work of this committee and the decisions of 
the Senate on how it will conduct itself are so crucial to our 
future. Thank you.
    [The prepared statement of Mr. Mondale submitted for the 
record]
    Chairman Schumer. Thank you, Mr. Vice President. That was 
outstanding testimony. You described better than I have heard 
in a paragraph why people don't stand up and debate the way 
they did when Jimmy Stewart, which is a question all of our 
constituents ask us all the time.
    Now, we have a little bit of time issues here. Senator 
Nickles, I believe you have to leave by 11:15. If you wouldn't 
mind, Mr. Vice President, because I know you were going to 
stay--no, stay where you are, if you don't mind--maybe we can 
have, with the committee's permission, Senator Nickles do his 
testimony, and then we will ask them questions together. Is 
that okay with everybody?
    Thanks. Okay, so let me introduce Senator Nickles briefly. 
Well, we all know Senator Nickles. He was an outstanding leader 
here for 24 years, Republican Whip, and played a major role in 
many different pieces of legislation. It is very kind of you to 
come and give us your views. Without objection, your entire 
testimony will be read in the record and you can proceed as you 
wish.

  STATEMENT OF HON. DON NICKLES, CHAIRMAN AND CHIEF EXECUTIVE 
           OFFICER, THE NICKLES GROUP, WASHINGTON, DC

    Mr. Nickles. Mr. Chairman, thank you very much, and I 
appreciate your accommodation. I think the world of the Senate. 
I spent 24 years in this institution. I love the Senate. I even 
served on this committee for a short period of time, and I 
think, as Senator Durbin, you called it a great institution. It 
is a great institution. I was with Senator Cochran this morning 
and he called it a very special place, and it is a very special 
place.
    I sometimes participated in indoctrinating new Senators, or 
newly-elected Senators, and I would usually tell them, the 
Senate is special for a couple of reasons, but amongst 
legislative bodies, it is really special because unlike the 
House and unlike most parliament procedures, members of the 
Senate have unlimited debate and unlimited opportunities to 
offer amendments. Sometimes the rules curtail that, and I kind 
of shudder when that happens because that infringes on what 
really distinguishes the Senate as being such a unique body.
    So rules of the Senate, and I heard Senator Mondale talk 
about the abuse of the rules, but the abuse of the rules can go 
both ways. And certainly if the rules are used to abort debate, 
not shut down debate, but just eliminate debate or eliminate 
amendments, I find that offensive to the traditions of the 
Senate. Some of the proposals that some people are talking 
about really would alter the Senate in a way that makes the 
Senate much more like the House of Representatives, and that 
would be a serious, serious error.
    I know many of you had the pleasure of serving in the House 
as well as the Senate. I did not. But I really beg you not to 
turn the Senate into a legislative body that is very comparable 
to the House. Granted, you can do a lot of things. You can do a 
lot of things very quickly. You can do a lot of things with 
very limited debate and with the majority vote. That is not the 
Senate that I served in for 24 years and it is not the 
tradition of the Senate and it wouldn't be good for the 
country. It wouldn't be good for the legislative process, 
either.
    Our forefathers showed great wisdom and our leaders in the 
past, including Senator Mondale and others that have worked to 
develop the rules, and the rules aren't perfect, but they can 
be abused. I think cloture, by its very nature is somewhat 
abusing the process. It is being used way too much and there 
are way too many, quote, ``filibusters,'' but I would really 
question what is a filibuster. I can only remember a few 
filibusters in my career.
    I do remember laying on a cot at night just off the Senate 
floor when we are going on and on and on shortly before 
Christmas, having other members talking about cussing those--
not talking about cussing, they were cussing members of the 
Senate who were keeping us here so close to Christmas--it 
probably sounds familiar to what you all were hearing this past 
Christmas season--because I was involved in it. That was over a 
nickel-a-gallon gasoline tax, I think, in 1982, and it was very 
contentious.
    But we didn't have many filibusters in that period of time. 
This growing explosion of filing cloture--cloture, the whole 
idea was to limit debate and limit amendments, but 
unfortunately, now, cloture is being used to shut off debate 
and shut off clotures. There is a big difference. And when 
cloture is used to shut off debate and shut off amendments 
prematurely, that is wrong. There is a right way to legislate 
and a wrong way to legislate, and if you are curtailing 
individual Senators' ability to offer amendments prematurely--
and I say prematurely, and that is a judgment call.
    I know the bill that is on the floor of the Senate--and I 
was working with Senator Durbin, I wanted to see his 
amendment--I was worried, would this get in before cloture was 
filed. And I am sure that there are hundreds of amendments that 
are pending right now that many members and other people are 
saying, boy, I hope that gets in before cloture is filed 
because it is going to knock our amendment off, and that will 
probably be a determining factor whether you get cloture.
    But I compliment Senator Dodd and I compliment Senator 
Reid. At least you had the bill on the floor and it was 
debated. It was amended. Democrats and Republicans did get to 
offer amendments. That is a healthy change. We used to do that 
all the time. We used to have authorization bills on the floor, 
subject to amendments, so Democrats and Republicans could offer 
a lot of amendments before cloture would come down. And now, 
cloture is being pulled--I call it a quick-draw cloture. It is 
being filed way to quick, way too often.
    A couple of other comments I will make that are the same 
thing, and I have heard both Senator Alexander and Senator 
Roberts and Senator Bennett mention, and that is Rule 14(b), 
bypassing the committee process. And I am well aware of the 
fact that we did it at times when Republicans were in control. 
But it is happening on an accelerating basis. The rate that 
that is happening now is accelerating.
    What does that mean? It means we don't go through committee 
markup. That means the bill is usually written in the Leader's 
office. Well, I was in leadership for 14 years. I had my hands 
on a lot of pieces of legislation that we were involved in. But 
bypassing the committee, in my opinion, is a mistake. 
Committees in general usually have bipartisan markups where 
members are able to massage and legislate.
    I think the health care bill that Senator Baucus marked up 
with Senator Grassley, they had hundreds of amendments. That 
was done well in committee. It wasn't done well afterwards, in 
my opinion. Then it went to the Leader's office. That is not 
the Senate working its will. Bypassing the committee process is 
dangerous. The same thing, whether there is energy legislation. 
When you have major pieces of legislation, it is very important 
it go through the committee process, let all members on the 
committee who have experience and expertise be able to amend 
it, to massage it, to work on it, as well as on the floor.
    And the same thing would apply to filling the tree. And 
again, I know Republicans did it, but I know it is also 
happening on a much more rapid pace today. That is a serious 
mistake. That is a serious infringement on a Senator's ability 
to be able to offer amendments and to be able to debate. And I 
think when we did it, looking back, I think we made a mistake.
    So any time that the Senate by the use of rules, filling 
the tree, bypassing committee or filling cloture prematurely 
and denying Senators the opportunity to debate or amend, in my 
opinion, curtails the Senate from being the great tradition, 
the great legislative body, the great deliberative body which 
is so crucial to passing positive, good, bipartisan 
legislation.
    Lowering the threshold required for cloture, in my opinion, 
as well, would be a mistake, because that is a threshold that 
almost by definition requires bipartisan involvement. It 
requires some cooperation. You lower that, you increase the 
tendency or the likelihood for basically the dominant party at 
the time to steamroll, and that, in my opinion, is not good for 
the process and it is not good for the American people.
    I think the rules can be adjusted, but maybe adjusted more 
by--maybe I will take an example, Senator Mondale's comments 
when you talk about maybe changing the time on motion to 
proceed. For the most part, we didn't have filibusters on 
motions to proceed in the past and you shouldn't in the future. 
Just having an agreement with the majority and minority to say, 
we won't filibuster the motion to proceed as long as you give 
us ample time to debate and amend. And as long as that 
understanding is there, we won't filibuster the motion to 
proceed. You could eliminate lots of those cloture petitions. 
You could save two or three days on debating a motion to 
proceed and actually be amending a bill and make real progress. 
That is just a suggestion.
    Mr. Chairman, thank you.
    [The prepared statement of Mr. Nickles submitted for the 
record]
    Chairman Schumer. Well, thank you, and I think just putting 
your testimony and Vice President Mondale's next to one another 
is great because it shows that there are some different points 
of view, but there is a need to fix the system and some areas 
where we can agree. There is often difference in interpretation 
as to what is causing all of these problems, but as I just said 
to Senator Bennett, maybe there is a way we can come up with a 
bipartisan way to fix things, that deals with both sides' 
legitimate complaints.
    The first question I have is for--and I know Senator Udall 
just got here late. He has been instrumental, by the way, in 
having these hearings and leading them and he wants to give an 
opening statement. Because of our time constraints, what I 
would like to do is just give you some extra time when your 
question period occurs, if that is okay.
    Senator Udall. That would be great, Mr. Chairman. Thank 
you.
    Chairman Schumer. Okay. My first question is to Senator 
Mondale--Vice President-slash-Senator-slash-great American 
Mondale. The nub of this debate, not in terms of how to fix it 
but whether we even can fix it, is the contrast of the 
Constitution, the Article I, the Senate `shall make its own 
rules,' versus the rule that is now in place in terms of having 
a majority of the Senate be elected before you can change the 
rules, two-thirds, and you mentioned what Senator Cranston 
said. Was there much debate back in 1975 about the contrast of 
those two positions? Could you just elaborate a little more, 
because that is going to be the nub of the issue if we should 
attempt to change anything. Even if, say, Senator Bennett and I 
were to agree on what changes could occur, another Member who 
wouldn't agree could still force us back into that conundrum.
    Mr. Mondale. Yes, there was intense debate. One of the key 
elements of the debate was between our position that the 
Constitution conferred upon the Senate the ability to change 
its rules by a majority vote, at least at the opening of the 
session--so I read the rule as not limited to that, but that is 
why I say ``at least''--and some of the opponents who said 
everything is controlled by Rule 22 as inherited and it can 
only be amended under those rules, the Senate is a continuing 
body, and the other arguments that you have all heard again and 
again.
    So that issue was totally vented. That was the issue 
contained in the motion to table, which we tabled, and our 
argument was, as Senator Cranston put it so well, as Bob Byrd 
pointed out during this debate, that a majority of the Senate 
with a cooperating presiding officer and leader could invoke 
majority cloture on its own. In other words, the constitutional 
power was there. That was very much at the heart of the debate.
    We argued that if the Framers wanted the Senate to have a 
higher voting requirement to change the rules, it would have 
provided it, because in five or six places in the Constitution, 
such as confirmation, treaty ratification, and some other 
measures, it provides specifically that two-thirds of the 
Senate are required. So we think there are a lot of strong 
arguments for the majority vote principle that we made and 
sustained in that debate.
    Chairman Schumer. Would you want to comment on that, 
Senator Nickles?
    Mr. Nickles. Just a couple of comments. One, I served--
since I have been in town, leadership has changed in the Senate 
six times. With Senator Mondale, in that period, the Democrats 
controlled both Houses for decades. And now you have much more 
volatile leadership changes, and I can tell you, if you read 
past comments from Democrats and Republicans, their vantage 
point and viewpoint changes whether they are in the majority or 
the minority.
    Chairman Schumer. Absolutely.
    Mr. Nickles. Long-term, I think 60 is a very good number 
and I would hate to think the Senate would reduce that number. 
And Senator Alexander alluded to it. President Bush had control 
of both Houses. If the Senate would have moved to a majority 
number, say 51, there was no limit what could have been passed.
    The Senate having a higher number, having 60--and I like 
60. I think maybe 67 might have been too high. Sixty is a 
pretty good number. It makes the majority work with the 
minority and----
    Chairman Schumer. But do you think we could change it based 
on the Constitution?
    Mr. Nickles. No, I am not----
    Chairman Schumer. Should we want to?
    Mr. Nickles. Well, one, I think it would be a disastrous 
mistake----
    Chairman Schumer. Right.
    Mr. Nickles [continuing]. A disastrous mistake for the 
Senate if you want the Senate to be a deliberative body, if you 
want the Senate to be different from the House.
    Chairman Schumer. Right.
    Mr. Nickles. If you want a majority body where 51 
individuals can ram things through, that is not the Senate I 
know and love.
    Chairman Schumer. I am not asking about 60. I mean, let us 
just take the motion to proceed. Do you think the Senate could 
change that rule by a majority vote? Let us say Senator Bennett 
and I agreed that was the right thing to do in exchange for you 
not being able to fill the tree in certain ways.
    Mr. Nickles. I think----
    Chairman Schumer. Do you think we could do that?
    Senator Bennett. I would stipulate that that agreement is 
hypothetical.
    [Laughter.]
    Mr. Nickles [continuing]. I think what would be much 
preferable, instead of changing the rules, would be to have 
basically a caucus agreement, Democrats and Republicans saying, 
we are not going to filibuster motions to proceed. In exchange, 
we expect time and amendment opportunities. Don't shut us out. 
Don't fill the tree. Let us legislate like we should. I think 
you can do that with a handshake without amending the rules.
    We are a continuous body. The rules do continue into the 
next time. I know if you went into January and said, oh, under 
the Constitution, we are going to rewrite the rules, somebody 
would say, the existing rules are still in existence. The 
officers of the Senate are still in existence. And so to do 
that, you are going to have to have 60 votes to get there, or 
67, actually----
    Chairman Schumer. Sixty-seven.
    Mr. Nickles [continuing]. Sixty-seven to amend the rules. I 
would prefer, instead of amending the rules, I would urge you 
not to get in that battle.
    One, I would expect, even predict, that the viewpoint is 
going to change after November, what threshold you would want. 
I would just encourage you--like I said, it has changed six 
times since I have been up here. It will change again. Sixty is 
a good number. It works.
    And people say the Senate doesn't work. Senator Roberts 
said the Senate is broken. There are a lot of things that are 
broken about the Senate, but you don't have to change the rules 
of the Senate to fix it. A lot of it could be done--Harry 
Reid--I was Republican Whip and Harry Reid was Democrat Whip 
for six years. We got along very well. We never had a problem, 
never had a problem. And I can't help but think leadership 
working together, maybe the whole caucuses working together, 
saying, wait a minute. This is getting carried away.
    One Senator shouldn't be able to place holds on people 
forever. And people think holds stop all these nominations. No. 
All it does is say, I wish to be consulted. Consult him to say, 
now we are bringing up the nominee, and if you want to block 
the nominee, get prepared to speak because we are going to stay 
on the nominee until we are finished. People have a right to be 
notified. The Senate operates a lot on unanimous consent. 
Individual Senators have the right to be notified before you 
bring up the nominee or the bill so I can participate in the 
debate. That makes sense. But they don't have a blanket right 
to stop everybody indefinitely forever.
    So the hold, the perception of the hold, I think, has been 
greatly blown out of proportion. I hope that we don't get in 
the tradition of filibustering judicial nominees. That came up 
in the last few years. I think that was a mistake. I mean, the 
tradition was, we had big debates over Judge Bork and Judge 
Thomas and really not so much on--on some nominees, but we 
still allowed a majority vote and I am glad that we did.
    Chairman Schumer. Thank you.
    Senator Bennett? I mean, there are so many questions, but 
we want to move on here. This is such very good testimony.
    Senator Bennett. Thank you very much, and thanks to both of 
you for your insightful comments.
    I, as a relatively new member of this body at the time, 
remember a situation where President Clinton sent up a nominee 
that some members of our conference didn't like. We didn't have 
enough votes at the time, even though we were in the majority, 
we didn't have enough votes to defeat the nominee because there 
were some Republicans that would go with the Democrats and the 
nominee would get 51 votes. And the question came up, well, let 
us filibuster. We have got 41 who are opposed. Let us 
filibuster. Senator Lott, the Majority Leader, said, absolutely 
not. The tradition in the Senate is you do not filibuster 
judges. And my colleague from Utah, Senator Hatch, the Chairman 
of the Judiciary Committee, said the Leader is absolutely 
correct. Under no circumstances do we filibuster judges. And so 
some of the others who were making this case said, oh, all 
right.
    And making your point, Senator Nickles, Senator Hatch said, 
the time will come when we will have a President, and if we 
filibuster their judge with their President, they will then 
have the precedent to filibuster our President's proposal for 
judgeship. And when Miguel Estrada came before the Senate and 
Senator Daschle, as is his right under the rules, changed the 
precedent, we saw a sea change in the way things were done 
around here.
    And that was the point at which I discovered that 
precedents trump the rules. Precedents are easy to change when 
they are different than the rules, but the precedent that you 
don't filibuster judges got changed, and now, Mr. Chairman, you 
have heard the exchange on the floor. When a Republican was 
going to filibuster a Democratic judge proposed by President 
Obama and some of our Democratic colleagues started quoting 
back to us our own statements that we said, no, you don't 
filibuster judges, Senator McConnell, as the Leader, said, I 
made that statement, I believe that statement, but you changed 
the rules and we are now operating under your rules.
    I don't know quite how we rewrite some of the rules to fit 
some of the precedent of comity that we had, but that is the 
problem we are facing. Under the rule, you can, indeed, file a 
cloture petition the same day the bill comes down and you can 
fill the tree immediately.
    And I remember Senator Byrd doing that as Chairman of the 
Appropriations Committee on the first supplemental bill when I 
got here brand new as a freshman Senator, and the Republicans 
raised a huge outcry about how unfair that was and backed him 
down, not with votes, but simply the strength of their 
argument. And I remember very clearly--you remember the things 
when you are a freshman Senator--when Senator Byrd more or less 
apologized to the Republicans and said, no, we will allow 
amendments. We will allow this to happen. And he backed away 
from it and the filled tree--I wasn't smart enough to know how 
they did it under the rules, but the filled tree somehow went 
away and we went ahead with this.
    So even in the relatively brief time I have been here, I 
have seen a sea change as we have moved from the kind of 
circumstance you describe, Senator Nickles, where people sit 
down and work it out on the basis of precedent and comity 
behind the scene, to a situation where the rule is taken to the 
extreme, and once it is, whichever party does it, then enables 
the other party to do it back when the control in the Senate 
changes.
    I have no questions for you, just that comment, listening 
to the two of you and your experience and then adding my own 
experience, that we should be very, very careful as we proceed 
in these waters because we can mess things up pretty badly, and 
even under the present rule, if we are not careful.
    Thank you, Mr. Chairman.
    Mr. Nickles. Senator Bennett, if I could just make one 
comment, a lot of this could change if you had several Senators 
on both sides who said, you know what? I am always going to 
protect your right to offer amendments if you will always 
protect my right to offer amendments. If you have enough 
Senators do that, then cloture is not invoked the first time or 
two. There was even a tradition when I was first elected that 
some Senators wouldn't vote for cloture the first time or two, 
just because on that very principle. They always thought we 
should have maybe a little more debate and a little more 
amendments. And if you had more debate and more amendments, a 
lot of the hostilities and partisan fever goes away. People get 
pent up.
    I am not aware of how many amendments are pending or are 
going to be shut off on the financial bill, but I know there 
are a lot. But at least the bill has been on the floor and it 
has had some amendments. I love seeing authorization bills, and 
as a former Senator, I loved having an authorization bill on 
the floor subject to amendment. And I, frankly, even liked the 
idea that we didn't have a germaneness requirement. So you 
could be on a bill and offer something totally out of the 
ballpark, even have a little fun that way. And it is all right 
to have a little fun. You should have some fun. And you can 
express yourself that way instead of being so bottled up and so 
restricted that you never get a chance to offer your amendment. 
That increases the partisan tensions dramatically.
    Chairman Schumer. I know you have to go, Senator Nickles, 
but we thank you for your testimony.
    Mr. Nickles. Mr. Chairman, thank you very much.
    Chairman Schumer. Thank you for being here.
    We are going to continue the questioning with the Vice 
President, and Senator Udall, you can make an opening statement 
as well as ask some questions.
    Senator Udall. Senator Nickles, is it 11:15 you have to 
leave?
    Chairman Schumer. Yes.
    Senator Udall. Because you have two minutes here. I would 
just like to----
    Mr. Nickles. Absolutely.
    Senator Udall. Senator Schumer asked you the question about 
the constitutional option, and you are a lawyer, is that 
correct?
    Mr. Nickles. No.
    Senator Udall. Oh, you are not? Okay. Okay. Well, then no 
wonder you evaded the question, then.
    [Laughter.]
    Mr. Nickles. I would think----
    Senator Udall. But do you have an opinion? I mean, he 
basically was asking, you know, he gave a hypothetical and 
Senator Bennett said he wouldn't stipulate to it, but the 
problem we have today that you are describing, and you said it 
very well, you said several times there are way too many 
filibusters. That is your quote. The filibuster is being used 
too many times. I mean, that is what we are seeing over and 
over again.
    To change that, the key is, as Vice President Mondale said, 
to be able to move with 51 votes and be able to do it as a 
majority under the Constitution. Do you have an opinion on 
that? The Constitution says in Article I, Section 5, each House 
may determine the rules of its proceedings, and the vote by 51 
votes at the beginning of a Congress. Do you have an opinion on 
that?
    Mr. Nickles [continuing]. Yes. I think it would be a 
disaster if you did it.
    Senator Udall. Well, no, but can you do it?
    Mr. Nickles. Well, one, you still are operating the rules 
under--it is a continuous body. You don't have 100 percent of 
the Senate----
    Senator Udall. Well, your answer is then no, I think.
    Mr. Nickles. That would be correct.
    Senator Udall. Yes. Okay. I understand the continuous 
body----
    Mr. Nickles. I could give you a longer answer----
    Senator Udall. No, no. I don't need a longer answer----
    [Laughter.]
    Senator Udall [continuing]. Because it is 11:15.
    [Laughter.]
    Mr. Nickles. I appreciate it.
    Senator Udall. I wanted to try to see if I could get an 
answer from you directly, and I understand the continuous--not 
to cut you off and not to be impolite in any way. I want to let 
you leave at 11:15, as you agreed.
    Mr. Nickles. I appreciate it. Thank you.

 OPENING STATEMENT OF THE HONORABLE TOM UDALL, A U.S. SENATOR 
                        FROM NEW MEXICO

    Senator Udall. Thank you.
    Thank you, Chairman Schumer, very much. Before I ask the 
Vice President a couple of questions, I just want to say a few 
things. To me, today's hearing is not about examining the 
current use of the filibuster, but the abuse of the filibuster. 
We would not need to examine the filibuster if it were used 
sparingly and judiciously, as Senator Nickles talked about. 
Unfortunately, both parties in recent years have shown their 
willingness to use it as a tool of obstruction rather than a 
means to extend debate.
    One of the main reasons I ran for the Senate is because I 
saw the world's greatest deliberative body turning into a 
graveyard of good ideas. After over a year of observing this 
body in action, or in many cases lack of action, it is clear 
that we are in danger of becoming just that.
    Last month, this committee held its first hearing on the 
filibuster. It focused on the evolution of the filibuster 
throughout the history of the Senate. At that hearing, several 
of my senior colleagues on the other side of the aisle spoke 
about the need to preserve the filibuster in its current form. 
They argued that it is embedded in the Senate's tradition of 
unlimited debate, that any attempt to reform it is simply a 
short-sighted power grab by a frustrated majority.
    But I believe my colleagues are missing the point. I had 
been speaking for months about reforming the Senate rules, not 
just the filibuster, to make this a better institution. I am 
not approaching this effort with disrespect for this body's 
traditions. I hope that by reforming our rules, we can restore 
some of the collegiality and bipartisanship that our Founders 
intended for the Senate.
    And let me make clear, I don't necessarily think that the 
current three-fifths requirement to achieve cloture is wrong. 
What is wrong is that only three current members of the Senate, 
Senator Byrd, Senator Inouye, and Senator Leahy, have had the 
opportunity to vote on Rule 22, which was last changed in 1975. 
What is truly wrong with our rules is that they have become 
entrenched against change, something our Founders never 
intended.
    I am very happy, Vice President Mondale, to see you here 
today because you were one of the leaders of filibuster reform 
back in 1975, and I know you believe, as I do, that each Senate 
has the constitutional right to change its rules by a majority 
vote, and you state that very clearly in your testimony.
    The Senate of 1975 thought that the filibuster was being 
abused, but the more recent Senates have demonstrated a whole 
new level of destruction, with Senators from both sides of the 
aisle increasingly using it as a weapon of partisan warfare. It 
is time to reform our rules, and as I have said many times, I 
will hold this view whether I am a member of the majority or 
the minority. There are many great traditions in this body that 
should be kept and respected, but stubbornly clinging to 
ineffective and unproductive procedures should not be one of 
them.
    Now, Vice President Mondale----
    Chairman Schumer. Great, and thank you, and now you may ask 
your question.
    Senator Udall. Thank you, Senator Schumer. Thank you, Mr. 
Chairman.
    Vice President Mondale, you heard Senator Nickles talk 
about the idea that any change in the filibuster is going to 
dramatically change the Senate, that the Senate is going to 
become like the House, and we heard this in our last hearing. 
Several critics of filibuster reform have stated that if the 
Senate changed the cloture rule, changed it in any way, it 
would make the Senate no different than the House of 
Representatives.
    As a former member of this body, how would you respond to 
that assertion in terms of your experience that you went 
through and what you observe today with regard to the Senate?
    Mr. Mondale. I don't want the Senate to become the House. I 
want it to be the unique body that it has always been.
    Senator Udall. And I agree with you on that.
    Mr. Mondale. When we adopted these rules in 1975 reducing 
the number needed for cloture, what we heard from the 
opposition was just that, that you are going to change the 
Senate away from what it has been, and now today what I am 
hearing is 60 is just about right. Well, that is a 
transformation in viewpoint from what we heard back then.
    The rules have changed since the beginning of this Senate. 
At first, there was no filibustering going on. Then they went 
to the--it was just move the previous question. Then there were 
several decades where there was no way of closing off debate. 
And then in the middle of World War I, when Wilson couldn't get 
the Senate to even supply materials to fight the war, he gave a 
bitter speech and the Senate bent and adopted the two-thirds 
rule.
    And then it came to our time and we were paralyzed. We 
couldn't get anything done unless everyone agreed to it. And so 
we changed the rule with a broad cross-section of support. 
Because of the rulings of Vice President Rockefeller, we 
changed the rules to what they are now, and I think that worked 
for us. It worked for us in those times. But what we have now 
is a harsh partisanship that scholars--I know they are going to 
testify later here--say that the situation now is, in terms of 
abuse of power, in terms of paralysis, is worse and different 
than it has ever been, and I believe that is true.
    The number of filibusters that were cited in the charts 
shown before, the use of holds, which we haven't yet discussed 
today, it has been done before, but the pervasiveness of the 
strategy of holds now holds up hundreds of nominations. The 
government can't get going. On any number of measures, often 
the holds are submitted secretly. There are rolling holds, all 
kinds of holds now. And the net effect is that a few are able 
through secrecy to block the Senate from action without any 
public accountability, and they are able to do that because 
just behind that hold is the threat of a filibuster. And the 
leader knows he can't make any progress.
    So I think that we need to adjust the rules, not to become 
the House, but to become a restored, effective Senate with the 
power to deliberate so we can do our jobs and do them better.
    Senator Udall. Thank you very much. You said we haven't 
talked enough about holds. I mean, one of the results of holds, 
and you know this, observing us currently, I believe it was the 
Washington Post reported that after the first year, the Obama 
administration had been in office for a year, they only had 55 
percent----
    Mr. Mondale. Right.
    Senator Udall [continuing]. Of their appointees in place. 
So basically you have the hold process holding up the 
administration from getting its team in place. That wasn't what 
was ever envisioned, I think, by our Founders or by the 
Constitution. It has been completely abused.
    What would you suggest in terms of if you were going to 
make a rule change about holds, specifically? Could you talk to 
us a little bit about that?
    Mr. Mondale. Yes. What I said in my testimony was that I 
think the Leader ought to be able to move to proceed, and it 
should be done with a majority vote, maybe with a certain time 
limit for the debate. But it shouldn't be, in effect, 
filibuster. And I am talking about how you get the measure up 
for consideration. I am not talking about how it is finally 
resolved. The regular rules would apply to that.
    Senator Udall. Yes.
    Mr. Mondale. Many times we have seen on these holds that 
they are held up, and then when it finally gets to a filibuster 
vote or a final vote on the nominee, they pass 98-to-two or 
something like that. So it was apparently a false issue.
    Senator Udall. Thank you very much, and thank you for 
allowing me to run a little bit over there----
    Chairman Schumer. It was well worth it.
    Senator Udall [continuing]. Actually with his answer. Thank 
you, Mr. Chairman.
    Chairman Schumer. Senator Alexander.
    Senator Alexander. Just to put all this in historical 
context, the Vice President's last example was exactly what 
happened to me in the spring of 1991 when Senator Metzenbaum 
held my nomination as Education Secretary up for three months 
and then finally I was confirmed at midnight by unanimous 
consent, you know, after I had waited around for about four 
months. I told the story at the earlier hearing, I went to see 
Warren Rudman and said, what do I do about this? He said, 
``Keep your mouth shut. You have no cards.'' And he told me the 
story of how Senator Durkin had held him up and he would 
withdraw his name and run against Durkin and beat him in 1976. 
So there is not so much new about these holds.
    Mr. Vice President, this has been very helpful to have you 
here. Senator Udall was talking about his impressions as a new 
Senator. Mine was shock at the filibustering of Judge Pryor, 
who had clerked for Judge Wisdom in New Orleans, for whom I had 
clerked, Judge Pickering, who had been a civil rights advocate 
in Mississippi when it was unpopular, Miguel Estrada, and 
Priscilla Owen. Do you think it was wrong for the Democratic 
minority to filibuster President Bush's judicial nominees when 
he was President?
    Mr. Mondale. What we are getting at here is whether we are 
all taking situational, tactical positions on the rules - that 
is using them when it serves our purposes and opposing it when 
it doesn't.
    Senator Alexander. Right.
    Mr. Mondale. My view is you have to live by these rules. 
They were bipartisan. We put them in place. I hope they can be 
bipartisan if there are any changes now. And I don't see 
anything in the rules that says that you can't filibuster a 
nominee as well as a regular measure.
    Senator Alexander. Thank you for that. There had been a 
precedent, of course, of not doing that. Justice Scalia--well, 
we won't go into all of that, but it was a big, big change. And 
when we Republicans, and I was one really on the other side of 
this issue with the Gang of 14 movement, when many Republicans 
tried to change the rules and assert the argument you are now 
making, the constitutional argument, Senator Reid said it would 
be the nuclear option. It would be the end of the Senate as we 
know it and it was going to be Armageddon.
    Let me go back to my earlier point about the hold that 
Senator Metzenbaum put on me. You mentioned Senator Allen.
    Mr. Mondale. Yes.
    Senator Alexander. And you remember when you were first 
elected, Senator Williams from Delaware, who would sit on the 
front row and had this high voice. We have always had, at least 
in my experience here of watching the Senate and serving in it, 
individual Senators who have exercised these rules, and we have 
them today.
    I mean, if you will remember in the 1980s, Senator Byrd and 
Senator Baker operated the Senate on the sort of handshake that 
Senator Nickles talked about. They had these, I guess you would 
call them broad agreements on every bill that came up, that we 
would bring up the X bill, the financial regulation bill, and 
we will have 35 amendments on it, or 36, 18 here and 18 here, 
and then we will vote, and that is how almost all business was 
done. Of course, it can't be done if one Senator objects, which 
may be the reason we don't have that kind of thing today.
    So I am going to ask you a question and this will be my 
last one. It seems to me that changing the 60 would only make 
less likely bipartisanship, because when the Democrats have had 
60 in the last year and a half, they paid no attention to the 
Republicans and they have just jammed their own legislation 
through, in my judgment. When they get fewer, they will have to 
pay attention to us, or we are in the majority and you have 
fewer, we will have to pay attention to you, and that produces 
compromise and bipartisanship, I believe.
    But maybe there is a different way to deal with the 
question of the individual Senator who puts on too many holds 
or holds up things for too long without changing the 60. I 
mean, is there a solution for a Senator who the rest of the 
Senators think is taking advantage of the rules and making it 
impossible for the Senate to operate under the kind of broad 
agreements that Senator Byrd and Senator Baker once used to 
manage the flow of the Senate?
    Mr. Mondale. I think one of the things that many Senators 
have tried to do is make these holds public so the holder must 
explain to his colleagues and to his constituents why he is 
doing it. As you know, there is a rule here now that if you put 
on a hold for longer than six days, the name will be disclosed, 
and so now there is a strategy for rolling the hold so that 
every fifth day, the name of the holder changes. So it has 
frustrated the disclosure. If there would be some way to 
guarantee public disclosure immediately, that might help.
    But there is nothing in the rules about holds. There has 
never been a Senate decision. But it is now not a minor 
problem, it is a pervasive problem, and every leader, 
Republican leader and Democratic leader, has at one time in his 
career stood up and lamented what holds have done to his 
ability to conduct a sensible Senate. I think we need to deal 
with holds, because it is now a much bigger problem and it is a 
growing problem because it works, it is secret, it is 
effortless, and it is, I think, very destructive of the 
purposes of the Senate.
    Chairman Schumer. Thank you, Mr. Vice President.
    Senator Alexander. Thank you, Mr. Chairman.
    Chairman Schumer. Thank you, Senator Alexander.
    Now, we had asked unanimous consent at the beginning of 
this hearing that when Senator Byrd arrived if he could make 
his opening statement. I don't believe he will ask questions. 
So with everyone's permission, he has been waiting for a couple 
of minutes, I would like to call on Senator Byrd to make his 
opening statement.
    Senator Roberts will ask questions and you will be on your 
way, but it has been really helpful for you to be here today.
    [Pause.]
    Chairman Schumer. Thank you for being here, Senator Byrd. I 
think I join everyone here--Senators, Vice President Mondale, 
and the audience--in really thanking Senator Byrd for going out 
of his way to be here.
    Senator, your name has come up on many, many occasions in 
this hearing and how you were so instrumental in what happened 
and in forging the compromise in 1975 and in many other ways. 
We are honored you are here. I know it will be a token, not 
just to the attendees here but to this committee and the whole 
Senate, of how important you think this subject is. So thank 
you, and the floor is yours.

   OPENING STATEMENT OF THE HONORABLE ROBERT C. BYRD, A U.S. 
                   SENATOR FROM WEST VIRGINIA

    Senator Byrd. Thank you. Mr. Chairman, in his 1789 journal, 
Senator William Maclay wrote, and I quote, ``I gave my opinion 
in plain language that the confidence of the people was 
departing from us owing to our unreasonable delays. The design 
of the Virginians and of the South Carolina gentlemen was to 
talk away the time, so that we could not get the bill passed.''
    Our Founding Fathers intended the Senate to be a continuing 
body that allows for open and unlimited debate and the 
protection of minority rights.
    Senators have understood this since the Senate first 
convened. James Madison recorded that the ends to be served by 
the Senate were, ``first, to protect the people against their 
rulers, secondly, to protect the people against the transient 
impressions into which they themselves might be led.'' A 
necessary fence against such danger would be the United States 
Senate.
    The right to filibuster anchors this necessary fence. But 
it is not a right intended to be abused.
    During this 111th Congress, in particular, the minority has 
threatened to filibuster almost every matter proposed for 
Senate consideration. I find this tactic contrary to every 
Senator's duty to act in good faith.
    I share the profound frustration of my constituents and 
colleagues as we confront this situation. The challenges before 
our nation are too grave, too numerous, for the Senate to be 
rendered impotent to address them, and yet be derided for 
inaction by those causing the delays.
    There are many suggestions as to what we should do. I know 
what we must not do.
    We must never, ever, ever, ever tear down the only wall, 
the necessary fence, that this nation has against the excesses 
of the executive branch and the resultant haste and tyranny of 
the majority.
    The path to solving our problem lies in thoroughly 
understanding the problem. 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. 
For most of the Senate's history, Senators motivated to extend 
debate had to hold the floor as long as they were physically 
able. The Senate was either persuaded by the strength of their 
arguments or unconvinced by either their commitment or their 
stamina. True filibusters were, therefore, less frequent, and 
more commonly discouraged, due to every Senator's understanding 
that such undertakings required grueling, grueling personal 
sacrifice, exhausting preparation, and a willingness to be 
criticized for disrupting the nation's business.
    Now, unbelievably, just the whisper of opposition brings 
the ``world's greatest deliberative body'' to a grinding halt. 
Why is that? Because this once highly respected institution has 
become overwhelmingly consumed by a fixation with money and 
media.
    Gone, gone are the days when Senators Richard Russell and 
Lyndon Johnson, and Speaker Sam Rayburn gathered routinely for 
working weekends and couldn't wait to get back to their 
chambers on Monday morning.
    Now, every Senator spends hours every day throughout the 
year and every year raising funds for reelection and appearing 
before cameras and microphones. Now, the Senate works three-day 
weeks, with frequent and extended recess periods.
    Forceful confrontation to a threat to filibuster is 
undoubtedly the antidote to the malady. Most recently, Senate 
Majority Leader Reid announced that the Senate would stay in 
session around the clock to bring financial reform legislation 
before the Senate. As preparations were made and the cots were 
rolled out, a deal was struck and the threat of filibuster was 
withdrawn.
    I strongly commend the Majority Leader for this progress, 
and I strongly caution my colleagues, as some propose to alter 
the rules to severely limit the ability of a minority to 
conduct a filibuster. I know what it is to be Majority Leader 
and wake up on a Wednesday morning in November, and find 
yourself a minority leader.
    [Laughter.]
    Senator Byrd. I also know that current Senate rules provide 
the means to break a filibuster. I employed them myself in 1977 
to end the post-cloture filibuster on natural gas deregulation 
legislation. This was the roughest filibuster I have 
experienced during my more than 50 years in the Senate.
    In 1987, I successfully used Rules 7 and 8 to make a non-
debatable motion to proceed during the morning hour. No leader 
has attempted this technique since, but this procedure could be 
and it should be used.
    Over the years, I have proposed a variety of improvements 
to Senate rules to achieve a more sensible balance allowing the 
majority to function while still protecting minority rights. I 
have supported eliminating debate on the motion to proceed to a 
matter (except for changes to the Senate rules), or limiting 
debate to a reasonable time on such motions, with Senators 
retaining the right to unlimited debate on the matter once it 
was before the Senate. I have authored several other proposals 
in the past, and I look forward to our committee work ahead as 
we carefully examine other suggested changes. The committee 
must, however, jealously guard against efforts to change or 
reinterpret the Senate rules by a simple majority, by 
circumventing Rule 22, where a two-thirds majority is required.
    As I said before, the Senate has been the last fortress of 
minority rights and freedom of speech in this republic for more 
than two centuries. I pray that Senators will pause and reflect 
long before ignoring that history and tradition.
    Chairman Schumer. Well, thank you so much, Senator Byrd. 
First, I think for all of us, we are privileged to be here and 
hear your testimony. Anyone who is sitting here knows why 
Senator Byrd is revered in the Senate just by listening to him 
for the last 15 minutes, where in his own inimitable style, he 
made powerful, practical, and traditional arguments. I don't 
think need permission, and I am going to take the liberty of 
distributing your remarks to every member of the Senate.
    Senator Byrd. Thank you, Mr. Chairman. Thank you very much.
    Mr. Mondale. Mr. Chairman.
    Chairman Schumer. Vice President, please.
    Mr. Mondale. It was my privilege to serve with Senator Byrd 
when he was Minority and Majority Leader, to be Vice President 
presiding when we had some fairly rigorous tests of the rules--
--
    Senator Byrd. You bet.
    [Laughter.]
    Mr. Mondale [continuing]. And I came to deeply admire his 
understanding and his statesmanlike approach to these rules. 
Most of the rules that did reform the Senate, he himself wrote. 
They are the Byrd Rules, and it is an honor to hear from the 
Senator again today.
    Chairman Schumer. Thank you, Mr. Vice President. It is 
really one of those moments in the Senate, I think, that many 
of us will just not forget.
    Thank you, Senator Byrd. Thank you so much.
    Senator Byrd. Thank you. Thank you, Mr. Chairman. I thank 
the committee, and I thank the Vice President.
    Chairman Schumer. Thank you, Senator. That was great.
    I just want to say, as Senator Byrd leaves, that we forget 
the traditions of the Senate in this rushed, sometimes 
partisan, angry world, and he brings us right back to it. This 
really was, in my opinion, and I think and hope I am not--I 
don't think I am overstating it, sort of a hallowed moment.
    Senator Roberts, you may resume questioning of Vice 
President Mondale.
    Senator Roberts. That is a pretty tough act to follow, to 
say the least. I recall when we first went to Great Britain on 
an interparliamentary exchange led by Ted Stevens, thinking 
that he could work things out better on the Appropriations 
Committee with Senator Byrd if we took him over to Great 
Britain, and I can't remember which Brit gave the opening 
speech, but it indicated that he wanted to welcome those of us 
from the colonies who obviously did not understand all of the 
intricacies of the mother country, but that we were certainly 
welcome. I leaned over to the British fellow to my left and 
said, he will regret those remarks for the rest of his life----
    [Laughter.]
    Senator Roberts [continuing] Because it was Senator Byrd 
who responded and then instructed all those present on the 
reign of virtually every King of England--and queen, and the 
politics behind it.
    [Laughter.]
    Senator Roberts. Two hours later, the guy sitting next to 
me said, ``I say, is he going to continue through every one of 
them?''
    [Laughter.]
    Senator Roberts. And I said, yes, he is, and he did.
    [Laughter.]
    Senator Roberts. That was signature Bob Byrd, who also 
enthralled us during the entire trip with a lot of other 
stories.
    Tom indicated that he was worried as a new Senator about 
coming to the graveyard of good ideas. Some feel--actually, I 
feel there is a growing number that might say that some of 
these ideas are bad ideas that deserve a decent burial. I think 
it is very important to pass legislation. I think that is 
probably why we are created, the House, the Senate. But it is 
just as important to prevent bad legislation from passing.
    I kept telling Max Baucus and Chuck Grassley on the Finance 
Committee, Mr. Vice President, that we ought to have a flashing 
light, ``Do no harm,'' every time we considered a myriad of 
amendments that obviously not many people knew a lot about, 
with the exception of our Chairman.
    At any rate, I stand in admiration of Senator Byrd and his 
fierce, fierce fight for the rights of the minority, and also 
in regards to the executive branch. I think the elephant in the 
room here as to why we have so many problems, or challenges, 
really, I don't want to call them problems, is that the 
executive branch obviously has a tremendous agenda. I don't 
know whether to compare it to the New Deal or the Great Society 
or whatever has been said by the knowing pundits that will 
testify here, but my goodness, I cannot think of any endeavor 
that affects any person's interest in the country that has not 
been touched by legislative efforts under the banner of change.
    I think if you looked at the primaries, and we have the 
expert on primaries here to my right, who is a dear, dear 
friend, but I think that there has been an obvious reaction 
with regards to debt and spending and government takeovers and 
jobs and terrorist policy, et cetera, et cetera. And I say that 
because I think that that is the push, and Senator Byrd 
mentioned the executive that is coming down the pike and it is 
a lot like a fire hose. If it isn't legislative, it is done by 
Executive Order and you read about it on page 11 of some 
newspaper, if you read newspapers anymore, and it is a pretty 
shocking kind of thing to you. You say, oh, wait a minute. I 
would like to grab onto that and get it back to committee, but 
we don't go to committee anymore.
    We bypass committees, and I think that is one of the things 
that Senator Nickles brought up and I am sure the Vice 
President agrees. You have got to go to committees, where the 
expertise is, and then hopefully avoid the appropriators trying 
to change it and then reach some accommodation and that is how 
it worked. But that is not how it is working now, because we 
are leapfrogging the committees on very, very important ideas 
that Tom has mentioned over there in his comments.
    I want to talk about holds just a minute. I put holds on 
people. I don't like it at all. When I do so, I do it publicly. 
But I was stuck with a situation where there were many reports, 
and I believed that they had legs, where we were going to 
transfer those in Gitmo up to Fort Leavenworth where we had the 
Command and Staff School, and it is the intellectual center of 
the Army. That is where General Petraeus wrote the doctrine 
that is in evidence today with Afghanistan, hopefully that will 
be successful.
    We have inside-out security, but we don't have outside-in, 
and I thought the suggestion was ludicrous. I tried with the 
White House, with the Department of Defense, with the National 
Security Council, with DOD, even the CIA, to figure out, is 
this really going to happen? Is there any possibility of this 
happening? And then finally I couldn't get any assurance, so I 
just put a--I said, I want assurance from the White House that 
this is not going to happen, and so I put a hold on the 
Secretary of the Army, who happened to be a very good friend of 
mine, a Republican Congressman replacing Pete Sessions, who was 
also a very good friend of mine.
    At any rate, he called me and he said, ``Why do you have a 
hold on me?'' And I said, well, you are a great friend. I just 
thought I would pick you out and give you a little publicity. 
And he said, ``Well, what is the problem?'' I said, I don't 
have any problem with you, John. It is just I am trying to get 
an answer from somebody to indicate to me where we are in 
regards to moving incarcerated terrorists to Leavenworth, 
Kansas.
    Well, I finally got what I needed, and I can't talk about 
it because it was all confidential, and right now, that whole 
policy, I think, is sitting over there at the Justice 
Department somewhere being decided. But that was a case where I 
thought at least a hold was justified. I am not talking about 
holds that will last forever to hold up the progress of the 
Senate. That did hold up the situation with the Secretary of 
the Army. I know the head of DOD, Mr. Gates, who is from 
Kansas, certainly let me know how he felt about it.
    I have always felt, I would tell the Chairman, that I 
didn't want any amendment that I would like to offer up to be 
debated on the floor of the Senate. I didn't even want it 
debated in the committee. I thought if I didn't have enough 
merit in the amendment to talk to somebody on the other side, 
regardless of who is in power on the committee, to put it in 
the Manager's Amendment or just agree by unanimous consent, 
that I probably didn't have too much business offering the 
amendment, and I certainly didn't want a vote on the Senate 
floor, where a vote could go the other way and then that puts 
it in cement and then you have lost the issue. I know there are 
those Senators who would rather have the debate and lose than 
they would make any progress with the amendment. So that is 
just my school of thought.
    I think we do reach agreements, as Senator Nickles has 
indicated, when the rubber meets the road. We did during 
impeachment. We all met in the Old Senate Chamber and 
individuals came together and we worked a way out of a very 
difficult situation.
    I don't know when we are going to meet like that again to 
reach some kind of accommodation with what we have facing us, 
which I say is a very ambitious agenda in a Senate and a 
country that is very Balkanized in regards to the response to 
all of that. I suspect it will come finally during the time of 
entitlement reform, which we must tackle, and our economic 
situation, and I think we are just going to have to sit down 
and say, all right, we have to do this regardless of the press, 
as the Senator has indicated, or elections or anything else. We 
will have no alternative. And I hope that would be rather a 
gloomy prospect if that is the only thing that can really bring 
us together. But I would hope that we could do what Senator 
Nickles has pointed out and also what the Vice President has 
pointed out.
    I am way over time, Mr. Chairman. Thank you.
    Chairman Schumer. Thank you. It is always a pleasure to 
listen to Senator Roberts. He didn't talk about each King of 
England, but he had a lot of wisdom in what he had to say.
    [Laughter.]
    Chairman Schumer. Vice President, thank you so much.
    Mr. Mondale. Thank you.
    Chairman Schumer. As Tom Udall went out, his hat was off to 
you and how you have really helped us in this debate.
    Mr. Mondale. Thank you.
    Chairman Schumer. So your generous donation, in a sense, of 
your time, but more importantly of your thinking, is going to 
help us, and certainly I will be continuing to consult you as 
we move forward here.
    Mr. Mondale. Thank you very much.
    Chairman Schumer. Thank you, Mr. Vice President. Thank you.
    Let us call our next panel, and I appreciate their 
understanding. I am going to give brief introductions because 
we are running a little late. We have a great panel here and 
let me just quickly do the introductions of our two witnesses.
    Steven Smith is a Professor of Social Sciences at 
Washington University and Director of the Weidenbaum Center on 
the Economy, Government, and Public Policy there. He is the 
author of several books on the U.S. Congress, including 
``Politics or Principle?'', which is about the filibuster. He 
is a former fellow of the Brookings Institute.
    Norm Ornstein is a name well known to every one of us here. 
He is a resident scholar of the American Enterprise Institute. 
He also serves as Co-Director of the Election Reform Project 
and is the author of many books about Congress, including ``The 
Broken Branch.'' He writes a weekly column for Roll Call, is an 
election analyst for CBS News, and is counselor to the 
Continuity of Government Commission.
    Gentlemen, each of your statements will be read into the 
record, and if you could keep your testimony to the allotted 
time, which I am sure you will, that would be great.
    Professor Smith.

 STATEMENT OF STEVEN S. SMITH, DIRECTOR, THE WEIDENBAUM CENTER 
 ON THE ECONOMY, GOVERNMENT, AND PUBLIC POLICY, KATE M. GREGG 
   PROFESSOR OF SOCIAL SCIENCES, AND PROFESSOR OF POLITICAL 
      SCIENCE, WASHINGTON UNIVERSITY, ST. LOUIS, MISSOURI

    Mr. Smith. Thank you, Mr. Chairman and Senator Bennett. 
This is a very important set of hearings. The Senate is, I 
think, at an important juncture in its history and the upshot 
of my testimony is that we actually have reached a point in the 
Senate that is qualitatively different than the Senate has been 
in at any time in its past and it is time to consider some 
changes, both in the rules and in how the parties and Senators 
behave.
    My general argument is that one of the important roles of 
the Senate is to serve as a policy incubator, that is, for 
Senators to use their time and creativity to define and address 
the important problems of the country. But the Senate in the 
last ten years and especially in the last five years or so has 
reached a point where the Senate's most valuable resources, the 
time and creativity of its members, is undercut by how the 
Senate has come to operate.
    As we have seen throughout the hearing and as the two of 
you know perfectly well, the more vigorous exploitation of 
minority rights and the majority response has had a very 
pervasive effect, and I think a negative effect, on how the 
Senate is operated. Here is what I see.
    In recent Congresses with both Democratic and Republican 
minorities, very few major measures have been untouched by 
efforts to delay or prevent action. I have some tables at the 
end of my testimony that you can take a look at. The minority 
has engaged in more silence in response to majority requests 
for clearance of bills for consideration. There have been more 
frequent objections to majority party unanimous consent 
requests to structure debate and amendments. There are more 
holds extended to more minor measures and nominations, 
something for an outsider very difficult to count, but plainly 
true. There are more delays of Senators, and sometimes, I 
think, deliberately minority party Senators to get to the floor 
to offer amendments. And even an increase in the number of 
minority party unanimous consent requests to try to restructure 
floor debate as they see fit.
    Now, the minority's moves have motivated majority party 
leaders to leave nothing to chance. In kind of a tit for tat 
fashion, in kind of a parliamentary arms race fashion, over the 
years, the majority, indeed, has responded, just as we heard 
this morning from a variety of Senators on the Republican side. 
Beyond having a quick trigger on filing for cloture, Majority 
Leaders and bill managers of both parties have more frequently 
filled the amendment tree, more frequently used their own 
amendments to prevent other amendments from becoming the 
pending business, a tactic which became an especially sensitive 
matter just yesterday when the minority took advantage of the 
fact that a pending amendment prevents another amendment from 
being considered except by unanimous consent.
    This has led to tightened unanimous consent agreements, 
including the use of 60-vote requirements for amendments, which 
is a relatively new development. And beyond the obvious things 
on the floor, it has moved Majority Leaders to take a closer 
look at non-conference mechanisms to avoid debatable conference 
motions. And on some sensitive matters, especially on 
appropriations bills, Majority Leaders have avoided floor 
action altogether by facilitating the creation of omnibus bills 
in conference to limit the number of shots at the bills once 
they get to the floor.
    Now, this is not the kind of Senate that I heard anyone 
here wanting in the future. This is a question of the power of 
the Senate. What kind of a Senate is it that fails, because of 
the desire to avoid floor delay and obstruction, what kind of a 
Senate is it that fails to even consider appropriations bills 
that are the foundation of the power of the purse of the 
Congress in dealing with the executive branch?
    Now, of course, the minority has not remained idle. The 
minority's countermeasures include more objections to unanimous 
consent requests, frequently more resolutely opposing cloture 
on bills. There have been any number of instances in which a 
Senator in the minority has said, because I can't get my 
amendment up, I am going to vote against cloture. So in this 
context, procedural prerogatives intended to protect an open, 
deliberative, flexible process has, in fact, generated in 
practice a complicated process that is often rigid and 
procedure-bound.
    Now, the best metaphor for this, I think, is actually a 
medical one. It is really a syndrome, kind of an obstruct and 
restrict syndrome, one in which well-justified procedural moves 
on each side accumulate and harm the institution.
    Each party now begins with the working hypothesis that the 
other side will fully exploit its procedural options, and so it 
must fully deploy its without any evidence from the other side 
that it is using its procedural options to harm its interests. 
Now, this can hardly be argued to be the kind of Senate in 
which every Senator gets an opportunity to fully explore new 
policy ideas. It is, in fact, a Senate that over the last 
decade or so has managed to radically reduce the incentives for 
individual Senators to take the time and to apply the 
creativity to address the nation's problems.
    My second major point is that this is a role that the 
Senate should focus on. We are a country with immense problems. 
Senators of both sides have argued for years that many of these 
problems have gone unaddressed. Part of it is in our larger 
system of government, the checks and balances, divided party 
control of the House and the Senate and the Presidency and so 
on, but a large part of it rests right here in the Senate.
    The constitutional features of the Senate that encourage 
this, of course, were the longer terms, the overlapping terms, 
the continuity of the Senate. All of this gave the Senate a 
special place for the application of creativity in addressing 
new ideas, building a national constituency for new ideas, and 
so on. Much of that has now been undercut by the system we 
have.
    I favor a system where we reach a new balance. It is 
unfortunate, but we can't reverse history. We can't really 
expect the parties to unilaterally disarm. I think it is up to 
the Senate to figure out a few new ways to limit debate and at 
the same time protect minority rights that are currently being 
threatened by this awful obstruct and restrict syndrome.
    [The prepared statement of Mr. Smith submitted for the 
record]
    Mr. Smith. Thank you, Professor Smith.
    Mr. Ornstein.

  STATEMENT OF NORMAN J. ORNSTEIN, RESIDENT SCHOLAR, AMERICAN 
ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH, WASHINGTON, DC

    Mr. Ornstein. Thanks, Mr. Chairman. It is a particular 
pleasure to testify in front of you and in front of this 
committee, which is filled with people who really do care about 
the Senate and its role in the American democratic process. I 
am particularly grateful that it does not require a motion to 
proceed for me to move on to my testimony or we might be here 
all week.
    Let me start by saying that I am really not among those who 
want to end Rule 22. I don't want the Senate to become like the 
House. I actually think that the Senate has become more like 
the House, in part because so many House members, especially 
the Class of 1994 and classes that have followed, have 
gravitated over here and have brought some of the norms of a 
harshly partisan, deeply divided, and perhaps ultra-efficient 
House into the Senate DNA a little bit more than they should 
have.
    As I listened to the testimony and as I watched the 
testimony from the last hearing--by the way, I want to commend 
the committee, more than any other, the ability for somebody to 
be able to go to your website and watch what you do and see, by 
the way, how carefully it is done is just a Godsend for those 
of us who follow Congress.
    But I have had some sympathy with both sides in this. We do 
have a chicken and egg problem, as Steve has said. This is a 
problem for the majority and the minority in a lot of ways, and 
it is a problem of the culture. And it is, as Senator Byrd so 
eloquently said, in some respects a problem of the larger 
political culture, the outside moving and infecting the inside, 
and some of that outside culture is particularly obnoxious at 
this particular point. But we can't change the culture entirely 
inside the Senate and we need to also focus to some degree on 
the rules. And hopefully, we can find ways to change the norms 
and the rules together.
    I am not going to spend a lot of time because of the 
substance of this hearing on specific recommendations, although 
I am very happy, and both of us, along with other scholars who 
follow this process closely, have lots of ideas about specific 
things to do. But I want to mention----
    Chairman Schumer. I would just ask, either of our witnesses 
here, if they would like to offer suggestion. But, we are not 
up to specific suggestions yet.
    Mr. Ornstein. Yes.
    Chairman Schumer. But if you would, it would be really 
helpful to us if you want to submit in writing some specific 
suggestions and we would add them to the record. Then we might 
have you back again to ask questions about your suggestions, if 
that would be okay.
    Mr. Ornstein. I think both of us would be delighted to do 
so----
    Chairman Schumer. Thank you.
    Mr. Ornstein [continuing]. And, of course, to work with the 
committee in any way that we can to help to move this process 
forward.
    I want to talk about a couple of elements that I think are 
a focal point of this hearing which really are what all this 
has done to the fabric of governance in America.
    I had great sympathy for Senator Alexander when he was 
held--his nomination for Secretary of Education was held by 
Senator Metzenbaum. Steve Smith turned to me at that particular 
moment and said, well, we have 100 Metzenbaums now. And one of 
the problems is that nominations that are held for three 
months, or in many cases six months, nine months, a year, or 
more, many leaving nominees to twist in the wind, have an 
enormous human cost for those individuals. I have sympathy for 
Senator Roberts, having a really serious concern and wanting to 
get the attention of the executive branch and held up 
Congressman McHugh, which was painful to Congressman McHugh.
    But Congressman McHugh was already here in Washington, had 
a job, had a house. Imagine people who make a commitment to 
public service and are living outside the city, as most of them 
do, thankfully, and we leave them twisting in the wind. I think 
individual Senators often do not recognize the human cost to 
people. They can't move their families. They can't time school 
years. We are losing a lot of good people, and at the same 
time, we are finding agencies, critical agencies, that are left 
headless or without the main people who are designed to run 
things, career civil servants waiting for direction and can't 
get them.
    I can tell you from what I have heard from local officials 
out in the country that one of the main problems we had in 
getting the stimulus package actually out there to have a more 
immediate and vibrant effect on the economy was that you had to 
expedite action through waivers of things like Environmental 
Impact Statements, or to move things more quickly than the 
normal process, and they couldn't do it because the officials 
were not in place.
    At the same time, one of the great difficulties that we 
have is it is wonderful to have a tradition of unlimited debate 
and unlimited amendments. We are not in the 19th century. There 
is a huge agenda. Whether you like some elements of that agenda 
or not, the regular business of having authorizations done for 
programs and agencies, of having appropriations, is a necessary 
component for good governance. Whether you are a big government 
liberal or a small government conservative, the government that 
we have to protect the integrity of the country, to protect our 
citizens, ought to be run effectively and well.
    We have gone for years in many cases without programs being 
authorized, and that hurts the implementation of those 
programs. Talk to any civil servant or government official 
trying to administer a program when you don't know what your 
appropriation is going to be, or you have to operate for months 
on a continuing resolution and then all of a sudden get a flood 
of money coming in. It is no way to run a government. Now, that 
is not entirely attributable to the way that the Senate is 
operating, but in fact, we have been forced because of the way 
the system has become clogged to move away from the regular 
order in too many ways.
    The human cost is there for judges, as well. I must say, 
Senator Bennett, you are absolutely right that we did not have 
a tradition of filibustering nominees, although we did have 
filibusters before, including Justice Fortas. But not to get 
into that argument, what did change long before we had a 
discussion of filibusters of judicial nominees was an 
increasing practice of holding up nominations to try and keep 
slots open from one administration to the next, and that was a 
dramatic change from what we had had before.
    And we have large numbers of judicial nominees, Elena Kagan 
among them, who sat for long periods of time when there were no 
objections to their individual qualifications--this was true 
for both parties--many of whom ultimately withdrew. Just as for 
executive branch officials, if you are in a law firm or in a 
university and you are waiting to take a leave or trying to 
leave your firm, you are left in limbo. It is no way to run 
things.
    Frankly, I can make a better case for filibustering 
lifetime appointments than I can for filibustering temporary 
appointments for any period of time, but in either case, we are 
not considering the human cost.
    There are ways to deal with these things, and the hold 
itself and the way it has exploded as a tactic for holding up 
hundreds and hundreds, not individual nominees, many of whom--
most of whom now are not held up because of their 
qualifications or concerns but as hostages, and some for the 
purpose of killing them, can be changed. The notion of 
filibusters on motions to proceed moves away from any argument 
about trying to cut off debate because, in fact, that is an 
attempt itself to cut off debate. And if we took Senator 
Schumer's chart and parsed it out, you would find an increasing 
number of the cloture motions are on motions to proceed.
    And finally, let me say, if we talk about the numbers, one 
very simple change to consider, remember in 1975 we went from 
two-thirds of the Senate--or, excuse me, from two-thirds of the 
Senate present and voting to three-fifths of the Senate--would 
be to simply move to three-fifths of the Senate present and 
voting. One of the real problems you have got now is if 
somebody is sick, as we saw with Senator Byrd, one individual 
can create an enormous roadblock if you have a rigid number. So 
there is a way to preserve the number 60 but to create a little 
bit more flexibility. And then there are other ways to make 
sure that we can expedite action while preserving the right of 
a minority and the right of other members to offer amendments 
and have debate.
    [The prepared statement of Mr. Ornstein submitted for the 
record]
    Chairman Schumer. Thank you, Mr. Ornstein. I thank both our 
witnesses for excellent testimony.
    We are running much later than we thought, but I do have 
one question. I have a whole lot of questions. I am going to 
submit some in writing.
    The debate that some of us have been focusing on is--is it 
the Constitution that trumps the rule in Rule 22? But Senator 
Nickles had something interesting to say, and Senator Bennett 
and I were chatting here. It really is a `chicken and egg', I 
think, as I think it was you, Professor Smith, said. We say, 
the majority Democrats at this moment say, you are 
filibustering to delay. The minority Republicans say, we are 
filibustering because you won't let us offer amendments.
    And, it was always sort of in my mind a tradeoff, having 
moved from the House to the Senate, that I thought, `well, that 
is the tradeoff.' The majority sets the agenda and the minority 
gets to offer amendments, not just to that agenda but other 
things. It seemed to me sort of a balanced system. In a sense, 
when I moved from the House to the Senate, I said it is harder 
in the Senate because you have to vote on all kinds of things, 
and you don't have the Rules Committee when you are in the 
majority. I have served minority House, majority House, 
minority Senate, majority Senate. Only one is really bad.
    [Laughter.]
    Chairman Schumer. So there was that sort of balance, and it 
is sort of taken out of the way. Now, I could argue with 
Senator Bennett that holds on nominees are not intended to 
prevent debate and amendment but just intended to be dilatory. 
Motions to proceed are somewhat different.
    But my question, and I will only ask one here, although I 
am interested in your views, and I will ask you in writing, on 
the Constitution versus Rule 22, is this. Do you think there is 
some hope? Senator Nickles said, don't change the rules. Try to 
come to some bipartisan agreement, you know, agreement between 
the caucuses, I think he called it.
    Do you think that is possible in this day and age, where 
the majority would say to the minority, we are going to ensure 
your right to offer several amendments, or a bunch of 
amendments, not to be dilatory, not to take over. It would be 
unfair, it seems to me, for the minority to spend more time on 
their amendments that are not relevant to the bill than the 
majority spends on the bill itself. That would take away the 
power to set the agenda. But we will guarantee you your right 
to offer some non-germane amendments, but in return, you don't 
slow things down unnecessarily.
    I don't know, maybe that tradeoff could work, especially 
given the fact that each of us realizes we may be on the other 
side, majority-minority, several times in our career, as has 
happened to me. So that is my only question. I would ask each 
witness to give an answer, and then we will call on Senator 
Bennett and let people go.
    Mr. Smith. Senator Schumer, I certainly favor some kind of 
a mixed package that, on the one hand, limits debate at least 
on some motions, the motion to proceed. I would like to see 
some limits on motions to go to conference. I would even like 
to see limits on debate on amendments, which would have the 
effect of guaranteeing the minority a vote on an amendment that 
is taken up on the floor. And in exchange for that, some real 
guarantees for the minority to offer amendments and to debate 
those amendments and the bill.
    Now, whether that is a tradeoff that would be acceptable to 
the minority, I am actually very dubious about that. If some 
kind of a tradeoff like that is not possible, then we do fall 
back on the question of how the majority can change the rules 
without making the case that the Constitution allows it to do 
so by a simple majority.
    Mr. Ornstein. I would love to see this handled informally. 
I have sympathy for the minority. I must say, though, one 
problem that I have seen and I mention in my testimony, we have 
had a number of bills that ended up passing unanimously or near 
unanimously that had to go through filibusters on the motions 
to proceed and on the bills themselves and took days and days. 
I mention a nomination for a court of appeals where this poor 
woman was held twisting in the wind for months and months and 
then ultimately got through on a near-unanimous vote.
    The only reason for doing that--this is not about the 
concerns about having an opportunity to debate. This is to 
stretch out an agenda. And so you have got to come to an 
agreement, and whether that agreement can be reached, I don't 
know.
    More generally, I just believe that people who make the 
sacrifice for public service deserve at some point a vote, and 
in almost every instance, it ought to be an up or down vote. 
And so I don't think you can achieve that without some change 
in the rules that takes nominations to a different level, and 
it seems to me that there may be some opportunity there for a 
bipartisan agreement. You are going to have to do some mix of 
informal negotiations between leaders and among members, and I 
hope some bipartisan consensus on a modest package of rules 
changes, but I don't see any other way out.
    Chairman Schumer. Obviously, if we had bipartisan 
consensus, we wouldn't have to debate whether we need 67, 60, 
or a majority.
    Mr. Ornstein. Yes.
    Chairman Schumer. Senator Bennett.
    Senator Bennett. Thank you, Mr. Chairman, and thanks to 
both of you for your patience today and your thoughtful 
consideration.
    Mr. Ornstein, I would make just one comment about the 
objection to the motion to proceed. I will not speak for 
Senator McConnell, but I have been at the leadership tables 
where the decisions are made as to whether or not we will 
object to a motion to proceed, and in every instance, there is 
a significant negotiation that takes place where this becomes 
ultimately his ultimate weapon in his conversations with 
Senator Reid. It is not entered into lightly. Okay, Senator 
Reid, we will give you the motion to proceed if we can have 
your word that the following things will happen. And again, I 
am not privy to any of the conversations, only as they get 
reported in the leadership table, and I am going to be very 
careful not to violate any confidentiality that comes out of 
that.
    It is my guess, I will put it that way, that there are 
circumstances where Senator Reid would like to accommodate 
Senator McConnell but feels he cannot because of the reaction 
he would get within his conference. And it is my guess that 
there are times when Senator McConnell would like to be more 
accommodating to Senator Reid but cannot because to do so would 
arise the ire of the Republican Conference.
    I remember Senator Dole saying to me, ``I am supposed to be 
the leader around here,'' and this was when we were in the 
minority, and, he said, ``I have got 42 independent contractors 
I have to deal with,'' every one of which has the right to 
object to a unanimous consent agreement and without giving any 
hint of circumstances or context. I have seen Senator McConnell 
be frustrated in a very legitimate kind of action that he would 
like to proceed with, frustrated by a single Senator who 
refused to give a unanimous consent agreement. And I have seen 
Senator Reid in the same circumstance, where a single Senator 
on his side has caused Senator Reid to, perhaps injudiciously, 
but I will protect him, make some less than flattering comments 
about a member of his own conference, as we then end up in the 
situation where we do.
    The only other comment I would make, I think the--and I do 
lay this at Tom Daschle's door because he is the first one I 
saw who used it--the inability to appoint conferees by 
unanimous consent was always done. The leader picked the name. 
The unanimous consent agreement was made. The conferees were 
appointed. And Senator Daschle was the first one that I saw who 
said, no, we will not allow you to appoint conferees. We will 
allow you to pass the bill. Indeed, we will vote for it so we 
get credit with our constituents as being in favor of it. But 
we will not allow the bill to ever survive because we won't 
allow you to appoint conferees. And that gives the minority 
power to dictate the results of the conference.
    And one of the things that has disturbed me, Mr. Chairman, 
as much as all of the filibusters and the holds, is that we are 
not having conferences anymore.
    Chairman Schumer. That is true. That is true.
    Senator Bennett. When I first came here, it was, okay, we 
are going to write this bill in conference. We understand we 
have got to work with the House. We have got to work this out. 
We will write the bill in conference, and it goes through. 
Okay, take that amendment in order to get to conference. And 
increasingly, we are not having any conference.
    So I say somewhat facetiously, the Senate is superbly 
structured to deal with the problems of the 19th century and we 
need to, whether it is done with precedent or whether it is 
done with rules changes or whether it is done with greater 
comity within the various conferences, we do have a problem.
    That being said, I reserve the right to object to anything 
you want to do----
    [Laughter.]
    Senator Bennett [continuing] With respect to changing the 
rules. Thank you.
    Chairman Schumer. And on that happy note----
    [Laughter.]
    Chairman Schumer [continuing]. This was a great hearing. My 
only wish is that every one of our colleagues could have 
witnessed it, and maybe they will look at parts of it. It 
really has helped shed light on the big problems we all agree 
we face, even if we can't yet agree on solutions.
    I thank the witnesses here----
    Mr. Ornstein. Thank you very much, Mr. Chairman.
    Chairman Schumer [continuing] And the earlier witnesses. I 
thank my fine colleague, Senator Bennett.
    The hearing is adjourned.
    [Whereupon, at 12:33 p.m., the committee was adjourned.]





















                      APPENDIX MATERIAL SUBMITTED

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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  EXAMINING THE FILIBUSTER: SILENT FILIBUSTERS, HOLDS AND THE SENATE 
                          CONFIRMATION PROCESS

                              ----------                              


                        WEDNESDAY, JUNE 23, 2010

                      United States Senate,
             Committee on Rules and Administration,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
Room SR-301, Russell Senate Office Building, Hon. Charles E. 
Schumer, Chairman of the Committee, presiding.
    Present: Senators Schumer, Murray, Pryor, Udall, Warner, 
Bennett and Alexander.
    Staff Present: Jean Bordewich, Staff Director; Jason Abel, 
Chief Counsel; Veronica Gillespie, Elections Counsel; Adam 
Ambrogi, Administrative and Legislative Counsel; Sonia Gill, 
Counsel; Julia Richardson, Counsel; Lauryn Bruck, Professional 
Staff; Carole Blessington, Executive Assistant to the Staff 
Director; Lynden Armstrong, Chief Clerk; Justin Perkins, Staff 
Assistant; Mary Jones, Republican Staff Director; Shaun Parkin, 
Republican Deputy Staff Director; Paul Vinovich, Republican 
Chief Counsel; Michael Merrell, Republican Counsel; and Rachel 
Creviston, Republican Professional Staff.

             OPENING STATEMENT OF CHAIRMAN SCHUMER

    Chairman Schumer. Okay. The hearing will come to order, and 
first I want to thank my good friend, Bob Bennett. He is always 
here, always diligent, always thoughtful. And all of my other 
colleagues for participating, Lamar Alexander who is here 
regularly and Mark Pryor who is here regularly, so thank you 
both for being here.
    And I also want to appreciate the participation of our most 
senior member, Senator Byrd, who watches these proceedings like 
a hawk. He knows the rules better than anybody else, and so I 
would ask unanimous consent that his written statement be 
submitted for the record.
    [The prepared statement of Senator submitted for the 
record:]
    Chairman Schumer. Now today I am also very glad to welcome 
Senators Wyden, McCaskill and Grassley as our first panel. All 
three of them have been leaders in efforts to end anonymous or 
secret holds and shine light on the kinds of long-term delays 
that can hold up a nomination or a bill or weeks or months or 
even longer, and it is done in the dark of night.
    I applaud Senators Wyden and Grassley for their sustained 
commitment over more than 10 years to this issue, again and 
again and again urging the Senate to take action.
    I also congratulate Senator McCaskill for her energetic and 
now successful campaign in this Congress to break loose 
nominations that have gotten stuck. I say ``successful'' 
because more than two-thirds of Senators have signed her 
letter, pledging not to use secret or anonymous holds 
themselves.
    I look forward to hearing from these three witnesses in our 
first panel.
    Now this is the third in a series of hearings I have called 
for this Committee to examine the filibuster and its impact on 
the Senate. Our first hearing in April focused on the history 
of the filibuster. Our second hearing in May dealt with the 
impact of the filibuster in the current Congress and on the 
functioning of the government. Today's focus is on this, the 
title, ``Silent Filibusters, Holds, Secret and Otherwise, and 
Senate Confirmation Process.''
    Now we did have some good news on this front yesterday with 
the passage by unanimous consent of 64 stalled nominations. 
Three of them, who nobody voted against, were first nominated 
on July 9th of 2009. That is almost a year ago. Why were they 
blocked for so long? That illustrates vividly the problem we 
are examining in this hearing.
    Despite the easing of the logjam yesterday, what we have 
seen overall in this Congress is the worst obstruction of 
presidential nominations in recent memory, and the delays in 
confirmation are affecting the ability of both the Judiciary 
and the Executive Branch to do their jobs. Even under a Senate 
that flipped to Democratic control, President Bush's 
nominations fared far better than have President Obama. 
President George Bush's Cabinet was fully confirmed in 13 days; 
President Obama's took 99 days.
    As this Congress has progressed, the President's nominees 
continue to language, often when they have little or no real 
opposition. As of June 17th, President Obama had 137 
nominations pending on the Executive Calendar. At the same 
point in his first term, President Bush had only 45.
    Here's another indicator, judgeships. As of June 21st, of 
84 judges nominated by President Obama 34 had been confirmed; 
that is 40 percent. For President Bush in the same period, 57 
out of 105 judges had been confirmed; that was 54 percent. Now 
if this pace keeps up, President Obama will have the lowest 
judicial confirmation rate for his first Congress of any modern 
President. That is not a superlative that any of us should be 
proud of.
    As for nominations to the executive agencies, at the end of 
2009, President Obama had more than one-third pending 
confirmation than President Bush had at the end of his first 
year, one-third more. That meant that almost a quarter of all 
Obama nominations were carried over to the second session of 
this Congress, and they are waiting longer to be confirmed than 
the typical nominee in previous administrations.
    For too many nominees, like some of those confirmed 
yesterday, it is months, even a year longer. Clearly, something 
is wrong, and we need to do something about it. Many of these 
delays relate to current Senate procedures, and here we can get 
into a back and forth where I think neither party is blameless. 
But there is a logjam, and we are trying to work in a bi-
partisan way to figure out our way out of it.
    What do we mean by hold or silent filibusters when we talk 
about Senate procedures? While there is no single definition, 
it generally refers to the indication by an individual Senator 
a party that if a bill or nomination is brought up in the 
future they would object to debating it. This threat of a 
filibuster is what gives holds their strength even though there 
is no requirement for a Majority Leader to honor a hold 
request. So it is sort of the first step backed up by the 
filibuster, which is what we have been talking about, whether 
they are silent, whether they are secret, or not.
    As the use of anonymous holds has escalated over the last 
35 years, there have been repeated attempts to address their 
use, as our first panel of witnesses will discuss today. Under 
the Advice and Consent Provisions of the Constitution, the 
Senator is responsible for confirming or rejecting presidential 
nominees. But it appears that the Senate, an institution 
designed to be deliberative and slow, is now dangerously close 
to gridlocked.
    When we are not able to get good, qualified people to be 
confirmed to government positions in a timely manner, it hurts 
the Country. We will hear more from our second panel about how 
the excessive delays are devastating to the operation of 
government and to the efforts to recruit people to Federal 
jobs. If it is known that once you are nominated and leave your 
job you are going to have to wait months and months and months, 
and then you might not be confirmed, who is going to take a 
Federal job in the future? And that is going to hurt all of us.
    Today's hearing will continue what I hope is a thoughtful, 
deliberative examination of issues related to the filibuster by 
this Committee. As I said before, we are not trying to put 
blame on one party or the other; we are trying to deal with the 
problem that has brought us close to gridlock. We hope it will 
serve as a basis for future discussions. I believe it will show 
that we need to consider reforms to improve the confirmation 
process.
    [The prepared statement of Chairman Schumer submitted for 
the record:]
    Chairman Schumer. All Committee members and witnesses are 
asked to limit their remarks to five minutes. We will not have 
questions after the first panel, but we will, time permitting, 
have questions for the second. I look forward to listening to 
our colleagues and the experts who have come to share knowledge 
and experience with us, and now turn to Senator Bennett.

 OPENING STATEMENT OF THE HONORABLE ROBERT F. BENNETT, A U.S. 
                       SENATOR FROM UTAH

    Senator Bennett. Thank you very much, Mr. Chairman. I 
welcome our colleagues here.
    I do not have an opening statement but will respond just 
briefly to the comments that you have made, particularly to the 
numbers with respect to those that have been held up. Speaking, 
if I may, however presumptuous it may sound, on behalf of my 
Leader, Senator McConnell, who has been Chairman of this 
Committee, I would point out that prior to Memorial Day Senator 
McConnell asked unanimous consent to approve over 60 people who 
had been held, and it was a Senator of the Majority Party who 
objected to that.
    And there were 64 nominations cleared yesterday by 
unanimous consent, with Senator McConnell's support. Most of 
them were on the list of those that he offered on the 27th of 
May to be cleared, and, as I say, they were objected to by a 
member of the Majority.
    So I do not dispute in any way, Mr. Chairman, the numbers 
that you have cited, but I do not want to leave the impression 
that all of the obstruction that has come as a result of the 
use of holds has come from the Minority side. If indeed these 
60 that Senator McConnell tried to get through by unanimous 
consent had in fact been approved in May, the statistics you 
have referred would have taken the number of people being held 
down from 108 to 48, which is very close to the ballpark of 
that that you had cited for previous Presidents.
    That does not change the import of this hearing because the 
hearing is to talk about holds generically, without respect to 
party. I think it is an appropriate hearing to be held, and I 
appreciate your having called it and look forward to the 
testimony of our colleagues.
    Chairman Schumer. With the indulgence of my other 
colleagues here, we usually have opening statements from all of 
the members of the panel, but we have three members waiting. 
Would it be all right to go forward with our three panel 
members?
    Do you want to say something, Lamar?
    Senator Alexander. I would, but I will be glad, could I do 
it after they make their statements.
    Chairman Schumer. Is that okay with everybody?
    Senator Pryor. Yes, I would like to do the same thing.
    Chairman Schumer. Great. Okay. Terrific.
    Okay. Well, we have three panel members who all really 
deserve to be here by their work and their records.
    Since 1977, Senator Ron Wyden has been a powerful force in 
the crusade to changing Senate rules that allow Senators to 
block nominations and legislation anonymously. Since that time, 
along with Senator Grassley, Senator Wyden has been undeterred 
in his efforts to end secret holds. His current initiative, the 
Secret Holds Elimination Act, reduces the disclosure deadline 
from six days to two, requires disclosure whether or not the 
bill or nomination has been brought to the floor. As a matter 
of practice, Senator Wyden publically announces any hold he has 
placed on a nominee or a piece of legislation by inserting that 
statement in the Congressional Record.
    Senator Chuck Grassley, for over a decade, has been one of 
the primary voices to increase transparency and accountability 
in the Senate by strengthening the disclosure requirement for 
holds. In 1999, Senator Grassley sent a letter to the Senate 
leaders that outlined a provision where any Senators placing a 
hold must notify the sponsor of the legislation and the 
Committee jurisdiction. In both the 109th and 110th Congresses, 
along with Senator Wyden, he authored the initiative to require 
the public disclosure of holds in ethics reform bills.
    Senator Claire McCaskill has been a vocal critic of the use 
of secret holds since she has been here and is currently 
calling for changes in Senate rules that would end the use of 
secret holds definitively. She has spearheaded a letter to the 
Senate leadership requesting them to bring an end to the 
practice of permitting secret holds. This letter also serves as 
a pledge for Senators to sign, promising that they will not 
place secret holds on legislation or nominations. As of 
yesterday, 68 Senators had signed the pledge, and Senator 
McCaskill told me she expects the number to grow.
    Senators, your entire statements will be read into the 
record, and proceed as you wish.
    Senator Wyden, you may begin.

   STATEMENT OF THE HONORABLE RON WYDEN, A U.S. SENATOR FROM 
                             OREGON

    Senator Wyden. Thank you very much, Mr. Chairman, and there 
certainly should not be a filibuster at any Senate reform 
hearings. So I am going to be very brief, and I thank you and 
colleagues for your courtesy.
    As you indicated, Mr. Chairman, for more than a dozen 
years, Senator Grassley and I, a Democrat and a Republican, 
have sat at tables just like this one, pulling out all the 
stops to persuade the United States Senate to stop doing public 
business in secret, and we are very pleased to be joined by 
Senator McCaskill who brings us energy and passion and skilled 
advocacy to the cause.
    What I thought I would do, Mr. Chairman, is just take a few 
minutes and walk the Committee through the odyssey that this 
reform journey has been on. The fact is the United States 
Senate has already voted repeatedly--repeatedly, Mr. Chairman 
and colleagues--to ban secret holds. In 1997 and again in 1998, 
the Senate actually voted unanimously for amendments to ban 
secret holds. This is not an abstraction. It is not a question 
of what you ought to do. The Senate voted twice to ban holds, 
unanimously. In fact, seven years almost to this date, I was 
before this Committee as well, talking about how we were 
finally going to get this done.
    But every time the Senate voted to pass legislation ending 
holds in the Senate, bills ending secret holds would then get 
changed in secret, usually in a conference committee.
    So the question is would you not think that a bill 
reforming Senate procedure, that the Senate passed 
overwhelmingly, would come back from a conference with the 
House with a ban on secret holds being intact? That would be 
logical, and it would be wrong.
    Now we have tried, Senator Grassley and I, a whole host of 
efforts to finally ban these holds. In 1999, we actually got 
personal commitments from both the Democratic and Republican 
Leader that neither Leader would honor unless it was formally 
made in writing. That commitment was made in a letter to 
colleagues. It was published in the Congressional Record. So 
the Democratic and Republican Leaders, Mr. Chairman, said they 
would not honor a secret hold.
    However, that pledge was not enforced, and, as Senator 
Grassley and I have pointed in this 12-year-long odyssey, both 
Democrats and Republicans continued to employ secret holds in 
the 106th Congress.
    Now that year, Senator Grassley and I got another amendment 
passed here in the Senate to ban secret holds. This was a 
recorded vote, colleagues, 84 to 13. That was included in the 
House, in the Honest Leadership and Open Government Act, and it 
was passed into law.
    That also came back from conference riddled with loopholes. 
The practice of secret holds has continued.
    So, Mr. Chairman, our message, and it is a bipartisan one, 
is the stalling on secret holds reform has gone on long enough. 
It is time to end this stranglehold on the question of public 
business being done in public. It ought to be non-negotiable. 
If you cannot do it in public, you really should not be doing 
it, and that ought to be the rule with respect to Senate 
procedures.
    And thanks to Senator McCaskill's good work, we have got 
new strength for this final push to stop flouting the public's 
right to know. The American people want accountability.
    You have outlined the fact that this has gone on, on both 
sides of the aisle, and let me just touch on a couple of 
additional arguments.
    First, some claim that a secret hold does not prevent the 
Senate from considering a nomination or piece of legislation. 
The reality is it actually does, Mr. Chairman and colleagues. 
If the Leader has to file cloture, go through all of the 
procedures, especially at this time of the year, as a practical 
matter, it is not going to happen.
    So a secret hold, in effect, is one of the most powerful 
tools that a United States Senator has. It can be exercised in 
secret, and for all practice purposes it means that the 
American people will not even get a peek at a bill or a 
nomination. It was an incredible power that Senators have 
picked up. It has never been written down anywhere.
    The history of these holds, there is the hostage hold, the 
rolling hold, the Mae West ``come up and see me sometime'' 
hold. The Senate has as many versions of holds as pro 
wrestling, and the power to tie the Senate in knots is just as 
incapacitating as a smack-down wrestling move.
    Let me close with one last point that is not really brought 
up, Mr. Chairman. Secret holds and ending them will take a 
weapon out of the arsenal of lobbyists. The fact is that at 
lobbyist's dream is to get some Senator to put a secret hold on 
something. The lobbyist's fingerprints are not on it. There is 
no public debate. If you can get a United States Senator to put 
an anonymous hold on a bill, it is a lobbyist's jackpot. And 
some of them are so good they can play both sides of the street 
as a result of being able to do it.
    So I close, Mr. Chairman, with this: The essence of holds 
reform is eliminating them altogether, requiring public 
disclosure of any hold or objection in the Senate and 
consequences if a Senator fails to disclose a secret hold.
    Mr. Chairman, it is time to end this dozen-year debate in 
the United States Senate about whether or not public business 
is going to be done in public. Senator Grassley and I are going 
to prosecute this cause until it actually happens, and we are 
very, very happy to have the passion and energy of Senator 
McCaskill.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Wyden submitted for the 
record:]
    Chairman Schumer. Thank you, Senator Wyden.
    Senator Grassley.

STATEMENT OF THE HONORABLE CHUCK GRASSLEY, A U.S. SENATOR FROM 
                              IOWA

    Senator Grassley. The three of us, Mr. Chairman, just want 
to bring some transparency to the practice of holds in the 
Senate. It is a very informal process in the Senate, so it is 
easier said than done, just how to make them public, but I 
think our proposal does the trick.
    You know a hold arises out of a Senator's right to withhold 
when unanimous consent is asked. A Senator has a right to 
object to a unanimous consent request if the Senator does not 
support it or he needs more information. A Senator, in fact, 
has an obligation to object if he feels an item is not in the 
interest of his constituents or if he has not had the 
opportunity to make an informed decision.
    Now in the old days, it was quite simple to do this, when 
Senators did most of their business at their desk on the Senate 
floor, just to stand up and say, I object. But now since most 
of us find the necessity of being off the Senate floor, in 
committee hearings or meetings with constituents and for a lot 
of other reasons, we rely on our Majority and Minority Leaders 
to protect our rights and prerogatives as individual Senators 
by asking them to object.
    Just as any Senator has a right to stand up on the Senate 
floor and publically say, I object, it is perfectly legitimate 
to ask another Senator to object in his behalf if he cannot be 
there. Senators have no inherent right to have others object on 
their behalf, however, if they want to keep that fact secret, 
and particularly if it is motivated out of secrecy.
    So what I object to is not the use of holds, because I do 
that myself, but the word ``secret'' in secret holds. If a 
Senator has a legitimate reason to object to proceedings, to a 
bill or a nominee, then he ought to have the guts to say so 
publically.
    A Senator because he does not agree with the substance of 
the bill or because the Senator has not had adequate 
opportunity to review the issue. Regardless, we should have no 
fear of being held accountable by our constituents or anybody 
else if we are acting in their interest. I have certainly not 
experienced any negative reaction from my policy of making 
public the fact of who it is, Chuck Grassley, and why I put a 
hold on a nomination or a bill.
    So, over a decade ago, as Senator Wyden has said, we 
started with a simple proposed rule that any Senator placing a 
hold must publish that hold in the Congressional Record, which 
Senator Wyden and I have done voluntarily ever since. That 
proposal was blocked in the Senate, but we were offered a non-
binding policy by the Leaders instead. Of course, as Senator 
Wyden, that did not really do the job.
    We kept trying, and when Senator Lott became Chairman of 
the Rules Committee he took an interest in the issue as former 
Majority Leader, to deal with the issue of secrecy. In fact, we 
had a hearing like this, as Senator Wyden said, seven years 
ago.
    Senator Lott offered to work with us, and, along with 
Senator Byrd, we crafted a proposal that was more workable and 
enforceable. That proposal was adopted, as Senator Wyden said, 
84 to 13. But you know what, even with that outstanding vote, 
it never got enacted.
    Then our proposal was included in the so-called Honest 
Leadership and Open Government Act. Ironically, in a move that 
reflected neither honest leadership nor open government, our 
provisions were altered so substantially behind closed doors 
before the bill became law that they were not workable.
    Our current proposal would restore important features that 
were in that very amendment as originally adopted in the Senate 
and make it even more enforceable. In our proposed standing 
order, in order for a Majority or Minority Leader to recognize 
a hold, the Senator placing the hold must get a statement in 
the record within two days and must give permission to their 
Leader at the time they place the hold to object in that 
Senator's name. Since the Leader will automatically have 
permission to name the Senator on whose behalf they are 
objecting, there will no longer be any expectation or pressure 
on the Leader to keep the hold secret.
    Further, if a Senator objects to a unanimous consent 
request and does not name another Senator as having the 
objection, the objecting Senator will then be listed as having 
that hold.
    So this will end entirely the situation where one Senator 
objects but is able to remain coy about whether it is in their 
own objection or some other unnamed Senator. All objections 
will have to be owned up to.
    Again, our proposal protects the right of individual 
Senators to withhold their consent but makes it public. The 
public's business ought to be public.
    Thank you.
    [The prepared statement of Senator Grassley submitted for 
the record:]
    Chairman Schumer. Thank you, Senator Grassley.
    Senator McCaskill.

  STATEMENT OF THE HONORABLE CLAIRE McCASKILL, A U.S. SENATOR 
                         FROM MISSOURI

    Senator McCaskill. Thank you, Mr. Chairman and Ranking 
Member Bennett and the other members of the Committee, for 
having this hearing.
    I, first and most importantly, want to thank Senator Wyden 
and Senator Grassley. I am clearly standing on their shoulders. 
They have been tilling in this field for years and years, and 
they have been the leaders on this issue. I am happy to join 
their cause and perhaps provide some of that obnoxiously pushy 
passion that can maybe get this across the finish line. I have 
a feeling that this is one of the traditions of the Senate that 
is going to take some obnoxiously pushy passion to actually 
end.
    This practice reminds me of my kids when they were very 
little, when I would watch them play in the back yard, and one 
of them would try to get the other one to do something, and 
then they would stick out their tongue, put their hands on 
their hips and say, try to make me.
    This is an issue where Senators have voted shamefully--
shamefully. Senators have voted for Senator Grassley's and 
Senator Wyden's proposals, and taken on the cloak of 
accountability and reform, and then behind closed doors have 
participated in the very practice they voted to end. That is 
the definition of cowardice. That is the definition of a 
tradition that really smears the good name of the United States 
Senate. That is not what this body is about. That is not the 
kind of people that should be in the Senate. And that is the 
kind of practice that we need to finally, once and for all, 
end.
    Imagine the public humiliation that would have occurred 
yesterday when there was unanimous consent that was 
successfully shepherded through the Senate, and there were 64 
people that were confirmed, and there were a handful of them 
that had been on the Executive Calendar for months and months 
and months, and yet there was not one negative vote against 
their nomination. Not one negative vote. They hung out on that 
Executive Calendar for months on end because someone wanted 
them to, but we will never know who it was.
    And what would have their explanation been to the press 
yesterday and to the people they represent, when they voted to 
confirm after months and months and months? They do not want to 
have to make that explanation. That is why the secret hold has 
such a powerful hold on the body, because you can avoid 
accountability.
    This is a very simple message. This is not about ending the 
hold. I respect the tradition of the Senate on holds. It should 
be a Senator's prerogative to object to anything that is trying 
to be done unanimously, but there is no good reason for it to 
be done in the darkness of night.
    The simple message is there are now 68 Senators I am 
representing at this microphone this morning: 56 Democrats, 2 
Independents that caucus with the Democratic Party and 10 
Republicans. They have all said in writing, they want to 
abolish the secret hold and they will not participate in secret 
holds.
    The secret holds a courtesy granted to Senators at the 
expense of our democracy, and democracy is only as strong as 
the faith the American people have in it. They must believe 
that it truly is a democracy, and the hit our democracy is 
taking at the expense of secret holds is not worth the 
convenience to Senators to avoid the accountability.
    This is a political era where I think it is obvious that 
secret holds have been used by both sides of the aisle as a 
political tool, not as a method to take more time to learn 
about a nominee or to get questions answered, but as a 
political tool in the overarching game of the success of our 
team is the failure of the other team. And I indict both 
parties for this conduct. It is not just the Republican Party 
that is now in the Minority. I think both parties are guilty of 
it.
    And it is that game, that the success of our party is 
defined by the failure of yours, that is leading to the 
cynicism that is rampant in America right now about what we 
have chosen for careers, and I cannot blame them, especially if 
we cannot find it within ourselves to do away with the secret 
hold.
    If we can do away with the secret hold, then I think we 
maybe will be striking the note that America is looking for--
that we can, on a bipartisan basis, say there are certain 
traditions here that maybe are not such a good idea anymore, 
that openness and transparency is what the people of this 
Country deserve. This is an urgent matter.
    We have laws on the books, but they are not enforceable. I 
look forward to working with this Committee, and with Senator 
Grassley and Senator Wyden, to find the right approach that is 
enforceable. The attempts have been incredibly important, that 
Senator Grassley and Senator Wyden have made to end this 
practice, but the problem is the enforcement. That is where the 
rub is. That is where Senators want to avoid those 
uncomfortable moments that they are going to be called on the 
carpet and enforced to name who they are holding and why. That 
is the key here.
    And in the coming days, I will be working as hard as I know 
how, with Senator Grassley and Senator Wyden, through their 
leadership and the leadership of this Committee, to find the 
right approach, so that we can get this done once and for all. 
I think America deserves it.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator McCaskill submitted for 
the record:]
    Chairman Schumer. Well, I want to thank all three of our 
colleagues for really excellent and passionate testimony.
    I have to say after all the years that Senators Wyden, 
Grassley and McCaskill have worked on secret holds, I believe 
it is an idea whose time has truly come in not de jure, if you 
will, but de facto, relating to Senator McCaskill's point. So 
we are going to work together to end secret holds, and I commit 
to the three of you today that I will work with you to 
achieving that end.
    With that, I thank our three witnesses for coming, and we 
will now go to opening statements.
    Senator Udall, would you like to say something?

 OPENING STATEMENT OF THE HONORABLE TOM UDALL, A U.S. SENATOR 
                        FROM NEW MEXICO

    Senator Udall. Thank you, Chairman Schumer, and thank you 
for holding this hearing. I very much appreciate----
    Chairman Schumer. Before you begin, Senator Udall, and then 
after you, Senator Alexander, I have to step out for a brief 
second.
    Senator Udall. [Presiding.] Okay. I appreciate the 
testimony today of our three colleagues.
    Over the past few months, during this series of hearings, 
we have discussed and debated example after example of how the 
filibuster in particular and the Senate's incapacitating rules 
in general too often stand in the way of achieving real 
progress for the American people. Today's topic, secret holds 
and the confirmation process, is just one more example of how 
manipulation of the rules continues to foster a level of 
gridlock and obstruction unlike any we have ever seen before.
    I want to commend Senator McCaskill for her dedication to 
transparency and government. Her fight to end the practice of 
secret holds is a worthy one that I wholeheartedly support.
    Earlier this year, I was proud to sign onto her letter, and 
today we have heard from her, and she has gathered enough to 
support to surpass the 67-vote threshold required to consider 
and amend the Senate rules. That is no small task, as everyone 
in this Committee would attest. She should be congratulated for 
her work, as should all of our colleagues, Democrat and 
Republican, who have signed onto this effort.
    This bipartisan effort is proof that we are capable of 
working together. But the mere fact that we have to have this 
conversation, that Senator McCaskill had to work for months for 
67 votes, to change rules that the Constitution clearly 
authorizes us to do with a simple majority vote, illustrates 
that secret holds are just another symptom of a much larger 
problem.
    The problem is the Senate rules themselves. The current 
rule, specifically Rule V and Rule XXII effectively deny a 
majority of the Senate the opportunity to ever change its 
rules, something the drafters of the Constitution never 
intended. As I have explained numerous times throughout this 
series of hearings, a simple majority of the Senate can adopt 
or amend its rules at the beginning of a new Congress because 
it is not bound by the rules of the previous Congress. Many 
colleagues, as well as constitutional scholars, agree with me.
    It is through this path by a majority vote at the beginning 
of the next Congress that we can reform the abusive holds, 
secret filibusters and the broken confirmation process. We can 
end the need for multiple cloture votes on the same matter, and 
we can instead begin to focus on the important issues at hand.
    Now critics will argue that the two-thirds vote requirement 
for cloture on a rules change is reasonable. They will say that 
Senator McCaskill managed to gather 67 Senators, so it must be 
an achievable threshold. As I said a moment ago, I commend her 
for her diligence in building support to end secret holds, but 
I think it is also important to understand that other crucial 
reform efforts have failed because inexplicably it takes the 
same number of Senators to amend our rules as it takes to amend 
the United States Constitution.
    The effect of holds on both legislation and the 
confirmation of nominees is not a new problem. In January, 
1979, Senator Byrd, then Majority Leader, proposed changing the 
Senate rules to limit debate to 30 minutes on a motion to 
proceed. Doing so would have significantly weakened the power 
of holds and thus curbed their abuse. At the time, Leader Byrd 
took to the Senate floor and said that unlimited debate on a 
motion to proceed ``makes the Majority Leader and the Majority 
Party the subject of control, and the will, of the Minority. If 
I move to take up a matter, then on Senator can hold up the 
Senate for as long as he can stand on his feet.''
    Despite the moderate change that Senator Byrd, it did not 
have the necessary 67 votes to overcome a filibuster.
    Efforts to reform the motion to proceed have continued 
since. In 1984, a bipartisan study group recommended placing a 
2-hour limit on the debate of a motion to proceed. That 
recommendation was ignored.
    In 1993, Congress convened a Joint Committee on the 
Organization of Congress to determine how it could be a better 
institution. Senator Peter Domenici, my immediate predecessor, 
was the Co-Chairman of the Committee and at the hearing he 
said, ``If we abolish the debatable motion to proceed, we have 
gone a long way to defusing the validity of holds because a 
hold is predicated on the fact that you cannot get a bill up 
without a filibuster.''
    Despite a final recommendation of the Joint Committee to 
limit debate on a motion to proceed, nothing came of it.
    Talking about change and reform does not solve the problem, 
but we can hold hearings, convene bipartisan committees and 
study the problem to death. But until we agree that the 
Constitution provides the right for each Senate to adopt its 
rules of proceedings by a majority vote, there will be no real 
reform.
    Thank you, Chairman Schumer.
    And I would just ask that a Roll Call article on motion to 
proceed be included in my statement. Thank you.
    Chairman Schumer. [Presiding.] Without objection.
    [The prepared statement of Senator Udall and information 
submitted for the record:]
    Chairman Schumer. And again I want to thank Senator Udall, 
not only for his excellent testimony today, or his excellent 
opening statement, but for his interest in this whole issue 
which helped importune this Committee to call this series of 
hearings.
    Senator Alexander.

  OPENING STATEMENT OF THE HONORABLE LAMAR ALEXANDER, A U.S. 
                     SENATOR FROM TENNESSEE

    Senator Alexander. Thanks, Mr. Chairman, and thank you for 
having the hearing.
    To put matters in perspective from my point of view, to 
begin with, one, I have supported abolishing secret holds and 
will again and was one of ten Senators to write the conferees 
in 2006 in saying do what we voted to do.
    Two, there is nothing new about them. I have told the story 
here of how when President Bush, the first, nominated me for 
Education Secretary, Senator Metzenbaum held me up for three 
months, and how Senator Rudman was held up by a Senator. He 
found out who made the hold and ran against him and beat him. 
So this all goes back through history.
    And at the beginning of this Congress I convened a couple 
of bipartisan breakfasts on the subject of slow confirmations, 
and I wrote an article and made a floor speech called 
``Innocent Until Nominated'' out of concern that President 
Obama and other Presidents were not being allowed to get people 
in place. I found it was a little more complicated than it 
seemed. One reason was the President was slow making 
nominations.
    But I am willing to do more of all that and would like to 
see us address that in a bipartisan way, and I ask consent to 
include my article ``Innocent Until Nominated'' in the record 
of the hearing.
    Chairman Schumer. Without objection.
    Senator Alexander. I also appreciate Senator Bennett's 
comments on numbers. As I heard the Chairman's numbers, the 65 
executive nominations that were approved yesterday bring down 
to 45 or 53; the number is still pending. That is about the 
same as President Bush had at this time, 45.
    And we do know who was holding those up. It was the 
President. It was the White House. According to the Republican 
Leader, the White House persuaded Senator Reid to object to 
moving those nominations unless they included Craig Becker, who 
in a bipartisan vote was not approved to go on the NLRB because 
of the fear that he might eliminate the secret ballot in union 
elections by administrative fiat. So the White House then 
agreed to remove his name from the list, and all 64 nominations 
went through.
    So there was no Senator holding up those 64. It was the 
White House, and we do know who did that. So that is important 
to say.
    I think Senator McCaskill is right, that the problem with 
this idea is not the idea of getting rid of secret holds; it is 
enforcing that.
    And I would suggest that a better way to approach the 
problem, if the problem is delayed nominations, is simply to 
use the rules that we have. Senator Byrd suggested that might 
work.
    We did a little computation, and let's look at this month. 
The Senate has accomplished nothing in the last three weeks 
except by unanimous consent. So Senator Reid could have moved 
on any controversial nomination on the 7th--that was the Monday 
we came back--to bring up nominees, and by the end of this week 
he could have forced through 8 controversial nominations if he 
had 60 votes.
    That would have respected the weekends, that would have 
respected the no-vote days, and it would have required a few 
all-night sessions. So that might have persuaded those who 
objected not to object to others.
    If Senator Reid wanted to continue to do that next week, he 
could have had 12 done, respecting weekends and no-vote days.
    So the Majority Leader can bring up a motion. No motion to 
bring up an executive nomination requires 60 votes; it just 
requires 51. So the Majority Leader already has the authority.
    And insofar as legislation goes, the nature of the Senate 
is that it is a place to have unlimited debate and the right to 
amend, and so it is not a place where a freight train is 
supposed to run through. It is just the reverse of that. It is 
a place that operates by unanimous consent for a reason.
    If we change things, as the Senator from New Mexico would 
propose, we would have two Houses of Representatives operated 
by a majority vote. That might seem fine when you are in the 
Majority, but the shoe can quickly be on the other foot. It 
might be on the other foot by next year.
    And what if the freight train running through the Senate is 
not the Democratic freight train, but the Tea Party Express? 
There might be some members who are on the other side of the 
aisle who would like to use their Minority rights to protect, 
say, privatization of Social Security or John Bolton as the 
United Nations Ambassador, which is exactly the way they used 
those votes before.
    So secret holds, we should get rid of them. Getting rid of 
the Senate's ability to protect Minority rights and defend 
against the tyranny of the Majority and slow things down so we 
can have a consensus as we did on Social Security, Medicare, 
civil rights, rather than run things through with a partisan 
vote as we did on health care, that is really what the debate 
is about, and that is why these hearings are important.
    Thank you, Mr. Chairman.
    Chairman Schumer. Thank you.

   OPENING STATEMENT OF THE HONORABLE MARK R. WARNER, A U.S. 
                     SENATOR FROM VIRGINIA

    Senator Warner. Thank you, Mr. Chairman. I apologize about 
being late and missing our colleagues' comments.
    I have to preface this by just saying as a new guy here and 
somebody who has never been a legislator--I have been a CEO in 
business and a CEO at the State level--I have enormous respect 
for the Senate and its traditions. Some of the traditions just 
do not seem to make sense. I mean I think, and I do believe 
that we can respect the traditions of this institution, that we 
can respect the rights of the Minority. I concur with Senator 
Alexander's comments about protecting those rights, but I 
cannot in any way explain to folks in Virginia, why in a kind 
of a secret way someone can put somebody's future on hold 
indefinitely makes any sense.
    When the American public questions what we are doing in the 
first place up here, to explain that this courtesy that was my 
understanding historically created back in the time when folks 
came to Washington on horseback and they wanted to have a 
courtesy to make sure that they could have somebody put on hold 
until the Senator got here, to say that in the 21st Century, 
even as bad as air traffic may be, that that needs to be 
maintained, and that people are not willing to fess up and 
explain why they are against someone being confirmed and then 
have that vote on someone, makes no sense to me.
    I have been proud to be with Senator McCaskill and Senator 
Whitehouse as we collected those colleagues' efforts. I know we 
are at 67 right now. I think there are a number of other 
colleagues who may join us. I would love to see this hit 75 or 
80 and truly be a bipartisan effort. It is long overdue, and 
the sooner we can act on this the better.
    Again as somebody new, I hesitate to counter Senator 
Alexander's comments, but this idea that we should be spending 
all our time going through cloture votes and 60-vote margins 
for nominees that are supposed to be viewed as somewhat 
controversial because they have either been put on hold or 
someone wants to filibuster them, and then they pass, as the 
case of a judge that we had up for the Fourth Circuit that was 
a former Supreme Court in the Commonwealth of Virginia, 
supported not only by both Senator Webb and I but also by our 
Republican Governor, Governor McDonnell--to have Barbara Keenan 
left in limbo for months on end and then confirmed 99 to 
nothing.
    I may not be a total student of American history, but my 
memory of civics class in American history is that the 
filibuster has been traditionally reserved for issues of great 
consternation and requiring that supermajority and requiring 
being able to protect the rights of the Minority. It is a sham 
to me when we have the time of the Senate delayed to go through 
all this process and then time and again these judges are 
confirmed, and others are confirmed, at north of 90 votes. I do 
not get it.
    And again, respectful of the Senate's rules, it seems to me 
to be a waste of time. It seems to be an abuse of power. It 
seems to me to be reflective of if we are going to attract good 
people. Whether there is a Democratic President or a Republican 
President, I think we will not attract quality folks.
    I think Senator Alexander's comments about innocent until 
nominated reflect a lot of the feeling around here. Yes, it is 
true that perhaps majorities can turn, but if this becomes the 
rule de jour on a going forward basis, we are going to, I 
think, undermine the ability for any administration to get 
their people in place in a timely manner.
    It is ridiculous that 18 months into this President's 
Administration, we have so many senior members of this 
Administration still waiting to see whether they are going to 
be able to serve. As a business guy and as a former governor, 
that is simply unacceptable.
    So I look forward to working with my colleagues on both 
sides of the aisle to try bring a little--while respectful of 
the Senate's traditions and respectful of Minority rights--a 
little more rationality to this process.
    Thank you, Mr. Chairman.
    Chairman Schumer. Well, I thank you, Senator Warner, for 
your excellent comments, and again you are right. Senator 
Alexander, you know, calculated it would take us eight days to 
do four nominees, or four days to do eight nominees. They need 
60 votes, and that is your point here. And they do not give us 
the 60 votes, and then we have wasted all that time and not 
nominated.
    Senator Warner. And if they do get 60 votes, then----
    Chairman Schumer. Well, once they come to a hold agreement, 
but you cannot do them seriatim without 60 votes, the way it 
has proceeded.
    Okay. Well, we have three excellent witnesses, and I would 
like to call them forward, and I will introduce them as they 
come forward.
    We first have G. Calvin Mackenzie. Professor Mackenzie is 
currently the Goldfarb Family Distinguished Professor of 
Government at Colby College. He is author of several books 
including The Politics of Presidential Appointments and 
Innocent Until Nominated: The Breakdown of the Presidential 
Appointment Process. Professor Mackenzie is a graduate of 
Bowdoin College and has Ph.D. in Government from Harvard.
    W. Lee Rawls is on the faculty of the National War College, 
is an adjunct professor at the College of William and Mary. He 
is the author of the book In Praise of Deadlock: How Partisan 
Struggle Makes Better Law. Professor Rawls served as Chief of 
Staff to Majority Leader Bill Frist, as Chief of Staff to 
Senator Pete Domenici and as Assistant Attorney General for the 
Office of Legislative Affairs at the U.S. Department of 
Justice.
    Finally, Thomas Mann is the W. Averell Harriman Chair and 
Senior Fellow in Governance at Brookings. He has also served as 
the Executive Director of the APSA, the American Political 
Science Association, and co-authored the book The Broken Branch 
and many articles on congressional reform. He has taught at 
Princeton University, Johns Hopkins University, Georgetown 
University, the University of Virginia and American University.
    We thank all three of our distinguished witnesses. I have 
read the testimonies. They are excellent. They will all be 
submitted to the record. Each of you may proceed as you wish, 
and if you can limit your statements to five minutes the 
Committee would appreciate it.
    Professor Mackenzie, you may begin.

     STATEMENT OF G. CALVIN MACKENZIE, THE GOLDFARB FAMILY 
     DISTINGUISHED PROFESSOR OF GOVERNMENT, DEPARTMENT OF 
                   GOVERNMENT, COLBY COLLEGE

    Mr. Mackenzie. Thank you, Mr. Chairman, Ranking Member 
Bennett and members of the Committee, for having me here.
    For almost 40 years, I have been a student of the 
presidential appointments process, and in that time I have 
interviewed hundreds of presidential appointees, observed 
scores of confirmation hearings, collected and analyzed reams 
of data on this process. That is the work of scholarship, and 
that is my business. I am not partisan. I have no ox to gore 
and no one's axe to grind.
    What has carried me through all of these years is a simple 
notion, and that is that in a democracy the purpose of an 
election is to form a government. Those who win elections ought 
to be able to govern. That is, to say simply, there ought to be 
a presidential appointments process that works swiftly, 
effective, rationally, to permit the President to recruit and 
emplace the talented Americans whose help he or she will need 
to govern this country. Nothing, it seems to me, could be more 
basic to good government, but we do not have a presidential 
appointments process that works.
    In fact, in this wonderful age when new democracies are 
blooming all over the world, many of them have copied aspects 
of our Constitution and our government, but one process that no 
other country has chosen to copy is the way we fill the top 
executive posts in our government, and for good reason. Even 
those untutored in democracy know a lemon when they see one.
    Our appointments process now undermines the very purposes 
it was designed to serve. It does not welcome talented people 
to public service; it repels them. It does not smooth the 
transition from the private to the public sector; it turns it 
into a torture chamber. It does not speed the startup of new 
administrations elected by the American people; it slows that 
process to a standstill.
    Blame for this, for the deterioration of the appointments 
process, lies at both ends of Pennsylvania Avenue. This 
Committee's jurisdiction does not extend to the other end of 
the avenue, so let me focus on the Senate confirmation process.
    There are problems with this process, but primary among 
those are delay, redundancy, inconsistency and uncertainty. The 
confirmation process is not the sole source of delay in filling 
executive or judicial positions, but the simple fact is that it 
takes far too long to confirm presidential appointees. The time 
required for a typical confirmation, not a controversial one, a 
typical one, has steadily grown over the last three decades. 
Even with a Senate controlled by his own party, as the Chairman 
indicated in his opening remarks this morning, President 
Obama's appointees have been confirmed more slowly than any of 
his predecessors.
    Why is this? Well, first there are too many appointees and 
too many hearings. For the first 130 years of our history, 
there were no confirmation hearings at all. Now we hold them 
for even for the lowest ranking nominees in all agencies, 
creating scheduling nightmares for Senate committees, 
overworked staffs, and long delays for many nominees.
    That problem is compounded by the growing use of holds, 
which you have a heard a lot about here this morning. For 
scholars like me, holds are a formidable research problem. 
Counting them is a little like counting moonbeams or weighing 
fairy dust; they are awfully hard to see. But we all know that 
holds, especially in the confirmation process where nominees 
make especially convenient hostages, have become epidemic in 
the Senate.
    Filibusters are another source of delay. Nominations are 
rarely filibustered in practice, but the threat of a filibuster 
has become so common and constant that we now know that it 
takes 60 reliable supporters in the Senate to get almost 
anybody confirmed.
    Delay occurs as well because every nominee must now endure 
an obstacle course that is littered with questionnaires, 
reports, investigations and vetting. These are inconsistent in 
the information they seek, and they are often redundant, 
especially of similar investigations and questionnaires managed 
by the White House.
    All of this imposes a heavy burden of uncertainty on those 
who are willing to be nominees. Once they agree to enter the 
appointment process they never know when, or if, they will 
emerge. When a friend says I have been nominated by the 
President to a position in government, is it congratulation or 
commiseration which we offer?
    These are human lives, and I think this is a very important 
part of this concern that is overlooked. Good people have 
agreed, often at significant personal sacrifice, to serve their 
Country. Far too often, we treat them like pawns in a cruel 
game. They are forced to put their lives on hold, to step aside 
from their careers and jobs, to forego income, and then to 
twist in the wind while the fates of their appointments are 
decided by a Senate with little or no sense of urgency.
    We must do better than this, and I believe that we can. We 
have recognized the ailments of the confirmation process and 
the cures for those ailments for a long time. I have suggested 
some of those in my written testimony, and I would be pleased 
to talk about those in our question period after this.
    But what is needed now, more than anything else, is simply 
some common sense, some commitment to undertake this task and, 
most importantly, some leadership. I commend this Committee and 
its Chairman and its members for taking on that task, and I 
hope you are successful in doing it.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Mackenzie submitted for the 
record:]
    Chairman Schumer. Thank you, Professor Mackenzie.
    Mr. Rawls.

 STATEMENT OF W. LEE RAWLS, FACULTY, NATIONAL WAR COLLEGE AND 
         ADJUNCT PROFESSOR, COLLEGE OF WILLIAM AND MARY

    Mr. Rawls. Thank you, Mr. Chairman. Thank you, Senator 
Bennett. My pleasure to be here.
    I think of the three folks before you, I will be the 
minority voice with respect to the nominations process, both 
judicial and for the Executive Branch nominees. My written 
testimony is basically an unrepentant defense of extended 
debate. My view is that whatever bipartisanship, moderation, 
continuity and consensus that are anywhere to be found in the 
American legislative process come from the filibuster. Absent 
that leverage, it will not exist. So my feeling is the Senate 
plays an extremely important role where this point of leverage 
from the Minority requires that all parties sit down and 
negotiate, and sometimes it works, sometimes it does not.
    I have in my mind the filibuster as a two-sided coin. On 
one side, you have the virtues I have just mentioned. The other 
side, you have the fact that matters are slowed down to the 
point that individual members, as expressed here today, feel 
extremely frustrated.
    My belief is the U.S. Senate is unique in the known 
legislative universe. It is unique because of the permissive 
rules involved and Minority rights, and that any change with 
respect to the rules, with respect to extended debate, would 
fundamentally alter the DNA of the United States Senate and how 
it works.
    In addition, America, despite all the failings indicated, 
is still the richest, most powerful Nation in the world, and so 
I think the Committee should be very cautious when it considers 
any changes to one of the key branches in the constitutional 
scheme for separation of powers, recognizing that the 
filibuster was not in the original Constitution.
    With my defense of first principles on the filibuster on 
the record, let me just turn quickly to the issues before the 
Committee today, basically the nominations process, and I will 
say my counterpunching views on several matters.
    First, when I was nominated to be Assistant Attorney 
General for Legislative Affairs, I was held up. I was held up 
by a member of today's Majority. And, lo and behold, it was for 
good reason. Now I felt that it was something of a waste, but 
it took us a while to negotiate, to get through, but I 
certainly recognized the rights of that particular member, and 
he had a particular gripe with respect to the department at the 
time.
    I was held with two other members' nominees of the 
department. My view at the time was he should have held them 
and not me because my job is to go down to the Legislative 
Affairs and take phone calls from the members. I felt like I 
deserved something like combat pay rather than to be held, but 
we will leave that as a personal view.
    I would like to echo Professor Mackenzie's view that there 
are just too many nominees that come to the Senate for review. 
It would not take much to cut that by a third to a half. It has 
become very elaborate. We have tax documents. We have 
investigators. I was at the FBI for a while. We have all sorts 
of people. We spend a lot of time.
    I think the members should just ask, who do we really want 
to talk to? And my criteria would be if a member of a committee 
wants to talk to the individual nominee, is willing to meet 
with them and goes to their hearing, then that nominee should 
be subjected to advice and consent. Absent that, I hate to say 
it, but something like Assistant Dogcatcher at the FEC, I do 
not see why the members are spending their time on that many 
nominees.
    Generally, the Cabinet goes pretty quickly, and then we 
just lose track somewhere with respect to middle management, 
and I think there is a compelling case to be made for moving 
faster with respect to middle management. One of the things is 
just to focus, set priorities. And if I had a gut instinct it 
would be that the problem really comes mostly from committee 
staff on both sides that are reluctant to surrender nominees 
and the member themselves would be really quite willing.
    On judges, my view is, having been here in the Senate as 
Chief of Staff for Senator Frist when we had a 51-49 margin, 
that I have a tough time kind of pulling out the violin for 
folks who have a 59-41 margin. So I will, in a sense, take a 
pass on that. The judges are lifetime appointees, and I think 
some close scrutiny is completely in order. Again, I think it 
is a matter of focus.
    The last point I would make is that when I was with Senator 
Frist we spent a lot of time on nominees. We even kept some of 
the members of the Majority and Minority in all around the 
clock on one occasion. So, given that, I am probably on a 
different wavelength than some of my colleagues here.
    Given that, I would be prepared to discuss any nuances in 
question and answer.
    [The prepared statement of Mr. Rawls submitted for the 
record:]
    Chairman Schumer. Thank you for your counterpunches, Mr. 
Rawls.
    Mr. Mann.

STATEMENT OF THOMAS E. MANN, SENIOR FELLOW, GOVERNANCE STUDIES 
  AND THE W. AVERELL HARRIMAN CHAIR, THE BROOKINGS INSTITUTION

    Mr. Mann. Mr. Chairman, Mr. Ranking Member, Senators Udall 
and Warner, first of all, I want to commend you for holding 
this series of hearings on filibusters and holds.
    We have seen now through the testimony that has come before 
us, through statements by Senators and discussions, that 
changing norms and practices regarding use of filibusters, 
holds and cloture petitions have produced something very 
different than what my dear friend Lee Rawls has been talking 
about--that in fact, in recent years there has been an 
extraordinary increase in the frequency of extended debate-
related problems on major measures and nominations that come 
before the Senate.
    We also ought to face up to the fact that this is driven by 
the ideological polarization of the parties in the Country and 
in the Senate, combined with the increased partisanship that 
flows from it and the fact that Majority Party control can 
change in an election. The stakes are so high that the 
incentives are powerfully driving a form of behavior that a 
colleague who testified earlier, Steven Smith, called a 
procedural arms race by both the Minority and responses by the 
Majority, that have diminished the Senate as an institution and 
weakened the Country's capacity to govern. Those are serious 
charges, and I commend you for wrestling with them because the 
Country depends upon it.
    My testimony adds to the evidence, the statistics that the 
Chairman gave, that my colleague Cal Mackenzie has given on 
judicial nominations and senior executive positions, and I will 
not take the time to go through those now.
    The reality is that, of course, there are thousands, tens 
of thousands of nominations that come before this body, and 99 
percent are routine and confirmed, but there are problematics 
with circuit court judicial appointments and with senior level 
executive appointment that cannot be denied. Confirmation rates 
have declined dramatically in the courts. These delays in 
confirming appellate judges have led to increased vacancy rates 
which have produced longer case processing times and rising 
caseloads per judge on the Federal dockets. Moreover, the 
controversies and delays over appellate judges are spilling 
over into district court appointments, which used to be a 
pretty routine process.
    The same evidence is available on senior executive 
positions. The delays are really quite extraordinary, but you 
know the statistics actually understate the problem because it 
does not look at the variability across agencies.
    Some Senate committees have a practice of doing full-
fledged IRS tax investigations that depopulate, or disallow, a 
new administration from populating, staffing the Treasury 
Department when the financial system is on the verge of 
collapse. It really is a tragedy in some of the stories. One 
nominee, a former colleague of mine at Brookings, nominated for 
a crucially important position, waited 13 months in the 
Senate--13 months over, we think, a minor tax matter that was 
the same as her husband's. They filed a joint return. He was 
confirmed in less than two months a year earlier, but somehow 
her nomination was held up. These stories are legendary and are 
a real problem.
    Listen, Senators have long viewed the confirmation process 
as an opportunity to express their policy views and to get the 
administration's attention on matters of importance today. But 
the culture of today's Senate provides no restraints on the 
exercise of this potential power, no protection of the 
Country's interest in having a newly elected President move 
quickly and effectively to form a government. You just cannot 
allow old rules to be so twisted by new norms and a culture of 
permissiveness that really damage our capacity to govern.
    There are things to be done. Secret holds are a start, but 
let me just suggest that in many confirmations actually many 
holds are public, but they are extended and do as much damage 
as private holds.
    So what I urge you to do, in conclusion, is think about 
increasing the burden on those who wish simply to delay 
action--maybe 60 percent to get a cloture vote of those present 
and voting, maybe fast-tracking nominations as we have done in 
various other aspects before the Senate. Think ambitiously. 
This is a serious problem.
    [The prepared statement of Mr. Mann submitted for the 
record:]
    Chairman Schumer. Thank you, Professor Mann, and I thank 
everyone for their really excellent testimony.
    I have to make a quick phone call, so I am going to call on 
Senator Udall to ask the first round of questions. Then we will 
go to Senator Bennett. Then we will finish up.
    Senator Udall. [Presiding.] Thank you, Senator Schumer, and 
I thank all of three of you for your very, very thoughtful 
testimony here today.
    Professor Mackenzie, you discuss in your testimony the 
negative consequences of the filibuster on the confirmation 
process. One possible reform you mention is the resolution 
considered by this Committee in the 108th Congress, Senate Res. 
138, and that resolution would have altered Rule XXII by 
placing a steadily decreasing threshold for cloture on 
nominations until after successive votes. Cloture could be 
achieved by a majority.
    The lead sponsor of that resolution was Majority Leader 
Frist, and its co-sponsors included three current Republican 
members of this Committee.
    Do you see any negative consequences with this proposal, 
and what if it was extended to cover all matters and not just 
the confirmation of nominees as Senator Harkin has proposed?
    Mr. Mackenzie. Thank you, Senator. I do not profess 
expertise on all matters before the Senate, so let me just 
address the question of confirmations.
    One can understand that there may be a time when a Senator 
or several Senators would like more time to contemplate a 
nomination. They would like to get more facts. They would like 
to carry through an investigation that has not been completed, 
or something of that sort. So there may well be a time when 
postponing action on a nomination, whether it is through a hold 
or a filibuster, is appropriate.
    But where is the end game in all of that? You see these 
processes through the eyes of those Americans who have 
committed no crime other than saying yes when the President 
asked them to serve their Country, and they have no idea when 
the end game is going to occur, if it is ever going to occur.
    I think a process like the one that would have a decreasing 
majority needed to sustain a filibuster or to bring it to 
cloture would make a good deal of sense, just to force those 
who wanted more time to use that time in some profitable way 
and get it done, and then let's have an up or down vote on the 
nominee.
    Senator Udall. Now Professor, and you heard a member of 
this Committee say earlier that if we make any of these changes 
like you have just talked about, that we are going to turn the 
Senate into the House and thus become exactly like the House. 
Do you have any comment on that?
    Mr. Mackenzie. It was the first time I had ever heard the 
words ``freight train'' in the same paragraph with ``the 
Senate.'' That is not a fear that most Americans kept awake at 
night about.
    I would ask those of you who have to make decisions on 
this: What does a filibuster really accomplish other than delay 
and, in some cases, defeat of a nomination?
    Does a filibuster change people's minds?
    Does it convert doubters into supporters for a nomination?
    Is there an actual debate that occurs on a filibuster that 
people listen to and are open-minded about?
    I think anybody who follows this body knows the answers to 
those questions are usually no, and that a filibuster is a 
procedural tactic designed to prevent, or at least delay, a 
nomination from being confirmed. That is problematic for new 
administrations, it is problematic for old administrations, and 
it is certainly problematic for the people whose nominations 
are under consideration.
    Senator Udall. Thank you.
    Tom Mann, would you also respond to this idea that if we 
change the rules, respecting Minority rights, that somehow we 
are turning the Senate into the House?
    Mr. Mann. I do not. The filibuster, the routine filibuster 
was never anticipated by the framers when they purposely set 
out to design two very different institutions. The length of 
term, the method of appointment, the size of constituency--they 
expected the Senate to be the saucer to cool the hot tea or 
coffee of the House, even without this. So I think there are 
other safeguards built into the system.
    Having said that, you can go a long way in adjusting the 
rules of the Senate without completing eliminating the 
possibility of a determined Minority to stop some action in the 
Senate. You can do many things short of a blanket ultimate 
Majority cloture vote, although I am not arguing against that 
or for it. I am saying there are many things you can do.
    You could say the nomination process to staff an 
administration should be so routine a part of a new presidency 
or a new governorship that that is going on to a separate 
track. It is already on the Executive Calendar. You could set 
up rules that have a time limit associated with that, and you 
would not have to go through the trouble of filing cloture 
motions.
    It seems to me there are various ways of making adjustments 
in the rules to confront the new reality that they are 
producing, in this new world of polarized politics and self-
indulgence of individual Senators, a very destructive pattern 
of behavior.
    Senator Udall. Thank you, Chairman Schumer. Thank you very 
much.
    Chairman Schumer. [Presiding.] Thank you.
    Senator Bennett.
    Senator Bennett. Thank you very much, and thank you for 
your testimony, all of you.
    I wish this were a college seminar where we could get more 
deeply into all of the issues that you raise because I have a 
number of reactions to some of the things that you are saying. 
The first one, coming out of my own experience, is that there 
is a judgment call that is made in this situation, and it is 
made by the Majority Leader.
    Let me give you an example out of my own experience. I do 
not use holds as a regular device. Very, very seldom, do I put 
a hold on any nomination, and I always do it publically. I do 
not play the secret hold game.
    This Administration performed something--we will not get 
into the details and take the time--that I thought was 
absolutely egregious and outrageous, and the only way I could 
demonstrate my concern about that was to put a hold on a 
nomination. It was David Hayes, the Deputy Secretary of the 
Interior, against whom I have absolutely nothing, no objection 
whatsoever, but the only way I could demonstrate my outrage at 
what the Administration and the Secretary of Interior had done 
was put a hold on Mr. Hayes's nomination.
    You say you do not see the point? I immediately got 
everybody's attention to the issue that I was talking about, 
and I had no other leverage with which to do that.
    I got a phone call from the Majority Leader: Bob, what is 
the problem?
    I described the problem.
    He said, that is legitimate. See if you can work it out.
    I had a phone call from Ken Salazar. We talked the thing 
through. As it turns out, we cannot work it out, at which point 
I get a phone call from the Majority Leader: Bob, I am going to 
have to file cloture on David Hayes's nomination.
    All right, fine. He files cloture.
    I go to my fellow Republicans, make a presentation to them 
as to what had been done by the Department. Republicans who 
have absolutely no understanding of a public lands State, who 
come from the East Coast original 13 colonies, do not have the 
slightest idea what I am talking about, said to me, well, if 
they could do this to your State, maybe they could do this to 
mine, and we are going to stand with you.
    And we defeated that cloture petition, whereupon I get some 
more phone calls, and some more negotiation goes on. 
Ultimately, while I did not get a reversal of the proposal, 
pardon me, a reversal of the action, I get a commitment that 
David Hayes will go to Utah, sit down with the constituents, 
experience firsthand--and he has told me rather ruefully it was 
not the happiest experience of his life--the outrage that was 
there in the State, and we got some kind of a progress going 
forward on it.
    I do not think that that is a violation of anything the 
founders had in mind, and I do think that is something that a 
member of the House could never, ever do. So I do suggest that 
we might be turning the Senate into the House if we get rid of 
this.
    Now, by contrast, do any of you know the individual whose 
nomination from President Obama, in a Democratically-controlled 
Senate, whose nomination has been on the calendar the longest?
    Mr. Mann. A member of the FEC.
    Senator Bennett. Right, John Sullivan, who has been 
nominated for the FEC.
    Do you know who is holding him? It is not a secret hold.
    All right. It is Senator Feingold and Senator McCain.
    All right. Take the example I just gave of my experience 
with David Hayes. The Majority Leader made a decision to file a 
cloture petition because he felt David Hayes's nomination was 
sufficiently important that he move forward, and he ultimately 
prevailed because I could not hold of the Republicans all of 
the time on that one. We got the attention we wanted, and then 
there were Republicans who said I cannot keep voting against 
cloture on this, Bob, and the thing moved forward.
    The Majority Leader has made a decision not to proceed for 
John Sullivan, and he has been on the list longer than any 
other nominee. This is not a decision the Minority has made. 
This is a decision the Majority Leader has made, and I am not 
questioning (A) his right to make it or the fact that he may 
have made the right decision.
    But let us understand that the way the institution works is 
not quite the way it may sound in a classroom. And there are 
ways to break a filibuster, there are ways to move a nominee 
forward, and there are ways to make political points.
    Back in the time when I was in the Minority the first time, 
we had a Majority member who was mad at the Department of 
Interior, who put a blanket hold on every nomination out of the 
Department until he got what he wanted in terms of a National 
Park designation. And it was very frustrating to every one of 
us on the Committee.
    I was on the Interior Committee. Now it is called the 
Natural Resources and Energy. I am old enough to call it the 
old Interior Committee.
    Every nominee before that Committee was held up by this 
Senator, and the hold was honored. That blanket hold on every 
nominee regardless of who they were--he did not even know their 
names--was honored by the then-Majority Leader, George 
Mitchell, and as a consequence nothing moved forward until the 
Senator got what he wanted.
    So I am opposed to secret holds, but I recognize in the 
volume of things--and I think your point about the volume of 
nominations is legitimate--the Majority Leader gets to make 
decisions here. I will shine the spotlight on this one, and I 
will quietly endorse the position of the Senator who says 
nobody from this department can go forward until that Senator 
gets what he wants, and it is the Majority Leader who plays a 
role here that a lot of us are not paying attention to.
    Not a question, but a reaction to our excellent panel of 
witnesses and the comments that they have made to us, and if 
they want to react, I will assume that I will take the time of 
the others who are not here and allow them to react on their 
time.
    Chairman Schumer. Well, that would be a change in the 
Committee rules if that is okay.
    Senator Bennett. All right. Never mind.
    Chairman Schumer. Go ahead. Do you guys want to react to 
that?
    Mr. Mann. Well, I just wanted to say, Senator, it is a 
classic collective action problem. You tell a legitimate story 
of trying to get a foothold, some attention, to be the squeaky 
wheel that gets the grease, that brings an administration's 
attention to a problem that you see.
    What if every Senator does that, multiple times, sometimes 
for less serious matters than you have raised? And we can come 
up with a lot of examples of those. Then it begins to do real 
damage to the capacity of the Senate to operate, and to an 
administration to get up and running.
    You have other resources. You powerfully sit on committees. 
You have effects over appropriations. You can hold press 
conferences. You can get attention other than taking 
nominations hostage. And it may just be that the cost of you 
and 99 of your colleagues doing this on a regular basis is too 
great, and you ought to use other resources.
    Chairman Schumer. Senator Warner.
    Senator Warner. Thank you, Mr. Chairman.
    A couple of comments, first of all, Senator Bennett, you 
started I think very good comments with something that 
increasingly seems to be absent. You said it has to be used 
with judgment. I have enormous respect for you, and I could 
live with the situation as long as we got rid of the secret 
holds, as long as there were 99 Bob Bennetts all exercising 
some level of judgment.
    I do want to try to let Mr. Rawls, who I know is chomping 
at the bit. I am going to give you good time to weigh in here.
    But I have to tell you, again as a new guy and never been a 
legislator, I am increasingly concerned. I hear it on my side. 
I hear it on your side. This is an institution where it seems 
like people start to hold grudges that have nothing to do with 
policy, and I have heard time and again from Minority members 
now, well, we are doing this because you guys did it.
    You know, I am trying to be this bipartisan guy, and they 
are: Well, we are doing this because you guys did it when we 
were in the Majority.
    Lord knows if it flips back and the Republicans are in the 
Majority, you are going to have an awful lot of Democrats who 
go through this litany of people. I just do not know how you 
run a modern, 21st Century government in that fashion.
    I am very biased as a non-legislative background, that I 
think, in short, the chief executive ought to have their team 
in place. If there is something wrong with somebody, it ought 
to be debated and the person ought to be voted up or down. And 
if they stink, the CEO ought to replace that person with 
somebody else.
    I am not sure it is an all or nothing proposition. There 
may be a proposition that says get rid of secret holds, and 
then you have some judgment, and if you go beyond X you only 
got so many cards you got to play. I do not know what the 
right, but there should be some way we could sort through this.
    I do want to make sure Mr. Rawls, who I would have gone to 
even earlier because as a William and Mary adjunct professor I 
want to honor that, if he actually lived in Virginia as opposed 
to Kensington, Maryland.
    Mr. Rawls, I guess the thing I want you to respond as the 
counterpuncher is the use of filibuster. I do not see it as 
anything, agreeing with our other witnesses, in most cases, 
other than delay when the person is then confirmed 99 to 
nothing, or 95 to nothing. If the person is confirmed even 80-
20, even 90-10, there is still somebody felt strongly enough to 
make the case, and they may have lost the case, but they made 
the case for some reason.
    There was no case made when people are confirmed 
unanimously after being held in limbo for extended periods of 
time, whether you are judges or as Professor Mackenzie said.
    I have had the challenge of trying to recruit people to 
government. It is a hard, hard challenge. Never before have we 
needed more quality people to be willing to serve. If you are 
left in limbo for months, and now going on years on end, I do 
not care whether it is a Republican or Democratic President, we 
are not going to get good folks.
    So I just ask you this; how do you jar that need to have a 
thorough examination with these unanimous or near unanimous 
votes on these items?
    Mr. Rawls. Strangely enough, there is consensus at the 
table on the need to severely pare the number of nominees that 
get advice and consent. Once you say advice and consent in the 
Constitution, and then you have any form of delay and extended 
debate, you are going to get various examples.
    I have to say that Senator Bennett's world that he 
described is more than my world during my 13 years of staff on 
the Hill, where there are lots of negotiations. Usually 
nominees have a mentor or godfather, either in the Executive 
Branch or here. When that nominee is in trouble, the first 
thing the mentor does is get to the Hill and start talking and 
work it through. I have personally been part of a fair number 
of examples where things have worked through. So I just say 
that is more my world.
    Senator Warner. I would ask you to do a real-time check 
with some of your colleagues right now. As a new guy, that is 
not my experience of what is happening.
    Mr. Rawls. So my reaction would be, first, get the number 
of nominees down. As an executive for the State of Virginia, if 
you were having trouble with the legislature and they had 100 
and you said to them: Why don't we really look at 10 and let's 
fight those fights, like Senator Bennett fought? Then get rid 
of the other 90. They do not need to come up.
    I am not an expert on the number of military that come up 
here, but you get dumped thousands.
    Mr. Mann. Sixty-five thousand.
    Mr. Rawls. Sixty-five thousand from the U.S. Military, that 
is some monster waste. Then occasionally a member of one side 
or the other holds them all for some purpose, and you have a 
flap.
    So I think that not to put the full burden on the Senate, 
but I think the Senate itself should take a look at the 
nomination process. At the Department of Justice, there are 
five or six folks you need to be concerned with. You do not 
need 20 or 30 and all that machinery that goes with it. So I 
suggest that for starters. Then if you have a problem after 
that, then you can keep grinding away.
    I would say there was one point made with respect to 
circuit court nominees. So that is the real issue on the 
judges' side.
    Districts move, they get slowed, but they go through, and 
usually they have a home State Senator that starts fighting and 
holding the other guys' stuff at some point.
    Supreme is so in the public that you play that. It is at a 
higher order.
    The circuits are where the risk is. I do not have an easy 
piece for it because in fact both sides have activated large-
scale groups that follow these nominees very closely and come 
on in when there is a nominee they do not like and urge one 
side or the other to limit those circuit court nominees. So 
that is the dilemma before the Committee. Because it is a 
lifetime appointment, I do not think you are going to get 
around that. And to the extent that the courts have become more 
activist over the years, it just seems to me it is part of a 
fact of American life.
    I would like to make one last----
    Senator Warner. Can I just add one. I mean my time is way 
over, and the Chairman is probably not going to invite me back.
    Mr. Rawls. Yes, I am probably over too.
    Senator Warner. We have just done a lot of district court 
nominees that have had to have been filibustered with 90 
unanimous nominees. So it is not just circuit court.
    Mr. Rawls. Right. The only thing I would say is that this 
is a function of the U.S. Senate has so much time each year in 
setting its priorities for nominees, legislation. The focus has 
been legislation. I do not think the Nation has been 
diminished. Anybody that can do TARP, stimulus, major health 
care reform and getting financial reform is actually not broken 
and is not diminishing the United States of America. If the 
fact is that a limited number of judicial nominees have been 
held along the way because there has not been floor time, that 
comes with it. That is the role of the Senate--is setting those 
priorities.
    And the only other point I would make is if you give up 
Minority resistance to this, the role of the Senate vastly 
changes within the entire legislative machine. The Majority of 
the Senate determines what gets conducted, strategically and 
operationally. If you take away Minority resistance, the role 
the Majority Leader and his senior leadership plays vastly 
changes in the whole game.
    That is just a tirade on the side there.
    Chairman Schumer. Thank you, Senator Warner and Mr. Rawls.
    Senator Murray.
    Senator Murray. Mr. Chairman, I just want to thank you for 
having this hearing, and Senator Bennett and all of the 
panelists who have participated. I have watched a little bit 
from my office, and I just wanted to say I think this really an 
important discussion. It affects not just our quality of life 
but a whole lot of people who have been hung up in this process 
and any administration's ability to get anything done.
    I have joined with the majority of my colleagues in 
pledging to not use the secret hold procedure. I think that is 
a good first step.
    Particularly though, I find it very troubling that a single 
Senator hiding behind an arcane rule of the Senate can obstruct 
the nominations of literally dozens of presidential 
appointments usually, we are finding, for reasons that have 
nothing to do with that person or their background or the issue 
at hand. Earlier this year, there was a Senator who put a 
blanket hold on 70 nominees, and it was widely reported that 
the reason was that he was focused on 4 of those 70 and really 
just 2 issues within their entire purview.
    So to me, this is out of control, and we have to look at 
how we can change this, so the Senate can function, so these 
individuals can be appointed. And really to me, part of the 
problem is this secret hold. You do not even know who to go 
talk to, to work out an issue at this point.
    So I think this hearing is very important, and I am really 
pleased that the Chairman and Ranking Member are having 
hearings and looking at how we can move this.
    I do not have a lot of questions. I just wanted to ask the 
panelists sort of both sides of this. What is a valid reason 
for a secret hold? And secondly, are there other examples of 
the extremist use of this procedure besides the one I just 
mentioned?
    Mr. Mackenzie. I do not think there is a valid reason for a 
secret hold.
    I can imagine a circumstance when there might be a valid 
reason for a hold. I have argued over the years that holds 
ought to be time-limited, say 14 days. Then if the person 
placing the hold wanted to extend the hold, if they could get 
the concurrence of the majority of the Senate to do that, they 
could extend that.
    Senator Murray. So with 50 percent?
    Mr. Mackenzie. But if--excuse me, Senator. Go ahead.
    Senator Murray. A majority, 51 Senators?
    Mr. Mackenzie. Yes, a simple majority.
    But in a situation like the one that Senator Bennett 
described earlier, of having a substantive policy reason for 
wanting to work something out with the Interior Department, if 
14 days is not long enough to do that and it is important 
enough to the Senate to hold up that nominee, that person going 
through this process, for a longer period, and a majority of 
the Senate would go along, that does not seem unreasonable to 
me.
    Secret holds, it is hard to make a brief for those.
    Senator Murray. Mr. Rawls.
    Mr. Rawls. Well, I have no defense on secret holds. I would 
have to say, and maybe just because I am a little bit of a 
dinosaur, but usually when somebody, as one of the staff when I 
was working in the Majority Leader's office used to say, if 
somebody takes a hostage, wait for the ransom note.
    So, as a general rule, at some point you can figure out who 
has the hold because at least--and I will just defer to Senator 
Bennett on this--on the Minority side the procedure is that the 
Majority Leader can find out who the hold is and, if it affects 
another Minority member, will inform them. So, within the 
Minority, they are not secret.
    If on a Committee, let's say the Judiciary Committee, if 
the Majority member were to go the Minority and the Minority 
member supported him, then it will not be secret. We will let 
that Minority member know.
    So I do not really know. I have to say at this stage I 
cannot say that I know exactly how the hold process is working 
in the Senate. But it used to be you would eventually 
penetrate, and you would know who it was, and then you would go 
over and negotiate.
    Senator Murray. But I do not get the point of secret. If I 
put a hold on somebody, I want the world to know what I am 
fighting for, and I also want my constituents to know what my 
logic is. I represent them. I do not come here uniquely, just 
somebody with a grudge. I represent people. So everybody has a 
right to know why I have placed a hold on somebody, and I need 
to make that public and make my arguments.
    So I do not understand the reason for secret.
    Mr. Rawls. I do not either. I was just saying as a matter 
of course, and maybe it is a lot worse today. Historically, you 
would find out who held, and then you would go talk to them. 
But if it is a real problem, then I do not have a brief on the 
secret side.
    Senator Murray. Mr. Mann.
    Mr. Mann. It has become a problem, much more so in recent 
times. It is complicated. The holds are informal processes, 
right? They are an indication of the possibility of objecting 
to a U.C. if it is raised on the floor. So Majority Leaders 
have to manage this information, and right now it is not in 
their interest in managing the floor to publicize and embarrass 
an individual Senator who wants it to be secret.
    So having the full body take some action, taking a moral 
stand if you will, even though it is difficult implementing it 
and you have be wary of building a hold into the rules, which 
does not now exist, and therefore legitimizing it to an extent 
it would not otherwise be legitimized. That is a very important 
matter, and so I urge caution.
    But sometimes moral suasion and shame can go a long way. If 
you build a strong norm, with support on both sides of the 
aisle, that this is not the way to do business, you may have 
some luck. But I think you are going to have to go beyond that 
if you are really going to discipline this process.
    Senator Murray. Okay. Thank you.
    Thank you very much, Mr. Chairman.
    Chairman Schumer. Thank you, Senator Murray, and thanks for 
coming.
    I guess I am questioning last here because I did not go 
first. You are all against secret holds. I want to thank all of 
you for testimony.
    Senator McCaskill, I think made the point that it is the 
enforcement that is difficult, if not impossible. You could 
make sure, if you wanted, that someone's name was attached, but 
you know you could end up with the tradition that the Majority 
or Minority Leader would just put their name on all the time. 
Then there is an argument, well, the opprobrium that would 
attach to a Minority or Majority Leader who just blocked 
everything might discourage it. I am not so sure that is true.
    Of course, I want to get rid of secret holds. I think they 
are wrong, and at least having someone's name attached is 
better than having nobody's name attached.
    I also think your comments make a lot of sense, Professor 
Mann. To actually do a rule, we would have to put a hold. We 
would make it official that holds exist, which is now more by 
tradition. I am not sure that is good idea.
    So what would you think of the idea--and I would ask, again 
I am going to ask all three witnesses about this general 
question--the idea of a standing order as opposed to a rule 
change which might do the same thing?
    So those are my questions to you all. Any thoughts on what 
would happen if it was just the Majority or Minority Leader who 
became de facto the only objector ever? Obviously, you can 
write in the law that if someone asked them to do it that 
person would have to put their name in. Very hard to enforce, 
and there is a way of not asking: Oh, gee, Majority Leader, I 
am not asking you to do this, but this would really hurt my 
State, kind of thing.
    Views about a rule versus a standing order, and general 
views about enforceability on secret holds. We are not arguing 
about holds now, but secret holds.
    So would you like to begin, Professor Mackenzie?
    Mr. Mackenzie. Sure. I do not have an informed opinion on 
the difference between a standing order and rules change, but I 
think you are exactly right that the Senate is never more 
ingenious than when it is trying to avoid constraints on the 
behavior of individual members. I would expect that.
    There used to be a Senator here who some people called 
Senator No. One can imagine there might be a Senator Hold, who 
if you wanted to have a hold but did not want to have it 
identified with you, you might go to this Senator and he or she 
would willingly stand up and take the heat for that.
    So one does not know. Enforceability is always going to be 
a problem, but I do not think that ought to be a deterrent to 
going ahead and trying to make good rules.
    Chairman Schumer. Mr. Rawls.
    Mr. Rawls. I would put myself down as agnostic on rule 
versus standing order. I had not thought about the Majority/
Minority Leaders becoming the official holders, and my gut is 
that is where you will end up. So that would be a substantial 
problem.
    I had in fact even envisioned there might be that each side 
would have an official Senator Hold, but I do think it will 
flow then down to the leadership. So I see that as a 
fundamental problem, not one that I think is easily solvable.
    So I think you are going to have a continuing problem with 
enforcement.
    Chairman Schumer. Mr. Mann.
    Mr. Mann. Mr. Chairman, I do believe there are enormous 
problems in enforcing any kind of a prohibition on secret 
holds.
    I think your best--there are two things you can do. One is 
to retreat back to Rule XXII and make changes in that that 
would achieve the objective, but that would probably lead you 
to move in a more aggressive reform action than you may be 
prepared to do.
    The other is really a matter of moral suasion, of building 
an expectation. I mean norms change all the time in the Senate, 
and getting behind an effort to say what is legitimate and sort 
of moral, and we live in an era in which transparency is 
increasingly important in all aspects of our lives and of 
governance more generally.
    So it may be that is the direction, which would lead me to 
say a standing order, or a sense of the Senate, rather than 
trying to--I recommend against giving a hold a formal standing 
in the rules. I think that would do real damage.
    Chairman Schumer. Thank you.
    One final question and then we will call it a day. Mr. 
Rawls mentioned limiting the number of nominees who actually 
came before the Senate. He proposed, actually I guess it would 
be object as you go, or something. People would have to demand 
a hearing or whatever, and otherwise they would go through. 
Could you each talk about that, just limiting who actually has 
to be confirmed?
    Mr. Rawls. And I was not for being that formal. I was just 
thinking that the committee themselves should ask themselves 
which of these nominees do we want to hear from, who do we 
actually want to meet.
    Chairman Schumer. But did you mean generically or 
specifically, in other words, the Assistant Secretary of 
Defense for Procurement? I do not even know if there is one.
    Mr. Rawls. I was going to say generically.
    Chairman Schumer. Generically.
    Mr. Rawls. I think the committees should look at their 
nominees and then make a concerted effort to reduce the number, 
so that there is a focus on the senior folks that provide 
oversight, and I would leave that really----
    Chairman Schumer. And then we would somehow 
institutionalize that, that only these six people in the 
Department of Interior would need confirmation.
    Mr. Rawls. Yes, yes, along those lines.
    Chairman Schumer. What does Professor Mackenzie and Mr. 
Mann think of that?
    Mr. Mackenzie. I have argued for almost 30 years that there 
are too many presidential appointees. I wish we could go back 
to 30 years ago when the number was a lot smaller than it is 
now. What we thought was a nightmare then looks like the golden 
of presidential appointments now.
    The system is overwhelmed. It is not just the system down 
here. In many ways, it is the system at the other end of the 
avenue. The ability of a President, new to government, to come 
into office, to find the hundreds of very good people with 
enormously different skills sets--a lot of these are very 
technical jobs--and to get them into the pipeline and down 
here, and then for all of you to deal with them, I think we 
simply have not been able to do it very successfully. At some 
point, we ought to say maybe there are just too many of these.
    Chairman Schumer. Mr. Mann, last word.
    Mr. Mann. I strongly urge you to look into this. The 
Constitution gives the Congress, under its advice and consent 
authority, to power to delegate to others, including the 
President, the lone appointment of other offices of the 
Executive Branch. So it is done by statute.
    You could explicitly reduce the number of presidential 
appointees that require Senate confirmation. That would still 
retain enough for the Senate to have, as Senator Bennett's 
examples, where they could go get the administration's 
attention. But it would clear up the process a great deal. It 
would be a huge advance.
    Chairman Schumer. Great. And on that harmonious note, 
concurrent note, first, the record will remain open for five 
business days for additional statements and questions from 
Rules Committee members. Since there is no further business 
before the Committee, we are adjourned.
    I want to thank all the witnesses here and our colleagues, 
as well as my colleagues who came today.
    [Whereupon, at 11:45 a.m., the Committee was adjourned.]



















                      APPENDIX MATERIAL SUBMITTED

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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


   EXAMINING THE FILIBUSTER: LEGISLATIVE PROPOSALS TO CHANGE SENATE 
                               PROCEDURES

                              ----------                              


                        WEDNESDAY, JULY 28, 2010

                      United States Senate,
             Committee on Rules and Administration,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:40 a.m., in 
Room SR-301, Russell Senate Office Building, Hon. Charles E. 
Schumer, Chairman of the Committee, presiding.
    Present: Senators Schumer, Durbin, Nelson, Udall, Goodwin, 
Bennett, Alexander, and Roberts.
    Staff Present: Jean Bordewich, Staff Director; Veronica 
Gillespie, Elections Counsel; Adam Ambrogi, Counsel; Sonia 
Gill, Counsel; Julia Richardson, Counsel; Lauryn Bruck, 
Professional Staff; Carole Blessington, Executive Assistant to 
the Staff Director; Lynden Armstrong, Chief Clerk; Matthew 
McGowan, Professional Staff; Mary Jones, Republican Staff 
Director; Paul Vinovich, Republican Chief Counsel; Michael 
Merrell, Republican Counsel; and Rachel Creviston, Republican 
Professional Staff.

             OPENING STATEMENT OF CHAIRMAN SCHUMER

    Chairman Schumer. The Rules Committee will come to order. I 
apologize to my colleagues for being late.
    I want to first thank my friend, Ranking Member Bob 
Bennett, and my other colleagues present for participating in 
this hearing. Bob, I apologize. We were at the Archives 
dedicating the Roosevelt papers, which have finally been 
brought back to Hyde Park. There was a grand ceremony with all 
the members of the Roosevelts family.
    Senator Bennett. Having wrestled with Washington traffic, I 
understand your excuse exactly.
    Chairman Schumer. I apologize for that.
    Senator Bennett. And I accept it.
    Chairman Schumer. But I am sorry for my delay.
    Before we begin, I do want to thank Bob and my other 
colleagues for participating in this hearing. This is the 
fourth in our series of hearings to examine the filibuster. 
There is one person whose contributions I think we would all 
like to recognize, and that is our friend, Senator Robert Byrd. 
Senator Byrd served on the Rules Committee longer than any 
Senator in history. He became a Committee member on February 
25, 1963. That was before Michael Bennet was born. Is that 
true?
    Senator Bennet. That is true.
    [Laughter.]
    Chairman Schumer. That is true. How about before Frank 
Lautenberg was born?
    Senator Lautenberg. Mr. Chairman, please, order.
    [Laughter.]
    Chairman Schumer. Thank you. In any case, he gave service 
to his State and country much longer than that, but today we 
honor his 47 years on this Committee. Senator Byrd's knowledge 
of the Senate rules and procedures was unsurpassed. He took a 
very active interest in this series of hearings on the 
filibuster. He made a moving personal appearance at our hearing 
in May and submitted written statements for our April and June 
hearings. No one who was here on May 19th, and I know a few of 
you were--Senator Udall, Senator Bennett, and Senator 
Alexander, I think we were all here--will ever forget Senator 
Byrd's words to us that day. He leaves to this Committee a 
legacy that will long be remembered in the history of our 
Nation.
    And now it is my pleasure to welcome to this Committee a 
new member taking Senator Byrd's place, and that is Senator 
Carte P. Goodwin, Senator from West Virginia. Carte was 
appointed to our Committee last week, and on behalf of my 
colleagues, I would like to say we all look forward to working 
with Senator Goodwin for his tenure on the Rules Committee. 
Thank you and welcome, Carte. We are glad you are here.
    Senator Goodwin. Thank you.
    Chairman Schumer. Over the course of these hearings, we 
have looked at the development of the filibuster since the 
beginning of our country and the growing challenges that it 
presents to the Senate. And today we are going to look at two 
of the very interesting solutions to the problem created by 
abuse of the filibuster. The first two proposals we are going 
to examine are Senate Resolution 465, introduced by Senator 
Lautenberg, and Senate Resolution 440, introduce by Senator 
Michael Bennet. I am very pleased to welcome both Senators to 
our panel.
    I read Senator Lautenberg's resolution. It is ingenious, 
and many people say, well, if you are going to filibuster, you 
ought to get up there and be required to talk about it. And 
everyone says, well, there is no way that can happen. You will 
hear about Senator Lautenberg's proposal from him as he speaks, 
and I think people will be very interested. He addresses the 
problem of unnecessary delay by expediting a cloture vote under 
certain circumstances and requiring those who are opposed to 
cloture to take responsibility for continuing debate on the 
floor.
    Senator Bennet's resolution is also extremely interesting, 
and he has worked long and hard on this issue for much of the 
time since he has been here. It contains half a dozen key 
provisions aimed at changing the way filibusters and cloture 
votes are handled and also addresses secret holds, the topic of 
our last hearing.
    Both proposals remind us the Senate is designed as a place 
for debate. We want full, fair, and robust debate. We know that 
with actual debate minds are changed, positions are moved, 
compromise is reached. However, often we see the filibuster 
being used merely to delay or obstruct Senate action. Some 
delays are not even intended to block the underlying bill, but 
to delay consideration of other legislation. Senator 
Lautenberg's bill addresses this problem.
    We also want Senators on both sides of the aisle to work 
together and for the views of a minority to be heard. And when 
you sit through our hearings, each side has expressed 
legitimate complaints. We say--Democrats say, ``It is delay, 
delay, delay, even over trivial things.'' Republicans say, ``We 
have no choice but to delay, unless we are allowed the 
opportunity to offer amendments because, in general, the 
majority sets the agenda, but then the minority can offer 
amendments. And, of course, though we hope not, every one of us 
knows we might be sitting on both sides of the majority and 
minority divide. So we are trying to be fair and down the 
middle of this issue.
    Senator Bennet addresses the abuse of the filibuster when 
it is used as a tool for pure partisanship, rather than a tool 
for discussion and thought.
    Our second panel is going to include several experts in 
Senate procedures--Professor Barbara Sinclair of UCLA and 
Professor Gregory Koger from the University of Miami. They are 
going to share their thoughts about the context for these 
reform proposals. We are also going to hear on the second panel 
from Elizabeth Rybicki, an analyst on Congress and the 
legislative process at CRS. Although the Committee's practice 
is not to have staff members from CRS testify at hearings, I 
have agreed to our Republican colleagues' request to have her 
appear in this circumstance to provide informational testimony 
related to these two proposals.
    I believe the first three hearings that we have had have 
shown the filibuster has been abused more and more in recent 
Congresses, and it is time for the Senate to consider what to 
do about it. Our first hearing focused on the history of the 
filibuster. The second looked at the impact of the filibuster 
on the Senate today and on the functioning of our Government. 
Our third hearing examined the problem of secret holds and 
delaying impact. A special note is given to a member of our 
Committee, Senator Udall, who has been long pushing that we 
have these series of hearings and explore these issues.
    With the groundwork we have laid in past hearings, we are 
going to turn today to consideration of specific proposals for 
reforms. I plan future hearings to consider resolutions 
proposed by Senator Tom Harkin and Senator Udall, a member of 
this Committee. I look forward to listening to my colleagues 
and experts who have come to share their knowledge and 
experience with us.
    I am now going to turn to Ranking Member Bennett for his 
opening statement. Then we will go to our two witnesses. After 
Senator Lautenberg and Senator Bennet have testified, we will 
have other members make opening statements. I know both 
Senators have busy schedules after they testify.
    Senator Bennett.

 OPENING STATEMENT OF THE HONORABLE ROBERT F. BENNETT, A U.S. 
                       SENATOR FROM UTAH

    Senator Bennett. Thank you very much, Mr. Chairman. I do 
not have an extended opening statement. I welcome our two 
colleagues both for their willingness to testify and for their 
thought they put into their proposals.
    The whole question of minority rights in the Senate is one 
of the most significant ones we can deal with, and the 
filibuster has changed over the years. I have discovered, as I 
have said in these hearings before, that the Senate has rules 
and the Senate has precedent, and basically the precedent 
trumps the rules. That is, the way we do things seems to be 
more important than, well, the rule says you can. And I have 
witnessed a sea change in precedent with respect to the 
filibuster in the relatively brief time I have been in the 
Senate. Comparing me to Robert C. Byrd, it is a brief time 
indeed. And we have seen the filibuster go from, when I first 
came, a tool that was used relatively rarely and on only the 
most significant issues to a standard understanding between 
both Leaders that anything significant requires 60 votes. And I 
have heard my colleagues lament this change and will not take 
the time of the Committee to go back in my view of history and 
where it came from and from whom it came. But it has been an 
interesting thing for me to see the precedent shift quite 
dramatically in the period of time that I have been here.
    So we are faced now with the reality that it takes 60 votes 
to get anything through the Senate. Is that a good thing or a 
bad thing? And do we want to move in a direction that leaves 
the minority more in the position of the minority in the House 
of Representatives? And I remember a Speaker once asked--I 
cannot remember which speaker it was--``What are the rights of 
the minority?'' And he said, ``The minority have the right to 
draw their paychecks and to make a quorum.'' And, fortunately, 
in the Senate that has not been the case. The minority has had 
the right to be heard. The minority has had the right to have 
an influence and an impact. And as we go forward in this 
effort, we need to be very careful, I believe, not to create a 
circumstance where the minority in the Senate is reduced to the 
status of the minority in the House.
    So I am looking forward to the specifics of the proposals 
made by our two colleagues and to the commentary of the other 
witnesses on those specifics and how these proposals would 
really work in practice.
    So I thank you for calling the hearing and look forward to 
what it is we have to learn.
    Chairman Schumer. Thank you, Senator Bennett.
    Now we will proceed to Senator Lautenberg. Your entire 
statement will be read in the record, and you may proceed.

  STATEMENT OF THE HONORABLE FRANK LAUTENBERG, A U.S. SENATOR 
                        FROM NEW JERSEY

    Senator Lautenberg. Thank you, Mr. Chairman and Ranking 
Member Senator Bennett. Senator Bennett, you, I know, are kind 
of in the twilight of your service in the Senate, but you were 
always someone who I saw got down to business and did not use a 
lot of time casually. And I have always respected that and your 
thoughtfulness as well. So your presence certainly will be 
missed.
    This is not a picture of me in a younger day, but it is 
Jimmy Stewart, and his performance here was really iconic.
    We have got to improve the pace with which the Senate moves 
its legislative agenda. There is no doubt about that. We have 
managed to alienate the public for all kinds of things, and one 
of the things they say frequently is, ``Nothing happens 
there.'' And I guess that is from watching a TV screen and a 
digital clock ticking away.
    To maintain his filibuster, Mr. Smith stood on his feet on 
the Senate floor and spoke continuously for 23 hours, and we 
know that there were actually Senate filibusters here that took 
longer than that, one Bob Byrd, another one Senator Strom 
Thurmond. But eventually Mr. Smith's passion, fortitude, and 
arguments won the day. The movie's portrayal of a filibuster 
has seeped into Americans' consciousness, but few realize that 
the movie version of the filibuster bears little resemblance to 
what is going on in the Senate today.
    The filibuster was intended to extend debate, but today the 
filibuster is not about debate at all. The filibuster, which 
used to be an extraordinary event, has become nothing more than 
routine dilatory tactic, and it is now a silent filibuster. You 
can expend next to no effort to slow down and stop the Senate 
from considering legislation. These days you do not even have 
to come to the floor or even be in Washington to launch a 
filibuster. And a silent filibuster is not just being used to 
thwart contentious bills. Legislation is often stalled, and 
non-controversial nominees are often blocked for no other 
reason than to delay the Senate calendar.
    And, by the way, I have served in the majority and the 
minority and know that what goes around comes around, and the 
fact that any rules we make now with the majority as it is 
structured could shift. We are hopeful that it does not, 
obviously, but the fact is that that is real life.
    Now, here is the effect of the silent filibuster. We are 
not getting the people's business done, and ordinary Americans 
are losing faith in our Federal Government and the legislative 
process. The Framers of the Constitution intended the Senate to 
be a deliberative body, not a chamber of silence.
    The filibuster itself was meant to keep the flow of the 
debate going, not to stop the Senate dead in its tracks. And my 
bill--common sense, I believe--the Mr. Smith Act, is a modest 
measure that will bring Mr. Smith back to Washington by 
bringing the Senate back to its roots. My bill preserves the 
rights of the minority and maintains a 60-vote threshold to end 
debate. It simply requires Senators who want to filibuster to 
actually filibuster.
    Once cloture is filed on a motion, nomination, or 
legislation, Senators who wish to keep the debate going are 
going to have to come to the floor and voice their position to 
their colleagues and to the country at large. And if at any 
point these Senators give up the floor, we can move to an 
immediate cloture vote.
    The Mr. Smith Act will bring deliberation and seriousness 
back to the world's greatest deliberative body, and it will end 
the practice of delay solely for delay's sake and to try to 
restore America's confidence in the legislative process.
    Mr. Chairman, there are few people that I have met in my 
lifetime that I have had more respect for than Senator Robert 
C. Byrd of recent memory. And as we all know, his knowledge of 
Senate rules and procedure were unmatched. While Senator Byrd 
never stated a position on my bill specifically, he was a 
fierce defender of the Framers' intention that the Senate be a 
model for debate, discussion, and deliberation.
    This past April, in a statement submitted to this very 
Committee, Mr. Chairman, he said Senators should--and I quote 
him here--``be obliged to actually filibuster, that is, to go 
to the floor and talk instead of finding less strenuous ways to 
accomplish the same end.
    And I believe the minority rights are a hallmark of the 
Senate, but I do not believe that we are doing the right thing 
for this body or for our country by allowing legislative tools 
to be misused. We must put the public good ahead of partisan 
politics, and we must insist that Senators take a stand, come 
out in the open, and let the public know what you really think, 
instead of just wiling away their time and patience as we lose 
their confidence.
    Thank you, Mr. Chairman and members of the Committee, for 
inviting me to testify today and, more importantly, thanks for 
holding this critical meeting.
    [The prepared statement of Senator Lautenberg was submitted 
for the record.]
    Chairman Schumer. Thank you, Senator Lautenberg, for your 
excellent testimony and even more excellent idea.
    Senator Bennet.

STATEMENT OF THE HONORABLE MICHAEL BENNET, A U.S. SENATOR FROM 
                            COLORADO

    Senator Bennet. Thank you, Mr. Chairman.
    Mr. Chairman, Ranking Member Bennett, my fellow witness 
Senator Lautenberg, and members of the Committee, I am pleased 
to have the opportunity to talk with you about solutions I 
propose to an important problem that impedes our Government's 
ability to respond to the needs of American families. I am 
talking about the Senate's rules. The Senate's rules are 
intended to encourage the body to function collegially, protect 
the rights of individual Senators, and foster debate. Yet a few 
of these rules are actually having the real-world outcome of 
inhibiting all of those legitimate purposes.
    The pervasiveness of the filibuster deployed every day for 
multiple purposes in this body has started to cause the Senate 
to descend into complete dysfunction. I am not here to advocate 
banning the filibuster. The Senate can and must protect 
individual or small groups of Senators, and filibusters, used 
properly, can extend debate on important matters while members 
advocate for their constituents and engage in the battle of 
ideas that is the hallmark or should be the hallmark of this 
body.
    Yesterday's failed procedural vote on Chairman Schumer's 
campaign finance legislation is the perfect example, in my 
view, of the abuse of Senate rules. The filibuster, deployed 
for years to extend debate in the Senate, sometimes for a whole 
day at a time, actually is now being used to undermine ever 
even having debate. By filibustering the ability of the Senate 
to begin debate on the DISCLOSE Act, yesterday's minority 
denied the American people a full airing of the recent Supreme 
Court decision in Citizens United v. FEC and how that decision 
might affect our democracy.
    I have introduced Senate Resolution 440 that in a very 
practical way would have ensured that we could have moved ahead 
to the debate stage on the DISCLOSE Act. By making motions to 
proceed undebatable, my resolution eliminates filibusters that, 
rather than extend debate, actually are abused to prevent 
debate. My resolution would help the body operate more 
efficiently. Making motions to proceed non-debatable is a 
practical step in the right direction that is worth 
incorporation in a larger Senate Rules Committee package of 
suggested rules amendments.
    Another type of filibuster that prevents rather than 
extends debate is the hold. Holds are the most antidemocratic 
form of the filibuster because just one Senator can, even in a 
secret manner, block Senate business for long stretches of 
time.
    Senate Resolution 440 makes significant improvements to the 
holds process, including eliminating the secret hold.
    My approach would require holds to be published in the 
Congressional Record, require them to be bipartisan at that 
time. They would be limited to 30 days.
    Neither party will be able to place secret holds. It is 
important that citizens have the ability to find out why things 
do not get done in Washington.
    Mr. Chairman, my fellow witness Senator Lautenberg has some 
very interesting ideas about how to ask more of the 
filibustering Senators who seek to block legislation. I would 
like to discuss the reform proposal in my resolution on this 
matter as well.
    The Senate's rules effectively require an affirmative 60 
Senators to vote to end debate on an item. Yet members in the 
minority do not even have to show up or vote to continue on 
with a filibuster.
    My resolution would actually require at least 41 Senators 
to show up and vote to block cloture, or else the legislation 
could move forward. If you want to block the majority from 
moving ahead, then you at least ought to be required to show up 
for the vote.
    An atmosphere of overly bipartisan gridlock has rendered 
this body too often at an impasse. I think the rules are 
contributing to this hyper-partisanship, only making a 
difficult environment for working across the aisle that much 
harder.
    Mr. Chairman, the American people want to see their elected 
representatives work together. There is a sense, often a 
correct sense that the parties are trying to score political 
points instead of attending to the people's business.
    We conduct votes with very, very partisan outcomes, and 
filibusters serve only to dig members in on one side or the 
other.
    My resolution is in part an effort to build in some 
incentives to help the Senate work through legislative impasses 
in a more constructive, bipartisan manner.
    These proposed rule changes address situations where the 
legislative process has already begun to break down. Following 
three failed attempts at ending a filibuster, new incentives 
are activated that should encourage the parties to negotiate.
    First, the 41-vote threshold that the filibustering 
minority must meet in order to maintain the filibuster under my 
proposal would increase to 45 Senators unless the minority is 
able to attract at least one Senator who caucuses with the 
majority to vote for the filibuster. This provides considerable 
incentives to the minority to keep an open dialogue and work 
with members of the other party. I believe building in this 
incentive can have a positive marginal effect on minority 
negotiations with members of the majority.
    A second piece of the resolution builds on this first one. 
Once the minority has convinced a member of the majority party 
to support a filibuster, then the threshold necessary to block 
cloture can still rise to 45 if the majority is able to attract 
three members of the minority to support cloture. So the 
Majority Leader, able to make substantive changes to the 
legislation at hand, now has incentives to negotiate with 
members of the minority in the hope that he can break the 
filibuster with their help.
    While rules changes cannot fix Washington culture, they can 
reduce the incentives for the inertia that too many times since 
I have gotten here has left the Senate in paralysis.
    Encouraging bipartisanship through the Senate rules is at 
best only a partial answer, but I believe that improving some 
of the rules under which this body functions can begin to 
replace some of the bad habits Washington has developed with 
better ones.
    The single most important thing we can do to improve the 
chance for success of a reform proposal is to get the partisan 
intent out of it. We need substantial bipartisan support to 
update the Senate's rules, so let us put together a package 
that would improve the rules whether you are in the majority or 
in the minority. And let us make it crystal clear that that is 
our intent.
    My resolution has been cosponsored by Senator Shaheen, and 
it is my sincere hope that some of them will be incorporated in 
a bipartisan reform package that can pass this body.
    Thank you again, Mr. Chairman, and to all the members of 
the Committee, for conducting this important hearing.
    [The prepared statement of Senator Bennet was submitted for 
the record.]
    Chairman Schumer. Again, these are very interesting ideas. 
I know you, Senator Bennet, have been pushing this for a long 
time, even before most people have focused on it. Speaking, I 
think, for all of us, we are going to pay careful attention to 
the ideas that you have put forward as well as the proposal of 
Senator Lautenberg. These are two excellent testimonies that 
will help guide us. We thank both of you for being here.
    Senator Bennet. Thank you, Mr. Chairman.
    Senator Lautenberg. Thank you, Mr. Chairman.
    Chairman Schumer. Okay. Do any other members wish to make 
opening statements? Feel free.
    [No response.]
    Chairman Schumer. Okay. Then let us move on to our second 
panel of witnesses.
    Senator Udall. Thank you, Mr. Chairman. I would just ask to 
put my opening statement in the record.
    Chairman Schumer. Thank you, and without objection, it will 
so be put, if that is grammatically correct.
    [The prepared statement of Senator Udall was submitted for 
the record.]
    Chairman Schumer. Okay. Well, welcome to our three 
panelists, and let me introduce all three of you, and then we 
will proceed.
    Our first witness is Professor Gregory Koger. Professor 
Koger is an associate professor of political science at the 
University of Miami. He specializes in the study of Congress, 
elections, political history, and political institutions. He 
recently authored the book, very timely for these hearings, 
Filibustering: A Political History of Obstruction in the House 
and the Senate. Professor Koger previously worked in Congress 
and received his Ph.D. in political science from the University 
of California at Los Angeles.
    Speaking of the University of California at Los Angeles, 
Professor Barbara Sinclair is the Marvin Hoffenberg Professor 
of American Politics Emerita at UCLA. She previously served as 
Chair of the Legislative Studies Section of the American 
Political Science Association. Professor Sinclair is the author 
of several books on the U.S. Senate, including Party Wars: 
Polarization and the Politics of National Policy Making and 
Transformation of the United States Senate.
    Our third witness is Ms. Elizabeth Rybicki. Ms. Rybicki is 
an analyst on the Congress and legislative process for the CRS. 
She was previously a research fellow at the Brookings 
Institution and a specialist in congressional history and 
political science at the National Archives and Records 
Administration, where I was just at, dedicating the Roosevelt 
papers, which, by the way, I would note to my colleague Senator 
Durbin, Anna Roosevelt was there and said to say hello and 
thank you for your help in that regard. She is your 
constituent.
    So each of you will have your entire statement read in the 
record. Please proceed as you wish. We will try to limit each 
testimony to about 5 minutes. Thank you. Professor Koger, you 
go first.

   STATEMENT OF GREGORY KOGER, ASSOCIATE PROFESSOR POLITICAL 
      SCIENCE, UNIVERSITY OF MIAMI, CORAL GABLES, FLORIDA

    Mr. Koger. Thank you, Senator Schumer, and thanks to the 
Rules Committee for the opportunity to discuss filibustering 
and the Lautenberg proposal.
    I want to briefly stress two points I make in my written 
testimony. First, filibustering, as you know it, is a very 
recent development. If this Committee wants to make reforms, it 
is important to understand how and why filibustering became the 
norm and not the exception in the U.S. Senate.
    Second, I want to discuss Senator Lautenberg's proposal, 
which I think would help to even the playing field by 
simplifying the cloture process.
    First, how did we get here? For the first 170 years of 
Senate history, a filibuster meant that Senators had to 
actually occupy the floor of the Senate to prevent a final vote 
on a bill or nomination. Senator Byrd stated this nicely in his 
testimony before this Committee this year when he said, ``For 
most of the Senate's history, Senators motivated to extend 
debate had to hold the floor as long as they were physically 
able. The Senate was either persuaded by the strength of their 
arguments or unconvinced by either their commitment or their 
stamina. True filibusters were, therefore, less frequent and 
more commonly discouraged due to every Senator's understanding 
that such undertakings required grueling, grueling personal 
sacrifice, exhausting preparation, and a willingness to be 
criticized for disrupting the Nation's business.
    This classic style of filibustering is portrayed fairly 
accurate in the movie ``Mr. Smith Goes to Washington.'' They 
actually consulted with the Senate Parliamentarian as they were 
doing the movie. However, by the 1960s, Senators no longer had 
the patience to wage these classic wars of attrition. The 
Senate had too much public business to attend to, and 
individual Senators were too busy traveling back to their 
States or around the country to take part in prolonged floor 
fights.
    Instead, they began using a then-dormant cloture rule that 
had been around since 1917 but had fallen into disuse. This 
shift from attrition to cloture had severe unintended 
consequences.
    First, filibustering became less visible, so Senators were 
less accountable for their obstruction.
    Second, filibustering became much easier. As Senator Byrd 
said, just the whisper of opposition brings the world's 
greatest deliberative body to a grinding halt. It is cheap and 
effective to prevent actions, so Senators do it more often.
    Third, the current cloture rule was designed for us on rare 
occasions in a slow-paced chamber. The delays built into the 
cloture process are too long and too costly given the breadth 
of obstruction in the modern Senate. This is the problem that 
the Lautenberg proposal addresses. Essentially it reduces the 
delay built into Rule XXII in cases where no Senator is 
interested in discussing the targeted measure.
    After cloture has been filed, it is in order for the 
Majority Leader to move that the vote on cloture begin 
immediately as long as, A, no Senator seeks recognition to 
speak and, B, Senators have had a full opportunity to file 
amendments. Furthermore, if cloture is invoked on a nomination 
or a motion to proceed--which, of course, cannot be amended--
the same principle applies. If no Senator seeks recognition to 
speak, the Majority Leader can initiate a final vote on the 
nomination or motion.
    In my view, this is exactly the sort of proposal the 
Committee should be considering. Like many members of the 
Committee, I appreciate the benefits of selective obstruction 
to ensure fair and open debate, to promote moderate and 
bipartisan solutions, and to force new issues onto the Senate's 
agenda. But the current system is far too biased towards 
inaction by the ease with which Senators can filibuster and the 
difficulty and delay in bringing debate to a close.
    The resolution, Senator Lautenberg's resolution, does not 
alter the three-fifths threshold for cloture but merely helps 
the Senate to decide if a bill or nomination has enough support 
to clear that threshold.
    This proposal would ensure that delay occurs only as long 
as there is some sort of debate on the Senate floor. If 
Senators are not speaking against the obstructive measure, then 
no one is deprived if debate time is cut short.
    Personally, I think this proposal would be most effective 
and fair when combined with enforcement of the Pastore rule, 
which requires that debate be germane to the pending measure 
for at least 3 hours a day. That way Senators who are opposed 
to a measure could only delay a cloture vote by providing an 
explanation for their obstruction.
    Thank you.
    [The prepared statement of Mr. Koger was submitted for the 
record.]
    Chairman Schumer. Thank you, Professor Koger.
    Professor Sinclair.

 STATEMENT OF BARBARA SINCLAIR, MARVIN HOFFENBERG PROFESSOR OF 
  AMERICAN POLITICS EMERITA, DEPARTMENT OF POLITICAL SCIENCE, 
       UNIVERSITY OF CALIFORNIA, LOS ANGELES, CALIFORNIA

    Ms. Sinclair. Thank you for inviting me to testify. My 
task, as I understand it, is to tell you what my research 
reveals about the impact of Senate extended debate rule and 
practices on Senate decision making and about how partisanship 
has conditioned that impact.
    Your task is especially difficult because it involves 
weighing cherished values against one another. Most everybody 
agrees that, to function well, a legislative process needs to 
strike a balance between deliberation and inclusiveness, on the 
one hand, and expeditiousness and decisiveness, on the other. 
Now, there is a lot less consensus about what the optimal 
balance is and about what rules would best implement that 
balance.
    Well, to summarize my research briefly, I find that the use 
of extended debate and of cloture to cope with it began to 
increase well before the parties became highly polarized. 
However, as partisan polarization increased, so did the 
likelihood of major legislation encountering some sort of 
extended debate-related problems in the Senate, and this is a 
big increase, from 8 percent in the 1960s, to 27 percent in the 
1970s and 1980s, then to 51 percent for the 103rd through the 
109th and 70 percent in the 110th. That is, the last full 
Congress, 70 percent of major legislation encountered some sort 
of filibuster-related problem.
    Second, the Senate, at least according to the measures that 
I have available, is more likely to produce legislation that 
incorporates minority preferences than the House. That can be 
seen as the upside of current Senate rules. However, heightened 
partisan polarization has significantly affected legislative 
productivity in the Senate. The Senate has a lot more 
difficulty passing legislation than the House does. In the pre-
1990s period, major measures were just about as likely to pass 
the Senate but then not pass the House as vice versa. In the 
more partisan period--and I mean the 103rd through the 110th--
this has really changed dramatically--from only 1 percent of 
major measures pass the Senate but not the House; 20 percent 
pass the House but not the Senate. The House Democrats' 
frustration is understandable in those terms. Finally, partisan 
polarization depresses legislative productivity in the Senate 
mostly through the increased use by the minority party of 
extended debate.
    Now, because it is still in session, I do not have data for 
the 111th, but it does look likely there some of these records 
will be broken. So my research suggests that if current 
minority party practices continue when the majority party's 
margin is smaller, whichever party is the minority and the 
majority, the Senate really is in danger of near gridlock, of 
being incapable of legislating without so much difficulty that 
nothing much of significance gets done. The chamber already 
fails to pass most of its appropriations bills as individual 
bills simply because it does not have the floor time. So 
perhaps it is time for the Senate to consider whether the 
balance between deliberation and decisiveness has tilted too 
much away from decisiveness. Certainly supermajority 
requirements have a much greater impact on the chamber's 
ability to legislate in a context of high partisan polarization 
than it did when the parties were polarized.
    So rules that encourage by bipartisanship or ways of 
encouraging bipartisanship are certainly worth looking at. I am 
a little unclear about the extent to which rules can do that 
because I think the roots of partisanship are deeper than that. 
I think both the Bennet and Lautenberg rule proposals are very 
useful to look at in the terms of putting more of the burden on 
those who want to stop legislation versus those who want to 
actually move it. Now the burden tends to be all on the side of 
those who want to go further.
    Thank you.
    [The prepared statement of Ms. Sinclair was submitted for 
the record.]
    Chairman Schumer. Thank you, Professor Sinclair.
    Ms. Rybicki.

  STATEMENT OF ELIZABETH RYBICKI, ANALYST ON THE CONGRESS AND 
LEGISLATIVE PROCESS, CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF 
                    CONGRESS, WASHINGTON, DC

    Ms. Rybicki. Mr. Chairman, Senator----
    Chairman Schumer. Could you move the microphone? Thank you.
    Ms. Rybicki [continuing]. Mr. Chairman, Senator Bennett, 
and members of the Committee, I am truly honored to have been 
invited to testify before you today on these two proposals to 
amend Senate rules.
    I would like to say at the outset that the procedure 
experts at the Congressional Research Service work as a team, 
and I want to thank them, first and foremost among them Rick 
Beth, for their assistance.
    Both of the resolutions under discussion today--Senate 
Resolution 440 and Senate Resolution 465--require some 
clarification and elaboration before the Committee could fully 
evaluate their impact. To assist the Committee in this 
evaluation, in my submitted testimony I ask a series of 
questions to indicate possible areas of ambiguity in the 
implementation and interpretation of these rules.
    For example, Senator Resolution 440, submitted by Senator 
Bennet of Colorado, proposes a way for a supermajority of the 
Senate to expedite the cloture process. It first creates a 
motion to reduce the 2-day ripening period by a two-thirds 
vote. Would this motion set the date and time for the cloture 
vote? Or would it specify the number of hours remaining? Would 
the motion be amendable? Could the ripening time be reduced to 
zero, allowing an immediate vote on cloture and preventing any 
amendments from being filed? Perhaps more centrally, is the 
motion itself debatable? I assume it is intended to be non-
debatable because otherwise you would need the cloture process 
to end debate on the motion, and that would kind of defeat the 
purpose.
    This same resolution also creates a motion to reduce the 
30-hour post-cloture time by a three-fifths vote. The 
resolution in this case explicitly states that the motion is 
not debatable. But is it amendable? And could this motion 
reduce the post-cloture debate time to zero and prevent 
Senators from offering amendments?
    Depending on the interpretation of the resolution, it might 
be the case that, taking the various provisions together, a 
supermajority of the Senate could prevent debate and amendments 
and bring the chamber to a vote on a measure with just four 
votes: First, the vote on the motion to proceed, which under 
Section 1 is not debatable, as we heard. The Senate would then 
be on the matter, cloture could be filed, a motion could be 
made to reduce the ripening period, and a two-thirds vote of 
the Senate could reduce that to zero. The Senate would then 
vote on cloture, and then a motion could be made to reduce the 
post-cloture consideration time to zero. And in this way, with 
four votes, the Senate could immediately vote on the question 
of final passage, something the Senate does in terms of passing 
measures quickly, but by unanimous consent under current 
procedures. And this on one interpretation might allow a 
supermajority to do that.
    The other resolution under discussion today, Senate 
Resolution 465, submitted by Senator Lautenberg, similarly 
seeks to create a method to expedite the cloture process. This 
resolution provides that the Majority Leader can ``move the 
question on cloture'' if no Senators are willing to engage in 
floor debate during the 2-day ripening period. Is the intent of 
the resolution to create a new motion that the Senate would 
then vote on whether or not to vote on cloture? Or is it the 
intent of the motion that the Majority Leader would effectively 
announce that it is time to vote and the Senate would vote 
immediately, as long as no Senator is seeking recognition?
    Under current Senate procedures, it is already the case 
that if no Senator is seeking recognition, the presiding 
officer will put the question--a natural practice, of course, 
as Senators know, an accommodation generally made to allow 
Senators who wish to speak to come to the floor at their 
convenience.
    How, then, will this resolution alter existing practice? Is 
it the intent of the resolution that by giving this new 
authority to the Majority Leader this will discourage these 
practices that have developed in the Senate? And if it does 
discourage the practice, will it expedite the cloture process?
    One effect of the process established in the resolution 
could be to increase the actual floor time spent on a matter 
before a cloture vote. Under current Senate practice, the 
Senate often conducts other business during the 2-day ripening 
period, and then the vote to invoke cloture brings that matter 
back before the Senate.
    The resolution as submitted would require that the matter 
remain pending before the Senate during that 2-day ripening 
period. Is it the intended operation of the rule that if the 
Majority Leader wanted to reduce the ripening time, the Senate 
could not conduct other business and the Senate Majority Leader 
would have to stay on the floor the day after cloture was filed 
from 1:00 p.m. until adjournment, hoping that Senators stop 
speaking so that he could make this proposal to move the 
question on cloture.
    In the interest of time, Mr. Chairman, I will stop there. 
My submitted testimony has additional questions about other 
provisions, including those concerning Section 3, which deals 
with holds, which is the subject of another hearing. I will be 
happy to discuss other provisions of the resolutions if you 
have questions.
    I would conclude by saying, as members of the Committee 
know better than I, that evaluating the effect of any rules 
change on Senate procedure and practice can be very 
challenging. The impact of rules in the Senate is sometimes not 
directly observable since much of the time Senators do not need 
to actually exercise their procedural rights because they are 
accommodated in negotiations over unanimous consent agreements 
as well as in norms of Senate practice.
    It is also difficult to assess the proposed consequences of 
rules because it is hard to anticipate all courses of 
proceeding and context in which the new rule may be applied.
    I hope posing these questions concerning implementation and 
interpretation of the submitted resolutions here today and in 
my written testimony can assist the Committee in its 
evaluation.
    [The prepared statement of Ms. Rybicki was submitted for 
the record.]
    Chairman Schumer. Well done. There are a lot of questions, 
as you have posed. Okay.
    My first question, and we will try to take 5 minutes and 
then we will go to a second round if members so wish, is to 
Professor Koger. Do you actually believe that Senator 
Lautenberg's proposal would change the number of actual 
filibusters? That is the fundamental question. And, second, 
would it alter the number of secret holds as well?
    Mr. Koger. I am not sure. I think the----
    Chairman Schumer. I think Senator Lautenberg would probably 
argue it would. I cannot speak for him, but I am sure he would 
say yes, at least on the first and probably on the second, too.
    Mr. Koger [continuing]. To reduce the number of 
filibusters, I think that is certainly the intent. In practice, 
yes. I mean, so any Senator who is--especially placing a hold 
that that Senator would not want to defend publicly or argue on 
behalf of, that sort of hold would probably--Senators would 
probably think twice about filing that sort of hold.
    Chairman Schumer. A secret hold.
    Mr. Koger. Right.
    Chairman Schumer. And what about on filibusters themselves?
    Mr. Koger. I do not know that it would reduce the number of 
filibusters. It would probably make it easier for the Senate to 
churn through sort of--filibusters against minor legislation, 
so the Senate has to spend less time, you know, on nominations 
to lower-level positions, Cabinet positions. So I think the 
primary goal is to make it easier for the majority to deal with 
the filibusters that it has now.
    Chairman Schumer. Do either of you have an opinion on that, 
Professor Sinclair or Ms. Rybicki? Go ahead, Ms. Rybicki. 
Assuming the answer to most of your questions, which were very 
good, is answered in the way of shortening the amount of time 
necessary, and not saying, well, we could go for another vote 
on deciding this, this, or the other thing.
    Ms. Rybicki. Mr. Chairman, I was just going to say the 
Congressional Research Service does not take an opinion, and I 
cannot answer the question.
    Chairman Schumer. I know.
    [Laughter.]
    Chairman Schumer. How about Ms. Rybicki? No. I do not want 
to put you on the spot. Go ahead.
    Ms. Rybicki. My mentor at the Congressional Research 
Service was once asked by the House Rules Committee Chairman 
what he thought, and he responded, ``I am not allowed to 
think.''
    [Laughter.]
    Chairman Schumer. Professor Sinclair, you are allowed to 
think?
    Ms. Sinclair. As Elizabeth Rybicki said, if we----
    Chairman Schumer. Just pull the microphone forward, please.
    Ms. Sinclair [continuing]. It really can be difficult to 
kind of trace the effects of a rule because it--I mean, all 
those little ramifications that seem so minor initially might 
come back and bite you. But it does seem as if the likelihood 
is that you would, in fact, get debate. You know, I posed it as 
kind of deliberation versus decisiveness, but it seems in many 
cases now you have the worst of all possible worlds.
    Chairman Schumer. We do not have much deliberation, and we 
do not have much decisiveness.
    Ms. Sinclair. Right, right. And often you are not even 
talking about what it is that is at base in contest. And while 
pretty clearly if the Majority Leader has to get 60 votes for 
everything, well, that is an enormous incentive then to use 
procedures like filling the amendment tree so as to prevent 
amendments. I mean, you have got to do the 60 anyway. Why 
should you then allow the others to amend things?
    Chairman Schumer. And that is the debate we have been 
having back and forth on each side here as we have gone through 
these hearings.
    Let me ask you a separate question. Senator Bennet makes a 
real effort to say, well, if you are going to use this process, 
there ought to be an incentive for some degree of 
bipartisanship. What did you think of his specific proposals 
and more broadly the idea of saying, well, if you get someone 
or a small number from the other party, there is an incentive 
for you?
    Ms. Sinclair. I am a little pessimistic of the ability of 
rules to promote bipartisanship. I do think that the roots of 
the current partisanship are, you know, much greater and deeper 
than simply a matter of something that could be solved by 
rules. You know, if it were easier to change Senate rules, one 
might say, well, why not try it? And shall we say at this point 
I am grateful that this is your decision and not mine.
    As I said, I think that both of these proposals have the 
intent and I think probably the effect of putting more of the 
burden in this process on those who want to stop things, and I 
think that is a good idea, and also to some extent make that 
more transparent.
    You know, to the extent that you get a robust debate, there 
is at least some chance that there will be some public 
engagement and that things will be decided on the basis of, if 
not rational arguments, at least arguments.
    Chairman Schumer. Thank you.
    Senator Bennett.
    Senator Bennett. Thank you very much. I have enjoyed your 
testimony.
    A quick comment Professor Sinclair. You made reference to 
the appropriations bills and how in recent years they have 
ended up in either an omnibus bill or a continuing resolution. 
I am a member of the Appropriations Committee, and I can 
remember the first time we got to an omnibus bill. It was not 
because the Senate did not pass the bills. It was because the 
House did not appoint conferees, and we never got bills that 
could go to the President. So the ability to delay--and, 
frankly, it was a Republican House and a Republican Senate, so 
I am criticizing my own colleagues here. The ability to 
obstruct is not unanimously and solely part of the United 
States Senate.
    The core here of what I think we have been talking about is 
the decision to move to a dual track. If we go back to ``Mr. 
Smith Goes to Washington'' and Senator Lautenberg that was the 
way filibusters always were. When I was a staffer here and my 
father was in the Senate and a filibuster would come, he would 
get out the cots. Everybody has to be on the floor. It was 
``Mr. Smith Goes to Washington'' time. And at some point--and I 
do not know who the Majority Leader was--we got into the 
position of a dual track so that, okay, we file a cloture 
motion; now we move--the Majority Leader has the right to move 
to other business, and so you can have what you have been 
decrying here: the circumstance where a filibuster has been set 
in motion, but the Senate continues to function. And if we did 
away with the dual track, which is what the Lautenberg proposal 
does, says as soon as a filibuster has started, nothing else is 
in order, then you do have the ``Mr. Smith Goes to 
Washington,'' but the Senate cannot function, cannot take up 
any other business.
    I would like you to comment about the wisdom of being in 
that situation. I remember as a very freshman Senator we 
mounted a filibuster against one of President Clinton's 
proposals, and Senator Dole said, Okay, we are in it, and put 
up the chart, and we all signed up for a time. And I was junior 
enough that my time was 2 o'clock in the morning.
    [Laughter.]
    Senator Bennett. And so I showed up just before 2 o'clock, 
took that whole hour. There was one Democrat on the floor to 
make sure I did not make some outrageous unanimous consent 
request so that he could object. He came out of the cave in the 
Democratic cloakroom to complain that I was reading a newspaper 
column and, therefore, it was not germane and should be struck 
down. And I pointed out that the newspaper column was on the 
subject we were debating, and the Chair ruled in my behalf.
    You know, so, yes, we have done that and we can do that and 
the minority can mount that, but the Senate cannot function 
when we are doing that.
    Comment on whether or not moving to that single track that 
used to be the norm is really going to improve getting 
legislation through the Senate.
    Ms. Sinclair. I think it was Mansfield, Majority Leader 
Mansfield that went to the dual track.
    Senator Bennett. It would not surprise me. He was a very 
reasonable man.
    Ms. Sinclair. And your point, I think is extremely well 
taken, and, you know, a lot--and this gets back to, say, all 
these attempts to deal with holds. Well, you know, holds are 
not in Senate rules. The Majority Leader does not ever have to, 
in fact----
    Senator Bennett. If we could move--we held a whole hearing 
on holds.
    Ms. Sinclair. Yes.
    Senator Bennett. I do not mean to be disrespectful.
    Ms. Sinclair. Oh, yes.
    Senator Bennett. But let us talk about this other question 
rather than holds.
    Ms. Sinclair. But the real problem, of course, is the 
Majority Leader is trying to get things through the Senate. 
There is limited time on the floor, and so you end up going to 
things like the dual track because it makes it a little more 
possible to get certain business done. But it then encourages 
these other uses of the rules to stymie other things, including 
this kind of hostage taking where you are stymieing one 
nomination or one bill because you really are upset about 
something else. So the question is: How can you somehow get 
this all where the incentives are not to use the rules to block 
unless it is really something very important that you are 
willing to go to the mattresses on?
    Senator Bennett. Mr. Chairman, could we Professor Koger--I 
know my time is up, but----
    Chairman Schumer. That is okay.
    Mr. Koger. Yes, please. Quickly, on the Lautenberg 
proposal, the way I understand it is it would create an option 
for the Majority Leader to require what you would call a single 
track debate, you will stay on the issue that is being 
filibustered. But as Ms. Rybicki has noted, often the Senate 
will switch to other issues after the cloture petition has been 
filed, and that would still be around as an option.
    If the majority party would prefer to stick on an issue and 
compel the obstructionist to actually debate the issue, then 
that would be an option that they could use. But it would not 
be mandatory in every single case.
    Senator Bennett. So the Lautenberg proposal preserves the 
right to move on the dual track.
    Mr. Koger. Yes.
    Senator Bennett. I see.
    Thank you, Mr. Chairman.
    Chairman Schumer. Senator Durbin.
    Senator Durbin. Thanks, Mr. Chairman.
    I guess when I moved from the House to the Senate I was 
looking forward to Senate debate. Think about it, the greatest 
deliberative chamber in the world and all the history that went 
with it. And the first time I had a chance to offer an 
amendment on the floor, and the staffer came up to me and said, 
``You have one hour,'' I said, ``Is that equally divided?'' And 
she said, ``No. You have one hour.''
    [Laughter.]
    Senator Durbin. I thought, ``What am I going to do with one 
hour?'' So I said the Republican Senator on the other side, can 
I ask unanimous consent that we split this up and that we 
debate this back and forth?'' And he said, ``I object.'' And I 
started to realize that this may not be the great debate 
chamber.
    So today I would argue that the Senate is not only not 
functional, it is not very interesting. To have debate break 
out on the floor of the Senate is--you know, somebody put out a 
press release. Two Senators are actually engaging one another 
in exchange of ideas. And so I think there is something that we 
have to get to, and it is not just whether this place functions 
and produces debt which leads to votes and perhaps legislation, 
but actually has a process that engages thinking and expression 
of thought. And I do not think this process does it.
    Now, the fear that all of us have, whether we are sitting 
on that side or this side, is, What if the tables are turned? 
What if they become the majority and we want to stop them? You 
know, if we change the rules, we are going to have to live with 
it. We may accommodate changes on the rules that make it 
easier.
    So it is that basic fear, concern, that I think guides us 
on this in terms of how far we want to go. But I would argue at 
this point we have to do something. There is something 
fundamentally wrong with this institution.
    I read a book which some friends sent to me. Francis Valeo, 
who is a former Secretary of the Senate, if I am not mistaken, 
wrote this biography of Mike Mansfield, and the most 
interesting thing I ran across was a story in 1962 when Wayne 
Morse decided to filibuster the Communications Satellite Act of 
1962. And the interesting thing was this was odd that a liberal 
was going to initiate a filibuster. To that point, the 
conservatives and Southern Democrats had been using filibusters 
to stop civil rights. In comes Morse who said, ``I am going to 
filibuster the Communications Satellite Act because I think it 
is a monopoly, and I am for public ownership,'' and so forth. 
And so they test it.
    Well, here is how it ended. I thought the ending was the 
best part of it. He lost. Cloture was invoked. And the 
interesting--it was 73-27. Another consequence, Valeo writes, 
of the Morse cloture vote was that the entire Senate had 
witnessed the successful operation of Rule XXII to end the 
filibuster. Previously, only Hayden of Arizona could claim that 
distinction. It was the first time in 35 years that the Senate 
had voted to shut off debate and only the fifth time in its 
history, 1962.
    Now look where we are. We face it every day, almost every 
day.
    Can I get to a practical question? One of the things that 
stops movement of debate and discussion on the floor is the 
quorum call, and right now the Majority Leader can come in and 
he can lift the quorum call. But ordinary Senators cannot. One 
Senator can object, and the quorum call just continues.
    I will ask Ms. Rybicki first. Did you find in any of these 
rule changes a way to address that question about how you 
actually get the floor?
    Ms. Rybicki. Senator Bennet's proposal, Senate Resolution 
440--no, I am sorry. It is Senate Resolution 465, Senator 
Lautenberg, does have in it against dilatory quorum calls. That 
term is not defined, so I just have more questions whether the 
intent is to have the presiding officer decide whether it is a 
dilatory quorum call and, if so, on what grounds. Would that 
decision be subject to appeal? Is that appeal debatable? But it 
is mentioned in Senate Resolution 465.
    Senator Durbin. Back in a previous life, I was a 
Parliamentarian of the Illinois State Senate for 14 years, and 
I wrote the rule book, and it was such a joy. It was like 
writing the Tax Code. I could always find a provision to take 
care of my needs.
    [Laughter.]
    Senator Durbin. And I loved your questions because they 
start thinking about where we go. We now are embarking on a new 
thing that is being used by the Republican side, and that is 
suspend the rules after cloture is invoked. We are getting a 
long list of motions to suspend the rules to bring up a lot of 
different topics.
    The point I am making is you raise a lot of practical, good 
questions about how these things will work, and if we are not 
careful, there will be some other opening in our rule book 
which will allow more efforts to delay, divert the efforts of 
the Senate to reach some sort of conclusion.
    But I have come to the point, even though I think we have 
had one of the most productive sessions in history, I have come 
to the point that if this is going to be an enjoyable 
experience for Americans as well as for Senators, I think we 
need fundamental change. I think Michael Bennet and Frank 
Lautenberg are on the right track, and I thank you for your 
testimony.
    Chairman Schumer. Senator Roberts.
    Senator Roberts. Thank you, Mr. Chairman. I was just 
wondering what a repeat performance would be like by Robert C. 
Byrd, our great colleague and Senator who made an appearance 
before this Committee. You were very eloquent in describing his 
contributions to the process. And if there was ever a person 
who defended the filibuster, it was Robert C. Byrd and what he 
would be saying. I am not trying to say I am going to emanate 
that example or try to duplicate what he would say.
    Mr. Koger, you state in your testimony filibustering has 
skyrocketed. You describe it as obstructionism. There are 
others of us that would say that it would be better to stop a 
bill, i.e., it is important to pass legislation, but it is also 
to prevent bad legislation from passing. And if this is the 
only tool you have in your toolbox, then it is not 
obstructionism. It is preventing something that we do not want 
to see happen.
    But based on the research you have conducted for your book, 
can you tell me about the practice of filling the amendment 
tree, which I think is a big contributor to why we have the 
filibuster?
    Mr. Koger. Thank you, Senator. Briefly, I use the term 
``obstruction'' just as a descriptive term.
    Senator Roberts. Yes, I know.
    [Laughter.]
    Mr. Koger. No, I mean, I use the term ``filibustering'' and 
``obstruction'' just to refer to the strategic use of delay to 
prevent an outcome on an issue. There is no pejorative sense.
    Anyway, filling the amendment tree. So one of the classic 
reasons for filibustering both in the modern Senate and going 
back into the 19th century House is because the minority of any 
sort is trying to prevent the majority from curtailing their 
opportunity to--I will not say ``debate,'' but to offer 
amendments. And, yes, I understand that filling the amendment 
tree----
    Senator Roberts. Well, how would you describe your 
relationship between filling the tree and filibustering? One 
contributes to the other, I think.
    Mr. Koger. Well, if you look at time trends, the explosion 
in filibustering started at the end of--you know, starting in 
the 1960s, increased in the 1970s, precedes the increased use 
of filling the amendment tree. So it may very well be true that 
one of the incentives to filibuster in the contemporary Senate 
is a reaction against filling the amendment tree. But certainly 
the explosion that we observe is not simply----
    Senator Roberts. Wait. Wait a minute. Wait a minute. May be 
contributing. We have in 18 months here--I serve on the HELP 
Committee, on the Finance Committee, and have been through 
hundreds of hours of testimony, had 13 amendments that I wanted 
to offer, all in relation to health care rationing. All were 
defeated on a party line vote or just said they were not 
germane. And the only vote that I ever got was during 
reconciliation when I introduced an amendment that was first 
introduced by Senator Schumer, who then turned around and voted 
against his own amendment. Shame on the Chairman. But, anyway, 
I thought he had a great idea. But at any rate, I had 1 minute. 
One minute. That was it. And today you can have a very major 
overhaul of legislation. You do not go back to Committee. You 
do not have hearings. We had the DISCLOSE Act. The Chairman did 
at least have some debate on the floor, but we did not really 
debate it here in Committee, and I find that true in almost 
every Committee I serve on.
    So, consequently, the bill goes to the floor, and then we 
really do not have debate on it on the floor. The Majority 
Leader and Charlie Rich, sitting behind closed doors, and all 
of a sudden the bill appears, and we have not seen it. And it 
could be 2,000 pages, 2,300 pages, 2,600 pages, whatever. 
Usually the manager of the bill indicates, well, we will find 
out when we pass it. And then we do not have any chance to make 
any amendments. And so, consequently, what else do we do other 
than, you know, file cloture? I mean, what do we do in this 
instance when regular order has really sort of broken down?
    Now, I understand that the people who are for this have an 
agenda, and they believe in that agenda. They obviously would 
not do it if they did not believe in it. Some may have a 
different point of view, like myself. And just as an example, 
we have a situation here where we have a small business reform 
bill coming up, and the Leader is considering amendments. One 
amendment I had was a sense of the Senate that we at least 
ought to vote in the Finance Committee on the confirmation of 
Dr. Donald Berwick, who is going to un health care. You would 
think that we would want to have a vote on the confirmation. 
Well, the answer to that is no, we are not. We may have a 
hearing on how he might run CMS. The distinguished Chairman is 
a member of that Committee. But I want my vote.
    Now, what recourse do I have? I guess I could go to the 
floor and I could put the place in a quorum call, and if I have 
a lot of fortitude and can sit there for a long period of 
time--or maybe pass it off to somebody else, but I am not sure 
that would happen--I could maybe tie it up. We just had that 
example with Senator Lincoln in regards to a bill where, in 
order to get out, we had to accommodate her down the road in 
regards to an agriculture disaster bill. But she had to shut 
down the Senate, put a crowbar in the whole place. And that is 
on the other side. I still want my vote on Dr. Berwick, and 
what would you advise I could do here? Because we are filling 
the tree, and one leads to the other.
    Mr. Koger. Actually, this may be a case for Dr. Sinclair, 
because it gets to----
    Senator Roberts. Well, please tell me what you think. I 
understand the distinguished----
    Chairman Schumer. Time has expired, so decide who should 
answer the question, and we will move on.
    Mr. Koger. Briefly, I mean, these are the problems of the 
combination of a highly polarized congressional environment and 
rules that allow minority obstruction and, you know, the 
majority then trying to short-circuit the exercise of minority 
rights by the minority. And so these are the sort of things we 
observe.
    Senator Durbin mentioned that, you know, he wonders what 
sort of rules changes he would want if he were in the minority, 
and I think this is--since there has been some switching back 
and forth of chairs and gavels, I think this might be an 
opportunity for people to see the world from both sides.
    Senator Roberts. Ms. Rybicki.
    Chairman Schumer. Okay. Senator Udall.
    Senator Roberts. Mr. Chairman, could I just make one 
observation? Ms. Rybicki, I think it is, if you are not allowed 
to state what you think, you might want to think about 
employment in the intelligence community.
    [Laughter.]
    Senator Roberts. Just a thought.
    Chairman Schumer. Coming from the former Chairman of the 
Intelligence Committee. Senator Udall.
    Senator Udall. Thank you very much, Chairman Schumer, and 
thank you for holding this hearing. I very much appreciate the 
witnesses today.
    When I first arrived here--I also spent a number of years 
in the House, as some of the other members that are on the 
Committee, and I was surprised--I had been observing the 
Senate, but I was surprised when I arrived here about you talk 
about decisiveness and deliberation, the lack of both. And I 
think that is really the key issue here, is how we bring 
accountability back to the institution. And what I want to ask 
you about in talking about accountability has to do with how 
hard it is to change the rules.
    I think, Ms. Sinclair, you at one point in your testimony 
said if it were easier to change the Senate rules. Well, you 
know, who made these rules? Why are they here and who voted on 
them? One of the remarkable things to me is that of the entire 
Senate body, when we deal with Rule XXII, the last time it was 
changed was in 1975. So two Senators were here, Senator Inouye 
and Senator Leahy, and that is it, of the sitting Senator. 
Ninety-eight of us had nothing to do with the rules.
    So if you had rules which could be established with every 
Congress every 2 years, as the House does and most legislative 
bodies around the world or parliaments do around the world, 
would you get more accountability? And what I am referring to 
there is what I call the constitutional option. In the 
Constitution of the United States, it says each House may 
determine the rules of its proceedings. Three Vice Presidents 
as presiding officers have ruled that at the beginning of a 
Congress, you can, by a majority vote, adopt the rules. And so 
if we proceed at the beginning of the 112th Congress--which I 
intend to do. I am going to offer a motion to adopt rules for 
the 112th Congress on the first day. Wouldn't you think if we 
had a tradition of adopting rules every 2 years, that would 
bring accountability to the system more than anything, because 
each side would know if you really abuse the rules, you are 
going to have the possibility they are going to be changed in 2 
years.
    Please, any of the witnesses who would like to answer.
    Ms. Sinclair. Well, yes, I think that that is by far the 
most likely way of being able to change the rules without 
doing, you know, serious damage to the institution, to 
essentially reverse that precedent, whether it is the rule of 
the Senate or the continuing body. And it would certainly 
provide a certain amount of flexibility, and in the end, yes, I 
think one of the real problems is that with supermajorities 
required for just about everything, it does make it hard for 
the public to hold anybody accountable for what does or does 
not get done.
    You cannot expect people, you know, who have to work and 
take care of their kids and all that sort of stuff to become 
experts in Senate procedure. And so there is that kind of ``a 
pox on all of you'' sort of sentiment when it seems that the 
Senate cannot function.
    Senator Udall. Mr. Koger.
    Mr. Koger. Well, Senator Udall, the part I liked about the 
standing body strategy in the mid-20th century was that it was 
an effort to force a critical vote on a parliamentary ruling 
about whether or not--that if the reformers won, it would 
promote their effort to change the rules of the Senate.
    I think one of the problems they ran into is that when they 
put themselves in a box of saying we can only do this at the 
beginning of a Congress, that then limited them. What if 
actually their real incentive to change the rules happened in 
the middle of the Congress and that is when they got really 
angry? Well, then, they would have to wait. And often there are 
things to be done at the beginning of a Congress that then 
butted up against their effort to have a long, prolonged debate 
about the rules.
    As Dr. Gregory Walrow mentioned earlier, I mean, I hold the 
view that if you have a committed and creative majority of 
Senators willing to go to the floor of the Senate and vote for, 
you know, the right to parliamentary rulings, you can do that 
any day, and I would not necessarily constrain yourself to the 
first few days of a Congress.
    Chairman Schumer. Well, thank you. Senator Udall has been 
sort of pushing this idea for a long time.
    Senator Bennett and I talked about this. It is very 
relevant to the question that Tom asked and you answered, 
Professor Koger. Is this different than the moments with Bill 
Frist and the nuclear option? And the one big difference, if it 
makes a difference, is this--the nuclear option was attempted 
in the middle of a session. And at least it is my reading--and 
now I have read a lot on this, and I will be reading more and 
we have had a hearing on this. But if there is a conflict 
between the two-thirds rule and the constitutional provision 
that the Senate shall make its own rules, it is the only time, 
in my judgment, and I guess I would disagree with you. I think 
Tom is in agreement with me. I am not sure of this. The only 
time where the constitutional provision might trump the Senate 
rule is in between sessions of Congress, because it is awfully 
hard to do otherwise. Because you have an ongoing rule in the 
middle of a session, but you just do not necessarily have an 
ongoing rule between sessions, although I know the way the rule 
was constructed it almost goes in perpetuity.
    But that is a debate we will be having. It is a fundamental 
question that we are going to have to address. And I have to 
say this, there is even division within our own caucus about 
this. So it is going to be something that is going to take a 
lot of work and a lot of thought. I just wanted to say, before 
I call on Carte, about Ms. Rybicki's many questions. It is 
true, we asked you a question and we get five back, and that is 
good.
    [Laughter.]
    Chairman Schumer. It shows how difficult this is and how 
much thought it all involves, not just thought but there may be 
unintended consequences as well if you do not think it through 
very carefully.
    Do you want to say something, Senator Bennett, before we 
call on Senator Goodwin?
    Senator Bennett. When you said there are divisions in your 
caucus, I simply wanted to add, ``As there are in ours.
    Chairman Schumer. Great. Senator Goodwin, is this your 
first time asking questions at a hearing?
    Senator Goodwin. I believe we are up to number three, Mr. 
Chairman.
    Chairman Schumer. Number three, good. Well, so you are an 
old hand already.
    Senator Goodwin. A seasoned vet.
    Senator Udall. And he was in the chair yesterday, so, you 
know, we are really breaking them in here.
    Senator Goodwin. That is right. Thank you, Mr. Chairman, 
and I would also like to thank our panelists, including our 
Senate colleagues, Senators Lautenberg and Bennet, for giving 
their time today and sharing their testimony.
    I would also be remiss if I did not also acknowledge 
Senator Byrd's long service to this Committee and to the State 
of West Virginia. Senator Byrd was a stalwart of Senate 
procedure in history. He quite literally wrote the book on it, 
or at least a book on it. And as a dean of the Senate, Senator 
Byrd understood the rules and procedures of this body as well 
as anyone, and his love of this body was rooted in the deep 
appreciation of those rules and procedures, including the 
filibuster.
    I know that this Committee has been holding a series of 
hearings to examine this issue, and I certainly look forward to 
getting up to speed and getting a better understanding of the 
issue in the days ahead.
    I have one very brief question for Professor Koger. In your 
testimony, you refer to a shift from attrition to cloture. Talk 
a little bit about what prompted that shift and to what extent 
the shift became formally embodied in the rules of the Senate.
    Mr. Koger. Certainly, thank you. Well, if you remember 
back--I do not have it here, but the picture of Mr. Smith 
filibustering, your focus is drawn to Smith, but in the 
background there is a majority of the Senate waiting for him to 
collapse. And that is the trick, right? Because you had to have 
a quorum of the Senate present----
    Chairman Schumer. Those are called ``extras.''
    [Laughter.]
    Mr. Koger. But in real life, they are duly elected extras, 
you know, and you have to wait around day and night for whoever 
is filibustering to be exhausted.
    We have actually been talking about it indirectly. The 
critical period, I think, was in the 1960s when Mike Mansfield 
took over as Majority Leader and said that is a really stupid 
way to run the Senate because, you know, we have gotten to the 
point where it just does not. You cannot keep a majority around 
as long as, you know, 10, 15, 20 people are holding the floor. 
They will always win, because we are just too busy. We have 
other things to do. They have other places to be, and it is 
just not an effective way.
    Senator Durbin mentioned the COMSAT filibuster of 1962. 
Well, that was a pivotal moment because it was the first time 
cloture had been invoked in decades, and that moved--and part 
of that was that Senators who had always proclaimed that they 
were philosophically opposed to invoking cloture--``I would 
never do that,'' freedom of debate--well, lo and behold, when 
it is liberals doing the filibustering, their attitudes shifted 
a bit, and they voted for cloture. And that sort of changed the 
context in the Senate, and then the next big step would be the 
1964 Civil Rights Act when for the first time you had cloture 
invoked on the Civil Rights Act, which had always been sort of 
in the background of people's thinking about cloture.
    So those two events then moved the Senate and the 
realization that attrition was just numbingly ineffective moved 
the Senate away from, you know, waiting out filibusters and 
towards, ``Eh, we will see if we have enough votes.''
    But as I argue in my testimony, that then had unintended 
consequences because they did not think through how that would 
change Senators' calculations as they are deciding whether or 
not to filibuster. It makes it too easy, and the existing 
cloture rule made it too difficult to invoke cloture on 
particularly minor things, you know, minor nominations, bills 
to change the names of post offices. I mean, anything that can 
be used as a hostage that does not invoke the passion of a 
majority of the Senate becomes an easy victim in this game.
    Senator Goodwin. Thank you, Mr. Chairman.
    Chairman Schumer. Thank you, Senator, and thank you, Panel. 
Thank you to my colleagues on behalf of the Rules Committee. 
Anyone have a second round? Tom?
    Senator Udall. I would like to just ask one question, 
Chairman Schumer.
    Chairman Schumer. Go ahead.
    Senator Udall. You know, one of the arguments that is 
made--and all three of you might weigh in on this because I 
think you have experience in this area. One of the arguments 
that is made is that if we change the Senate rules, somehow the 
Senate will become identical to the House. And there is this 
great fear, you know, that the Senate will be identical to the 
House. And that is expressed in a number of different ways.
    And so I guess my question to you today is: If either 
Senator Lautenberg's or Senator Bennet's proposals, which you 
both seem very up on at this point, were adopted, do you 
believe it would make the House and the Senate identical 
institutions?
    Ms. Sinclair. No.
    Senator Udall. And could you explain why?
    Ms. Sinclair. Well, both work actually to encourage real 
debate, and neither makes it easy, the way it is in the House, 
to simply put very stringent time limits on debate or to make 
decisions by a simple majority right off the bat. I mean, that 
would--I had always thought that if you wanted to do something, 
some kind of variation of--I think it is the Harkin proposal, 
with----
    Senator Udall. The declining threshold you are talking 
about, from 60 to 57.
    Ms. Sinclair. Yes, but I think that the important thing 
also would be to guarantee the minority some real debate time 
so that, you know--I mean, there you would not want the Senate 
to be able or the Majority Leader to be able to simply say, 
well, we will move to something else, and then, you know, we 
have the vote and then we did move to something else, and we 
have the second vote, et cetera. I mean, the minority--because 
what you want is if this is so important an issue that we are 
going to insist that a supermajority is required from both the 
opponents' and the proponents' point of view, I think it is 
important that you actually have debate and that there is a 
real chance for the minority to make its point.
    Chairman Schumer. Any other comments?
    Senator Udall. Yes, any other thoughts?
    Ms. Rybicki. Senator, even the Congressional Research 
Service can say that these reforms will not make the Senate and 
House identical.
    Senator Udall. I thought you would be willing to comment--
--
    [Laughter.]
    Ms. Rybicki. The fundamental premise of House procedures 
that the same majority that could pass a bill can set the terms 
for its debate. Neither Senate Resolution 440 or 465 
establishes the way for a simple majority of Senators to end 
debate.
    Chairman Schumer. Well put.
    Senator Udall. Good. Mr. Koger.
    Mr. Koger. That is exactly what I was going to say. I would 
just add that--I mean, I think the intent of both of these 
proposals is to make the Senate more like the Senate and 
actually require debate about the topic that is being 
filibustered.
    Senator Udall. Okay. Thank you very much.
    Mr. Koger. Without changing the cloture threshold.
    Chairman Schumer. That was a good and appropriate ending. 
On behalf of the Rules Committee, I would like to extend 
special thanks to both Senators Lautenberg and Bennet. We 
appreciate that they took time to appear before us to explain 
their proposals.
    To our panel of academics and scholars, thank you for your 
presentations on these legislative proposals.
    The record will remain open for 5 business days for 
additional statements and questions from the Rules Committee 
members. Since there is no further business before the 
Committee, the Committee is adjourned subject to the call of 
the Chair. Thank you, one and all.
    [Whereupon, at 12:05 p.m., the Committee was adjourned.]
























                      APPENDIX MATERIAL SUBMITTED

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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

   EXAMINING THE FILIBUSTER: LEGISLATIVE PROPOSALS TO CHANGE SENATE 
                               PROCEDURES

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                     WEDNESDAY, SEPTEMBER 22, 2010

                      United States Senate,
              Committee on Rules and Administration
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:10 a.m., in 
Room 305, Russell Senate Office Building, Hon. Charles E. 
Schumer, chairman of the Committee, presiding.
    Present: Senators Schumer, Nelson, Pryor, Udall, Goodwin, 
Bennett, Alexander, and Roberts.
    Also Present: Senator Harkin.
    Staff Present: Jean Bordewich, Staff Director; Jason Abel, 
Chief Counsel; Veronica Gillespie, Elections Counsel; Adam 
Ambrogi, Administrative and Legislative Counsel; Sonia Gill, 
Counsel; Julia Richardson, Counsel; Lauryn Bruck, Professional 
Staff; Carole Blessington, Executive Assistant to the Staff 
Director; Lynden Armstrong, Chief Clerk; Jeff Johnson, Staff 
Assistant; Mary Jones, Republican Staff Director; Shaun Parkin, 
Republican Deputy Staff Director; Paul Vinovich, Republican 
Chief Counsel; Michael Merrell, Republican Counsel; and Rachel 
Creviston, Republican Professional Staff.

             OPENING STATEMENT OF CHAIRMAN SCHUMER

    Chairman Schumer. The hearing will come to order. Good 
morning everyone. As always, I want to thank my friend Ranking 
Member Bennett and all my other colleagues for participating in 
this legislative hearing. It is the fifth in our series of six 
hearings to examine the filibuster. I particularly want to 
thank our first panels, Senator Harkin and Senator Udall, who 
have been very active in this issue for agreeing to be 
witnesses here today.
    It is clear that the topic of right to debate and the use 
of the filibuster are of deep interest to members of this 
Committee. Only yesterday afternoon several of our Republican 
colleagues participated in what I felt was a very thoughtful 
and wide ranging discussion on these issues on the Senate floor 
after the vote on the motion to proceed on Defense 
Authorization Bill failed.
    We will be having a sixth hearing at 10 a.m. next Wednesday 
to examine specific ideas related to encouraging debate, as 
well as reducing unnecessary delays. One of the issues we will 
cover in that hearing is the one that you folks raised in your 
colloquy, and that is the issue of limiting debate through the 
procedure known as filling the amendment tree. When you are in 
the minority, you hate it that the tree is filled, and when you 
are in the majority, you like it that the tree is filled.
    I appreciate the participation of Senators Bennett, 
Alexander, and Roberts, who are members of this Committee, and 
others who have attended these hearings and provided their 
comments and input. They have raised important issues during 
our discussions, as have the Democratic members of this 
Committee, Senators Udall and Nelson. We welcome Carte Goodwin, 
who has been here for every hearing we have had since he has 
become a member and thank him for that.
    My view is that while this session has seen its share of 
milestone moments, it has seen the filibuster become the norm, 
not the exception. Even motions to proceed are routinely 
blocked, stopping debate before it can ever begin. I believe 
that to the public a filibuster is not supposed to mean endless 
debate. Today it essentially means no debate at all. Just 
yesterday we failed to even proceed to debate on the substance 
of the Defense Authorization Bill. We are supposed to be 
spending today debating that important measure, but it was 
rejected for consideration altogether. Once again, the Senate 
showed up for work, but failed to earn its paycheck.
    No matter what happens in the upcoming elections in 
November, I worry that more brinksmanship is in store next year 
unless we consider meaningful rules changes. We can disagree 
what the solution is, and after listening to my Republican 
colleagues speaking on the floor yesterday, I think we agree on 
both sides of the aisle that the current system is broken.
    The Senate is supposed to be the saucer that cools the 
drink, but to me it sometimes feels like an icebox where 
reasonable pieces of legislation get put in a permanent deep 
freeze. That is why we have been having these hearings.
    And I just want to say another note. One of my Democratic 
colleagues came to me yesterday. He had been around the Senate 
a long time and he said, you know, we may be in the minority 
next year. I do not think that will happen at the end, but we 
may be in the minority next year, and you may want to be 
careful about making any changes. And I said to him, whether 
you are in the minority or the majority, the place is broken 
and we ought to fix it without a mind to what particular 
ascendency each party has. That is my view, and so that is why 
we have been having these hearings.
    Over the course of the hearings, we have looked at a number 
of issues--the development of the filibuster since the earliest 
days of the Senate, the growing challenges that the use and 
some would say abuse of the filibuster presents to the Senate, 
the impact of the filibuster on nominations, and other matters. 
Our last hearing in July examined filibuster-related 
legislation introduced by Senators Frank Lautenberg of New 
Jersey and Michael Bennet of Colorado. Today we take a look at 
two other Senate Resolutions that have been introduced to 
address concerns about abuse.
    The two proposals we will examine today are Senate 
Resolution 416, introduced by Senator Harkin, and Senate 
Resolution 619, introduced by Senator Tom Udall. Senator Harkin 
has been a leader for more than a decade in trying to make the 
Senate function better and fulfill its purpose as a deliberate 
body. His resolution, as I am sure he will explain, was 
introduced more than a decade ago when he and the Democrats 
were in the minority.
    So it goes back to what I mentioned before. His legislation 
contains what is known as a ``ratchet'' where the threshold to 
achieve cloture is decreased after successive cloture votes. It 
certainly is time for us to listen to Senator Harkin's thoughts 
about how to make this institution better.
    Senator Udall joined the Senate only this Congress after 
much distinguished service in the House of Representatives, but 
in less than two years, he has become a strong and visible 
advocate for change. Frankly, it was him--it was he----
    Senator Bennett. He.
    Chairman Schumer [continuing]. It was Senator Udall----
    [Laughter.]
    Chairman Schumer [continuing] Who suggested that we have 
these hearings and start delving into this issue. So I thank 
him for that. He has been to every hearing we have had. He has 
actively questioned almost every witness. As a new member of 
the Rules Committee, he has urged this Committee to look 
seriously at the problems associated with the filibuster, and 
he is an advocate for the so-called Constitutional option, 
which is not a specific change, but sort of opens the door to 
allow specific changes.
    His current proposal, S. Res. 619, would express a sense of 
the Senate that ``the Senate of each new Congress is not bound 
by the rules of the previous Senates under Section 5 of Article 
1 of the Constitution.'' And on this issue, I might add, 
Senator Udall is following in the tradition of one of his 
distinguished predecessors, Senator Clinton Anderson of New 
Mexico, whose seat Senator Udall holds. Back in the sixties and 
seventies Senator Anderson argued in support of the same 
constitutional issue to the Senate.
    Our second panel is composed of outside experts in Senate 
procedures and it will include some familiar faces. Our first 
witness is Mimi Marziani, an attorney who works with the 
Brennan Center. Our second witness is Robert Dove, who is well 
known to all of us as the former Senate Parliamentarian. And 
our third witness is Professor Steven Smith of Washington 
University. They are going to share their thoughts about the 
context of the proposals introduced by Senators Harkin and 
Udall.
    I look forward to listening to my colleagues. I am going to 
ask Senator Bennett to make an opening statement, and then we 
will go right to our witnesses, if that is okay. But I will 
give other people on the panel time to make additional 
statements when we get to the question and answer period.
    Senator Bennett.

 OPENING STATEMENT OF THE HONORABLE ROBERT F. BENNETT, A U.S. 
                       SENATOR FROM UTAH

    Senator Bennett. Thank you very much, Mr. Chairman. Thank 
you for the hearing and for your thoughtful analysis of what 
the issue is before us.
    While I may not share some of the solutions that have been 
proposed, I do share a sense of significant unease over what 
has been happening in the Senate and I raised that yesterday in 
my statements on the floor. It is not an easy problem to solve, 
as the witnesses we have had in previous hearings and as I 
think some of the witnesses we will have here today will once 
again reinforce. You refer to history and let me give my own 
personal reflections.
    As many of you know, I was an intern here as a teenager. My 
father was a senator for 24 years. I served on his staff as his 
chief of staff. Back in those days it was not assumed that 
every senator was automatically dishonest and every member of 
his family automatically corrupting. Several senators found 
that having members of their family work for them ensured 
loyalty and security and I hope, in my case, some degree of 
competence.
    The Senate is obviously very different from the one that my 
father served in. It is also different than the one that I 
entered. I remember just relatively short time, 18 years ago, 
that the filibuster was very seldom used. When it was used it 
was very seriously examined by the people who entered into it 
because they recognized they were undertaking a significant 
step in the direction of trying to stop the legislation.
    I think in my first two years as a senator, we only had one 
or two filibusters and they were bipartisan. We had a 
filibuster over the question of western land use and while the 
Republicans made up the majority of the votes against it, it 
was some western Democratic senators who crossed the line to 
get us over the 41 and Secretary Babbitt, then the Secretary of 
Interior, came to see me to say what can we do to work this out 
in such a way as to get enough votes to pass this particular 
bill.
    It turned out, as I recall, the answer was nothing and the 
filibuster was successful and the bill did not get passed. But 
there was serious negotiation on the issue in an effort to say 
let us get ahead and move. Now a motion to invoke cloture is 
filed the same day the bill is filed or the same day the motion 
to proceed is filed. There is no period of discussion.
    Without imputing any evil motives to any leader, we see 
situations where a bill is constructed in such a way as to 
guarantee that a filibuster will be successful. The leader will 
say, okay, I don't want to vote on this, this or this because 
it will hurt too much in the campaign, so I will put them 
altogether into a single package. I will know the other side 
will filibuster that. I can check the box to say I tried to 
bring this, this and this up. The other side prevented me from 
doing that. Aren't they terrible? And I have saved my members 
from the responsibility of having cast a vote on any of these 
controversial items.
    I do not think that is what the original filibuster rule 
had in mind, but it has become the norm. And however much 
Senator Roberts and Senator Alexander and I complained about it 
on the floor yesterday with respect to the Defense 
Authorization Bill, since I am leaving the Senate, I can----
    Chairman Schumer. Regrettably.
    Senator Bennett. Yeah. I cannot worry about the 
consequences to my career in the next Congress and say that I 
have seen Republican leaders do the same kind of thing.
    So I think these hearings are useful, but I hope we 
recognize the tangled nature of the problem we are trying to 
solve and do not look for a quick strike of the sword through 
the Gordian Knot and say well that's going to solve everything 
immediately, because there are things that we need to be 
careful about in terms of the side effects and the way the 
Senate protects minority rights.
    All of us have served in the minority and many of you will 
serve in the minority again regardless of your party, and 
making sure that the minority is protected from the kind of 
absolutism that exists in the House of Representatives is a 
very important challenge that we have here on this Committee.
    Thank you, Mr. Chairman, for the opportunity to comment.
    Chairman Schumer. Thank you, Bob. And now we will turn to 
our witnesses. First, Senator Harkin, your entire statement 
will be read in the record, and you may proceed as you wish.

STATEMENT OF THE HONORABLE TOM HARKIN, A U.S. SENATOR FROM IOWA

    Senator Harkin. Mr. Chairman, thank you very much for your 
opening statement and also Senator Bennett's opening statement. 
But thank you moreover for having these hearings. I can't think 
of anything more important for the future of this country than 
to unravel the Gordian Knot, as Senator Bennett has alluded to, 
on getting legislation through the United States Senate.
    The Senate is dysfunctional and I think the general public 
understands that. I'm not saying who they blame, but I think 
everyone recognizes it is just dysfunctional. And so at the 
outset I just want to thank you for having these hearings and 
hopefully moving this along to some resolution, at least by the 
time of the next Congress.
    Mr. Chairman, if I can sort of say that if I can describe 
the Rules Committee as a court of equity, I come with clean 
hands in this court of equity. As you said, I first proposed 
this, my approach, when we were in the minority, 1995. I did so 
at that time, but it was not just something flippant. I had 
been thinking about it for some time before that in watching 
how things had transpired in the United States Senate.
    I predicted at that time that an arms race was underway. 
With each succeeding change in the majority in the Senate, and 
minority, the use of the filibuster would escalate. I said that 
in 1995. Unfortunately, it has come true. I have been here now, 
we have had--Senator Bennett, we have had six changes since I 
have been here in the Senate, since 1985, six changes. Each 
time the number of filibusters has gone up. As sure as I am 
sitting here, we may be in the majority now.
    Some time we will be in the minority, just like it has 
changed since 1985, and the arms race will continue. It will 
get worse. It is not going to get better. It is going to get 
worse because every time they do a filibuster on us, we are 
going to do two on them. We do two on them, they are going to 
do four on us when they get back. That is the way it has been 
and it has just been escalating.
    So I proposed this when I was in the minority and I had a 
lot of my fellow Democrats saying to me, what are you doing? 
This is nonsense. You cannot do that. Well, I pushed it to a 
vote. There is a little procedure when you come into session, 
when a new Congress starts and different rules are set down 
that you can propose. There is a procedure for doing that under 
the rules of the Senate. So I offered mine. I got 19 votes for 
it. So there were at least 19 people willing to change the 
rules at that time.
    Quite succinctly, Mr. Chairman, my proposal, as you said, 
would be relatively simple. On the first cloture vote it would 
take 60. If 60 votes were not obtained, two days but one, as 
they say in the book, two days but one or three days would pass 
and then you would have another vote. And then you would need 
57 votes. If you did not muster 57 votes, two days plus one, 
but one would pass, and you would have another vote and that 
would be 54 and then finally 51. So it would be about an eight-
procedure if it was drawn out.
    There are three things I think that this approach covers 
and I think commends it. Number one, it promotes majority 
rules. And again--and I am going to say a little bit more about 
that in just a second, but it promotes majority rule. Secondly, 
it provides for debate and deliberation. You can slow things 
down, but you cannot absolutely put it in the icebox. You can 
slow it down, get your views out, alert people as to what is 
going on, hopefully change some minds, but you can't stop it.
    And third, I think my proposal promotes true compromise and 
consultation. I read the testimony of former Senator Nichols, 
who was here, testified earlier, and he had said that the 
present system promotes compromise and consultation. I could 
not disagree more. Why should the minority, any minority, 
compromise? If they know they got the 41 votes and they can 
stop something, why compromise?
    I think this approach that I am advocating really does 
promote compromise for these reasons. Number one, the minority 
knows that at some point in time the majority is going to rule. 
So therefore, better come to the table, let's compromise, let's 
do some consultation, figure some things out, because in the 
end, the majority will absolutely be able to determine.
    Now why would the majority want to compromise if they know 
they--because the majority--one thing I have learned here in 
all these years, majority, the most precious thing they have is 
time and if you are going to chew up eight days on this motion 
and eight days on that motion, the majority is going to want to 
say wait a minute, we do not have the time for that, let's talk 
about it.
    So I think it would bring both sides together to 
compromise. Now, Mr. Chairman, you have gone to--been a lot of 
people have talked about the history of Rule 22 and the history 
of the filibuster. I am not going to go into that in any great 
detail, but I think there is one takeaway from all the history 
of Rule 22 and the takeaway is this, it is not written in 
stone. It has been changed many times and we can change it 
again. The world will not come to an end or anything like that. 
No damage will happen if we change Rule 22.
    Let me just close by reading a couple of things. I just 
gave a lecture at the Brennan Center, New York University Law 
School, recently and I just want to--couple things I said there 
that I would just like to emphasize. At issue is a principle at 
the very heart of representative Democracy, majority rule. 
Alexander Hamilton, describing the underlying principle 
animating the Constitution, wrote that ``the fundamental maxim 
of Republican government requires that the sense of the 
majority should prevail.''
    The Senate itself has been a check and is a check on pure 
majority rule. As James Madison said, ``the use of the Senate 
is to consist in its proceeding with more coolness, with more 
system and with more wisdom than the popular branch.''
    Now to achieve this purpose, citizens from small states 
have the same representation as large states. Furthermore, we 
are elected every six years. All those things, they give the 
Senate a different flavor and a different approach than the 
House of Representatives. The provisions in the Constitution, I 
believe, are ample to protect minority rights and restrain pure 
majority rule. What is not necessary and what was never 
intended is an extra Constitutional empowerment of the minority 
through a requirement that a super majority of senators be 
needed to enact legislation or even to consider a bill.
    Such a veto leads to domination by the minority. As former 
Republican leader Bill Frist noted, the filibuster ``is nothing 
less than a formula for tyranny by the minority.''
    In fact, as you know, Mr. Chairman, the Constitution was 
framed and ratified to correct the glaring defects in the 
Articles of Confederation. The Articles of Confederation 
required a two thirds vote to pass anything. Never get that 
done. The framers were determined to remedy that and they did 
that, and I think that's one of the reasons why the framers put 
in the Constitution five specific times when you needed a super 
majority. I think my implication, meaning that everything else 
just needed a majority.
    A super majority requirement for all legislation and 
nominees would, as Alexander Hamilton explained, mean that a 
small minority could ``destroy the energy of government.'' The 
government would be, in Hamilton's words, subject to, and I 
quote, ``the caprice or artifices of an insignificant and 
turbulent or corrupt junta.'' End of quote. Alexander Hamilton.
    Well, Mr. Chairman, I am not going to say that the minority 
is a turbulent or corrupt junta anymore than I would say the 
former minority of the Senate was a corrupt junta, but I think 
his point is well taken. And as James Madison said, that there 
has to be a way for the majority to eventually determine 
legislation, but a procedure whereby the minority rights are 
protected, where the minority can be heard, where they can cast 
their votes, offer amendments and where the majority just can't 
run roughshod over them, over the minority. I believe that my 
approach, I think, covers that adequately and that is why I am 
still after 15 years, and have been ever since promoting it, 
whether I am in the minority or in the majority.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Harkin included in the 
record]
    Chairman Schumer. Thank you, Senator Harkin, not just for 
your excellent statement, but for your leadership--your long-
term leadership on this issue. You do come before this 
Committee with clean hands.
    Senator Udall.

 STATEMENT OF THE HONORABLE TOM UDALL, A U.S. SENATOR FROM NEW 
                             MEXICO

    Senator Udall. Thank you very much, Senator Schumer and 
Ranking Member Bennett. Mr. Chairman, I want to thank you in 
particular for convening this fifth hearing and doing a total 
of six on this very important subject and I want to thank you 
also for your very kind words at the beginning.
    But you have shown real leadership in terms of tackling an 
issue and moving it forward. As members of this Committee over 
the past few months, we have heard from a distinguished group 
of men and women who have come before us to testify about the 
state of the Senate rules. I thank them for sharing their 
knowledge and expertise. They have helped us further define the 
challenges we face. As I take my turn in the chair today, I 
believe more strongly than ever that our Senate rules are 
broken. And from the testimony we have heard over the last few 
months, and Senator Harkin's today, and from all the feedback I 
have received on my own proposal, I know that I am not alone.
    I commend my Senate colleagues who brought their own 
solutions before this Committee. Like me they have seen for 
themselves the unprecedented obstruction we faced over the last 
few years. In July we heard about reform proposals from Senator 
Lautenberg and Senator Bennet of Colorado and today discuss 
Senator Harkin's proposal to amend the cloture rule.
    He gave a very fascinating history, I think, on his 
experience here in 20-plus years and his proposal, I believe, 
deserves very serious consideration and discussion. But I would 
like to be clear that my proposal differs from the others. 
Unlike those specific changes to the rules, which I think all 
deserve our consideration, my proposal is to make each Senate 
accountable for all of our rules. That is what the Constitution 
provides for and it is what our founders intended.
    These hearings have shown that the rules are broken. But 
they are not broken for one party or for only the majority. 
Today the Democrats lament the abuse of the filibuster and the 
Republicans complain that they are not allowed to offer 
amendments to legislation, and as you pointed out, Mr. 
Chairman, the debate on the floor with regard to filling the 
tree yesterday.
    Five years ago, those roles were reversed. Rather than 
continue on this destructive path, we should adopt rules that 
allow a majority to act while protecting the minority's right 
to be heard. Rule 22 is the most obvious example of the need 
for reform and the one my colleague's proposals focus on. It 
also demonstrates what happens when members of the current 
Senate have no ability to amend the rules adopted long ago. The 
rules get abused.
    I have said this before, but it bears repeating, of the 100 
members of the Senate, only two of us have had the opportunity 
to vote on the cloture requirement in Rule 22, Senators Inouye 
and Leahy.
    Chairman Schumer. Interesting.
    Senator Udall. So 98 of us, Tom Harkin, 98 of us have not 
voted on the rule. And what is the effect of that? Well, the 
effect is that we are not held accountable to them. We can 
start to abuse the rules and with a requirement of 67 votes for 
any rules change, that is a whole lot of power without 
restraint. But we can change this. We can restore 
accountability to the Senate. I believe the Constitution 
provides a solution to this problem.
    Many of my colleagues, as well as constitutional scholars, 
agree with me that a simple majority of the Senate can end 
debate and adopt its rules at the beginning of a new Congress. 
Critics of my position argue that the rules can only be changed 
in accordance with the current rules and that Rule 22 requires 
two-thirds of senators present and voting to agree to end 
debate on a change to Senate rules.
    But members of both parties have rejected this argument on 
many occasions since the rule was first adopted in 1917. In 
fact advisory rulings by Vice Presidents Nixon, Humphrey and 
Rockefeller, sitting as the president of the Senate, have 
stated that a Senate at the beginning of a Congress is not 
bound by the cloture requirement imposed by a previous Senate 
and may end debate on a proposal to adopt or amend the Senate 
standing rules by a majority vote.
    That is what our founders intended. Article 1, Section 5 of 
the Constitution clearly states each house may determine the 
rules of its proceedings. There is no requirement for a super 
majority to adopt our rules and the Constitution makes it very 
clear when a super majority is required to act, as Senator 
Harkin pointed out. Therefore, any rule that prevents a 
majority in future Senates from being able to change or amend 
rules adopted in the past is unconstitutional.
    The fact that we are bound by a super majority requirement 
that was established 93 years ago also violates the common law 
principle that one legislature cannot bind its successors. This 
principle dates back hundreds of years and has been upheld by 
the Supreme Court on numerous occasions. So first thing, at the 
beginning of the next Congress, I will move for the Senate to 
end debate and adopt its rules by a simple majority.
    At a previous hearing, one of my colleagues on the 
Republican side questioned whether I would be willing to still 
do this if my party is in the minority. The answer is yes. This 
is not a radical idea. It is the constitutional option. It is 
what the House does. It is what most legislatures do and it is 
what the U.S. Senate should do to make sure that we are 
accountable both to our colleagues and to the American people. 
And it is not, and I want to really emphasize the not here, it 
is not the nuclear option, which was a recent attempt to have 
the filibuster declared unconstitutional in the middle of a 
Congress.
    The constitutional option has a history dating back to 
1917. It has been the catalyst for bipartisan rules reform 
several times since then. The constitutional option is our 
chance to fix the rules that are being abused, rules that have 
encouraged obstruction like none ever seen before in this 
chamber, and amending our rules will not, as some have 
contended, make the Senate no different than the House. The 
Senate was a uniquely deliberative chamber before the cloture 
rule was adopted in 1917. Our framers took great steps to make 
the Senate a distinct body from the House, but allowing the 
filibuster was not one of them.
    So in January, on the first day of the new Congress, we 
should have a thorough and candid debate about our rules. We 
should discuss options for amending the rules, such as Senator 
Harkin's proposal, and after we identify solutions that will 
allow the body to function as the founders intended, a majority 
decides that we have debated enough, we should vote on our 
rules. And even if we adopt the same rules that we have right 
now, we are accountable to them. We cannot complain about the 
rules because we voted on them and if someone is considering 
abusing the rules, they will think twice about it because they 
will be held accountable. We need to come together on this for 
the good of the Senate and the good of the country. It is the 
job the American people sent us here to do.
    Thank you again and I ask unanimous consent to include 
several articles in the record that were discussed in my 
submitted testimony.
    [The prepared statement of Senator Udall included in the 
record]
    Chairman Schumer. Without objection.
    [The information of Senator Udall included in the record]
    Chairman Schumer. I want to thank both our witnesses. 
Really outstanding testimony and I mean that seriously.
    Now, two points of business here. First, Senator Udall is 
on the Committee and will resume his seat on the panel here. 
Senator Harkin has a long history, so I checked with Senator 
Bennett and Senator Harkin, if you would like to come to the 
panel and ask the next panel of witnesses some questions, 
without objection I would ask consent to do that.
    Thank you. And then it is so ordered.
    And second, both Senators Alexander and Roberts, who have 
been here every hearing we have had, have asked to make some 
opening brief statements and I think that would be a good and 
reasonable thing to do. So if they can decide who is going to 
be more polite and who will go first and who will go second, I 
would turn to them and I am going to ask Senator Nelson if he 
wishes to make a statement as well.
    Senator Nelson. Thank you, Mr. Chairman. I will defer to my 
colleague.
    Chairman Schumer. You guys decided who is going first?
    Senator Roberts. I think we are going to flip a coin. I am 
going to yield to seniority, not in terms of service here in 
the Senate, but certainly on the Committee, which I think is a 
rule that perhaps the senator from New Mexico would not try to 
do away with.
    Chairman Schumer. Great. Senator Alexander.

  OPENING STATEMENT OF THE HONORABLE LAMAR ALEXANDER, A U.S. 
                     SENATOR FROM TENNESSEE

    Senator Alexander. Thank you, Mr. Chairman.
    Chairman Schumer. We just try to limit each statement to 
five minutes.
    Senator Alexander. Thank you, Senator, from Kansas, and I 
thank Senator Udall and Senator Harkin for their----
    Chairman Schumer. I do not have to ask you to do that, 
Senator Alexander. I know that.
    Senator Alexander. No, you know I will stay within my time. 
I would like to make three points. In his last testimony before 
any committee, I think in May, Senator Byrd made an eloquent 
argument here and he said number one, we do not have to change 
the rules to get things done in the Senate. He suggested how to 
do that. That was the first thing, and I think we ought to pay 
attention to that.
    Second thing he said, the second thing I would like to say 
is that if there has been any abuse of the existing rules it 
has been by the Majority Leader, who has 39 times during the 
last two Congresses used procedural maneuvers to limit 
amendment and limit debate. That is called filling the tree and 
then filing a motion for cloture on the same day that the major 
was raised. He had done the lateral 141 times.
    And in the last two Congresses, he has filled the tree 39 
times. That is six times more than all the previous majority 
leaders. That is more than the last six majority leaders, 
excuse me. The effect of that is the real obstruction. It 
denies the minority the right to amend and the right to debate, 
which is what makes the Senate unique.
    Senator Byrd again is probably the most eloquent advocate 
of that, saying what makes this body unique is the unlimited 
right to amend and the unlimited right to debate. And the 
American people know that it is not just the voices of the 
senator from Kansas, the senator from Iowa that are suppressed 
when the majority leader cuts off the right to debate and the 
right to amend; it is the voices that we hear across this 
country who want to be heard on the Senate floor.
    So my hope is that--and I believe my colleagues on the 
Republican side, and I hope Democrats, will say that when the 
new Congress convenes we ought to look at what the Senate does, 
but we ought to restore it to its traditional role as the 
deliberative body where we have amendments and we have debate. 
That is the way it used to operate. When Senator Baker and 
Senator Byrd were the leaders, about everybody got their 
amendments, not in every case, but most people got their 
amendments and they had to be here at night and they had to be 
here on Fridays and Saturdays sometimes, but they got them.
    The voices of the country were heard. I would like to see 
that happen again. It is hard to say this is a dysfunctional 
Senate when it has passed a healthcare law, a financial 
regulation law and a trillion dollar stimulus. Some Democrats 
say it is the most productive Congress in history, maybe the 
most unpopular too because of what they got done. But it was 
not dysfunctional. It achieved a lot.
    And second, what it achieved was a good argument for why we 
should not make the changes that were suggested, because what 
the American people have seen in the last two years is the 
ability of a majority that has so many votes to run over the 
minority and not take their views into account. And that is 
what would happen when you have--if you had 51 votes. And of 
course Senator Harkin and Udall are very honest about this in 
saying they want to impose majority rule on the Senate.
    The whole idea of the Senate is not to have majority rule. 
It is to force consensus. It is to force there to be a group of 
senators on either side who have to respect one another's views 
so that they work together and produce 60 votes on important 
issues. In Senator Byrd's view, and in the views of many 
historians, that has been the way the Senate has been supposed 
to work during the whole time. And of course the shoe is not 
always on one foot. Many on the other side have been glad to 
have the right to filibuster when the issue was the 
privatization of Social Security or the repeal of the estate 
tax or the war in Vietnam or the war in Iraq, the war in 
Afghanistan. Senator Frist may have talked about the tyranny of 
the minority, but Alexis de Tocqueville talked about the 
tyranny of the majority and Rule 22 and the right of unlimited 
debate and amendment have historically in our country been the 
way to avoid that.
    So I think it is a fair point to say that the enthusiasm 
for allowing the Senate to become the House of Representatives 
where a majority can run over the minority by one vote may not 
be so attractive to those on the Democratic side when the 
freight train is running through the Senate is the Tea Party 
Express.
    Thank you, Mr. Chairman.
    Chairman Schumer. Thank you, and Senator Pryor, we are 
doing opening statements now. We have heard great testimony 
from Senators Harkin and Udall. If you would like to say 
something, feel free and then we will call on Senator Roberts.
    Senator Pryor. I do not, Mr. Chairman, but thank you and I 
am really here to listen more than anything. Thank you.
    Chairman Schumer. Senator Roberts.

OPENING STATEMENT OF THE HONORABLE PAT ROBERTS, A U.S. SENATOR 
                          FROM KANSAS

    Senator Roberts. I would like to follow the example of my 
friend from Arkansas, but obviously will not. This will be 
somewhat repetitive, but there is a personal twist that I would 
like to add in. And thank you, Mr. Chairman.
    This is the fifth hearing this Committee has held on the 
filibuster and I think, as you indicated, we are going to have 
a sixth hearing. Maybe during the lame duck we can have the 
seventh and eighth.
    But at any rate, I think it is somewhat counterproductive 
to hold multiple hearings on and on and on on filibusters, 
which is nothing more than the right to debate legislation 
without understanding the wider context in which they occur. I 
am talking about the practice which you have referred to, and 
my friend from Tennessee has referred to, of filling the 
amendment tree. It is time for this Committee, I think, to hold 
a hearing specifically on that practice. It is appropriate in 
light of the multiple hearings we have had on----
    Chairman Schumer. If the gentleman would yield. Next week 
we do intend to do that. There is right on both sides here.
    Senator Roberts. I appreciate that.
    Chairman Schumer. There is right on both sides.
    Senator Roberts. I appreciate that. Give me 15 seconds 
back. It is appropriate in light of the multiple hearings we 
have had on measures that would curtail the minority rights 
without addressing clear abuses by whoever happens to be in the 
majority.
    We have examined multiple approaches to curtailing 
filibusters, but now there is a proposal that threatens more 
than just minority rights. It threatens the very nature of the 
Senate and I am referring to the resolution introduced by my 
friend, my colleague, my neighbor and the distinguished senator 
from New Mexico, the resolution that would declare Senate rules 
unconstitutional. Yes, that is right, unconstitutional. On page 
2: the procedure ``To amend the Senate Rules is 
unconstitutional because its effect is to deny the majority of 
the Senate of each new Congress from proceeding to a vote to 
determine its own rules.''
    Senator Goodwin was here, but I wish he would have been 
here--I wish everybody could have been here--to hear Senator 
Byrd in his poignant and emotional testimony. To say that what 
we have been operating under and what Senator Byrd championed 
is unconstitutional, and how he would proceed to, if not 
lecture or give a sermon on the rules to every new member who 
came to the Senate--bipartisan--I can't imagine his reaction to 
that.
    But at any rate, there has been an incessant attempt on the 
part of some of the majority to paint the minority 
obstructionist and that this is a broken institution. It is 
not--what is broken is not the Senate rules, but the attitude 
and approach to legislating by members of the majority that is 
fundamentally at odds with the atmosphere of comity and 
compromise that our rules are intended to foster.
    It is not the minority that is the obstructionists. As my 
friend from Tennessee has pointed out, it is the majority and I 
am not saying it is the current majority that bears all the 
responsibilities. That has happened before when we have been in 
the majority, but the tactics like filling the tree, Rule 14 
and ping ponging back with the House have now been used on a 
scale never before seen in the history of this body.
    Now, I do not know what is going to happen in November, but 
for anyone that can read the tea leaves, or at least the gurus 
and the pundits, it would appear that there is a wave out 
there. I do not know how high it is. It could be Katrina and it 
could be a simple seventh wave that everybody reads about that 
appreciates what happens in the ocean. It appears the current 
majority, however, may be somewhat slimmer than it is in 2000--
I mean in 2011.
    So rather than accept the will of the voters who are 
rejecting the policies enacted by the 111th Congress, the 
senator from New Mexico and many of our colleagues on the other 
side simply want to abolish the Senate as we have understood it 
for over 200 years and remake it in the House's image. Let me 
be clear, rather than doing the hard work of building a 
bipartisan consensus, this resolution is an attempt to rewrite 
the rules to favor a narrower majority.
    I would like the rest of my statement be put in the record 
at this point.
    Chairman Schumer. Without objection.
    [The prepared statement of Senator Roberts included in the 
record]
    Senator Roberts. And I want to go back to a time in 1985 
when I served in the House and there was an election in Indiana 
and the Secretary of State declared the winner. His name was 
Rick McIntyre. But it was very close. And somehow it got 
referred to the House Administration Committee, of which I was 
a member, and somehow there was a partisan vote where a group 
went out to Indiana to recount the votes--this is the 
Administration Committee--despite the fact the Secretary of 
State had declared Mr. McIntyre the winner.
    It was over, and the incumbent was declared the winner on a 
partisan vote by the House. We walked out. The Republicans 
walked out and it became a situation where I said at that 
particular time and I had to go back and figure it out here 
because I think this is what would happen if the distinguished 
senator from New Mexico's resolution was adopted, ``this wound 
will not heal without a terrible price and a scar that will be 
with this House for many years,'' just substitute Senate, ``it 
would appear, Mr. Speaker,'' Mr. President, ``there are two 
kinds of members within your majority. We have those who listen 
and work with the minority and those who do not believe we are 
fully-fledged partners in this House. In baseball terms, they 
are the ones who call for their pitcher to stick it in the 
batter's ear. The unmitigated gall occurs when once you make us 
hit the dirt, you take offense when we come up swinging.''
    Now, that was pretty strong rhetoric and I said that this 
would lead to things that we could not really anticipate, and 
it did. Michael no longer was leader. Newt Gingrich became 
leader. This was the spark that started the so-called 
Revolution of '94. Some obviously would agree with some of 
that. I was part of it. I became a chairman. So I really was 
not objecting to that, but the way that it was done I think was 
a very bad road to follow.
    And let me just point out that during the healthcare 
debate, both on the HELP Committee with Senator Harkin and with 
the gentleman from New York and with the senator from Montana 
being Chairman Max Baucus, I had 11 amendments and every one of 
them were voted down without even any debate. Some were ruled 
non-germane, or whatever. So then I decided I would pick an 
amendment that was introduced by the distinguished chairman, 
Senator Schumer. So I offered his amendment under my name, and 
it was defeated on a party-line vote. Nobody even bothered to 
read it.
    And I thought to myself, you know, it is important to pass 
legislation here, but it is important to prevent bad 
legislation from passing and I thought I had an amendment to 
prohibit rationing and that is what it was all about. And then 
I tried it under reconciliation, and again I brought up Senator 
Schumer's amendment, which I thought was a pretty good 
amendment, and it just by rote, bingo, down. That is not 
bipartisanship.
    Chairman Schumer. I am glad I did not cut you off at five 
minutes.
    Senator Roberts. I appreciate that. That seems to be a 
continuing challenge for you, sir. I understand that. If we are 
going to do this in a bipartisan way, we ought to change 
attitudes around here and at least give us the opportunity to 
offer amendments and to be considered and to discuss them, and 
that is exactly what Senator Bennett said yesterday. Here we 
were using the military as a laboratory as civil rights for a 
particular situation regarding sex, gender, race, whatever--but 
this happens to be sexual orientation--in the middle of a war 
and we are trying to get the Joint Chiefs to come back with a 
study to say is this going to work?
    It is a tough issue on both sides. And then we tossed in 
immigration and then we could not even--you filled the tree--we 
could not even bring amendments that were related to military 
issues or national security. That is why this happened. And so 
filling the tree is a very important matter and if we do that 
during the next hearing it just indicates the tremendous 
bipartisanship of the chairman and what he is trying to do.
    I yield back. I'm done.
    Chairman Schumer. I thank my colleague from Kansas who 
always is an eager and very valuable participant here. The only 
thing I would say is there are abuses on both sides, and we 
tend to focus on some and you tend to focus on others. Many 
would argue that if we could try to solve both those abuses--
and it is not a clear cut way to do it--you do not want to 
allow unlimited amendments by one member forever to slow things 
down either. The Senate would be a better place no matter who 
is in the majority or who is in the minority.
    That is the only thought I would have. But I have not, I 
don't think, throughout these hearings said the abuses are just 
on your side. They are on both sides. Our job is to fix them.
    Let me call on our next second panel and ask them to come 
forward please and I will read the introductions while they 
come forward to save a little bit of time.
    Steven Smith. Dr. Steven Smith is a professor of social 
sciences at Washington University in St. Louis and director of 
the Weidenbaum Center on the Economy, Government and Public 
Policy there. He is author or co-author of several books on the 
U.S. Congress, including Politics or Principle?, which is about 
the filibuster. He is a former fellow at the Brookings 
Institution.
    Ms. Mimi Marziani is counsel with the Brennan Center at New 
York University School of Law, where she also serves as an 
adjunct professor. She has studied the filibuster from a 
constitutional law perspective, and has contributed columns 
about Senate procedures to several newspapers.
    We all know Dr. Robert B. Dove. He served as the Senate 
parliamentarian for 13 years and now holds the title of 
Parliamentarian Emeritus of the Senate. He is currently a 
professor at George Washington's University Graduate School of 
Political Management and is counsel at the firm of Patton 
Boggs.
    Your entire statements, folks, will be read into the 
record. Who are we going to begin with? We are going to begin 
with Dr. Marziani first, Ms. Marziani first, excuse me.

 STATEMENT OF MIMI MURRAY DIGBY MARZIANI, COUNSEL/KATZ FELLOW, 
    DEMOCRACY PROGRAM, BRENNAN CENTER FOR JUSTICE, NEW YORK 
                    UNIVERSITY SCHOOL OF LAW

    Ms. Marziani. I was not going to correct you there. Mr. 
Chairman and members of the subcommittee----
    Chairman Schumer. And excuse me, your entire statements 
will be read into the record and if we could keep the testimony 
to five minutes, because we will have extensive questions.
    Ms. Marziani [continuing]. Thank you very much for inviting 
me to testify. I have been asked to address whether a Senate 
majority has the right to override obstruction and affect a 
rules change at the start of a new Congress. The weight of 
constitutional history, scholarship and doctrine overwhelming 
answers yes and today I will offer three main points in support 
of my conclusion.
    First, there has long been robust support for the 
constitutional argument offered today by Senator Udall and me. 
For example, when Senator Henry Clay confronted the Senate's 
very first filibuster in 1841, he threatened to stop debate by 
``resorting to the Constitution and acting on the rights 
ensured in it to the majority.''
    Since then, numerous senators and at least three vice 
president have agreed. At the start of the 94th Congress in 
1975, a majority of the Senate voted to allow a simple majority 
to end debate on new rules, thereby setting a new precedent. 
While the Senate later purported to reserve this incident, the 
fact remains that the Senate had already exercised its 
constitutional authority.
    Second, this position is undoubtedly correct under 
constitutional law. The Constitution authorizes each chamber of 
Congress to determine the rules of its proceedings. In U.S. v. 
Ballin, the Supreme Court explained that this authority is 
continuous, meaning that each Senate has equal power to set its 
procedures. So a past Senate cannot enact rules that decrease 
the rulemaking power of future Senates. If legally binding, 
super-majority barriers to amending the Senate rules would also 
violate the age-old principle against legislative entrenchment.
    As the Supreme Court recognized long ago in cases like Ohio 
Life Insurance v. Debolt, this principle is vital to our 
democratic structure. Each legislature made up of 
representatives elected by the people must be equally able to 
serve the public good. If yesterday's senators are allowed to 
use the Senate rules to reach into the future, today's senators 
can no longer effectively serve their constituents' current 
desires, plus, by insulating the 60-vote cloture rule from 
amendment, the rules perpetuate similar accountability problems 
now posed by the filibuster itself. Blunting accountability is 
a serious constitutional problem because it cripples the most 
important check on government power, which is the voters.
    Third, the notion that the Senate is a continuing body 
cannot justify trapping the Senate under super majority 
barriers to rules change. To start, there is no reason to 
believe that the Framers intended for structural differences 
between the Senate and the House to reduce the scope of the 
Senate's rulemaking power. Plus, in many ways, the Senate does 
not actually act like a continuing body.
    For example, pending bills die at the end of each Congress 
and nominations cannot survive the end of a term. Instead, the 
president must resubmit nominations to the next Congress.
    More importantly, however, even assuming that the Senate is 
a continuing body in some meaningful way, this alone cannot 
justify entrenchment. To say that today's Senate shares an 
identity with yesterday's does not explain why the Senate has 
the power to bind itself in perpetuity. After all, the Senate 
is an agent of the people. It derives its power from those it 
represents.
    Each election, voters elect a senator to address the 
country's current and future problems. Why would the voters 
allow the Senate to handicap itself under old procedural rules? 
In fact, self-binding creates the exact same problems with 
democratic representation and legislative accountability. For 
all of these reasons, a simple majority must be able to 
override a filibuster and vote to revise the Senate rules at 
the start of a new Congress.
    Thank you very much and I am very happy to answer 
questions.
    [The prepared statement of Mimi Murray Digby Marziani 
included in the record]
    Chairman Schumer. Thank you, Ms. Marziani.
    Mr. Dove or Professor Dove, whichever you prefer.
    Mr. Dove. Bob.
    Chairman Schumer. We will now call on witness Bob.

  STATEMENT OF ROBERT B. DOVE, PARLIAMENTARIAN EMERITUS, U.S. 
            SENATE, PROFESSOR, WASHINGTON UNIVERSITY

    Mr. Dove. I normally teach a class at this time on 
Wednesday and I suggested to the members of that class that 
this would be far better than any class I could teach them and 
I am really glad that they could come.
    Chairman Schumer. Dr. Dove's class, thank you for being 
here.
    Mr. Dove. As my class will not be surprised to hear, I hold 
a contrary view to this first witness. I do believe that the 
Senate is a continuing body and I have always loved the 
statement, I believe, of Justice Oliver Wendell Holmes that the 
life of the law is not logic but experience.
    The experience of the Senate is that it has always 
considered itself a continuing body. It was mentioned that with 
regard to bills that die at the end of a Congress, that is 
evidence that the Senate does not consider itself a continuing 
body, that the nominations which by specific rule of the Senate 
not only die at the end of a session, they die when the Senate 
goes out for more than 30 days.
    But treaties were not mentioned and the reason I think they 
might not have been mentioned is that we have had some very 
significant treaties sent to the Senate. And I remember very 
well the genocide treaty, which was sent to the Senate by 
President Truman and ratified under Majority Leader Bob Dole 
years and years and years later. It did not have to be 
resubmitted by the president to the Senate.
    But when I am talking about experience, I was intrigued by 
Senator Roberts' account of the election in Indiana, because I 
use that election when I talk about the differences between the 
Senate and the House because there was an earlier election 
contest in the 1970s that I remember very well, the fight 
between Louis Wyman and John Durkin for the New Hampshire 
Senate seat.
    And that fight occurred when there were 61 members of the 
Democratic caucus and it occurred just after the cloture rule 
had been changed in January of 1975 and there was a general 
assumption that the Democrats would use that new cloture rule; 
they would shut down debate and they would seat the Democrat in 
that contested election. Only because there were three 
Democrats who refused to vote for cloture every time it was 
filed did the Senate not go down that road and indeed declared 
the seat vacant. A new election was held. The Democrat won and 
the Senate did not have the period of bitterness that the House 
had after the Indiana election contest.
    My experience has only been working for the Senate. I never 
worked for the House of Representatives, but my experience in 
working for the Senate has been one in which I saw the great 
value of a kind of enforced comity between the two parties 
because of Rule 22. I remember so well a conversation with a 
presiding officer, a member of Congress who had been in the 
House. He was a very conservative senator from the Republican 
Party and he told me that when he was in the House he had never 
spoken to any Democrat. He had no reason to speak to Democrats. 
They were irrelevant to his life. They could do nothing for 
him.
    And he was telling me with such glee the issue on which he 
was working was a very liberal Democrat because what he saw in 
the Senate was that was how things got done in the Senate, that 
if you could put on the same issue a liberal Democrat and a 
conservative Republican, you had a very good chance of carrying 
the day. And I just remember that conversation and in a sense, 
that is what I thought the Senate was about.
    Now, I understand the frustration of the filibuster. I have 
sat in the parliamentarian's chair and watched filibusters and 
they are not all that much fun to watch. I came to the Senate 
in 1966, back when they had real filibusters, and back in 1966 
it did not take a two-thirds vote to end a filibuster. But I 
also remember a 1968 vote when the Senate had been debating the 
Fair Housing Act and they had had four cloture votes and on 
four cloture votes they had failed to get the necessary two-
thirds. And then on that fifth vote, I remember those senators 
who had been voting no standing up--there were five of them--
and one by one they gave the necessary two-thirds and that law 
was passed.
    My view is that the Senate has benefitted from the struggle 
to pass legislation. I was a graduate student during the debate 
on the 1964 Civil Rights Act. I found that debate incredibly 
frustrating as it was described on the CBS Evening News every 
night. But what I remember is that after the end of that 
debate, and it went on more than 80 days, the senator from 
Georgia went on television to talk to the people of Georgia and 
explain that he had fought that bill with every weapon at his 
command, and he was good, but that that law was now the law of 
the land and the people of Georgia needed to follow it.
    I do not know if the Senate had been able to easily pass 
the '64 Civil Rights Act whether it would have had the effect 
that it did. I was living in the south. I was living in 
Charleston and I remember the effect it had. It was like 
someone had turned a light switch and suddenly things were 
different.
    So yes, I think the experience of the Senate is that the 
Senate is a continuing body, but I think the logic of that 
experience is that that has been a good thing and that 
basically is where I come from.
    [The prepared statement of Robert Dove included in the 
record]
    Chairman Schumer. Thank you, Bob. And now we will hear from 
Mr. Smith.

STATEMENT OF STEVEN S. SMITH, KATE M. GREGG PROFESSOR OF SOCIAL 
    SCIENCES AND PROFESSOR OF POLITICAL SCIENCE, DIRECTOR, 
WEIDENBAUM CENTER ON THE ECONOMY, GOVERNMENT AND PUBLIC POLICY, 
                     WASHINGTON UNIVERSITY

    Mr. Smith. Well, it is a great pleasure to be here again. I 
was here in May when I spoke of a syndrome of the expansive use 
of parliamentary rules and precedents by both the minority and 
the majority in such a way that it has really changed the 
character of the Senate over the last few decades. I know there 
is a tendency to see this as a minority versus majority matter, 
but in fact, both parties have been behaving strategically, 
that is, that they are behaving in a manner that anticipates 
the behavior of the other. They are connected at the roots.
    So to address the minority concern about opportunities to 
debate and offer amendments and the majority concern about the 
ability in most circumstances to get a vote on an issue is 
something that I think that the Committee should address 
simultaneously.
    The real problem here is the nature of the Senate and the 
role of a senator. You know, there are now strong reasons to 
believe that the full exploitation of the rules is a long-term 
condition of the Senate and that it is time to consider a 
proposal like Senator Harkin's. The modern increase in the 
obstructive use of rules really dates to the early 1970s in the 
aftermath of the civil rights battles and when senators in the 
early 1970s leading up to the 1975 reform spoke of the 
trivialization of the filibuster.
    So what has changed since the 1960s? Well, for one thing, a 
major restraint on filibustering evaporated. As the 1960s came 
to an end, Senate Democratic conservatives no longer limited 
their filibusters to civil rights legislation so as to avoid 
more impetus, more reform. They more freely joined with the 
minority to pursue filibusters in the early 1970s, which was a 
primary impetus for the reform of 1975.
    The policy community in Washington has changed radically. 
Organized interests and lobbyists and party factions have 
really ratcheted up pressure on senators to fully exploit their 
parliamentary weapons. Party politics has changed. Each party 
has become more homogeneous internally and in doing so, the 
resistance from within each party to the full use of 
parliamentary tools by their own party leaders has faded. No 
longer is there that moderate Republican or moderate Democrat 
telling their own leaders do not obstruct, do not fully exploit 
your tools, I am going to get hurt. Fewer senators are being 
hurt by that obstructionism.
    In the strategic premises of change, each party now seems 
to assume the worse about the opposition and as yesterday 
showed is usually right and acts accordingly. Now these have 
proven really to be lasting conditions really on the order of 
decades now and more than just merely a passing phenomenon. Now 
in the middle of this process, Senator Harkin in 1995 
introduced his proposal to reduce the number of votes required 
for cloture in a stepwise manner. Of course, since that time, 
partisan strategies have made obstructionism and restrictions 
on the minority an even more severe problem. I will not even 
bother reviewing the evidence for you.
    But the consequences of these developments are pervasive. 
The focus tends to be on what the threshold for cloture should 
be in blocking legislation. But just consider what these 
minority strategies and the majority responses have contributed 
to. They have moved many policy decisions from committee rooms 
to party leadership offices as leaders try to bargain over 
cloture.
    It has led to the demise of standard amending opportunities 
on the Senate floor. It has elevated packaging strategies and 
the use of omnibus bills. It has contributed to the demise of 
the appropriations process as majority leaders do not dare 
bring most appropriations bills to the Senate floor. It has 
stretched the reconciliation process, my dear Bob, beyond 
recognition and it has led to the avoidance of conferences on a 
wide range of important legislation.
    Add it up. Fundamental changes in the role of standing 
committees and party offices, the nature of amending activity 
and debate on the Senate floor, the appropriations process, the 
reconciliation process and conferences, what has not been 
fundamentally changed by this new turmoil, this new syndrome of 
obstruction and restriction? The Senate has been thoroughly 
changed by these changes in practice. It is time to consider 
the reforms that have been suggested by Senator Harkin.
    [The prepared statement of Steven S. Smith included in the 
record]
    Chairman Schumer. Well, these have been three really 
excellent witness. This has been a very good and thoughtful 
day. Let me ask a question first to Mr. Dove, but others can 
comment. It is sort of two questions. I'm just trying to think 
this through.
    In the golden days of the sixties, and I think you are 
right, Mr. Parliamentarian Emeritus, for lack of a better term, 
that because the Civil Rights Act passed with such a large 
amount of support, it was the law of the land, and it was more 
effective than if had it passed by 51/49. The difference we 
face today is that was a bipartisan coalition and partisanship 
seems to have enveloped our politics over the last 30 years. 
One of the reasons is actually the great reform of primaries 
because primaries, puts the Democratic Party to the left and 
the Republican Party to the right only because there are too 
few participants.
    Senator Bennett. Tell me about it.
    [Laughter.]
    Chairman Schumer. Well, it is true. It is true. You are 
right. And it is with regret--I think everyone of us feels the 
incredible loss of Bob Bennett. We will feel it next year for 
that reason. So the question is, does what you are saying apply 
to today? Should it matter? Maybe this partisanship is a 
temporary. You know, maybe it is a 30-year process, and we 
should not change how the Senate works regardless.
    And then the third question, which relates to Mr. Smith's 
testimony. Can't you make an argument--he did--what do you 
think of his argument?--and I would like to address his 
argument to my colleagues on the other side who say we have to 
keep the Senate as it is. But what Professor Smith is saying 
here is that this rule has changed the Senate. We do not have 
conference committees. We do not have deliberation. We do not 
have amendments on the floor. And I am trying to do this from, 
you know, as bipartisan or nonpartisan a way as possible. When 
I was in the minority, I used to say--look, they can set the 
agenda. We should offer amendments. I understand that. I have 
been in all four positions--minority/majority in both the House 
and Senate. Only one really is horrible, and it is not in the 
Senate at either side. So could you address this a little bit?
    And then the second question, I will let each of you speak 
on this, is there a way then we would not need Senator Udall's 
legislation to solve the complaints of the minority about 
filling the tree and not allowing amendments, and the 
complaints of the majority about obstruction on every little 
thing that goes way beyond. I think you know, I do not think 
you wonder if the tree is filled when we do not allow the 
District judge from the Southern District of New York--let's 
leave out the New York District judge--and instead we do not 
allow the District judge from the Southern District of Florida 
to be put on the Senate floor.
    So if Bob could address that and that is my only question.
    Mr. Dove. Well, first of all, there was some mention in an 
earlier statement about coming here with clean hands. I 
unfortunately, do not come here with clean hands. I helped 
write the Budget Act in 1974 which created the reconciliation 
process. All I can tell you is we meant well.
    That process has evolved into what I think is a monster 
which allows the majority to trample the minority. It is the 
one process that the Senate created which if the budget 
resolution for any particular year creates a budget that has 
reconciliation instructions and I will say on my advice in 
2001, we were in a situation where the House came out with a 
budget resolution that I think was going to create seven 
reconciliation bills over the course of that year. I gave the 
advice no, you can only create one.
    That led to an unfortunate situation for me as I ceased to 
be parliamentarian. But that, I believe, has been followed. 
That to me is a process that needs reform. My reaction----
    Chairman Schumer. And not slowing down the Senate to a 
crawl on every issue. Are the two resolvable together?
    Mr. Dove. Well, my reaction, as long as the majority party 
sees that they are using reconciliation, they can pass things 
by a bare majority, even no majority at all. If you have a tie 
vote and you have the vice presidency, you win with 
reconciliation. The filibuster amendments have to be germane.
    To me, that is the process that has distorted the Senate 
more than anything else. Yes, I know the enormous power that 
the majority leader has with the right of recognition to offer 
amendment after amendment until no more can be offered and I 
have seen majority leaders use their powers. To me the most 
powerful majority leader I ever witnessed was Robert Byrd in 
the period of '77 to '81, when he set precedent after precedent 
using his powers as majority leader.
    And there was pushback when the Republicans took the Senate 
in the 1980 election because of the power of that particular 
majority leader. And I have used this phrase before in 
testimony, that I do not think, as Shakespeare said, that the 
fault is in our stars but in ourselves. To me there are 
senators who can make this place work with the rules that you 
all have and I do not think the problem, frankly, is the rules.
    I think the problem is restraint in effect on the part of 
various----
    Chairman Schumer. Professor Marziani and Smith, do you want 
to comment on my question, or try to answer it, or comment on 
what Bob Dove said.
    Ms. Marziani. To start, there is no reason to believe that 
the intense partisanship that we see in today's Senate is going 
anywhere. We have seen a ratcheting up of partisan politics in 
at least the last 30 years and as one of my colleagues at NYU, 
Rick Pildes, has written about eloquently, this for better and 
for worse is very likely the face of national politics in the 
21st Century. So with that understanding in mind, perhaps best 
case scenario, we would address that intense partisanship, but 
without being able to figure out what to do with that 
situation, I think that we need to adopt new rules that work 
for a modern Senate.
    The Senate is an extraordinary institution and it is one 
that everybody agrees was intended for deliberation.
    In other institutions intended for deliberation, like a 
courtroom, we have simple rules that are purposed to achieve 
just and equitable results, like Criminal Rules of Procedure or 
the Federal Rules of Civil Procedure. And in my opinion, the 
best way for the Senate to move forward, recognizing as Senator 
Bennett said earlier today that there are many complex 
considerations involving rules change would be to convene some 
sort of bipartisan group that can seriously deliberate and 
think about ways to preserve the minority's right to debate, to 
actually debate and to offer amendments, but while allowing the 
majority to represent their constituents and the will of the 
people and actually make a decision once debate is over.
    Chairman Schumer. Professor Smith.
    Mr. Smith. I think that Senator Harkin has actually laid 
out a framework that could be used as the basis for addressing 
both sets of concerns. He provides for a stepwise process of 
reducing the threshold for cloture. A weakness I think of 
Senator Harkin's approach, if I may, Senator, is that there is 
no guarantee for debating amendments between the cloture votes, 
just as there is no guarantee of debate now following the 
filing of the cloture motion.
    I would elaborate on Senator Harkin's approach by 
guaranteeing say 10 hours of debate on a measure between the 
cloture motions, between consideration of the cloture motions 
and perhaps in those 10 hours guarantee the minority 
opportunities to offer relevant amendments. That could be done 
by guaranteeing each leader alternating amendments.
    It could be done by guaranteeing a senator who voted in the 
minority an opportunity to write an amendment. But the 
brilliance of this framework is that it creates a time 
structure within which those minority amendments can be 
considered. I would guarantee them those rights.
    Chairman Schumer. Interesting, very interesting.
    Senator Bennett. Thank you, very much, Mr. Chairman, and 
one of the things that has developed, the byplay between the 
three of you that I want to highlight is that it may very well 
be that the solution to the problems that we talk about as a 
dysfunctional Senate lies somewhere other than amending the 
filibuster rule. And I have made notes--I have listened to 
you--of some of the things that I have observed that in my 
opinion have been detrimental to the functioning of the Senate 
and very few, if any of them, have anything to do with the 
filibuster rule.
    Mr. Smith, you got into this a little. One of the things 
that I have seen in my time here is Mr. Dove, you talk about 
the problem lies in ourselves, breaking of a Senate precedent 
as opposed to a Senate rule, that conferees are always adopted 
by unanimous consent. Without naming any names, one minority 
leader broke the precedent and said we will not allow the 
appointment of conferees on this bill unless we can get an 
absolute ironclad agreement out of the majority that the 
conference report will say the following things, thus putting 
himself in the position where the minority leader of the United 
States would dictate the final version of the bill over the 
opinion of the majority of the House of Representatives and the 
majority of the Senate or not allow it to go through.
    And that was sufficiently arcane that it did not get into 
any editorial in the New York Times. I will not comment any 
further about what I think about the editorials in The New York 
Times, other than to say that I think they are basically 
irrelevant.
    The concept of ping-ponging a bill, the Senate was unable 
to produce a certain bill for a variety of reasons and so the 
Speaker sat down with the Majority Leader and given the power 
of the party in power in the House, wrote a bill in the House, 
rammed it through with the requisite number of votes in the 
House and then the majority leader had already pre-committed to 
the Speaker that the bill would be held at the desk, voted on 
in the Senate, never referred to a committee, never a subject 
of a hearing, and with the ability of the majority in the 
Senate to overcome a filibuster by virtue of numbers passed 
through.
    Those of us who wanted to debate it, to amend it, to have 
anything to do with it, we never got any opportunity at all.
    And then we go, Mr. Smith, to the omnibus bill. I am an 
appropriator. I have participated in the drafting of omnibus 
bills and as I came out of my session with the two chairmen, 
the chairman of the House Appropriations Committee and the 
chairman of the Senate Appropriations Committee, I said to my 
staff, we better call Senator Kohl and tell him what we just 
did. He was the ranking member of the subcommittee and he had 
no input whatsoever under that system.
    Increasingly we are seeing the appropriations bills 
structured so that they will not go to the floor and they will 
go to an omnibus and the omnibus ultimately is decided between 
the two chairmen of the two houses and the two leaders of the 
two houses and you might as well not have an Appropriations 
Committee under those circumstances and I have seen it happen 
over and over again.
    As I sit here and listen to this and contemplate, what 
occurs to me is I hear you. It occurs to me that this has 
nothing to do really with changing the filibuster, and if we 
change the filibuster rule and allow all of these other things 
to continue to go on, we will see minority rights trampled on 
in far greater degree than they are now. So I give you that 
response to your testimony and I would like to hear your 
response to the observations that I have.
    I will make this one observation. I do believe the Senate 
has the right to change its rules and I do believe the Senate 
has the right to say we will do it at the beginning of each 
term. That is what Vice President Nixon said. That is what Vice 
President Humphrey said. I think that is a given.
    I disagree with Senator Udall that it can happen at any 
time in the course of a session. I think once it happens, at 
the beginning. And I agree with Vice President Nixon when he 
said if the Senate does not act, it de facto says we are a 
continuing body and we will go by the old rules and that is the 
precedent that we always follow. But that does not mean we 
should willy-nilly say well, since we have the power to do it, 
let us tinker with the rules at the beginning of every single 
session, the beginning of every Senate.
    I have now filibustered past my time and I apologize for 
that.
    Chairman Schumer. I am not sticking to the time limits. 
This has been a great discussion. I am not sticking strictly to 
the time limits so we can hear from our panel.
    Professor Smith.
    Mr. Smith. Well, I agree with much of what Senator Bennett 
suggests, but let me just say two things. One is I think he is 
right on the question of the Senate as a continuing body. My 
view is that the Senate has the right by simple majority to 
reconsider the rules. If it has that right under Article 1, 
Section 5, it has the right to do that at any time.
    Obviously the Senate has adopted rules throughout its 
sessions over the centuries, but I do not see why this power 
should be restricted to the beginning of a Congress. I think 
that would be unwise for the Senate to restrict itself in its 
interpretation in that way.
    I do think though, Senator, that the use of instruction--
obstructionist tactics by the minority and the majority's 
response in trying to get its program enacted has played a 
fundamental role, though it is not the only cause, in many of 
the problems that we have encountered in the demise of regular 
order in the Senate, the demise of the role of standing 
committees, the transformation of the role of the floor and 
especially individual senators amending opportunities, the use 
of conferences. All of this has been directly affected by these 
strategies of the two parties in the Senate.
    Now, there are other contributing causes, but surely the 
use and abuse of the rules is a core part of it. Now, what I do 
not agree to is the claim that this is only about the 
polarization of the parties in American politics more broadly 
or in the Senate. Because in the 1970s, long before the modern 
polarization, the polarization we have seen in the last 20 
years has occurred. We saw a ratcheting up of the use of 
obstructionist tactics. Why? Because the policy community 
within which senators operate had already begun to transform. 
The pressure and the incentives for individual senators to more 
fully exploit their parliamentary prerogatives was tremendous.
    Senator Byrd complained about lobbyists walking into 
senators' offices and asking them to place holds on bills. This 
was something that was emerging in the 1970s, before most of 
you got here, but was already a part of the environment. When 
that was combined with the polarization of the parties, you can 
see where that would lead.
    But it is, I think, a bit pollyannish to think that if we 
simply had better behaving leaders, better behaving senators 
that the pressure for them to exploit their--fully exploit 
their parliamentary prerogatives would disappear. I do not 
think that is true. The world has changed.
    Chairman Schumer. With the indulgence of my colleagues 
here, could we ask either of the other witnesses if they want 
to say something about what Senator Bennett said? Professor 
Marziani or Mr. Dove? Just try to make it brief, that is all.
    Mr. Dove. I will talk about what happened yesterday because 
all the focus----
    Chairman Schumer. You got to put your microphone on.
    Mr. Dove. I am sorry. All the focus was on the failed 
cloture vote. Something else happened yesterday. A bill was 
passed in the Senate by voice vote, jointly sponsored by 
Senator Patrick Leahy and Senator John Cornyn, to amend the 
financial regulatory law with regard to the Freedom of 
Information Act.
    To me that is how the Senate works. That is what the Senate 
does. Maybe there was not a big article about it in the paper, 
but to me that kind of thing happens all the time. Senators 
from very different perspectives on most issues get together 
across the aisles on something that they care about and the 
Freedom of Information Act is something that happens to be in 
the purview of both Senator Leahy and Senator Cornyn, and it 
would be something they really do care about and they get it 
through.
    So I am not of the mind that the Senate is dysfunctional. 
It is doing things. They just do not happen to make the papers.
    Chairman Schumer. The third level issue is not first. That 
is the only thing I would say. I agree with you. Professor 
Marziani.
    Ms. Marziani. Sure. My one quick response to Senator 
Bennett, you know, I think that you highlight the complexity of 
current Senate procedure and I do think there is a lot to be 
said for thinking of rules reforms that make the rules more 
simple and thus easier for voters to understand and to follow, 
because I do think that that would therefore enhance 
legislative accountability.
    Chairman Schumer. Thank you. Senator Udall.
    Senator Udall. Thank you, Mr. Chairman, and Senator 
Bennett, I think that the principle you have recognized is an 
important one, the principle with different presiding officers. 
And I think you had mentioned Vice President Nixon and Vice 
President Humphrey, also Vice President Rockefeller, all 
sitting as the presiding officer of the Senate and making a 
ruling at the beginning of a Congress for the two-year period 
at the beginning of a Congress that the Senate has a right to 
adopt its rules by a majority vote. I mean that is an important 
principle and I think that that is what I have tried to embody 
in my testimony. And I think that is what Ms. Marziani has been 
talking about in terms of the constitutional scholarship here.
    I would like to focus with Ms. Marziani on this whole idea 
that we hear raised over and over again, if we change the 
cloture rule, that we are somehow making the Senate just like 
the House. Now, to me one of the biggest differences is every 
member of the House--and I served in the House for 10 years--
you stand for election in two years and so it does have--the 
forces of the election have a result on the legislative 
process, while in the Senate at any one time, we have two-
thirds of the senators at least four years away from an 
election.
    So could you comment on the idea that has been raised here 
that if the Senate changed the cloture rule it would make the 
Senate no different than the House of Representatives?
    Ms. Marziani. I believe quite strongly that reforming the 
rules would not make the Senate more like the House, but would 
in fact make the Senate more like the Senate is supposed to be. 
And specifically, I mean, as we have heard in each of these 
hearings, the current rules are not promoting deliberation. 
Instead they are incentivizing obstruction. They are being used 
not to achieve just, equitable and compromised decision making, 
but they are many times unfortunately used for little more than 
game playing.
    With that, if you look at the history of the structure of 
the Senate, the Framers surely wanted the Senate to be a stable 
body. There is no indication that they anticipated that the 
rules would somehow lead to stability or that the rules would 
be entrenched and that would make the body more stable. 
Instead, the framers gave senators longer terms that were 
overlapping and they thought in this way senators would have 
more time and have more experience as legislator, but also 
learn more about specific issues that they grappled with.
    They also thought that the staggered terms would allow 
older senators to mentor younger senators that having some 
continuity of membership would make the Senate a more 
respectful institution both nationally and domestically and it 
would make it harder for people to kind of strategize and come 
into the Senate with conniving motivations.
    So with that all in mind, I think that it is very fair that 
changing the rules will not make the Senate anything like the 
House. The Senate will remain a distinctive body and instead 
the Senate will become much closer to its ideal.
    Senator Udall. Could you also comment on the continuing 
body argument that is out there and whether or not you think 
the entrenchment of the rules--and describe for people 
entrenchment. You have used that term several times. What do we 
mean when we say the rules are entrenched and how does that 
relate to the constitutionality?
    Ms. Marziani. Legislative entrenchment is typically the 
term used for laws that are insulated from later amendment or 
appeal. So the Senate rules, the current Senate rules in 
setting a two-thirds threshold of 67 senators to agree to stop 
debate before the rules can change clearly entrenches those 
rules.
    As far as the continuing body theory goes, as I said 
earlier, there is no indication that the Framers intended for 
the structure of the Senate to somehow give the Senate a unique 
rulemaking authority that would allow entrenchment. Instead, as 
I noted before, and as Senator Udall has noted, legislative 
entrenchment has long been recognized as an illegal procedure.
    Also, of course, the Senate in many ways does not act like 
a continuing body. Mr. Dove pointed out some ways the Senate 
may act like a continuing body. There are many ways that it 
does not. The point of that is the Senate does not consistently 
regard itself as a continuing body and probably more 
importantly, there is no other way in which the Senate allows 
itself to become entrenched.
    For instance, the president pro tem of the Senate is 
assumed to go forward to future terms unless changed. But of 
course, if there is a shift between minority and majority 
party, everybody understands that the president pro tem can be 
replaced at the start of a new term.
    Chairman Schumer. Thank you. Senator Alexander.
    Senator Alexander. Thanks, Mr. Chairman. Senator Howard 
Baker told me that in 1968 he was sitting in his father-in-
law's office, the Republican leader, Everett Dirksen, and the 
telephone rang and he heard Senator Dirksen say, no, Mr. 
President, I cannot come down and have a drink with you 
tonight; I did that last night and Louella is very angry with 
me.
    And about 30 minutes later, there was a rustle outside and 
two beagles and a president showed up and President Johnson 
arrived and said well, Everett if you will not drink with me, I 
will come drink with you. David Gergen told me that President 
Johnson called President Dirksen every afternoon at 5:00 to 
find out how he was doing. He did that for a variety of 
reasons, but one reason was he had to if wanted to pass the 
Civil Rights Bill.
    He not only knew that he had to pass it, but as Mr. Dove 
said, he had to create an environment in which the country 
would accept it. Now, it seems to me listening to what is being 
proposed here is to make the Senate permanently like it has 
been the last 18 months where the majority had enough votes to 
run over the minority and pass bills with no bipartisan support 
and the result has been, it scared the country to death, 
produced an upheaval and in the case of the healthcare law, a 
determination to repeal it from the day it was passed.
    So you want a bipartisan consensus forced in the Senate, 
not just to pass a bill, but so that the country will accept 
it, will look up there and say well, Senator Harkin is for it 
and Senator Roberts is for it, so it may not be as bad as I 
think it is. I mean, that is sort of the way to look at it.
    Now, Mr. Dove, and to any of the witnesses, Senator Bennett 
made the point that it was not just a filibuster and the Senate 
also operates by unanimous consent. That is quite separate from 
the filibuster issue and there is nothing new about senators 
insisting on their prerogatives. I can remember Senator 
Metzenbaum sitting down at the front of the Senate negotiating 
with every single senator on every single piece of legislation 
that came up. And Senator Allen did the same and Senator 
Williams did the same in the sixties. I mean, this has been 
going on forever. It is a way of causing deliberation. You can 
call it entrenchment or obstructionism if you want to. Others 
call it the asserting of their right to amend or right to 
speak, their right to have a say.
    But my question is this, Mr. Dove, what years were you in 
the parliamentarian's office?
    Mr. Dove. I entered the office in 1966. I was 
parliamentarian from 1981 to '87 and then once again from 1995 
to two thousand----
    Senator Alexander. You saw it during the years that Senator 
Byrd was the Democratic leader and Senator Baker was the 
Republican leader.
    Mr. Dove. Oh, yes.
    Senator Alexander. Now, if I am not mistaken, during that 
time, didn't they, during that eight-year period when one was 
the majority leader four years, one for four years, didn't they 
pretty well run the Senate in a way that created an environment 
where the majority leader brought up a law, a bill or a motion 
and then they basically gave senators their right to amend and 
their right to debate, and in exchange for that, the senators 
gave back an ability for the majority leader to manage the 
floor, and that produced a lot of votes, some late nights, some 
weekends, but Senator Byrd first, Senator Baker next, basically 
took the position that under the existing rules we have then 
and today, we can move what we need to move?
    As I mentioned earlier, this Senate--and I would disagree 
respectfully with the chairman--this Senate has not been 
passing second- and third-level bills. It has passed a 
healthcare law and a financial regulation law a trillion dollar 
stimulus. But my point is, is it not possible in the current 
rules as shown by the way Baker and Byrd operated the Senate 
that the Senate can operate quite well given quite a bit of 
ability for senators to bring up amendments, debate them and 
vote on them if the leaders will just do it in that way under 
the rules we have today?
    Mr. Dove. Well, the instance I remember probably most 
vividly was the issue of the Panama Canal Treaties, which were 
submitted by President Carter when Senator Byrd was the 
majority leader and Senator Baker was the minority leader.
    Senator Alexander. And where both of those senators 
actually changed their views on that issue during the debate.
    Mr. Dove. They worked together hand in glove frankly and 
those treaties were debated for eight weeks. Cloture was never 
filed on those treaties. Every amendment that any senator could 
dream up was offered, debated and voted upon, and at the end of 
the period, the necessary two-thirds voted in favor of 
ratification.
    Those were not popular treaties. If you saw the polls, 
about two-thirds of the American public were against those 
treaties. But the Senate decided in its wisdom that they were 
important enough to be ratified. I thought it was a high point 
for the Senate in the way that it ran. And yes, the Senate 
could function under its rules and achieve big things, yes.
    Chairman Schumer. Thank you, Senator Alexander. Senator 
Harkin.
    Senator Harkin. I am not on the committee.
    Chairman Schumer. Actually, yes, I think we will go to 
Senator Roberts because Senator Harkin is not a member of the 
Committee. You are right, thank you.
    Senator Roberts. Well, I am going to be talking about 
Senator Harkin in my remarks, so it is fine. Thank you too, Sir 
Robert. I do not call him Bob. I call him Sir Robert.
    When I first came here in 1996, I dragged him over to my 
office, my temporary office and said how on earth am I going to 
understand all this parliamentary procedure that is different 
from the House? And I went through Sir Robert's six-hour, quick 
six-hour period of--I thought maybe by osmosis or something 
that it would get into my head.
    But he finally told me, he said, Pat--we were friends, so 
he said Pat, you just ask me what you want to know up there 
when you are acting presiding officer and I will tell you and 
you do that and you will be fine. We could have started that at 
the first of the six hours, but you remember that Bob, I am 
sure.
    I only did something untoward once or twice. Once I 
adjourned the Senate subject to call of the chair, which you 
cannot do if you are the acting presiding officer, but it was 
Saturday and they had forgotten me and I had been up there for 
three hours and it was a matter of personal need.
    So at any rate, I came back and we went back into session.
    Then there is the time that I kicked Trent Lott off the 
floor into the Cloak Room and Bob said, was that wise? And I 
said, he has already assigned me to the Ethics Committee, but 
what else can he do?
    [Laughter.]
    Senator Roberts. So we had a good time and some of the 
things that my antics--I sure got on the film of your annual 
inter-parliamentary session of whatever, and I plead guilty. So 
thank you for coming.
    Ms. Marziani, I plead guilty. I am an obstructionist. I 
could not figure out TARP. I did not know what a credit default 
swap was until somebody could explain it to me and Mr. Paulson 
could not and Mr. Geithner could not and so I voted no.
    AIG, I did not know how deep that hole was going to be dug 
and I do not know why we let Lehman go one way and AIG the 
other, so I thought that was wrong. The automobile bailout, I 
could not figure out why were closing dealerships in small 
towns. As it turns out, it was not needed. The inspector 
general has said now that somebody just said well, we decided 
everybody ought to share the pain.
    That is not the way to run the government. Cash for 
clunkers, good at the time, now, no. I opposed that too. 
Stimulus I and II, ObamaCare, there are 41,000 regulations now 
coming out, being enforced by the IRS, but also implemented by 
a man that has never been confirmed. We have financial reform, 
243 regulations, 30 of them aimed at our community banks, card 
check, cap and trade. Actually, they are trying to do that 
outside of the Congress by executive order through the EPA. 
Depending on your point of view, that is good or bad.
    All of the executive orders that are coming out, not even 
being promulgated in the Federal Register. And also no 
confirmation hearings. And I am opposed to this. So I am an 
obstructionist and I want to say no, that we ought to do it a 
different way. I have alternatives. A lot of us have 
alternatives.
    So I think I go back to it is important to pass good 
legislation, but it is equally important to prevent bad 
legislation from passing. My idea of what to do, Tom Harkin and 
I, who have had our differences in the Agriculture Committee to 
say the least, we agreed--you know, Tom came to me and said you 
know a lot about this Farm Bill stuff and Kansas and wheat and 
obviously Tom knows about Iowa and corn and et cetera, et 
cetera, and he said, why don't we get together, just see if we 
can come up with a better Farm Bill?
    So we met in his hideaway. This is a secret. Nobody knows 
this. This is classified. And we did. We got about three 
meetings and we were really agreeing on some things until the 
word leaked out that you know what, Harkin is meeting with 
Roberts. Oh my God. And then on our side, they said Roberts, 
you are meeting with Harkin?
    So we got the pants put on us and then as it turned out, my 
dear friend, in the markup of the bill, we pretty well ended up 
where we would have ended up, what was it, six months prior to 
that. And so I think my--the way I would like to approach 
amendments, I do not want to have an amendment. I do not want 
to have it voted on. If I cannot get the minority or the 
majority, either way, to agree to my amendment, put it in the 
manager's amendment or just agree to it and just zip, get it 
through by UC or just everybody understands it, then I haven't 
done my work if I have an amendment and I have to have a vote 
and then stand to lose.
    But there are some in either party who want to bring 
amendments to lose, to make a point, to make a speech. Now, 
what happens--and the best way to cut that out is called peer 
pressure. We have had several current members and past members 
who want to stand up and make amendments. I have told them, why 
don't you--you might want to cut that down from 10 a day to 
five, maybe three, or why don't you just go make a speech in 
front of a group and just get it out of your system?
    There is many times I have come to the floor and say why 
are we voting on this, for my own party, let alone others? So I 
think peer pressure can do an awful lot and I would tell Mr. 
Smith, who obviously came to Washington, that if a lobbyist 
came into my office and said, I want you to put a hold on 
somebody because of what they were interested in, I would kick 
them out. The only hold I have ever put on anybody is the 
Secretary of the Army because the administration wanted to put 
the terrorists at Fort Leavenworth, which was the intellectual 
center of the Army, which I thought was one of the silliest 
things I have ever heard. But that was public.
    And so I do not think members do that so much anymore and I 
do not think in terms of partisanship that this is any worse 
than--let me just go back to the days that I first started, 
intense partisanship. Oh, hey, hey, LBJ, how many babies did 
you kill today, during Vietnam. I mean, that was terribly 
partisan. The Nixon resignation, my word, that was 
unprecedented.
    I just have two more. The resignation of three speakers, if 
you really count the one that would have, impeachment, we have 
come through some very difficult times in the history of the 
Senate and it has always been partisan. We are a reflection of 
the balkanization of American society. I would agree with Mr. 
Smith on that. But I think we can do it better with peer 
pressure and with good people like the chairman and myself and 
Mr. Bennett.
    That is exactly what Bob said. He stood up when he was 
badgered by another member of our party and defended himself in 
such a way that that individual started to behave himself. 
Amazing. It seems to me that would be a better answer than 
messing with these rules.
    Senator Harkin. Mr. Chairman, first of all, thank you for 
letting me sit in on this panel today. I particularly wanted to 
hear this panel and to at least ask a couple of questions, but 
first, an observation or two. One, that in looking ahead as to 
what we need to do to reform the rules, if we want to do that, 
I am not certain it serves us very well to go back and fight 
old wars. We can do tit for tat, tit for tat, this example, 
that example. We will never get anywhere.
    For every example that one person has on one side, we got 
one on this side and we are back fighting those old battles 
again. So I would hope that we get away from that sort of tit 
for tat kind of thing. Secondly, on the entrenchment of the 
rules, let us say an anomaly happened that there was 90 
senators of one party and they changed the rules and they said, 
here are the rules we have now and in the future there has to 
be 90 senators to vote to change it. We would have to live by 
that forever and ever?
    So 90, well, how about 67? At what point do you say this 
is--no, that does not sound right, that cannot be? Why is 67 so 
profound? The reason 51 is profound is because of the structure 
of our whole government and the structure of the way the 
framers framed it and the way we set it up for the majority to 
eventually be able to do something.
    The process in the Senate, I think there are a lot of ways 
that the Senate will never be like the House. As long as we 
have six-year terms, as long as we do not have a Rules 
Committee, as long as a bill has to pass both houses in exactly 
the same form, as long as the president has a veto, as long as 
the Senate has the veto power along with the House, and on and 
on, the Senate will never be like the House.
    Those are just a couple of observations. I just had one 
question though. I understand, Dr. Smith, your problem with my 
construct is fine, but I think you hit on a point, and all of 
you have, and that is, how do you structure it so that the 
minority is able to offer amendments and has some input? So if 
one desired to allow those opposed to the cloture to be able to 
offer a number of germane amendments, and I use that word 
``germane'' amendments--let me digress here for a second.
    We do have an opportunity--I wish Pat hadn't left--we do 
have an opportunity in the Senate almost every year to vent and 
get amendments out there that we think will score points. We do 
that under that----
    Senator Udall. Vote-a-rama.
    Senator Harkin [continuing]. Vote-a-rama. You get one 
minute to speak and somebody else gets a minute, and you vote 
and there is all these ridiculous amendments that are out 
there. The people think they are scoring points on. Quite 
frankly, I do not think they score points. I do not think one 
of those votes has cost anybody an election yet, but I guess we 
go through that exercise.
    But that is why I use the word ``germane.'' If you wanted 
to have those opposed to cloture to be able to offer a number 
of germane amendments, how do you structure that? How do you 
structure that portion of a new rule? Any thoughts on that? Any 
of you?
    Mr. Smith. Well, I suggested a couple of ways and I would 
be happy to have the others comment. I guess my view of this is 
that there are two or three days between each cloture vote on 
the cloture motion under your proposal.
    Senator Harkin. Right.
    Mr. Smith. I think that is an excellent idea. I like the 
idea that it would be in a stepwise fashion reduced to a simple 
majority over the course of about a week or so. The question 
is, is between those cloture motions, what guarantees the 
minority an opportunity to debate and offer an amendment?
    The common procedure for the majority in the modern Senate 
is to file a cloture petition, get on with other business, get 
a vote. If it goes down, go on to other business, and the 
debate on the bill subject to the cloture motion never actually 
starts. Even if it is a motion to proceed, there is no debate 
on the motion to proceed, the majority leader is off to 
something else. Who can blame him? He has other activities.
    So my view is that if there was a cloture motion on a bill 
or a cloture motion on a conference report or a cloture motion 
on a House amendment to a Senate bill, that that be followed by 
a guaranteed period of debate and amendment on the bill, and 
that there be guarantees. I would leave it to you to give that 
further consideration. It might be on the basis of alternating 
amendments between the two sides.
    And I would loosen it a little bit from germaneness to 
relevant just because the germaneness requirement under Senate 
precedent is exceedingly tight. Relevant would allow the issues 
to be fully aired and eventually, of course, the new cloture 
motion would ripen in a day or two and you would get that next 
cloture vote. You get both then, minority debate and amendment 
and simple majority rule eventually.
    Senator Harkin. Mr. Dove.
    Mr. Dove. I am struck a little bit by the discussion over 
the cloture on the motion to proceed, because under Senate 
rules as they exist, you do not have to have debate on a motion 
to proceed. All you have to do is make that motion during the 
first two hours after an adjournment.
    Senator Byrd used to do that when he was majority leader. 
It seems to me that what has happened is that majority leaders 
have found it very handy to make that motion when it is 
debatable and file cloture and get this symbolic vote at least 
on going to a bill and then be able to either argue that they 
have been frustrated or if they get it then they know they have 
60 votes for the eventual bill.
    But since the rules already allow getting to a bill without 
debate, it seems to me that it might be a possibility that 
majority leaders could resume the practice, as I say, that 
Senator Byrd did when he was majority leader and used that 
morning hour, the first two hours after an adjournment and make 
motions to proceed.
    Senator Harkin. Am I correct in assuming, Bob, that your 
position is that the Rule 22 ought to remain as it is without 
change?
    Mr. Dove. Okay----
    Senator Harkin. I mean, it seems to me that that is what 
your position is.
    Mr. Dove [continuing]. I have seen it changed. I have seen 
it attempted to be changed. I was there when Vice President 
Humphrey made his ruling in 1967, which was overturned by the 
Senate. I was there when he made his ruling in 1969, which was 
overturned by the Senate, and then I was there when Vice 
President Rockefeller came back and had to apologize to the 
Senate for what he had done during the 1975 change to the 
rules.
    Those are not situations that I think lend themselves to 
well, that is a nice way of dealing with things.
    Senator Harkin. Ms. Marziani, do you have any thoughts? 
Again, my initial question was if you had a construct where the 
majority would finally be able to bring something to a vote, 
how would you construct it so that the minority has some rights 
to offer? I said germane or maybe relevant amendments; how 
would that be constructed?
    Ms. Marziani. I think that is an excellent question. I 
think Dr. Smith gave a very good answer. Right now I do not 
think I have an answer that is better than Dr. Smith's, but I 
am perfectly happy to go back to the Brennan Center and discuss 
that question----
    Senator Harkin. Think about it.
    Ms. Marziani [continuing] With my colleagues and submit 
further written testimony.
    Senator Harkin. I would appreciate it.
    Ms. Marziani. Great.
    Senator Harkin. One last thing. You know, you talk about 
providing for consultation, compromise, that type of thing, but 
how do you respond when someone--when a conferee--or no, a 
nominee, presidential nominee for judge or something like that 
is blocked for several months and gets by with a 99-0 vote? It 
seems to me that that obstruction is not--and like I say, both 
sides have done that one. There are no clean hands on that one.
    But it seems to me then that is not done for the purpose of 
debate and discussion. It is done simply for obstructing 
something.
    Mr. Dove. I have also seen that, in which case I have seen 
nominations that were blocked for nothing about the nominee at 
all, but some side issue that the obstruction gives leverage.
    Senator Harkin. Yes.
    Mr. Dove. Again, my reaction to what that represents is 
basically how powerful every individual senator is. I think it 
is one of the reasons that people like to come to the United 
States Senate. You really are incredibly powerful.
    Senator Harkin. Well, Mr. Chairman, thank you. It has often 
been said and it is true, the power of a senator comes not by 
what we can do, but what we can stop. That is the power of a 
senator, and no one wants to give it up. We all want to keep 
some semblance of that power and I am saying for the good of 
the country, for the good of the Senate, we got to give up a 
little bit of that power, that right that we have to stop 
something.
    I am willing to give it up. I hope others are willing to 
give it up, I think, for the benefit of having a better 
functioning United States Senate. So I thank you very much, Mr. 
Chairman.
    Chairman Schumer. That is a very appropriate place to 
conclude. I think this was an excellent hearing, no matter what 
your view is. We have heard a lot of diverse opinions, and it 
is going to help us as we move forward.
    I want to thank all five of our witnesses, all of whom are 
here, because this hearing really advanced things a great deal. 
And I want to thank Senator Bennett, who has been a great 
partner in running constructive, thoughtful, non-partisan 
hearings on an issue that lends itself to partisanship.
    Thank you. We are adjourned.
    [Whereupon, at 12:09 p.m., the hearing was adjourned.]























                      APPENDIX MATERIAL SUBMITTED

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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

EXAMINING THE FILIBUSTER: IDEAS TO REDUCE DELAY AND ENCOURAGE DEBATE IN 
                               THE SENATE

                              ----------                              


                     WEDNESDAY, SEPTEMBER 29, 2010

                      United States Senate,
             Committee on Rules and Administration,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room 301, Russell Senate Office Building, Hon. Charles E. 
Schumer, chairman of the Committee, presiding.
    Present: Senators Schumer, Dodd, Durbin, Udall, Goodwin, 
Bennett, Alexander, and Roberts.
    Staff Present: Jean Bordewich, Staff Director; Jason Abel, 
Chief Counsel; Veronica Gillespie, Elections Counsel; Adam 
Ambrogi, Administrative and Legislative Counsel; Sonia Gill, 
Counsel; Julia Richardson, Counsel; Lauryn Bruck, Professional 
Staff; Carole Blessington, Executive Assistant to the Staff 
Director; Lynden Armstrong, Chief Clerk; Jeff Johnson, Staff 
Assistant; Mary Jones, Republican Staff Director; Shaun Parkin, 
Republican Deputy Staff Director; Paul Vinovich, Republican 
Chief Counsel; Michael Merrell, Republican Counsel; and Rachel 
Creviston, Republican Professional Staff.

             OPENING STATEMENT OF CHAIRMAN SCHUMER

    Chairman Schumer. The hearing will come to order. And I 
want to thank everybody, including my friend Bob Bennett, for 
participating in this hearing. It is the sixth and final in our 
series of hearings to examine the filibuster.
    Over the course of these hearings we have looked at a 
number of issues:The development of the filibuster since the 
earliest days of the Senate; the growing challenges that the 
use--and abuse--of the filibuster presents to the Senate; and 
the impact of the filibuster on nominations and other matters.
    Our hearing in July examined filibuster-related legislation 
introduced by Senators Frank Lautenberg of New Jersey and 
Michael Bennet of Colorado. Last week we had a hearing of the 
proposals sponsored by Senator Harkin and our Committee member 
Senator Tom Udall.
    These hearings will hopefully inform some of the 
discussions at the beginning of the next Congress. While the 
membership of the Senate will change, problems posed by the 
abuse of the filibuster are not going away.
    This week, I would like to turn to some every interesting 
ideas that have been proposed over the last few decades but 
have not yet been a focus of our hearings. We have had focus on 
some of the ideas, but not all.
    These ideas have been promoted by members of both parties. 
We have already heard testimony in previous hearings on ideas 
to limit debate on nominations, whether they be judicial or 
executive.
    Now, first, motion to proceed.
    And I want to welcome Senator Dodd here.
    The first idea concerns limiting debate on the motion to 
proceed. The motion is intended to be a procedural step that 
allows the Senate to begin consideration and debate on a 
measure, a substantive piece of legislation. However, far too 
often in today's Senate is the decision to begin debate itself 
is filibustered. This does not encourage serious debate and 
deliberation--it blocks it.
    The motion to proceed was not covered by Rule 22, the 
cloture rule, when it was first adopted in 1917, because 
cloture then was applied only to legislation, not to procedural 
motions. In 1949, however, Rule 22 was expanded to include most 
procedural motions, and the motion to proceed for the first 
time became subject to cloture except on rules changes. In 
1959, Rule 22 was again expanded to apply cloture also to 
ending debate on motions to proceed on changes to the Standing 
Rules.
    In the decade since, leading Senators of both parties have 
tried to further limit debate on the motion to proceed, so the 
Senate could move on to the real business at hand. Most 
noteworthy, in the 1980s, Senators Robert Byrd and Ted Stevens, 
obviously a bipartisan effort, both Leaders and members of this 
Committee, introduced resolutions to prevent filibusters on the 
motion to proceed by limiting the amount of time the Senate 
could spend debating it.Senator Byrd already had tried that 
once before in 1979 as a Majority Leader, and of course as an 
expert on Senate procedures.
    In 1984, the Temporary Select Committee to study the Senate 
Committee system recommended a two-hour limit on debate for a 
motion to proceed. It is rationale was to: ``ensure that 
unlimited debate is permitted only on substantive issues.'' 
That is something we are still talking about today.
    As use of the filibuster has escalated, it is being used 
increasingly on the motion to proceed by both parties when they 
have been in the Minority. This chart shows it all. [Chairman 
points to chart.] And as you can see, in 2007 to 2008--that is 
the last full session of Congress--the number of cloture votes 
on the motion to proceed skyrocketed. Let us see here. It more 
than doubled any previous year.
    The way we operate today, the Senate rules basically 
provide Senators with two bites at the filibuster apple before 
a Bill can even get to a vote on the floor. It is fair to ask 
whether this is overkill. Even the most obstructionist-minded 
Senator only needs one filibuster to block a Bill they oppose.
    The frustration with filibusters on the Motion to Proceed 
can prompt a Majority Leader to file cloture sooner and more 
frequently and with less time given foramendments.The effect of 
being able to filibuster the same Bill twice can be to launch a 
procedural arms race that thwarts efforts to debate, improve 
and pass legislation.
    The second issue we will look at is post-cloture time 
requirements. And I am going to take a little more time today 
with the indulgence of my colleagues, because we have so many 
issues before us, and I want to lay them out. And I will give 
Senator Bennett equally more time if he wishes.
    The second type of proposal we will examine today are those 
that offer greater flexibility during post-cloture time. 
Currently, after cloture is reached, there are 30 hours of time 
allocated for debate prior to voting on final passage. Each 
Member has up to one hour, though clearly not all one hundred 
Senators can take a full hour before the 30-hour period 
expires. Too often, we do not have substantive discussion, or 
consider amendments on the Senate floor during these 30 hours--
we are just ``burning the time.'' We have all seen the empty 
floor as we wait until the clock expires.
    Changes that would make better use of post-cloture time, or 
reduce it if there is not much real debate, have been proposed 
over and over, for many years. As one of his many 
recommendations to change the Standing Rules, Senator Byrd 
introduced resolutions several times during the 1980s, as did 
Senator Stevens, to reduce the total hours of post-cloture time 
or to move more quickly to a vote on final passage if Senators 
have finished real debate.
    The next issue we will look at is filibusters on going to 
Conference. In an ideal world, Conference Committees allow the 
House and Senate to work out differences in a negotiated, 
bicameral manner that results in the best possible legislation. 
I remember from the days I was in the House, the ``joy'' of 
being on a Conference Committee on major pieces of legislation, 
even as a newer member in the House, and having a real back-
and-forth, and not knowing how the legislation would turn out. 
The coalitions develop as the amendments are introduced. It 
almost always was bipartisan, at least on the Committees that I 
was on, and even here in the early years of the Senate.
    But this ``joy'' is sort of not available to newer 
Senators. Why? Because Conference Committees are actually on 
the verge of extinction. And abuse of the filibuster may be to 
blame.
    Here is this chart. [Chairman points to chart.] It shows 
that while reasons can be hard to pinpoint exactly, there has 
been a real decrease in using Conference Committees to 
reconcile differences in recent years. This is the number of 
times that--I am going to hold it up.
    This is the number of times that the Conference was used. 
As you can see, it is at a real all-time low in the last full 
Congress, 2007-2008. This is the percentage of laws where 
Conference Committees were used, two percent.
    One reason. many believe, is that threats of filibusters 
have made it a lot harder to agree to a Conference and appoint 
conferees.
    In the history of the Senate these three actions--one, ask 
that the Senate insists on its amendments or disagree to the 
House amendments to the Senate Bill; two, request a Conference 
with the House; and three, request that the Chair be authorized 
to appoint conferees--are usually agreed to, or have usually 
been agreed to, by unanimous consent.
    However, debate--and thus a filibuster--is permitted on 
each of these three actions. If the Senate has spent two to 
three weeks on a controversial Bill, a reasonable Leader might 
seek to avoid Conference filibusters because they take a long 
time. That is when we see the so-called ping-ponging of Bills 
between the House and Senate. Or other strategies designed to 
pass a Bill without going to Conference.
    And on this one I think, at least my view from my 30 years 
experience on both the House and Senate sides, is that Minority 
Senators whether in the House or Senate have a much greater 
ability to shape legislation when there are Conference 
Committees.
    The need to streamline the process of going to Conference 
is also not new, but I believe it has become more urgent. We 
will hear from our witnesses today about several ideas to 
eliminate or limit the filibuster that have severely restricted 
the use of Conference Committees.
    Another issue we will address is ``filling the amendment 
tree''. I know this is an issue that has vexed many members on 
the Minority side, or many members when they are in the 
Minority, whatever party they are a member of. And I know 
Senator Gregg will talk a lot about that today, and we welcome 
him here for that.
    Under Senate procedure the presiding officer of the Senate 
acknowledges the Senate who first seeks recognition. By 
precedent the first Senator recognized is the Majority Leader. 
So under Senate procedures, a Senator may offer amendments to a 
pending Bill in the order in which he or she is recognized. 
This allows the Majority Leader to offer a certain number of 
first-degree and second-degree amendments to the measure up to 
the maximum possible. This creates what is called the 
``amendment tree''.
    Once the maximum number of amendments has been offered by 
the Majority Leader, no more are allowed, and the ``tree'' is 
considered ``filled''. Depending on the floor situation, the 
tree may be filled with as few as three or as many as eleven 
amendments. The effect of filling the tree is that no member 
can propose any further amendments to that measure without 
consent. Which in most all cases means--no new amendments.
    How is this procedure tied to the discussion about the 
filibuster? Well, when a Majority Leader fills the tree, other 
members are prevented from submitting their own amendments. 
Filling the tree also gets around ``filibuster by amendment,'' 
where the Minority Party uses the amendment process to keep 
offering amendments in the first and second degree with the 
intent of killing the Bill.
    Members of the Minority Party--of course, that only happens 
if the tree is--that only occurs when the tree is filled later, 
not when it is filled immediately. And members of the Minority 
often argue that filling the tree eliminates an opportunity for 
substantive change or improvement to the legislation. The 
Majority, by contrast, often argues that filling a tree is 
actually a way to get a vote on a Bill or prevent 
obstructionism by amendment.
    But it certainly gets in the way. I mean, when I first got 
here, people said, the power of the Majority is to set the 
agenda, the power of the Minority is to offer amendments that 
would put the Majority on the spot or question their agenda. 
When we fill the tree, of course, that does not happen.
    So today we are looking at hearing, as I mentioned, from 
our colleague Senator Gregg. He will be leaving the Senate at 
the end of the year, and I think I can speak for every member 
of this panel and say, ``to all of our regret,'' and probably 
not to his.
    Senator Gregg, last week, during last week's hearing, I 
mentioned the colloquy you had with some of our Republican 
colleagues on the Committee on the Senate floor following the 
failed cloture vote on the Defense Authorization Act. During 
that colloquy, you described the frustration on your side of 
the aisle. And I think it is fair to say you are not alone. 
There is a frustration on both sides of the aisle, and I hope 
these hearings and testimony such as yours will move us toward 
meaningful reform. So we thank you for testifying before this 
Committee about your thoughts about Senate rules and procedures 
related to the filibuster, filling the tree, and sharing with 
us your experience and insights.
    Senator Bennett.

 OPENING STATEMENT OF THE HONORABLE ROBERT F. BENNETT, A U.S. 
                       SENATOR FROM UTAH

    Senator Bennett. Well, thank you Mr. Chairman. I think you 
have laid out the past history very well. And rather than 
prolong the hearing, I will simply stipulate that your charts 
are accurate. And look forward to hearing from our witnesses.
    Now I will reserve perhaps a little more time later on when 
we get into the give and take of the question period. But I 
understand Senator Dodd wants to speak, and has to go to 
another assignment. So I will defer now, and be available a 
little later on if things require a steady hand to straighten 
out some misconceptions that might arise.
    Chairman Schumer. Your hand is always steady in these 
matters Senator Bennett and we appreciate it. Senator Dodd has 
to leave.
    I know has given a lot of thought to these issues, because 
we have discussed them. So would it be okay with the 
Committee's consent, I would like to recognize Senator Dodd.
    Senator Dodd. Well, I thank you Mr. Chairman. I will be 
brief.
    Chairman Schumer. Only Senator Durbin objects.
    Senator Durbin. I withdraw.
    Chairman Schumer. He has withdrawn his objection.

OPENING STATEMENT OF THE HONORABLE CHRISTOPHER J. DODD, A U.S. 
                    SENATOR FROM CONNECTICUT

    Senator Dodd. Well, I will try and be brief with my 
colleagues. Thank you Mr. Chairman. It is Bob Bennett and I and 
Judge Gregg all days away from departing the Senate. I have 
enjoyed my tenure on this Committee over the years. The work of 
the Committee, we have had some raucous meetings in this room 
over the years on various matters that have come before the 
Rules Committee. And I chaired the Committee for a while, 
including when we passed the Help America Vote Act, that Mitch 
McConnell and I wrote back a number of years ago.
    And I apologize for not having been here for a good many of 
the hearings you have had on this subject matter, since my 
Banking Committee responsibilities kept me from attending. And 
I commend you Mr. Chairman for exploring this issue as much as 
you have.
    I recall back in the snowstorms of this past winter there 
was a reporter for the Washington Post who wrote and talked how 
Washington had been immobilized by snow, and then went on to 
say this is highly unusual, normally Washington is immobilized 
by Senators, at the time. And that probably reflects the views 
of an awful lot of people in the country.
    Chairman Schumer. Senators do not melt.
    Senator Dodd. No, you do not melt, that is true. Well there 
has been a lot of truth in this. And there is a serious 
conversation going on about how we address these procedural 
issues in the Senate, and the problem of endless delays of 
legislation. A conversation among those both outside the body 
and within it who have been observers of the Senate during 
their careers, including Norm Ornstein who you will hear from 
later this morning, and others who have been talking about 
this.
    And I regret that my other Committee assignment's obviously 
made it hard for me to participate in this debate along the 
way. Because I do have some strong views on it after 30 years 
in this body. And having been an observer of it for longer than 
that, as both I and Bob Bennett and our parents served in this 
institution. I served as a page back in 1960, and so I have 
almost 50 years of being around this building over the years, 
and watching the Senate operate. It had great days and less 
than great days in its performance of its duties.
    And obviously we have been hearing some wonderful people. I 
mentioned Norm Ornstein obviously who we know and appreciate 
immensely. Thomas Mann. Experts from the Brennan Center. 
Obviously Senator Byrd. People like Senator Gregg, Don Nickles 
and others who have come before us and shared your views on 
this subject matter.
    But as Senator Byrd so eloquently reminded the Committee 
when he testified, prior to his death in June, the Founders 
intended the Senate as a continuing body that allows for open 
and unlimited debate, and the protection of Minority rights. 
Minority rights. And he noted that our system established a 
necessary fence, to use Madison's words, as the principle 
author of the Constitution, against the dangers of fickleness, 
to quote Madison, and of the temporary passions of our public 
life.
    He observed that that fence is the United States Senate. 
Now I recognize the source of my colleagues' frustrations. I 
have heard it in our meetings, caucus meetings, cloakrooms, on 
the floor of the Senate, and in private conversations. I have 
heard it more importantly for years among the people of our 
country, who are sometimes angry and frustrated that the Senate 
often appears to be tied up in procedural knots when we should 
be focused on moving the country forward. A time like this 
certainly is evidence of that.
    It is true that during this Congress, the Minority has 
threatened to filibuster almost every major proposal for Senate 
consideration, including the two largest and most substantial 
measures that we have considered over the last two years. That 
is of course the Healthcare Reform Bill and the Financial 
Reform Bill.
    And I note that it was only after Majority Leader Reid 
explicitly threatened to keep us in around the clock that 
eventually we were able to proceed and act on the Wall Street 
Reform legislation.
    On items large and small, the Minority has either 
threatened or acted to block legislation that we put forward. 
And I have been a frequent critic of such unnecessary delays 
and such abuses of the rules. But Mr. Chairman, I do not 
believe the answer to this problem necessarily lies in lowering 
the 60-vote threshold to break the filibuster. I know there are 
a lot of other issues which you are going to discuss, but the 
fundamental question, whether or not we ought to lower that 
number, is something I have strong reservations about and would 
strongly oppose.
    Even after a series of sequential votes, which lowers the 
threshold each time, or an otherwise fundamental altering of 
the structure of the filibuster rule itself. I'm not sure what 
the right answer is. It may lie in forcing actual filibusters 
rather than allowing the hint of a filibuster to rule of the 
day. It may lie in eliminating debate on the motion to proceed 
altogether, or in scaling back the time required for debate on 
cloture or on the motion to proceed.
    It may and I think certainly does lie in exercising greater 
discipline in the way each United States Senator, those of us 
who have been privileged, a small number out of more than two 
centuries of Americans, who have had the privilege to come here 
and serve here, in how we apply and use the rules that we have 
been given, often to our own advantage.
    On the last point, there is clearly considerable room for 
change. I find abuses, the way I have seen in recent years, on 
holds placed on confirmation process, and holds placed on 
uncontroversial items, to be used as leverage elsewhere on 
opposing virtual requirement that anything we try to do of any 
significance requires 60 votes. These tactics, run contrary to 
every Senator's duty to act in good faith as members of this 
body.
    There are many ideas put forth by my colleagues about what 
we should do to address these problems and abuses. But I stand 
with our late colleague, Senator Robert Byrd of West Virginia, 
when it comes to measures designed to eliminate or 
substantially limit the basic structure of current filibuster 
rules. I think would be unwise to change the current filibuster 
rule threshold and limit the rights of the Minority to leverage 
important changes to legislation brought forth by the Majority. 
That is a right crucial to this institution. And we should 
exercise great, great care, when we consider any changes to it.
    During the course of my 30 years, three decades, in the 
Senate, I have served both in the Majority and the Minority. I 
have served in every imaginable configuration with Chief 
Executives. And I caution my colleagues on my side that it was 
not long ago that we exercised the filibuster or holds--more 
discriminatingly, I believe, more carefully than it is true 
today--on matters we thought of such import, of such great 
historic moment, where we made the judgment that we needed to 
use those tools to protect our rights within the Minority.
    For example, it was just ten years ago that we exercised 
the filibuster to combat the Estate Tax, an extension of the 
Tax Relief Act of 2006; on an extreme version of the US Patriot 
Act reauthorization; and a similarly extreme version of the 
FISA legislation that threatened America's fundamental civil 
liberties. The Federal Marriage Amendment, to amend the 
Constitution to define marriage within its text. An extreme and 
unwise version of the Patients First Act of 2003, part of the 
Medical Malpractice Reform Bill. And the ill-advised Energy 
Policy Act of 2003. All major measures that we were able to 
stop, slow, or in some cases, force changes to using the 
filibuster.
    So Mr. Chairman, let me again thank you for doing these, 
having these hearings. I think they have been very enlightening 
and worthwhile as we go forward.
    For over two centuries, the Senate has been the bulwark 
within our democratic political process of Minority rights and 
the freedom of speech. It has been the only institution in many 
ways that provides that unique opportunity.
    And I would hope that my colleagues, and those who will 
come after us here, as guardians of this institution and its 
rules and procedures, which have made such a unique 
contribution to our Constitutional process, would operate with 
great caution, no matter what their frustrations, and I know 
they are deep, and we all feel them. But we bear a higher 
responsibility to this institution and the future of it, by 
guarding the very principles that allow for that Minority voice 
to be heard, to be having the time to express itself. And I 
worry deeply that we may change that in such a way that the 
Senate would lose the essence of its existence.
    So with that, Mr. Chairman, I think you very much for 
allowing me to share these few thoughts.
    Chairman Schumer. Senator Dodd, as usual, your statement is 
thoughtful, and intelligent. And you speak your mind, and I 
just want to think you for your many years of service to this 
Committee, as Chair, as ranking member, and as member.
    Senator Dodd. Thanks.
    Chairman Schumer. And without objection, what I would like 
to do now is call on Senator Gregg, let him make his statement. 
As you can see, even though we just had two Democrats speak, we 
had different views.
    I said to Senator Bennett, Senator Dodd might have well 
represented the Minority, whatever party it might be, on his 
view on this issue.
    Senator Dodd. I see Marty Paone as well here, and I 
apologize. Marty, I knew you were going to be a witness, I did 
not see you sitting there. Thank you for your service here as 
well over the years.
    Chairman Schumer. Thanks Chris. So what I would like to do 
with the Committee members' indulgence is call on Senator 
Gregg. There will not be, as usual, there will not be questions 
of Senator Gregg. But when we go to the Second Panel, if people 
want to make a few minutes of opening statements, it will not 
detract from their time. Is that okay with everybody?
    Okay. Good. Then we will move on to Senator Gregg. Your 
entire statement will be read into the record. And welcome 
here.

 OPENING STATEMENT OF THE HONORABLE JUDD GREGG, A U.S. SENATOR 
                       FROM NEW HAMPSHIRE

    Senator Gregg. Thank you Mr. Chairman, thank you for your 
kind comments. And let me associate myself with Senator Dodd, 
as I often do, because I agree one hundred percent with his 
opening statement, and think it was an eloquent recitation of 
the importance of the filibuster and the rules of the Senate in 
protecting the Minority.
    I was asked to speak today a little bit about a number of 
issues dealing with this and my perception of them. I 
appreciate it and am honored at the chance to talk about it. 
But everybody at this dais knows as much as I know about this 
issue. And you have certainly been studying it.
    So let me just reflect both in historical terms and on a 
personal experience level why I think this is so critical. You 
know, this Committee's taking up a rules issue, but what you 
are really taking up is the Constitutional structure of the 
greatest government ever created in history. We are the freest, 
the most prosperous, the most extraordinary nation in the 
history of the world. And we are that was because we have a 
constitutional government that has given us the freedoms and 
the prosperity that we benefit from.
    And I happen to believe that at the center of that 
constitutional government is the Senate. Some would argue of 
course it is the House, because they have the ability to 
initiate appropriations and tax policy. But I do not believe 
it. I believe that it is the Senate because the Senate is where 
the rights of the people of this nation are protected. 
Especially Minority rights.
    It was created for that purpose when Madison and Randolph 
were thinking of how do you where going to structure this 
government I am sure they had in mind the parliamentary systems 
that they had seen in Europe. The fact that they move too 
quickly and that they trample the rights of the minorities. And 
so they setup this structure of checks and balances which is 
throughout our system, but the ultimate check was and is the 
Senate of the United States.
    It is been expressed in a lot of different ways but let me 
just read a few because I think it is important to go back to 
the folks who have made a difference in this body, and who 
understood the body with more depth than I do. And I would say 
this. I am leaving the Senate as is Senator Dodd and Senator 
Bennett. I do not leave in a disgruntled way, just the 
opposite. I am a tremendous admirer of the Senate as an 
institution, and the people who serve it.
    I just think I have had the chance over my 18 years to come 
in contact with some of the best most committed people that I 
have ever come across in my walk of life. They are just, there 
are a lot of special people here. Both Senators and Staff who 
are committed to doing what is right. Well we have 
philosophical differences, quite a few. But as a very practical 
matter, this is the place where good people come to try to make 
this nation better.
    So let me read a couple of quotes that I think really 
capture the essence of the purposes of the Senate. And we will 
begin with Webster, who of course was from New Hampshire, 
although he represented Massachusetts in the Senate. ``This is 
a Senate of equals, of men of individual honor and personal 
character, of absolute independence. We know no masters, we 
acknowledge no dictators. This is a hall for mutual 
consultation and discussion.''
    And then the other member of the triad, Clay. ``The 
Majority ought never to trample on the feelings or violate the 
just rights of the Minority. They ought never to triumph over 
the fallen, nor make any but temperate and equitable use of 
their power.''
    And then the third member of the triumvirate of great 
Senators, Calhoun. ``The government of the absolute Majority 
instead of the government of the people is but the government 
of the strongest interests. And when not efficiently checked, 
it is the most tyrannical and oppressive that can be devised.''
    And then another Senator who should be in the triumvirate. 
``It is the Senate where the Founding Fathers established a 
repository of checks and balances. It is not like the House of 
Representatives where the Majority Leader or the speaker can 
snap his fingers and get what he wants. But the reason we do 
not always work by the Majority rule is very simple. On 
important issues, the Founding Fathers wanted, and they were 
correct in my judgment, that the slimmest Majority should not 
always govern when it comes to the vital issues that is what 
they want.'' That was Senator Schumer.
    You can go on and read Byrd, or read Howard Baker, or read 
Lyndon Johnson, or Harry Reid. They all came to the same 
conclusion, the Senate is about protecting the rights of 
Minority. And at the essence of protecting the rights of the 
Minority is the filibuster rule.
    Now, I was asked to speak a little bit about the filling of 
the tree. The tree, as was explained very accurately by the 
Chairman, the filling of the tree basically cuts off the 
Minority rights in a most intemperate and inappropriate way, 
because it makes it impossible for the Minority to come forward 
with amendments.
    When I arrived here, the whole purpose of the Senate was to 
bring Bills to the floor. And anybody who wanted to come to the 
floor and amend the Bill in any way they wanted to pretty much 
got to do that. I can remember when we brought appropriations 
Bills out of the Appropriations Committee, I had the good 
fortune to chair two different Appropriations Committees that 
Bills went across the floor every year, I would plan when I had 
the Commerce, State, Justice Committee, to get amendments on 
everything, everything under the sun.
    There would be gun amendments. There would be marriage 
amendments. There would be Mexico City amendments. You name it, 
it was going to come on the Bill. I expected that as the Leader 
on the floor responsible for this piece of legislation. And it 
was good. It was a good discussion. And we always reached a 
conclusion, took a little longer usually depending on who was 
around. But it took a little longer to get to a conclusion, but 
we always did it.
    When you fill the tree, you cut off the Minority's ability 
to make those types of amendments and it really is detrimental 
to the institution itself because if you do not allow the 
Minority to amend, in fact if you do not allow every member of 
the Senate to have an opportunity to amend, then you are 
basically undermining the whole purpose of the Senate.
    Now regrettably, filling the tree has become an unfortunate 
practice here. In fact, in this Senate the tree has been filled 
more than it has been filled under the last six Majority 
Leaders. That is not healthy.
    And the Chairman talked a little bit about filibustering 
the motion to proceed. Why is the motion to proceed a critical 
motion? And why should filibuster still be applicable to the 
motion to proceed? It is because at that point that the 
Minority Leader has leverage to negotiate, to the extent that 
negotiation occurs, how the Bill will be managed when it hits 
the floor, and what the amendment process will be. If you shut 
off that point of pressure, then you once again close down the 
capacity of the Minority to make its case and get the Bill to 
the floor in the form where amendments can be allowed.
    So I believe very strongly, as the Chairman has outlined in 
his opening statement relative to filling the tree, and as 
Senator Dodd has outlined relative to the filibuster, that at 
the essence of the Senate is the ability of the Minority to 
amend. That is simply what it is all about. And if you 
foreshorten the ability of the Minority to amend, you undermine 
the purposes of the Senate and you undermine the constitutional 
form of government we have.
    And I thank the Chairman for his time.
    [The prepared statement of Senator Gregg included in the 
record]
    Chairman Schumer. I thank Senator Gregg for his excellent 
statement. And maybe since it was brief, does anyone have a 
question they would want to ask Senator Gregg?
    Well, I have one. We do have--from your statement maybe you 
do not believe the Senate in the last couple of years has sort 
of become more dysfunctional. And neither side gets what they 
want. The Majority does not get to move forward on legislation. 
The Minority does not get to offer amendments, either germane 
or not.
    And does the Senator think there might be some grounds for 
compromise, where say, for instance--and I understand his point 
on the motion to proceed--where you would not be allowed to 
filibuster the motion to proceed but at the same time, and 
someone proposed this at our last hearing, there might be a 
guaranteed right for the Minority to offer at least a number of 
amendments not to be dilatory but have that opportunity as sort 
of a tradeoff.
    Some of our witnesses last week said that they thought the 
Senate had departed from its function of being the great 
society where the great debate occurred, the issues were 
debated, etcetera, given the gridlock we have here, without 
pointing fingers of blame.
    Tell me what you think of that kind of tradeoff.
    Senator Gregg. I think it is dangerous. I think because you 
can never anticipate what the Minority needs. I cannot 
anticipate that. The Republicans may be in the Majority in the 
next Senate or the following Senate; you do not know what the 
Minority position is going to be on a piece of legislation 
because you cannot anticipate the legislation.
    So the Minority has to be able to retain as many rights as 
possible to the floor, and to the ability to amend on the 
floor.
    I agree that there is a problem in the Senate right now. 
But I think it is the fact that we do not take Bills up on 
regular order. The fact that we basically have a reticence 
within the Senate to make the tough votes on the floor. I mean, 
we have done some fairly complex legislation around here. We 
have a lot of floor activity.
    The Financial Reform Bill, for example, was a very complex 
piece of legislation which was on the floor for a long time, 
and which was debated and amended. The managers kept the 
amendments on target, and strong managers can do that.
    We did it with the Immigration Bill. That Bill was on the 
floor for a long time. Aggressively amended.
    And the Healthcare Bill started off that way. Of course it 
got foreshortened at the end, which was really I thought 
unfortunate.
    But it is just a question of getting a calendar where the 
Majority understands that if it is going to take big pieces of 
complex public policy to the floor, it is going to have to 
spend two or three weeks to do it. And I do believe that that 
is very doable. And I think we have shown we can do it as a 
Senate.
    And I think the body functions well if it is given the 
opportunity to amend. People run out of energy, we all know 
that. These amendments stop coming after a while. And people 
have to make tough votes. That is what it comes down to. People 
willing to make the tough votes.
    Chairman Schumer. My proposal was not curtailing the right 
to require tough votes. It would be dealing with something like 
unlimited amendments, or the ability of--now obviously one 
person cannot do this, one person can slow it down but cannot 
stop it--but the ability to even prevent an issue from coming 
to the floor, unless you have 60 votes.
    And forestalling the kinds of debates that you talked about 
was not used for Immigration, was not used for, as you say it 
was for healthcare later, but the other issue you mentioned, I 
cannot recall it.
    Senator Gregg. You know, theoretically, I think you 
probably can make an argument for that decision. But I cannot 
predict, nor can anybody in this room predict the practical 
needs of the Minority as it goes forward. And I think you have 
to reserve as much authority to the Minority to be able to 
influence its ability to make its case on the floors as 
possible. Presently that means being able to filibuster the 
motion to proceed until you get to a point where the Minority 
feels its rights to amend are protected.
    Chairman Schumer. All right. Anyone else? Senator 
Alexander.
    Senator Alexander. Senator Gregg, Senator Byrd indicated in 
his testimony earlier this year that he thought that while 
there were abuses of the current rules, that the Senate could 
work under the current rules if the Leaders would just use 
them. And he used examples of, in terms of the filibuster, just 
confronting those who wished to filibuster and keep the Senate 
in session, just one day after another, and other such steps.
    And I am wondering whether you, as you look back over at 
your years here, think that we could get to a situation where a 
Minority could insist of the Majority, whichever party, that 
there had to be amendments and debate, and where the Majority 
could by holding the Senate in session, keep filibusters under 
control?
    In other words, can this be done without changing the 
rules?
    Senator Gregg. Well, my experience is that the 24 hour 
attempts to try to break a filibuster do not work, because 
basically it is the Majority that has to produce the people. 
And that is really, the Majority's never going to be able to 
break a Minority by keeping you here all the time, because the 
Minority really does not have to be here. All they have to do 
is keep somebody on the floor to object.
    So I just do not, I have never seen that as the best way to 
address how you--visually and politically it might have an 
effect. The population may say, well, they are there all night, 
look at that, this is an important issue. But I do not think it 
subsequently affects the capacity to deal with a filibuster.
    I suppose you could change the rules so that if you go into 
a filibuster status, those seeking the filibuster would have to 
attend in order to pursue the filibuster. That is a 
possibility. And maybe a Minority that wants to filibuster 
should have that responsibility.
    Chairman Schumer. Senator Durbin.
    Senator Durbin. I would like to follow up on that, because 
we had a classic example where a member from your side forced a 
vote on a Saturday on a filibuster. And then when 60 or 70 of 
us changed our schedules to not go home to our families, the 
Senator who forced the vote did not show up for it. Was at a 
wedding in his home state.
    It strikes me that this really is offensive, that someone 
says, I have got to protect my rights, but in absentia, I have 
got things to do back home, so why do not you all stay on the 
floor here and come up with 60 votes.
    Senator Gregg. I think that is a legitimate point, Senator.
    Senator Durbin. Well, I also want to ask this question. Do 
you not believe though--I like Jimmy Stewart, do not get me 
wrong--but he has created an impression of the Senate which I 
do not think reflects the reality of the Senate.
    Senator Gregg. I have always thought of you as a Jimmy 
Stewart liking figure.
    Senator Durbin. Yes, that is me. And, Spirit of Saint 
Louis.
    But the point I want to get to is, do not you believe that 
there should come an obligation with those who initiate the 
filibuster to at least be present? Or those who support their 
position to be present on the floor, if we are going to ``burn 
30 hours''? What a terrific waste of time.
    At the heart of this is something that goes unspoken in 
most of these hearings, why do we want to avoid controversial 
amendments? Because we want to avoid controversial ads running 
against us in the next campaign. Once you have been around for 
a few years and you have cast thousands of votes, you figure 
there is plenty for them to work with and I do not have to 
worry about tomorrow's vote.
    And secondly, the reason why we cannot burn off the hours, 
for example the Food Safety Bill, which you and I had worked on 
for over a year, and want to bring to the floor, the one 
Senator who is holding it up says, well if you want to bring 
it, we'll just go ahead and file cloture. Knowing full well we 
do not have the time for it, because members cannot stay in 
town as much, because they are out raising money for their 
campaigns.
    So I mean, does not this reflect the new reality that maybe 
Senator Byrd did not have to live within his political 
experience, that now is the reality of the Senate?
    Senator Gregg. Well, I think that was the point that 
Senator Alexander was also raising, which I think is legitimate 
to look at. Whether if you are asserting the filibuster right 
you should have to be available to defend that right on the 
floor.
    I would simply point out the Food Safety, like you I would 
like to see it passed, but to get it passed it should have been 
on the calendar earlier. You know as well as I do that if you 
push up against an adjournment event, the power of a single 
Senator grows exponentially as we head towards adjournment 
around here.
    But yes, I think it is worth considering whether or not 
those asserting their rights under the filibuster should have 
to be present to defend that right, and presently they do not 
have that.
    Chairman Schumer. And we had a hearing on that, Senator 
Lautenberg actually proposed that as a rule change.
    Senator Roberts for a question.
    Senator Roberts. Well first of all, I want to say to Jimmy 
Stewart that I like your role in the Glenn Miller Story. I 
thought you played an excellent role.
    Chairman Schumer. I thought he played an excellent 
clarinet.
    Senator Roberts. I think it was a trombone.
    Senator Gregg. It was a clarinet.
    Senator Roberts. Was it Glenn Miller?
    Senator Gregg. Oh was that Benny Goodman, I am sorry.
    Senator Roberts. That is right.
    Senator Alexander. Here is another example of gridlock in 
the United States.
    Senator Roberts. I offer an amendment to clarify the 
record.
    Senator Gregg. Please, I withdraw my comment.
    Senator Roberts. All right. Bob Byrd came here in one of 
his last appearances before Committee, it was a very poignant 
time. And said that a Minority can be right, and Minority views 
can certainly improve legislation. The bottom line of my 
statement which I will insert for the record and save time when 
we get to that, is that Mr. Chairman the way forward is not 
through rules changes, it is understanding the purpose of our 
rules to foster consensus, bipartisanship, and moderation.
    Let us try to return to our Senate tradition before 
embarking on a radical rule change that sounds almost like 
kindergarten stuff, really, given the challenges that we face, 
or a hope that cannot come true.
    But let me ask Judd, as you have been here as long as I 
have, and we came to the House together. What do you see down 
the road? Because partly what impacts this is not so much--
well, it does impact it in terms of filling the tree and 
finding cloture and all of these things. But rightly or 
wrongly, the Congress reflects the Balkanization of the 
American public. And it seems to me that we are terribly 
Balkanized, and it seems to me that if we reinforce that with 
the information that we receive, everybody gets their 
netherworld of information now from the Internet and the Web 
and Facebook and tweets, and all the things that I do not 
understand. And that my staff does not let me see.
    But at any rate, it is a far different world. Somebody said 
something about going to Conference, and it helps matters at 
the last Conference that I attended was the 2008 Farm Bill, we 
had 41 members. Half of them had never seen a farm. They could 
spell farm, but not agriculture. I think Charlie Rangel was the 
head of the Conference, and announced that he did not know why 
he was there, but that the Speaker had asked him to be there, 
so he was there, and then left.
    Usually during a Farm Bill Conference we had 15 or 16 
people including the Senator from Illinois--who was for corn, I 
was for wheat, by the way, but that is how that would work. But 
we worked it out. And I am just wondering if there are not 
elements that are at play here with our society that makes this 
much more difficult. The Senator from Illinois said everybody 
has gone to raise money, actually you are here to raise money.
    Well, some people go to places where there are water holes 
where I guess you can drink more freely from in terms of money 
for campaigns. But there is a Tuesday-Thursday mentality here 
as opposed to earlier times when people socialized together. 
People knew one another. People at least spent some degree of 
time in the other person's shoes. And I think it is that, that 
we have lost. Or that we have really seen dwindle away.
    Where are we going to be five years from now if this keeps 
up in terms of the Balkanization we see in all of this talk 
about, we have lost comity and everything else? Part of that I 
do not think is right, because you and I have served here 
during the Vietnam days, during the impeachment, during Nixon 
resignation, during you can name any number of issues here that 
were great great challenges that produced an awful lot of 
rhetoric and a lot of challenges. But at any rate, where are we 
headed here? Where are we going to be in five years, Judd?
    Senator Gregg. Well, my biggest concern would be that we 
end up like the House of Representatives. That we end up 
basically as an institution which this not have the openness 
that traditionally and historically this institution requires, 
relative to debate and amendment and discussion.
    As to collegiality, there is much more pressure on every 
Senator now to be off somewhere, to be doing something. I think 
Dick Lugar described it most effectively when he said the 
Senate is a one hundred carrier task force going down the 
hallway. It is an unfortunate fact. But that is the nature of 
our times. Times change, and we obviously are representing an 
extremely sophisticated society that requires a great deal of 
its government. And especially those who represent it.
    So I do not think you are going to put the genie back in 
the bottle and suddenly have what used to happen in the 50s and 
60s where people hung out in the afternoon and had drinks and 
spent the weekends with each other. But you can keep the place 
collegial just by keeping it open, so that people do not feel 
that their rights are being shut off, and so that people do 
feel that they are a single individual who can make a different 
within the Senate, which is what the Senate is all about.
    Chairman Schumer. Well, on that note we thank you, Senator.
    Senator Gregg. Thank you.
    Chairman Schumer. Thank you for your thoughtfulness and 
participation here today.
    Let me now call on our next panel of witnesses. There are 
two. A warm welcome to them. They both are regulars here, and 
we thank them for that.
    First is Marty Paone. And by the way, I was just informed 
that you like it Paone not Paone, so I apologize for all the 
years of calling you Paone. In any case, it is good to see you 
back. And we know you hold the Senate in great esteem, as does 
your colleague Senator Ornstein.
    Marty Paone is a veteran of the United States Senate, he 
began working on the Senate floor for the Democratic Leadership 
in 1979. From 1995 to 2008 he served as an officer of the 
Senate in the position of Democratic Secretary, and he is 
currently Executive Vice President of the Prime Policy Group.
    Mr. Norman J. Ornstein is a resident scholar at AEI, the 
American Enterprise Institute, where he also serves as the co-
director of the Election Reform Project. He is author of many 
books about Congress, including the Broken Branch. He writes a 
weekly column for Roll Call, is an election analyst for CBS 
News and a Senior Counsel to the Continuity of Government 
Commission.
    Gentlemen, both your statements will be read into the 
record in their entirety, and you may proceed as you wish. We 
will begin with Mr. Paone.

   STATEMENT OF MARTY PAONE, EXECUTIVE VICE PRESIDENT, PRIME 
                  POLICY GROUP, WASHINGTON, DC

    Mr. Paone. Thank you Mr. Chairman and members of the 
Committee. I am honored to be here discussing the procedures of 
the Senate, a subject that I learned to cherish while working 
for Leaders Byrd, Mitchell, Daschle and Reid.
    I served on the Senate floor for almost 29 years. During 
that time, I was Secretary for the Majority twice and Secretary 
for the Minority twice. I had two sets of cards, depending on 
the election.
    Following the election, if there was a change in the 
Majority I would joke with my Republican counterpart that in 
addition to handing over the presiding work, we would also 
trade speech folders. One accused the other of being an 
obstructionist, while the second complained of the trampling of 
the Minority's rights.
    Today it is my understanding you will be focusing on four 
aspects of filibuster reform. Motion to proceed. Eliminating a 
debate on a motion to proceed would save time and put the 
legislative calendar on an equal footing with the executive 
calendar. A middle ground would be to institute a time limit on 
the motion to proceed. Any modification of this motion would 
streamline the operation of the Senate but for just that reason 
could be expected to be met with Minority opposition.
    Post-cloture term. During the 30 hours post-cloture, each 
Senator is entitled to speak for up to one hour. One member 
could still cause considerable delay, because quorum calls, 
while counting against the 30 hours, do not count against the 
member's hour.
    While you can force the opponent to remain on the floor or 
else the Chair will put the question, and I think you all 
skipped over that earlier, you cannot force them to debate and 
consume their hour. One possible change would be to charge the 
quorum time towards the Senator's hour.
    An alternative idea would be to count any time consumed in 
a quorum call at an accelerated rate. Say a multiple of ten. So 
that every minute spent in a quorum call would count as ten 
minutes. If this were the rule, then during post-cloture time I 
would eliminate also the ability to object to the dispensing of 
a quorum so that the Majority could not abuse this accelerated 
clock.
    Over the years a process has evolved so that once cloture 
is invoked the amendment tree remains filled and even germane 
amendments are blocked out. One suggestion would be to 
automatically tear down the tree post-cloture, and to provide 
for a guaranteed number of amendments from each side. The 
amendments would start to qualify under Rule 22, be timely 
filed, properly drafted, and germane.
    Other possible changes include a reduction in time on 
nominations, since they are unamendable. Adding a three-fifths 
vote to reduce the time. Or reducing the threshold to invoke 
cloture to a three-fifths vote of those voting and present.
    There have been complaints about the waste of time spent on 
nominations that are eventually confirmed by nearly unanimous 
votes. One change for nominations with lifetime appointments 
would be a reverse cloture motion. It would work like this. The 
Majority Leader would ask consent to confirm a nomination or to 
get a time limit on it.
    If there is an objection, then the next day by 4pm the 
opponents would have to file a motion of opposition which would 
state that they intend to vote against the nomination. Sixteen 
signatures, the same as for cloture would be required on that 
motion. And if it is not filed by the appointed time, the 
Senate would then proceed to the nomination, and it would be 
considered a time limit of two hours equally divided. If the 16 
signatures in opposition are secured, then the Majority Leader 
could file cloture motion on the nomination, which would ripen 
the next day.
    Substitute amendments. It is virtually impossible for a 
Committee substitute or a floor substitute to meet the strict 
germaneness test of cloture. This necessitates the filing of 
cloture motions on the substitute and on the Bill itself. The 
latter is a true waste of time, since once the substitute 
amendment has been adopted, the Bill is no longer amendable. 
The substitute amendment should be automatically considered 
germane.
    The appointment of conferees. It takes three separate 
debatable motions to send a Bill to Conference. Many times in 
the past, these were adopted by consent. But over the years, 
both parties have objected to the appointment of conferees, and 
not it is the exception rather than the rule to see a Bill sent 
to Conference.
    Combining the three motions into one would still allow the 
opposition to filibuster this stage of the process. This might 
also reduce the use of the message between Houses method, or 
what has come to be known as the ping-pong process. If this 
process is to be used more sparingly, then not only should the 
motions be combined, but there should also be a prompt cloture 
vote and a reduction in post-cloture time. If the Minority 
truly wants to participate in Conferences, then they should 
allow the appointment of conferees.
    Filling in of the tree. Everyone agrees that the Majority 
Leader has priority recognition. It follows then that the 
Majority is entitled to the first vote on a given issue. 
Majority Leaders from both parties have filled the amendment 
tree to get a first vote on an issue. And sometimes on more 
than one issue. However at some point in order to move the 
process along, the Majority Leader has to pare back the tree 
and allow other amendments. If amendments are not allowed, then 
the Minority's natural response is to vote against cloture as a 
protest for being shut out of the amendment process.
    Majority Leaders from both parties have been asked by their 
members to protect them from certain votes. In my opinion that 
is an unfair request, and it puts the Leader in an untenable 
position of having to fill the amendment tree and possibly fail 
to enact the legislation in question.
    The solution to this is simple. Do not ask the Majority 
Leader for such protection. Senators should be prepared to vote 
at least on a cloture vote or a budget waiver vote with respect 
to any and all amendments and move on.
    Again, I thank the Committee for this opportunity this 
morning, and I welcome any questions.
    [The prepared statement of Mr. Paone in the record]
    Chairman Schumer. Thank you Mr. Paone.
    Mr. Ornstein.

   STATEMENT OF NORMAN ORNSTEIN, RESIDENT SCHOLAR, AMERICAN 
ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH, WASHINGTON, DC

    Mr. Ornstein. Thanks Mr. Chairman. It is always an honor 
and a privilege to be in front of this Committee.
    I want to start by saying to Senator Bennett, I was at 
Brigham Young University two weeks ago for Constitution Day, 
and spent a sizeable amount of time there and in Provo. And I 
can testify to the enormous amount of goodwill and warmth that 
still exists in the state for you, and regret that the voters 
did not have a chance to express that again in November.
    This is my favorite Committee in the Senate. I have 
testified in front of it many times over the years. And it is 
my favorite Committee because the members who are on this 
Committee understand and appreciate the role of the 
institution. It includes some of my favorite Senators on both 
sides of the aisle. And I am delighted that we are getting some 
junior members like Tom Udall who are so deeply committed to 
the institution and throw themselves into that role.
    I want to comment for a minute or two on some of the 
discussion you had with Senator Gregg. I do think the problem 
is more of the culture than it is the rules, that the rules 
operated better in a previous era. But frankly the reality is 
the culture is going to get worse before it gets better. 
Because I see the newcomers who are going to be arriving in 
this institution in January, and there are many of them who do 
not fit the mold of the people who are serving on this 
Committee. If we had only people on this Committee cloned to 
make a hundred, I do not think we would have as much of a 
problem, we would not have to spend so much time here.
    But we are going to get a number of people coming in who 
are like the one Senator now who has decided that he is the 
word and the truth and is going to hold up everything, who do 
not see the value of compromise, of respecting and looking 
towards the views of others. And that means that while we 
cannot solve the problems of the culture, I do believe that it 
requires some significant focus on the rules to remove some of 
the unnecessary and extraneous obstacles that arise that affect 
both sides of the aisle, but also that use up the most precious 
commodity the Senate has, which is time, often just for the 
purpose of using up that time.
    One other comment relating to something that Senator Durbin 
said. If I could wave my magic wand and do one thing, it would 
not be some of the things we are talking about here. It would 
be to move the Senate to a schedule which was five days a week, 
three weeks on and one week off, with no fund-raising during 
those 15 days a month. You can have 15 days a month to 
fundraise, I think that would be adequate even under the 
current system.
    But if you were here nine to five, Monday through Friday, 
it not only would provide a better family life, and more 
opportunities to interact socially, but it might create a very 
different kind of atmosphere in way of operation. But that may 
be harder than changing any of the rules that we are talking 
about.
    On the rules themselves, I want to associate myself with 
what Marty said, with most of his changes. And I start with the 
belief that we need to look at the idea of a one bite at the 
apple principle. That there is, despite what Senator Gregg 
said, there are ample opportunities before you ever get to the 
motion to proceed for the Minority Leader to negotiate with the 
Majority Leader.
    I do not see that the leverage of another filibuster, which 
is still going to require 60 votes when you get to the Bill 
itself, is a necessary commodity. And that having two, three, 
or more bites at the apple only serves to provide opportunities 
for delay and obstruction. I do not believe, and I agree with 
Senator Dodd, that we ought to make the Senate like the House. 
I do not believe that we should move the threshold down, 
although I do think that moving to three-fifths of those 
present and voting would deal with one of the issues and 
problems that Senator Gregg mentioned, which is changing the 
incentive, so that it is the Minority that has to be on the 
floor if you do have extended debate.
    And I have also, as perhaps you have seen, and part of this 
flowing from conversations that I had with Senator Udall and 
his staff, think it is worth considering and maybe even just 
for nominations, not just the 16 votes required to file a 
petition, but make it two-fifths of the Senate required to 
extend debate rather than three-fifths of the Senate required 
to end debate. Shift the focus to the Minority if they feel 
intensely enough about an issue with great national import, 
then they ought to be the ones who have to provide the votes.
    The idea that Senator Byrd, the late, great Senator Byrd, 
when he was extraordinarily ill, had to be forced to come to 
the floor to provide a 60th vote, or that the Senate was frozen 
in the period after his death and before Senator Goodwin came 
in, just does not make a whole lot of sense to me as a way to 
operate.
    With all of that, I do also believe, and I have a number of 
suggestions which are a little bit different perhaps in form 
from Marty's, most of which are now incorporated or will be 
soon in a resolution that Senator Mark Udall is introducing, 
which I would endorse as well, but believe that we need to 
focus on the filling of the amendment tree as well.
    And I do think that, you know, it is a chicken-and-egg 
problem. But we need to deal with both the chicken and the egg 
at this point. And finding a way to guarantee the Minority an 
opportunity to have its voice and to offer an amendment is a 
necessary component to any of the other changes in the rules 
that we implement.
    And I hope with some of these, which I think are common 
sense things, do not detract from the Minority's ability. When 
it feels intensely about an issue of great national moment, to 
extend debate or to raise the bar, are things that ought to be 
able to get enough votes, that perhaps we would not even have 
to turn to the constitutional option.
    Thank you very much.
    [The prepared statement of Mr. Ornstein in the record]
    Chairman Schumer. Well, thank you. And thank you both. 
Excellent testimony.
    I have specific questions on specific proposals. But I 
think, I would like to ask two questions of each of you in a 
broader sense.
    As you can see here, you heard Senator Dodd's testimony, we 
all remember Senator Byrd's. Here is the broad philosophical 
division, I guess, or disagreement among Senators. And some 
say, the world is moving much more quickly. We are in a 
globally competitive world. We cannot just have delay, as our 
country has urgent needs, over and over and over again. This 
would reflect not only on delay, but 60 votes, because the 
Minority seems to wield those together now.
    The other argument is, this has worked for 220 years, and 
urgencies have appeared at various times in the past. And you 
do not mess with something that has worked, for all the 
momentary--I guess the others, those who would argue this, 
would say--frustrations. Do we need, does the new world demand, 
some kind of fundamental change, not to block the Minority from 
offering amendments, but to allow the Senate to move more 
quickly? Because it has come to a standstill, and as one of you 
mentioned, next year could come to a greater standstill.
    And a Minority Leader could take on seven or ten resolute 
Senators who say, ``we are going to stop every nickel of 
spending''. But a Minority Leader generally will not do that, 
because a Minority Leader will have a constituency of 43, and 
if there are seven adamant people, he just does not want to 
alienate them.
    Okay, that is the first question, the sort of large 
question. And then the second question relates to what 
Professor Norm Ornstein said. The ideal way to do this, if we 
were going to make some changes, would not be invoking the 
Constitution, but to get two-thirds of the Senators to agree 
that some changes are needed, which by definition says you have 
to deal with both the Minority's concern, which is--and I 
believe the Majority and Minority will stay the way they are 
but they could change for all we know in the election--you have 
to deal with the Minority's ability to offer amendments so that 
they do not slow down the process as a way to get amendments. 
Slow it down to a point of absurdity.
    So I would like both of you to comment, and that is my only 
question, on both those questions. The large picture question, 
do we need change? Does the new world demand change? Or should 
we just stick with what has worked with the most successful 
nation in the world in the past? And then second, what are the 
chances, if we do need change, of getting it to be done in a 
two-thirds Majority way?
    Mr. Ornstein. I will start Senator. First, on the first 
question. We have operated for 220 years. We have also changed 
the Senate's procedures numerous times over those 220 years 
when conditions demanded it. We changed the rule in 1917. Of 
course, we eliminated the motion to proceed very early on, 
which helped to create some of the issue that we have with 
regard to filibusters today.
    We changed things again in 1975. We have to be very careful 
about the changes. I think one of those changes inadvertently 
helped to exacerbate the problems, which is when we moved to an 
absolute number of three-fifths of the Senate. If you have 
present and voting, then Minority does have a reason to stick 
around to meet quorum calls, so you could actually do something 
with extended debate.
    But I think conditions warrant change. We have passed a lot 
of legislation, it is true. It is not the best way to legislate 
when you can have one, two, or three Senators who are needed to 
make up the 60 votes who exercise an enormous amount of 
leverage and do not necessarily make for better legislation. I 
would rather have a more open amendment process to make it work 
that way.
    But what also happens is, when you take out, stretch out 
the time, and let us face it, when you have filibusters on 
nominations that pass unanimously, when you have filibusters on 
Bills that ultimately pass unanimously or near unanimously, 
this is not a Minority that is trying to express an intense 
point of view. When that happens, then the queue gets longer, 
and important Bills, like the Food Safety Bill or others, get 
delayed.
    Now, that may--perhaps it could have come out earlier--but 
the fact is we have got a lot of legislation that takes a long 
time to incubate and work through the issues and to get 
compromise. If you have used up all the time, there is no time 
left. And so I would really think that some of these changes--I 
should know, I mentioned a couple of others like the idea that 
you have to read amendments word for word if they have been 
posted online for 24 hours, I think there are ways of clearing 
the decks a little bit there.
    But I just think that change is necessary. And ideally, 
change happens with a bipartisan consensus. And I would hope--I 
mean, there are no Senators I respect more than Senator 
Roberts, Senator Alexander, Senator Bennett--that both sides 
could work together to find some common ground here, and try to 
avoid having either a confrontation over the rules or an 
inability to.
    Chairman Schumer. What do you think the likelihood of that 
happening is?
    Mr. Ornstein. I suppose I could invoke George W. Bush, slim 
to none, and slim just left the building. But I actually 
think--I have been impressed with these hearings. These 
hearings have not been confrontational. There are different 
points of view obviously expressed by Majority and Minority, 
and by those who have been in the Minority before and 
understand they may be again. But I think this has been a 
search for common ground rather than just position taking.
    So I hope from some of the ideas that we and others have 
discussed, you could find some areas where you could strike the 
right balance, preserve Minority rights but also enable some 
more efficiency. Because we are going to move from productivity 
to something that much more resembles gridlock given the 
changes that are going to take place in our politics.
    Certainly in November and heading to January. And it is a 
dangerous, dangerous time for the country with the issues that 
we face. And I think we have got to grapple with making sure 
that there is an ability to act in a reasonable and balanced 
fashion.
    Chairman Schumer. Mr. Paone.
    Mr. Paone. Yes, I think it would be good to have some 
change. But in the era--you do have a new era, obviously of 
instant news, the Internet, etcetera, the Senate has changed 
also. Let's face it, it is a light lift here, these days, 
working only from Tuesday to Thursday afternoon. I mean, 
working a five day week would be a change, but you showed from 
Thanksgiving to Christmas Eve that it can be done. You can use 
the clock, and if you use the clock, especially at the 
beginning of a Congress, more efficiently, then you do not need 
a rules change for that.
    If someone says they object to a motion to proceed, say 
fine, then you are going to be on that floor not just when we 
invoke cloture, you are going to be on that floor now, Monday, 
until we have that cloture vote on Wednesday. I do not have to 
bring in all my members, I am just going to bring in a Presider 
and a Leader, 24-7. And if you go to the bathroom, I am putting 
the question.
    Now, granted, at the outset, that person will get some 
help, because everyone will want to help him in a three-to-five 
am range, sure, I will come running over to help you. You do 
that three or four times though and it is going to get of old, 
and I do not think it is going to be as easy to find help in 
that early morning range. Also it will highlight, and it will 
answer your critics who ask: ``why do not they make them 
filibuster?''
    Well Jimmy Stewart's ``Mr. Smith Goes to Washington'' was a 
movie, and this will show them what they get with a filibuster. 
You get a quorum call, the senator sitting there reading his 
mail. But you can at least make his life miserable. You do not 
have to have a roll call vote and bring everybody else in to 
make their lives miserable. In any case , that is something you 
can do without a rules change.
    And it is not inconceivable that you can change the rules. 
Yes, you will need bipartisan ship to change the rules. I mean, 
in 1986 when you went on tv there were a number of rules 
changes that were instituted in that resolution. In 2007, the 
Ethics Bill, a number of rules changes were included in that 
Bill. It is not inconceivable that you could have a moment in 
history where there is such a momentum for a piece of 
legislation that you can come to a bipartisan agreement that 
yes, in this we are going to include a couple of modifications 
on how we operate. But obviously it is going to have to be done 
in a bipartisan way.
    As I said, using the clock in a more efficient way not just 
on a filibuster but working Monday through Friday, working more 
hours, keeping people in town, all of this would go a long way 
towards improving your efficiency. In the old days, the people 
used to say air-conditioning is what killed this place. Air-
conditioning and the airlines, because it allowed members to go 
home on weekends. And then eventually no longer brought their 
families with them to Washington.
    In the old days, you would have a new member come in, he 
would be in the cloak room asking Muskie and Jackson, where do 
I get a realtor? What school should I send my children to? Do I 
live in Potomac or do I live in McLean? And they would end up 
commuting together. Stevens would commute in with Muskie. One 
day he had a horrible day because he told Muskie not to pass a 
bill before he could do his amendment, and Muskie went to third 
reading and ignored Steven' demand to offer an amendment. 
Mansfield then had to come over and undo a vote so that Stevens 
could offer his amendment.
    But you guys used to commute. You used to live in the same 
neighborhoods. And as a result, you went to the PTA meetings 
together. You got to know each other as people. Not as enemies, 
not as opponents. And so, if you make people stay here five 
days a week, no matter where they live, what part of the 
country they have to go to, for an extended period, I think 
that would contribute to some of that.
    Chairman Schumer. And again, question I asked, Mr. 
Ornstein. There is a constitutional option obviously that 
Senator Udall has explored.
    Mr. Paone. Yes.
    Chairman Schumer. So you may not need the two-thirds. But 
obviously I think everyone would agree, that would be 
preferable if rules changes were to be made. What are the 
chances that we could get that two-thirds on some kind of 
balanced package in these times right now?
    Mr. Paone. Right now I do not think you would get the two-
thirds. Especially as you are heading into an election which 
may result in many new members. You are even at 15 new people, 
even if everybody gets reelected.
    Chairman Schumer. Right.
    Mr. Paone. So you are going to have new people, and these 
new folks will not have a legislative institutional knowledge 
of how this place operates. And I do not think you would get 
two-thirds. But by the same token, I don't think it is out of 
the question that down the road, you might be able to get a 
Bill passed that incorporates some rules changes.
    The constitutional option would bring, in my opinion, 
irreparable harm to this body if you were to utilize it.
    Chairman Schumer. Thank you. Senator Bennett.
    Senator Bennett. Thank you very much Mr. Chairman. I have 
enjoyed this morning. I have enjoyed the historic review. 
Marty, I remember the days when Senators spent time with each 
other. And I was here as a staffer when Everett Dirksen 
determined the wording and direction of the Civil Rights Bill.
    Everybody talks about Lyndon Johnson's legislative genius 
creating the Civil Rights Act of 1964. It was Everett Dirksen 
that made that possible.
    And I remember when Bobby Kennedy was the Attorney General, 
and the writing of that Act. Kennedy's staff would come to the 
Hill, and they would not go to Mike Mansfield's office. They 
would go to Everett Dirksen's office. Because the Southern 
Democrats were threatening the filibuster. Dirksen with his 
Republicans held the balance of power to break the filibuster. 
And the Administration had to make sure that Dirksen felt okay 
about it.
    And you may remember that Barry Goldwater, the Republican 
standard bearer in that election voted against the Civil Rights 
Act, which created a problem for my father because my father 
voted for it, and thus guaranteed himself a primary opponent 
the next time he came up.
    So I am familiar with all of the give and take and the 
historical circumstance you described. Let me add just a little 
historical perspective from my own experience.
    I think the Majority Leader has the authority to crack the 
whip now if he wants to, and clean up a lot of the things that 
you are talking about. And Marty, your comments I think sort of 
fit in to this. Let me give you one historic example.
    Back in 2006, John F. Kerry was in Europe, and Sam Alito 
was up for nomination to the Supreme Court. And basically Kerry 
phoned in the filibuster. He made a phone call to Harry Reid, 
and said, no, I will not allow a vote, and so on. And Harry 
responded to that. And Kerry was out of the country.
    By contrast, I remember managing a Bill on the floor, and a 
Senator who will remain nameless because none of this got into 
the press as the Kerry thing did, said, I will object if 
Senator X offers this amendment, and my objection will go to 
such lengths that we will have a filibuster.
    I said okay, I am going to notify Senator X of that fact, 
and he is going to come to the floor and offer the amendment. 
And you are going to have to be here on the floor or I will 
accept it, as the manager of the Bill.
    And Senator X showed up, offered his amendment. The Senator 
who said, I am opposed to this, I want to put a hold on this, 
was not on the floor. And as the manager of the Bill, I said I 
have no objection to this, and there was no objection.
    The Senator's staff was livid. But I said, if the Senator 
really, really wants to object to this, the Senator has to be 
on the floor. Now, I sound braver than I was. Because I cleared 
it with the Majority Leader, who said sure, go ahead.
    So here are two examples of a Majority Leader saying, the 
Senator has to show up or his hold will not matter, or the 
Majority Leader saying to a Senator who called him from Europe, 
okay I will honor that, you do not have to show up, you can 
continue your trip abroad and a de facto filibuster will be on 
it.
    I would like you both to comment on that. And the 
pressures, maybe Marty you have a better insight into this than 
any of us, the pressure is on the Majority Leader when 
something of this comes up, because if a Majority Leader says, 
and I have had Majority Leaders tell me, Trent Lott you know, 
if he does not show up, never mind.
    Now it was somebody with whom Trent had a particular 
problem. But would that kind of action on the part of the 
Majority Leader produce the kind of efficiency that we are 
talking about without any changing in the rules? And what are 
the pressures on the Majority Leader to say, oh no, you do not 
dare do that.
    Give me some reaction to that.
    Mr. Paone. Well obviously everything is on a case-by-case 
basis. We had one situation where Mitchell was trying to get an 
agreement on a Bill and a senator called in who was watching on 
CSPAN, and they called in from their living room and said they 
wanted to object. And I told Senator Mitchell about that 
Senator and where he was and he said, tell him he needs to come 
to the floor if he wants to object.
    And that is why when we as the floor staff would help with 
new staff when they would come over at the beginning of a 
Congress, we would explain to them that letters you write, do 
not consider them hold letters. We call them consults. Because 
your hold letter is only as good as your ability to get a 
Senator to the floor to object, and to debate the motion to 
proceed. We would warn people that just because you say you 
have an objection does not mean that the item is not going to 
come up. You have to be able to produce the senator to 
fillibuster.
    And like I say, it is on a case by case basis. That one 
instance, on Alito, yes, there was a situation where a member 
was out of the country and he wanted to be involved with the 
vote or the debate, but quite frankly, he was not the only one, 
if my recollection is correct, that was opposed to Alito. So 
that is not what completely stopped that in its tracks.
    Yes, the Majority Leader does have that ability to ignore a 
``hold'' request. But at some point he is also the Leader of 
his party, and he is responsible for looking out for the 
interest of his members. And he will tell them yes I will look 
out for your interests, but you have to at some point come over 
and do it yourself. You cannot expect me to be the one debating 
that issue. You are the one who has the opposition. I will buy 
you some time, I will honor your objection for a period of 
time, but eventually you are going to have to be the one to 
come here and oppose this issue.
    Mr. Ornstein. Senator I do think that one real problem with 
the Senate now is that there is way too much deference to 
individuals even though it is a body made up of individuals. My 
favorite story about the Senate is when Senator Mitchell left 
this body at a very young age, and he went out and interviewed 
to be Commissioner of Baseball, and met with the owners. And 
when he came out, one of his friends said, why would you even 
consider a job like that? You would be the handmaiden to 28 of 
the most out of control egos in the world. And Mitchell said, 
well that would be a 72 percent reduction from my current job.
    And of course what happens is people put holds on, and 
Leaders protect them. And when you do not protect them--I 
thought Trent Lott was a terrific Leader, but when he ran into 
trouble he did not have a safety net deep enough, because I 
think some of his colleagues resented the fact that he did work 
to make the trains move on time.
    Now, Leaders can do a lot more. We are going to get an 
interesting test to this perhaps now with Senator DeMint. My 
inclination would be to say, go to the floor, go 24 hours, and 
make him stay there. If he wants to object and deny unanimous 
consent, then that is what he is going to have to do.
    And I would like to see whether his colleagues, the 
overwhelming Majority of whom think that this is, even though 
there is a reason to want to have some time to look at things, 
not the best way to go, will protect him. But I doubt very much 
that that will happen.
    Now if we could have the change in the way Leaders operated 
with their members, and the members said I will give up some of 
my individual prerogatives to protect the good of the 
institution, I would be delighted with that and it might 
obviate the need for many of these rules changes.
    But going back to where we started, I am afraid we are 
going to get a bunch of people coming into this body, probably 
more than 20, a Majority of whom would never even consider 
something like that as being within their universe.
    Chairman Schumer. Thank you. Senator Durbin.
    Senator Durbin. Thanks, both of you for your testimony. And 
I can recall that when I was first elected to the Senate in 
1996, and sworn in in 1997, I ran across Howard Metzenbaum at 
an event, who had recently left the Senate. And he kind of 
pulled me to his side, put his arm on my shoulder and said, you 
got to know the Senate rules. And you got to realize, that if 
you do not care if they hate--I am going to clean this up a 
little bit--If you do not care if they hate you, you can get an 
awful lot done in the Senate.
    And I did not see this in my own experience, but I am told 
that there were times when there were three Chairs on the 
floor. The lead sponsor of the Bill, manager of the Bill, the 
ranking Republican, and Senator Metzenbaum. And the amendments 
to finance Bills cleared all three desks so they did not move.
    And he waited, and dragged things out until in desperation 
Senator Mitchell or others would come to him on a Friday and 
say, what will it take? And he would hand them a list, and say, 
this is what I am waiting for. And at the end of the day, a lot 
of people were upset with him, but as he said, he achieved some 
certain things.
    I will say one thing in defense of Senator Metzenbaum, he 
was on the floor, from told, and involved in it. Now we get 
emails from Senators, from their staff, serving notice on all 
of us, that they have created something called a steering 
Committee, on your side. I did not realize that there was such 
a thing, but apparently there is.
    And this Senator said, our steering Committee will decided 
what we consider on the floor of the Senate this week. This is 
a staffer saying to other staffers, so please refer anything 
your interested in moving on the floor to us, or it is not 
going to move. This doing things by mail or remote, to me 
defies logic and should not be protected by this institution.
    Now let me go to a particular point that you raised, Mr. 
Paone. You talked about moving nominations. But now we are not 
dealing with a controversial nomination. We are dealing with a 
large number of non-controversial nominations, that are being 
subjected to filibuster. Nominations as we have noted came out 
with overwhelming votes, if not unanimous votes, out of 
Committee, and will probably have the same experience or close 
to it on the floor, that are being filibustered.
    Even if you took your approach, Marty, in terms of where 
you wanted to go, and you had to deal with a hundred 
nominations, it is impossible. Would you find any way of 
bringing them together, say all right, we are going to move 
these ten nominations unless 40 members will sign, saying that 
they are opposed to it? Tell me how we deal with the volume 
that we are being faced with, and the number of filibusters 
that bear no relevance to protecting the rights of the Minority 
which is destined to vote for them.
    Mr. Paone. It is, I agree, it is a difficult problem. 
Trying to bundle nominations together, however I can feel 
Senator Byrd rolling in his grave right now, because we would 
sometimes talk to him about, well can you maybe bundle some 
together in one cloture motion or something like that. And he 
would point out that you could have individuals in that bundle 
that someone may want and others may not.
    So it is difficult to bundle nominations because each one 
is unique. But again, you have to, maybe you cannot get them 
all done, make better use of the clock. Quite frankly, you may 
end up in a situation--I am not in favor of it, I worked for 
the Democrat side, but if the House flips in the upcoming 
election then next year you may not have too much in the way of 
legislation going back and forth between Houses then you may 
have a lot of time to spend on nominations.
    So they will need to be done in a drawn out basis. Some of 
these nominations, yes the Administration was a little slow in 
sending them up. And yes, due to some obstruction, you do have 
a large backlog. You are just going to have to use the clock 
just like you did for Healthcare from Thanksgiving to 
Christmas.
    Senator Durbin. I understand what you are saying, but when 
you look at even taking a day or two for each nomination, if--
And I think there will be some who will be hell bent on 
exercising the filibuster on everything, controversial or non-
controversial--It is just physically impossible. It makes the 
Senate not an institution to be respected for its principles, 
but a dysfunctional institution which apparently is not even 
committed to principle.
    If ultimately the Minority is going to vote for the 
nominee, then we are not protecting the rights of the Minority 
with the rules that enshrine the right of some person to make 
it too days instead of two hours to vote on that nomination.
    That to me--I do not think we bring respect on the 
institution nor give ourselves a functioning role in this 
important process. Thank you all very much for your testimony.
    Mr. Ornstein. If I could add Senator Durbin?
    Senator Durbin. Of course.
    Mr. Ornstein. I am sorry, Senator Alexander left. But I 
plead with you next year to really work on changing the broken 
nomination and confirmation process. It is damaging to the 
fabric of governance. We have large numbers of positions that 
are unfilled. Now two years into an Administration. A good part 
of the problem is an Administration that had moved them too 
slowly, but much of it is in the Senate. And there are a lot of 
things that need to be cleaned up.
    But if we are going to make some changes to streamline 
things, I would turn first to the nomination process. And as I 
suggested a little bit earlier, I would be happy if you could 
move it to a two-fifths bar for nominations alone. I think 
those are different. And the way in which people get held 
hostage by individuals and the way in which the process now 
gets used to use up precious time for no appropriate purpose is 
just not good for the Senate or for the country.
    Senator Durbin. Thank you.
    Chairman Schumer. Senator Udall.
    Senator Udall. Thank you Chairman Schumer, and thank you 
very much to this panel. I think this has been a great panel, I 
think it has been very enlightening. And you have explored a 
lot of issues.
    And I would like to take off, Mr. Ornstein, from where you 
did, talking about governance. Because that is the thing that 
worries me the most. I worry about the Senate as an 
institution, but then I worry, if the Senate is not working as 
an institution, then we are not doing the things the American 
people sent us here to do.
    And we really right now have a broken institution. You 
talked about nominations. Apparently, the judicial Conferences 
said 44 of these judicial nominations are emergencies, and we 
cannot get them done, we do not have the time.
    On the Executive side, I am used to an era when my Dad went 
into the Cabinet, that you had your team in the first couple of 
weeks. Apparently a year after this Administration was in 
office, they only had 55 percent of their Executive team in 
place. I do not know how you run a government under those kinds 
of situations.
    It has been pointed out on the appropriations process, and 
Mr. Paone, you know this well, in the Senate we get to offer 
amendments on appropriations. So that is an important role. It 
is something that, you are almost like you are an appropriator. 
You do not have quite the detail.
    This year, the remarkable thing has happened, no 
appropriations. So the major thing that we do in government, to 
keep the government running, to make the government efficient, 
to do that oversight, to hold those hearings and then to bring 
that Bill to the floor, we have not done any appropriations 
Bills and we're going to kick it over until December. So a 
sixth of the year will be gone. And that hurts the ability of 
government to do the things that I think the American people 
want it to do.
    Authorizations, once again, major departments need to have 
that oversight. We used to do--my memory is on authorizations--
we used to do at least Defense and Intelligence. This year we 
have not done those. And we had a vote on that.
    And then, the House has passed, I think it is now the 
numbers counting and adding up every day almost 400 Bills that 
we have not dealt with. And all of this, and then the other 
issues that Norm, you, and Marty and others mentioned, I mean, 
Food Safety, Education, Jobs Bills, I mean, the list goes on 
and on and on. And many of those are contained in the House 
Bill.
    So I see us as a broken institution that is not performing 
for the voters. And we need to break through that, and I think 
your panel has proposed some ideas. But, none of these ideas 
are going to be, and I think you have asked the question, going 
to be able to be put in place unless we take the constitutional 
option. I do not see us having 67 votes.
    And believe me, I want to protect the right of the Minority 
to be heard, but I do not, as Senator Byrd said, want them to 
govern. The Minority should not be put in a governing 
situation.
    And Mr. Chairman I would ask unanimous consent to put my 
opening statement in the record, because there was a part of 
that when it came, this opening statement when it came to the 
motion to proceed, Senator Byrd was for that. He was for that. 
He came before our Committee and said he was for sensible 
change. And he would like to limit debate on that.
    And actually in 1979 when he was the Majority Leader, took 
the Senate floor and said that unlimited debate on the motion 
to proceed, and I quote, quote here, ``makes the Majority 
Leader and the Majority party the subject of the Minority, 
subject to the control and will of the Minority.''
    Senator Byrd was very powerful on that point. And despite 
the moderate change that Senator Byrd proposed, limiting debate 
on a motion to proceed to 30 minutes, it did not have the 
necessary 67 votes to overcome a filibuster.
    So we are really(
    Chairman Schumer. Without objection, your statement will be 
put into the record.
    Senator Udall. Thank you, Mr. Chairman. Senator Byrd, and 
he argued, you know the 67 votes at the time, Senator Byrd 
argued that a new Senate should not be bound by that rule, 
stating, ``the Constitution in Article 1, Section 5, says that 
each House shall determine the rules of its proceedings. Now we 
are at the beginning of a Congress, the Congress is not 
obligated to be bound by the dead hand of the past.'' That is 
what we have done. We have bound ourselves by rules that were 
passed in a previous Congress.
    And so I have used all my time here, but I do want to try 
to ask a question. And I hope you will give me, Mr. Chairman a 
little bit of leeway. To me, there is something that brings 
accountability. And I know Marty, I wrote down your words here, 
those are, irreparable harm to the body. It is like a dagger in 
my heart.
    But anyway, I am not trying to bring irreparable harm. 
There is to me a certain accountability to adopt rules every 
two years when you have a Congress. And I am not saying throw 
out all the rules. I am saying, let us be accountable. We hide 
behind, now, we hide behind the rules and say, oh we cannot 
change them.
    We are all now talking reform. And I hope we have, I really 
want Republicans to join us. The preferable thing to me would 
be to get the 67 votes and to move forward. But if we do not 
have that, we have the responsibility to govern.
    Don't you see a certain accountability in adopting rules 
every two years, under the Constitution, on the first day of a 
session? As far as I know, all legislatures do that. 
Parliaments do that, people do this around the world, they do 
it here in the United States. And I think that as long as we 
have respect for the institution and for the Minority to be 
heard, that this will bring accountability to the process.
    And that is what--I do not view this as something that is 
sweeping aside. It makes us accountable, and then everybody 
knows, well hey if we abuse the rules, if you abuse the rules, 
then they can be changed two years from now.
    Please go ahead. And sorry for running on so long there.
    Chairman Schumer. Please take your time.
    Senator Udall. All of these speakers got me all geared up 
here.
    Chairman Schumer. And you have--Senator Udall you have done 
a great job. You have increased awareness of this issue, you 
are the one who suggested these hearings to begin with. Take as 
much time as you want.
    Senator Udall. Mr. Chairman, you have done an excellent job 
too in putting these together.
    Mr. Paone. First of all, I would like to at least step back 
a moment. Everyone is talking about the broken system. This 
Congress will go down in history as probably one of the more 
productive Congresses in generations. You all have done 
extraordinary work, even with a broken system. Lilly Ledbetter. 
TARP. Stimulus. Healthcare. Financial Services. Two Supreme 
Court Justices.
    These things take time. And they sucked time away from the 
authorizations and appropriations. Of course, one of the other 
reasons you do not have an appropriations Bill done is you did 
not do a budget. You cannot have one without the other. Let us 
face it, without the budget, the appropriations process flows a 
lot more slowly.
    Now, as far as--and I did not use irreparable harm lightly. 
I did not mean, that you take it as a dagger. My only point is 
I look at things through the prism of, if I was still here in 
the Minority, what would be my reaction?
    Now, I fast forward to January. I am in the Minority. You 
are still in the Majority, a smaller Majority than you have now 
probably. You use the constitutional option by Majority vote to 
change the rules in violation of your own rules. Rule 5 says 
they continue, and you cannot change them except in accordance 
with the rules. You have changed the rules using that option, 
and you even just said yourself, every two years we should 
adopt our own rules.
    Well, that is fine, if that is the body you want to be. 
That is what the House does. So fast forward another two years, 
I am the Secretary for now the Majority. We have taken the 
place back. I am going to use your template to yes change those 
rules. Only I am not going to be nice and say, all we are 
taking away is the motion to proceed. I am going to say that 
whatever Bill comes up shall be, and whatever nomination, 
whatever comes to the floor for debate, shall be debated under 
the strictures as dictated by the Rules Committee. And the 
Rules Committee ratio shall be two-thirds majority, one-third 
minority.
    And so you as an individual member will have just lost all 
your power to affect change. Because you will not be able to 
object to things coming up. You will not be able to put holds 
on things or be able to filibuster something. You as an 
individual member will then be another House member only in a 
smaller body.
    And that is why I am afraid that if you go this route, it 
will be used down the road. And if every two years the Majority 
changes. If that is what happens, if that is what the end 
result of the Senate is going to be in the future, so be it. It 
is your call and ultimately you will have to answer to the 
folks, the voters. But that is my concern, it is similar to 
what Senator Dodd voiced, and I think Senator Byrd voiced in 
his last meeting here.
    Chairman Schumer. Senator Ornstein--I mean, you are almost 
a Senator.
    Mr. Ornstein. That is quite all right, thanks.
    Chairman Schumer. Mr. Ornstein.
    Mr. Ornstein. Just a couple of quick comments. One is of 
course, when this was tried in 1975, it brought enough of a 
jolt to the system that it actually forced bipartisan 
compromise. And in an ideal world for me, we achieve a 
bipartisan compromise before we ever get to that point. If it 
happened in a way that forced a bipartisan compromise, I would 
prefer that to no change at all.
    I would note that I am not sure that disaster occurred. If 
we could wave a magic wand and go back to having Majority 
required to change the rules, there is actually some restraint 
that is placed on both sides. If you know that it is going to 
be very easy to implement your own changes, if the Majority 
changes. So I do not think that it brings Armageddon.
    But in the culture that we have now, I think Marty has got 
a point. Doing this would cause enormous inflammation out 
there. And it would be so much better if we could find a way to 
preserve the rights of the Minority and streamline the process 
to keep rogue individuals or even attempts at obstruction for 
obstruction's sake from occurring, and find two-thirds who 
would be willing to do it.
    And I would hope that most of our efforts would be devoted 
to that purpose, and we would not have to turn to what--I think 
there is some sound constitutional reason to believe that a 
body cannot bind itself permanently into the future, but it is 
not a desirable course if we can avoid it.
    Chairman Schumer. Senator Bennett has a final comment.
    Senator Bennett. Yes. Norm, that is why they called it the 
Nuclear Option. I was there when it was being discussed, and it 
came up with the phrase, the Constitutional Option to put a 
soft glow around it. But I think it was Trent in a moment of 
candor, for which Trent is known, and for which he paid, said, 
you do that and it is like setting off a nuclear bomb. That is 
the nuclear option.
    And Marty, I think you are exactly right that you go in 
that direction. Yes, I think the Constitution can be described 
in a way that says you have the right to do it, but just 
because you have the right to do it does not mean it is the 
right thing to do.
    And I had not thought it through in the way you have, in 
that, okay we will escalate here and here and here. But I think 
you are exactly right, that is what we will do. And if I may, 
Mr. Chairman?
    Chairman Schumer. Please.
    Senator Bennett. I remember in our Conference a judge, and 
I do not remember who it was, we had the Majority but President 
Clinton was the President, and the judge was put forward, and 
our Majority was such that we were not going to be able to 
prevent this particular judge from going forward.
    And a group of people within the Conference, very upset, 
well we have got 41 votes against him, we do not have enough to 
defeat him. But we have enough people in the Republican 
Conference to say, we have got 41 votes against him, let us 
filibuster him.
    And the person who said, absolutely not, was Trent Lott. 
Because, he said, we do not filibuster judges. And if we were 
to do that, we would change the culture of this place. We just 
do not filibuster judges. That is not what you do.
    And the Chairman of the Judiciary Committee, my senior and 
colleague, Senator Hatch, said, absolutely we do not do that, 
because we are going to win the Presidency in 2000, and if we 
filibustered this judge, that means they could filibuster some 
of our judges.
    And so the younger members who had the bit in their teeth 
about, let us start filibustering judges, kind of stood down, 
and that judge went through. I have no idea who it was, I have 
no memory.
    And when the decision was made to filibuster Miguel 
Estrada, that change took place. And we have all heard on the 
Senate floor when President Obama was sending up some nominees, 
and my friends on the Democrat side were saying now, quoting 
Mitch McConnell, you do not filibuster judges, because 
filibustering judges is the wrong idea. And Mitch said, you are 
right, I said it, I believed it, but you changed things and I 
am now playing by your rules.
    And that is the best example I can think of, of what would 
happen if you used the constitutional option or the nuclear 
option to start turning around, fooling around with the rules. 
A future Minority Leader who became a Majority Leader or vice 
versa, would say, I may have said that in the past, but this is 
where I stand now, and you have changed the rules.
    Mr. Paone. Can I respond?
    Chairman Schumer. Please.
    Mr. Paone. Far be it from me to get into a judicial 
nomination discussion here, but in that era, when you are in 
the Majority, President Clinton was in the White House, you did 
not have to filibuster judicial nominees, you just did not 
report them out of Committee.
    And historically, it is not the first time a judge was 
fillibustered. Abe Fortas was denied his Chief Justiceship on 
the Supreme Court as a result of a filibuster. By the way, it 
was on a motion to proceed. In those days you could still 
filibuster a nomination on a motion to proceed. He failed to 
get cloture on a motion to proceed, he then withdrew his 
nomination because there was a filibuster against that Supreme 
Court nomination.
    And there were two judges. Ninth Circuit judges, Paez and 
Berzon, that Senator Lott, good to his word, I have to hand it 
to him, committed to call those up as a result of other 
negotiations. And he called them up and we did get them 
confirmed. But we did have to invoke cloture on both of those 
circuit nominations because there were filibusters on each of 
those two judges. We did get cloture and those two are on the 
Ninth Circuit. But I just wanted to clarify some of that.
    Chairman Schumer. I would just make one other point here. 
And this is for another hearing, and we are going to have to 
break. We got to vote at noon I think.
    But one of the differences that might have happened, even 
in the last ten or fifteen years--I am not sure if this is 
true--the Leader whether it is a Minority Leader or Majority 
Leader has less desire, less ability, call it what you will, to 
tell a small group of recalcitrant Senators, to stop.
    And what we find on this aisle is many of our Republican--
on this side of the aisle--many of our Republican colleagues 
tell us they do not like what somebody will do on the other 
side in terms of blocking, but there are always 41 votes there 
to protect their right to do it. And I bet 15 or 20 years ago 
there might not have been.
    So that is another element of this, that we got to think 
about.
    Bob?
    Senator Bennett. I will just for the record disagree with 
your interpretation of what happened to Abe Fortas. I was here 
when it happened and I do not think he was killed by a 
filibuster.
    Mr. Paone. There was a cloture vote.
    Senator Bennett. They went through a procedure but that is 
not why he did not get on the court.
    Chairman Schumer. We will not have another hearing on the 
Abe Fortas nomination.
    I thank our witnesses. Very informative. I thank both 
Senators Udall and Bennett. And the others who participated.
    Hearing is adjourned.
    [Whereupon, at 11:54 a.m., the committee was adjourned.]




























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