Congressional Record, Volume 141 Issue 2 (Thursday, January 5, 1995)

[Congressional Record Volume 141, Number 2 (Thursday, January 5, 1995)]
[Senate]
[Pages S430-S439]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

AMENDING PARAGRAPH 2 OF RULE XXV

The PRESIDENT pro tempore. Under the previous order, the hour of
10:15 a.m. having arrived, the Senate will now resume consideration of
Senate Resolution 14, which the clerk will report
The assistant legislative clerk read as follows:

A resolution (S. Res. 14) amending paragraph 2 of rule XXV.

The Senate proceeded to consider the resolution.

Pending: Harkin amendment No. 1, to amend the Standing
Rules of the Senate to permit cloture to be invoked by a
decreasing majority vote of Senators down to a majority of
all Senators duly chosen and sworn.

Amendment No. 1

The PRESIDENT pro tempore. The time on the Harkin amendment shall be
divided, with 30 minutes under the control of the Senator from West
Virginia [Mr. Byrd] and 45 minutes under the control of the Senator
from Iowa [Mr. Harkin].
Mr. HARKIN. Mr. President, parliamentary inquiry. I understand we are
under a time limit. Could the Chair inform the Senator what the time
elements are right now that we are under?
The PRESIDENT pro tempore. The time on the Harkin amendment shall be
divided, with 30 minutes under the control of the Senator from West
Virginia [Mr. Byrd] and 45 minutes under the control of the Senator
from Iowa [Mr. Harkin].
Mr. HARKIN. I thank the Chair.
Mr. President, continuing the debate we had last night and to inform
Senators who may not have been here and who were attending receptions
for newly elected Senators, et cetera, I understand that, but let me
bring Senators and their staffs up to date as to where we are.
At 11:30 today, if I am not mistaken, we will have a vote, I
understand a tabling motion, made by the majority leader to table the
amendment that Senator Lieberman, Senator Robb, Senator Pell, and I
offered yesterday to change the cloture rule, rule XXII. Our amendment
would change rule XXII to provide for a new procedure for ending
filibusters in the U.S. Senate.
We did not throw out the filibuster completely, but our amendment
makes a very modest approach toward ending the gridlock that has
gripped this place over the last several years and is increasing in
intensity in gridlock in this place.
But our proposal says--and let me make it very clear what our
proposal or our amendment says--that on the first cloture vote you need
60 votes to end debate. Then, if you do not get the 60 votes, you can
file another cloture motion. You have to wait 2 more days, you have
another vote. Then you need 57 votes to end cloture. If you do not get
it, you can file another cloture motion--again you need the 16
signatures to do that--wait 2 more days and then you get another vote
and then you need 54 votes to end debate. If you do not get that, you
can file one more cloture motion, wait 2 more days, and then you need
51 votes to get cloture and move to the merits of a bill.
Utilizing the different steps along the way, this would provide that,
to get to the merits of a bill, a determined minority of the Senate who
wanted to filibuster could slow it down for 19 days, 19 legislative
days, which would be about a month. That is just getting to the bill.
There are other hurdles as a bill goes through the Senate. In fact
there are six. There is the motion to proceed, there is the bill
itself, there is the appointment of conferees, insisting on Senate
amendments, disagreeing with the House, and then there is the
conference report. So there are a minimum of six hurdles. That is not
counting amendments.
Of course, when a bill comes to the floor someone could offer an
amendment and that amendment can be filibustered. All we are saying is
that in that first initial time you need 19 days. If you added up all
the hurdles under our proposal you could slow a bill down for a minimum
of 57 days, 57 legislative days.
That would translate into about 3 months. So it is a modest proposal.
We are not saying get rid of the filibuster, but we are saying at some
point in time a majority of the Senate ought to be able to end debate
and get to the merits of the legislation.

A distinguished group of American independents, Republicans and
Democrats, formed a group called ``Action Not Gridlock.'' Former
Senator Mac
[[Page S431]] Mathias, Republican, was on the board. Former Senator
Goldwater, former Gov. Robert Ray of Iowa among Republicans; there are
distinguished Democrats on it; also, independents. They commissioned a
poll last summer that showed that 80 percent of independents, 74
percent of Democrats, and 79 percent of Republicans said that when
enough time was consumed in debate, that after debate a majority ought
to be able to get the bill to the floor. That a majority ought to be
able, at some point, to end the debate.
So, the American people want this. They want us to get away from
gridlock.
Let me show again the Senators what I am talking about in terms of
gridlock what has happened in the last two sessions of Congress. We can
see the use of filibuster going back to 1917 and going up here to 1994.
In the last session of Congress, we had twice as many filibusters as we
had just from 1981 to 1986, the last time Republicans were in charge of
the Senate. We had 10 times more filibusters in the last Congress than
we did in the entire years from 1789 to 1960. Add up all those years,
we had 10 times more filibusters in the last Congress than we did in
all those years. I am saying 10 times more in the Congress, on an
average in Congress, than we did in the years during that period of
time.
Prof. Bruce Oppenheimer, from the University of Houston, wrote an
article in 1985, I believe it was, about Congress reconsidered. He made
an important point. Let me read from Professor Oppenheimer's treatise.
He said,

Congress in the late 20th century is under more severe time
constraints than at any point in its history. Pressures in
the political and social environment have periodically forced
Congress to deal with problems of time.

For example, in the early part of the 19th century most Members of
Congress were not full-time politicians. They could not stay in
Congress for large stretches of time. Crops needed planting and
harvesting, small businesses required regular attention. Transportation
was slow and arduous. But what has happened now, as Professor
Oppenheimer has pointed out, is that the time pressures on Congress
have increased precipitously. And because of the increased workload of
Congress there is more time pressure and, therefore, the power of one
Senator to threaten to filibuster is increased. I think Senators ought
to keep that in mind.
So what we have is a situation where in the 103d Congress we had 32
filibusters, twice as many as we had in the entire 19th century. Not so
much because more Senators are using the filibuster. It is because a
handful of Senators understand that one Senator, because of the
increased time pressures here, one Senator threatening a filibuster can
hold this place up. And thus we have had gridlock.
I think, Mr. President, that it is important or at least noteworthy,
let me put it that way, it is noteworthy that the first vote of this
new Congress in the Senate will be a vote on whether we slay this
dinosaur called a filibuster. It will be our first vote. It will take
place at 11:30, a little over an hour from now. Will we heed what the
voters have said, that they want this place to change? That they want
us to be more productive. Or is it going to be ``business as usual?''
Stick with a filibuster.
You know the very word ``filibuster'' conjures up images of the past,
horses and buggies, outdoor privies, lamplighters. The very word itself
conjures up the 18th and 19th century. So, the first vote of this
session, are we for change? Or are we for the status quo? Did we get
the message in the election? Or are we going to give the American
people more of the same of what they had over the last several years?
Senators hold the key to gridlock. One hundred Senators here at 11:30
hold the key to gridlock. Now is a chance to use this key to open the
door to fresh ideas and to a new approach.
I say to my friends on the other side of the aisle, this could be one
of the most productive sessions of the Senate in recent history. I may
not agree with everything that Republicans are proposing, but they are
in the majority and they ought to have the right to have us vote on the
merits of what they propose.
Now, as a member of the minority I ought to have the right to debate.
I have the unrestrained right of amendment; Nongermane amendments. You
will hear a lot of talk about we do not want this body to become like
the House. No, I do not either. You will hear about protections for
minorities. And for small States and things like that. Those
protections are written into the Constitution of the United States and
cannot be taken away but by constitutional amendment. We have the right
of unfettered debate in the Senate. We have the right to amend with
nongermane amendments. We do not have a rules committee that tells us
what we can offer and what we cannot offer. This gives the protections
to the minority. And, yes, the right to slow things down. I want that
right as a minority. I want to be able to slow down things if I think
they are going too fast or going in the wrong direction. But, I do not
believe that I as a member of the minority ought to have the right to
absolutely stop something because I think it is wrong, that that is
rule by minority.
Well, I just say if we do not use this key that we have, this key to
open the door to get rid of the filibuster, if we do not, I can assure
Senators and I can assure the American public that this trend in the
use of filibuster is going to continue. This line next time will be
even higher. I can assure you that will happen unless we get rid of the
filibuster. If we maintain the filibuster, the American people will
look to the Senate and say ``We elected a bunch of new Senators but
`business as usual.'''
Maybe I might just give a fair warning to my friends on the other
side of the aisle. I think the American people were fed up with the way
this place was operating. If they see it as ``business as usual'' and
we continue this filibuster, my fair warning to my friends on the other
side, 2 years from now it could be the other way around.
I know it is a tough vote. It will be a tough vote for Senators to
come here and to vote to give up a little bit of their personal power,
their personal privileges that they have here. I mean, I have a lot of
power. One Senator has a lot of power under the present filibuster
rules. I think for the good of this institution and for the good of
this country we have to give up a little bit of our privilege and a
little bit of our personal power for the good of this country. I do not
blame Republicans for using the rules as they did last time. They used
it fairly.
They used the rule that exists to stop legislation that they
considered bad. Again, I do not know that that is the proper procedure
for us. We have protections for the minority. As the USA Today
editorial pointed out, the Constitution of the United States divides
powers, provides for the separation of powers, splitting Congress into
two parts and dividing Government among three branches, guaranteeing
basic rights in the Constitution. We have those that protects the
minority.
But I will close with my opening remarks, with this quote:

It is one thing to provide protection against majoritarian
absolutism; it is another thing again to enable a vexatious
or unreasoning minority to paralyze the Senate and America's
legislative process along with it.

I could not have said it better, and it was said by Senator Robert
Dole, February 10, 1971.
If Senator Dole thought the filibuster was bad in 1971, certainly
when we are down here, the filibuster has increased at least threefold
on an annual basis since then. So it is time to get rid of this
dinosaur. It is time to move ahead with the people's business in a
productive manner.
Mr. President, I yield the floor, and I retain the remainder of my
time.
Mr. BYRD addressed the Chair.
The PRESIDENT pro tempore. The distinguished Senator from West
Virginia.
Mr. BYRD. Mr. President, the distinguished Senator from Iowa is a man
of whom I am very fond. I admire him greatly. I admire his spunk, his
courage, his tenacity, his determination to do what he thinks is the
right thing. He serves on the Appropriations Committee with me and is a
fine member of that committee and an excellent chairman of a
subcommittee, but he is wrong in this instance.
He refers to the matter of unlimited debate as a dinosaur. He refers
to unlimited debate as a dinosaur. He calls
[[Page S432]] the filibuster a dinosaur and has introduced a measure
now that will kill this dinosaur. Mr. President, what he is doing here
is, he is bringing a sledge hammer into the Chamber to kill a beetle--a
beetle--not a dinosaur.
I note the presence on the floor of our colleague who is also a
cosponsor of the resolution, the Senator from Connecticut. Does he wish
to speak at this point? I would be happy to yield the floor for now.
Mr. LIEBERMAN. Mr. President, I thank the distinguished Senator from
West Virginia. I would be most happy to listen to him for a while. I
thank him very much for his courtesy.
Mr. BYRD. Mr. President, freedom of speech is of ancient origin. The
Senators in the Roman Republic exercised freedom of speech. There were
no inhibitions on the freedom of speech. The same thing was true with
respect to the members of Parliament. Henry IV, who reigned from 1399
to 1413, publicly declared that the Commons and the Lords should have
freedom of speech. There would be no inhibitions on their right to
speak freely or to be questioned concerning their speeches.
In 1689, when the Commons designated William III of Orange and Mary
as joint sovereigns, the Commons first extracted from William and Mary
assurance that they, William III and Mary, would agree to a Declaration
of Rights, to which they did agree. And then, in December of 1689, that
Declaration of Rights was put in the form of legislation, and it has
since been known as the English Bill of Rights.
In that English Bill of Rights, freedom to speak in Parliament was
assured, and no member of Commons or the Lords could have his speech
questioned or challenged in any place, I believe the words are, ``out
of Parliament.'' In that English Bill of Rights, there is that
guaranteed protection of freedom of speech. It is found in article 9 of
the English Bill of Rights, and our forefathers copied that language
almost word for word as it appears in section 6 of article I of the
United States Constitution.
So there is the evidence from ancient times of the desire of free men
and the needs of free men to be able to speak freely.
There were early examples of extended debate, unlimited debate, the
so-called filibuster, the ``dinosaur.'' Cato utilized this dinosaur in
the year 60 B.C. to prevent Caesar from having his way. Caesar wanted
to stand as a candidate for consul. He had to be in Rome, the city
itself, in order to stand as a candidate. But he was not in the city.
He also wanted to be awarded a triumph. He had to be outside the city
and come into the city for a triumph. So Caesar's friends in the Senate
offered legislation to allow Caesar to stand for consul, the office of
consul, while absent from Rome.
Cato frustrated the friends of Caesar by filibustering. The Roman
Senate adjourned at sunset each day, and Cato used the time --this is
Cato II, Marcus Porcius Cato Uticensis who committed suicide in the
year 46 B.C. after Caesar won the battle of Thapsus.
Cato committed suicide because he knew that Caesar was coming to
Utica. Cato urged the officers and other people in the military to
flee, and he offered to give them the money so that they might leave
Utica before Caesar arrived. He advised his own son to go to Caesar and
to surrender to Caesar, but Cato did not take his own advice. He stayed
in Utica and committed suicide in 46 B.C.
But in 60 B.C., Cato spoke at length in the Roman Senate to spin out
the day, and he defeated the designs of Caesar's friends by the use of
a filibuster. So we have a successful filibuster in the Roman Senate
2,055 years ago. I have not yet read that anybody arose on the Senate
floor on that occasion to accuse Cato of resorting to a dinosaurian
action to frustrate the wishes of Caesar and the designs of his friends
in the Senate.
Unlimited debate--the filibuster--is of ancient origin.
Well, the distinguished Senator from Iowa says, ``I cannot find it in
my Constitution that we must have unlimited debate in the Senate.'' I
do not find it either. But we will find in this Constitution that each
House may determine the rules of its own proceedings.
Mr. HARKIN. Might I ask an inquiry on that one point?
Mr. BYRD. Why, yes.
Mr. HARKIN. Because it is an important point the Senator raises. It
raises a question----
Mr. BYRD. Will the Senator speak on his own time?
Mr. HARKIN. Mr. President, I will speak on my own time to propound
the question.
Mr. BYRD. Except for the question. He may ask me a question. If he
wants to make a statement, I hope he will make it on his own time.
Mr. HARKIN. I wish to propound a question.
Under the Constitution then, under the clause that each body can
establish its own rules, inquiry: Can the Senate establish a rule that
is clearly in contradiction to the Constitution of the United States?
Mr. BYRD. The Senate has not established a rule that is clearly in
contradiction to the Constitution of the United States. Senators have
had the liberty of unlimited debate in the Senate since 1806. In 1806,
the rules were codified. Originally, in the Continental Congress, there
was the previous question, and the previous question was provided in
the original rules of the Senate up until 1806, at which time the rules
were codified, and that provision for the previous question, which was
to shut off debate, was dropped from the rules, in 1806. So we have had
unlimited debate in the Senate a long time.
Aaron Burr, in 1805, when he left the Senate after presiding over the
impeachment trial of Samuel Chase, urged the Senate to ``discard''--I
believe he used the word ``discard''--the previous question.
Therefore, for almost 200 years now, the Senate has been without the
previous question, which cuts off debate. The Senate is to determine
its own rules, and in being the judge of its own rules it elected to
dispose, get rid of, the previous question. The House of
Representatives has the previous question, but the Senate does not.
That was the judgment of the Senate. It has a right to make that
judgment under the Constitution, and the Senate does not have the
previous question today. Henry Clay wanted to bring back the previous
question. Stephen A. Douglas wanted to bring back the previous
question, but it was a very unpopular proposal among Senators.
How much time do I have remaining, Mr. President?
The ACTING PRESIDENT pro tempore. The Senator from West Virginia has
used 14 minutes of his time and has 16 minutes remaining.
Mr. BYRD. I thank the Chair. Mr. President, I reserve the remainder
of my time.
The ACTING PRESIDENT pro tempore. The Senator from Iowa has 28
minutes remaining of his time.
Mr. HARKIN. Mr. President, I yield 5 minutes to the Senator from
Rhode Island.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island is
recognized.
Mr. PELL. Mr. President, I thank my colleague from Iowa and rise to
congratulate him for his determination and consistency in tackling the
thorny problem of reform of the Senate cloture rule.
I do so from the vantage point of 34 years in this body, during all
of which I have supported cloture motions with but two exceptions: One
involving debate on United States policy toward South Africa and the
other legislative reapportionment.
I believe it apparent that rule XXII as it now stands has not served
the Nation well, nor does it place this institution in a favorable
light in the eyes of our people. Time after time in recent years, and
with increasing frequency, two-fifths of the Senate, not a majority,
determined the outcome of many of the issues before us.
Now the Senator from Iowa puts before us a proposed rule change which
is ingenious and accommodating. It allows the advocates of cloture to
keep trying to close debate at progressively lower thresholds, starting
at three-fifths and gradually reducing it through four steps to a
simple majority. Debate could continue for up to 13 days until that
lowest threshold is reached, and even then, of course, the majority
could still decline to invoke cloture.
It seems to me this is a reasonable proposal and one which would, I
believe, provide ample opportunity to colleagues on this side of the
aisle to
[[Page S433]] protect our interests in our new-found minority status.
So I hope the Senate will give serious and thoughtful consideration
to the proposal of the Senator from Iowa and not reject it out of hand.
It goes to the heart of what people expect of this body and should be
treated accordingly. I might add in that connection that if we are
unable to reach consensus on reform of our own rules to allow the
majority to prevail, the larger constitutional issue of majority rule
may need to be addressed.
For the moment, I trust we give full and fair consideration as we
consider Senator Harkin's creative effort to change rule XXII.
I yield the floor.
Mr. HARKIN. How much time do I have remaining, Mr. President?
The ACTING PRESIDENT pro tempore. The Senator from Iowa has 25
minutes remaining.
Mr. HARKIN. I thank the Chair.
I yield such time as he may consume to the Senator from Connecticut.
The ACTING PRESIDENT pro tempore. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I thank my friend and colleague from
Iowa, and I thank the Chair.
I am very privileged to be a cosponsor with the Senator from Iowa of
this amendment, and I congratulate him on his willingness to charge the
fortress here, to try to remove one of the hurdles to this being a
truly representative and productive body.
The filibuster may have made some sense at one point; it may have
been a reasonable idea, but it in fact has been badly misused in our
time. You can pick your favorite statistic, but the one that I saw a
while ago was that there were more filibusters in the last session of
the Senate than in the first 108 years combined. Others will tell you
there have been more since 1990 than the preceding 140 years combined.
Whatever the years, it is pretty obvious we have come to a point in
the history of this Chamber where the filibuster, the ability of one
Member to stand up and stop the body from functioning effectively and
to block the will of the majority, is a contributor to gridlock and to
our inability to produce and, therefore, to public frustration which is
in the air and we are attempting as best we can to respond to them.
The other body in its wisdom took some steps yesterday that I think
are reflective of that mood and responding to it, and there are many
things we can do in this Chamber along with those that were done
yesterday in the other body. I think one of the most important is to
alter the current rules of debate so far as they allow a single Senator
or, in the synthetic filibusters, not the real filibusters that we have
had in our time, allow a minority to threaten to debate interminably
and by that means to block the majority from working its will.
I have just enormous respect for the distinguished Senator from West
Virginia and, as I said in the Chamber last night, he is clearly the
expert in this Chamber on the rules of the body and not only knows the
rules of the body but knows from whence they come, their history, so
when I speak in opposition to his position I do so with some humility
and respect.
I would say on the question of the derivation of freedom of speech
back to earlier times, English precedents or Roman precedents, and
developing as it has in our time in the speech and debate clause in the
Constitution, that I would respectfully offer this thought: That the
Constitution and the great freedoms that it gives our people as they
have been interpreted by the Supreme Court over the history of America,
all have been at one point or another limited. In other words, we are
given individual freedom, which is at the heart of what it means to be
an American, by the Constitution, by the community. Although, of
course, many of us feel that the ultimate source of our individual
freedom goes beyond the community, beyond the Constitution, to our
Creator, and I believe that the Founders and Framers very much were
motivated by that religious impulse and that theological view of human
nature.
But my point is this. Over our history, every right, including the
sacred and fundamental right of free speech, has occasionally been
limited because it was thought that its unlimited exercise threatened
the safety and well-being, perhaps even the continuity and the survival
of the community. Of course, there is the classic and perhaps limited
expression, but it is a popular one, that you do not have the right to
rise in a crowded theater and shout ``fire'' when there is no fire and
create a pandemonium, a bedlam. And the limits go on and on: those that
relate to libel and slander; the ways in which the Supreme Court, for
instance, has wrestled with questions of obscenity, when is freedom of
speech so offensive to the community that it threatens some of the
fundamental values of the community?
This right of unlimited speech for Members of the Senate in the
particular context of our rules, it seems to me, requires at this
point, based on what we have experienced, limitations. Because the
ability of an individual Senator to stop the process, the capacity of a
minority to make it impossible for a majority to work its will and
represent the majority of constituents back home, has come to a point
where it has too often threatened the ability of this Chamber to
function, to represent, to lead, to be truly deliberative in the sense
that we mean it.
In its misuse the filibuster has also, I think, threatened not only
the productivity and credibility of the U.S. Senate, but has
contradicted some of the basic principles of our Government as
expressed by the Framers of the Constitution. And one is this
fundamental question of majority rule. It seems to me as I read the
Federalist Papers and look at the Constitution that as concerned as the
Framers were about individual rights and protection of the minority,
they made a clear decision, which was that the Congress--and let me be
more specific, that the Senate--was to be a majoritarian body; that the
majority would rule; that there were other protections in the system
for the minority. One was what we referred to as the republican form of
government--small ``r''--which is to say the various checks and
balances built into the system, the requirement in our system, to adopt
a law, of the support of the Senate, the House, and the signature of
the President.
Ultimately, if the minority rights were still threatened, an
individual could go to court, and over our history it has been clear
that the courts interpreting the Constitution have been there to
protect the minority. But this was to be a majoritarian body. And this
filibuster has turned that, in my opinion, upside down and allowed the
minority to rule. Some who support the status quo on the filibuster say
that it is there to protect the rights of the minority. But what about
the rights of the majority? Some say that there is a danger of a
tyranny of the majority. I say that there is a danger inherent in the
current procedure of a tyranny of the minority over the majority,
inconsistent with the intention of the Framers of the Constitution.
It is inconsistent in another specific way with the Constitution, and
I will mention this briefly because it has been mentioned before. The
Constitution states only five specific cases in which there is a
requirement for more than a majority to work the will of this body:
Ratification of a treaty, override of a Presidential veto, impeachment,
adoption of a constitutional amendment, and expulsion of a Member of
Congress. In fact, the Framers of the Constitution considered other
cases in which a supermajority might have been required and rejected
them. And we by our rules have effectively amended the Constitution--
which I believe, respectfully, is not right--and added the opportunity
of any Member or a minority of Members to require 60 votes to pass
almost any controversial bill in this Chamber.
It is wrong. It has also made this a less accountable body. And I
think accountability of elected officials is at the heart of democracy
and all we stand for. It is less accountable in two ways. One, when we
are allowed to defeat a measure on a procedural vote such as a
filibuster, it cloaks us from having to stand up and vote on the
merits, on the bill itself, and therefore, to some extent, it muddles
our accountability and the record that we take back to our
constituents.
Second, in another sense it makes it hard on the majority and those
of us on this side of the aisle--and the majority
[[Page S434]] I am speaking of here is in a more partisan sense--those
of us on the Democratic side experienced this over the last couple of
years. Clearly not all the filibusters have been partisan. The
opposition to the procedure is bipartisan and so is the support. But in
a strict political partisan sense, it is hard for a majority to be held
accountable fairly to the public if a minority, a party, for instance,
can block the majority from attempting to work its will, from
attempting to pass its program, and then, unfairly in some cases, the
majority may be held accountable for that failure even though it was
the minority who blocked action by filibustering that resulted in the
failure to produce.
A lot of Democrats may have been held accountable for that on
election day, November 8, 1994. But the wheel of history has turned and
the majority is now on the other side of the aisle. Though it might
seem inviting for Democrats to use the filibuster to confuse and
frustrate the will of the majority here, it is not fair. The majority
ought to have the opportunity to try to pass its program or be held
accountable for it. And this filibuster frustrates that opportunity.
So, Mr. President, I understand, and the Senator from Iowa
understands, that we are fighting upstream in this effort. But it is an
effort that I think is at the heart of congressional reform, at the
center of responding to the public frustration and the drop in respect
for this Congress of ours which is so central to the relationship that
those who govern have with those who are governed. When that trust is
gone our democracy is in trouble. I think this is the time to begin to
challenge this procedure. History shows us that on the other occasions
when the filibuster rule has been changed, it generally was not changed
on the first try. The Senator from Iowa and I would be pleasantly
surprised if that were not the case today, but it probably will be the
case. But I know he feels strongly, as I do, that we should continue
this effort to work with our colleagues to see if we cannot find ways
that will achieve adequate support to bring about a change in the
existing filibuster procedure.
Again, I express my great admiration for the Senator from Iowa for
taking this on. It is not an easy battle. It is not a popular battle.
But it is the right fight to make and it is my privilege to be marching
arm and arm with him on this one. I hope that when the vote is taken,
we will be surprised, and I hope particularly that the support for our
amendment is across party lines. I thank the Senator from Iowa for his
leadership, for yielding his time to me, and I yield the floor.
Mr. HARKIN. Mr. President, I want to thank the Senator from
Connecticut.
I repeat what I said last night, that we are delighted to have him
back for another 6 years. There is one thing that marked the first 6
years here of the Senator from Connecticut, and that was his unending
effort to make this place operate better, more openly, and to really
make the Senate reflect the true will of the people. He has continued
that effort today. I am proud to have him beside me in this battle. I
thank him.
Mr. President, I came across this article called ``Renewing
Congress.'' I thought it would be appropriate for me to bring it to the
Senate's attention. Some people may view this as a liberal-conservative
issue. I do not believe it is, in any way. But I wanted to point out
that Norman Ornstein, of the American Enterprise Institute, which I
think I can rightfully say is the more conservative think tank here in
Washington, along with Thomas Mann of the Brookings Institution, which
is more of a liberal organization, I guess you might say, put out this
book earlier this year called ``Renewing Congress.'' I thought I would
just read the part in it that they had regarding the filibuster:

We believe much tougher steps are needed to prevent the
abuse of holds and filibusters. The recent emergence of a
partisan filibuster unprecedented in Senate history has made
a bad situation even worse. We recommend two steps to deal
with this problem. First, the Senate should return the
filibuster to its classic model, with individual Senators
required to engage in continuous debate day and night while
all other business is put on hold. Second, the Senate should
look hard at adopting a sliding scale for cloture votes, 60
votes required to cut off debate initially, 55 votes after a
week of debate, and a simple majority 2 weeks after the
initial cloture vote. This sliding scale could be applied to
all filibusters.

Again, I just want to point out to Senators this is the view of
Norman Ornstein of the American Enterprise Institute.
Mr. President, how much time do I have remaining now?
The PRESIDING OFFICER (Mr. Stevens). The Senator has 11 minutes
remaining.
Mr. HARKIN. I reserve the remainder of my time.
Mr. BYRD. Mr. President, my friends and others have stated that there
are only five instances, in the Constitution, of reference to a
supermajority. I call their attention to amendment 12 of the
Constitution, which provides that in the election of a President by the
House of Representatives, a quorum of Members must consist of two-
thirds of the States; Members from two-thirds of the States. Also, in
the election of a Vice President by the Senate, under amendment 12 to
the United States Constitution, there must be two-thirds of the States
represented to constitute a quorum in the Senate for that purpose.
So there are more instances of required supermajorities than five.
My time is limited. Let me yield 5 minutes to Mr. Reid, who wishes to
speak, and then I will use the remainder of my time.
Mr. REID. I thank the chairman very much
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I represent a State that is very large in
area but small in numbers of people. The State of Nevada until recent
years was a State that had very, very few people. We have had rapid
growth in southern Nevada in recent years, and now we have many more
people residing in the State of Nevada. But it is still a very small
State in the numbers of people. During the last century, the State of
Nevada had so few people in it that there was talk in this Chamber
about doing away with the State of Nevada, there were so few people in
it.
Mr. President, during those years a Senator from the State of Nevada
had the same power as a Senator from the very populus State of New
York. The Founding Fathers in their wisdom set up this Government so
that a State like Nevada, a State like Alaska, a State like Vermont,
having few people, would still have the ability to represent the people
in that State on the same basis as those States that had large numbers
of people.
Mr. President, I believe that the Founding Fathers were right. The
power of the filibuster, even though it, in my opinion, has been abused
in recent years, allows Senators representing lightly populated States
to enjoy the same voting strength as other States. I have done it on
one occasion in this Chamber. I was in my first year in the Senate and
there was an issue that came up that was important to the State of
Nevada, and I spoke on this floor for a long time. I was told that I
hold the record for speaking longer on a filibuster than any first-year
Senator. I am proud of the fact I did that, because it was an issue
that mattered greatly to the people of Nevada.
So I approach this issue not on numbers of how many times there has
been a filibuster; I approach it on the basis of the effort made by my
good friends, Senator Lieberman and Senator Harkin. You can say
anything you want to about it, but it is the end of the filibuster
because any leader knows that he could schedule four votes, and on the
fourth vote the filibuster would be over.
Mr. President, I speak as a Senator from the State of Nevada. I
believe that the Founding Fathers were right in setting up the
Constitution in the manner in which they did. I believe that if we are
going to have the legislative form of Government that they set up, we
do need to protect the integrity of States that are small in population
like the State of Nevada.
So I want Members of this body to know that I will exercise my right
as a Senator from the State of Nevada to speak as long as I can if, in
fact, the
[[Page S435]] motion to table does not prevail because any State that
is small in numbers should be on this floor protecting their individual
States.
Changes in the Senate rules that allows this institution to operate
more efficiently are welcome; however, the full-scale elimination of
one of the most sacred rules of the Senate--the fulibuster--will not
result in a more efficient Senate. In fact, it has the potential to
result in the tyranny of the majority.
I do not support the patently abusive use of the filibuster that we
saw last session. There were many instances of overwhelmingly supported
legislation being killed because of partisan use of the filibuster.
There is no doubt that this contributed to much of the gridlock we
witnessed in the 103d Congress.
Few would argue that we saw the death of legislation that would have
significantly improved the credibility of this body. The elimination of
lobbyist gift giving and campaign finance reform are just a couple of
examples of legislation that perished because of spurious use of the
filibuster.
Those who chose to invoke the filibuster for partisan dilatory
purposes were responsible for grinding Senate business to a halt. The
numbers cited earlier by the Senator from Iowa--32 filibusters in the
103d Congress compared to a total of 16 in the entire 19th century--
evidences its abuse by an obstinate partisan minority.
Having said all that, however, I do not support the elimination of
the privilege. I say privilege because that is what I believe the
filibuster to be. A unique privilege--to be used sparingly and only in
those instances when a Member believes the legislation involves the
gravest concerns to his or her constituents.
It is a unique privilege which distinguishes the intentionally
deliberative operations of the Senate from the often passionate,
bullish operation of the House. It is a unique privilege that serves to
aid small States from being trampled by the desires of larger States.
Indeed, I view the use of the filibuster as a shield, rather than a
sword. Invoked to protect rights, not to suppress them.
In the House, the State of California has 52 Members in its
delegation. My State, Nevada, has two Members. If California wants to
roll Nevada in the House on a particular piece of legislation, that is
their prerogative. But when that legislation makes it way to the
Senate, one State will not be able to roll another simply by virtue of
its size. In the Senate, we are all equal, regardless of which State we
represent.
The people of Nevada know that in the Senate, Nevada stands on equal
footing with the State of California and the State of Texas. They know
that as long as I am here in the Senate, I will fight to protect their
interests. And, because of the filibuster, they know I will be fighting
on a level playing field
They know that when legislation that would result in a deleterious
impact on the State of Nevada is steamrolled out of the House, I will
do what is necessary to shield them from the enactment of this
legislation. And, if this means invoking my rights as a Senator to
engage in a protracted debate, I will--after careful deliberation--do
so.
I would never allow the interests of Nevadans to be trampled simply
because of the size of our State.
Mr. HARKIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I want to respond to my friend from Nevada
in two ways.
First of all, when he talks about our Founding Fathers, the Senator
from Iowa is referring to James Madison.
Mr. BYRD. Mr. President, this time will be charged against Mr.
Harkin.
Mr. HARKIN. I was recognized.
The PRESIDING OFFICER. That is correct.
Mr. HARKIN. James Madison, in Federalist No. 58--I just want to read
it. I will give the Senator a copy.

If more than a majority were required for a decision, the
fundamental principle of free government would be reversed.
It would be no longer the majority that would rule. The power
would be transferred to the minority.

The Senator from Nevada talks about small States. I represent a
pretty small State. The Senator from Rhode Island, who spoke earlier,
who is a cosponsor of this amendment, represents a State with two
Congressmen per State, like other States. As he pointed out, in his 34
years here, he has never voted to sustain a filibuster. He has voted
consistently for cloture to end debate.
Yet, I believe that the Senator has represented his State well. I
believe that Rhode Island has not been the worse for that. Quite
frankly, I think they have prospered because of the representation of
Senator Pell.
The Constitution of the United States set up mechanisms to protect
our small States--divided Government, checks and balances, vetoes, and
yes, we have the right in the Senate to amend, to offer amendments.
The Senator from West Virginia has more than once mentioned the
British Bill of Rights and about how no Member of Parliament is to be
questioned in any other forum or speech or debate held on the floor of
Parliament or in the House floors. That was adopted in our
Constitution, article I, section 6. It is called the speech and debate
clause.
I think maybe the Senator from West Virginia is confusing the speech
and debate clause with unlimited debate. No one is challenging the
speech and debate clause. No one is challenging the right of Senators
to speak freely under article I, section 6.
So nowhere in the Constitution does it say they can speak forever. I
also point out that even under the British Bill of Rights of 1689,
there was still the previous question that the British have to end
debate and move to the merits of legislation. I do not think we ought
to confuse article I, section 6 with a Senate rule adopted in 1917
regarding cloture.
So I want to respond to the Senator from Nevada that I understand he
wants to protect his State, and he should, and he has done a darn good
job of it, I might add. But there are other protections--to protect our
States and to make sure the big States do not run roughshod over us.
I yield the floor.
Mr. BYRD. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 1 minute of the 5 that were
yielded to him. The Senator from Nevada has 1 minute left.
Mr. REID. Mr. President, I say respectfully to my friend from the
State of Iowa that checks and balances and vetoes would not help the
State of Nevada or the State of Alaska if the 52 Members of the
congressional delegation of California decide they want to do something
that would affect the State of Nevada. The only thing I can do to take
on one of those big States is to exercise my ability to talk on this
floor and explain my position in detail. Checks and balances has
nothing to do with protecting a small State. Vetoes have nothing to do
with it, unless you have the ear of the Chief Executive of this
country. The filibuster is uniquely situated to protect a small State
in population like Nevada.
Mr. BYRD. Mr. President, the proponents of the amendment have pointed
out a number of times that most of the so-called filibusters have
occurred in the last year, or last 2 or 3 years, and according to the
chart, that is correct. What they are talking about, Mr. President, and
what has gone around over this land is the idea that the failure to
give unanimous consent to take up a matter constitutes a filibuster.
Mr. President, let us read the rules. We do not need the Harkin
amendment to stop so-called filibusters on motions to proceed. We do
not need that. Let us read the present rules. I urge Senators to read
the rules of the Senate. Read the rules of the body to which they
belong before they start proposing that the rules be changed.
Here is paragraph 2 of standing rule VIII:

All motions made during the first 2 hours of a new
legislative day to proceed to the consideration of any matter
shall be determined without debate, except motions to proceed
to the consideration of any motion, resolution, or proposal
to change any of the Standing Rules of the Senate shall be
debatable.

In that case it will be debated.
Here we have paragraph 2 in Rule VIII of the Standing Rules of the
Senate which says, in plain English words, that any motion made during
the first 2 hours on a new legislative day to take up a matter is
nondebatable.
[[Page S436]] What more do we need? Mr. President, I have been
majority leader of this Senate twice. I have been leader of the
minority once, for a period of 6 years. And there is no other Member of
this body who has been majority leader other than I, except Mr. Dole. I
know what the powers of the majority leader are. One of the greatest
arrows in his arsenal is the right of first recognition. So any
majority leader can walk on this floor and certainly find a way to be
recognized during the first 2 hours of a legislative day. Who
determines whether it will be a new legislative day or not? That, too,
is within the right and the powers of the majority leader. The majority
leader can recess over until the next day, or he can move to adjourn,
in which case the next meeting of the Senate will be considered as a
new legislative day. During the first 2 hours of that new legislative
day, any motion to take up a matter is nondebatable. With all these
powers that a majority leader has, why can he not use paragraph 2 of
rule VIII of the Standing Rules of the Senate to get around so-called
filibusters on motions to proceed?
I have a parliamentary inquiry, Mr. President.
The PRESIDING OFFICER. The Senator will state the inquiry.
Mr. BYRD. Has rule VII, has rule VIII, either of the two rules, been
used once in the past Congress?
The PRESIDING OFFICER. The Chair is informed that they have not been
used.
Mr. BYRD. There you are. Why do we not use the rules we now have? No,
we do not do that. We ask unanimous consent to take up a matter and
somebody objects over here. That is called a filibuster, and
immediately a cloture motion is put in. Well, some would say that is a
waste of time. You have to wait 2 days. The majority leader does not
have to wait 2 days. He can go on to something else once the Chair
reads the 16 names who are signatories of the cloture motion. He can go
to something else. And 2 days later, the following day plus one, the
cloture motion will ripen, and there will be a vote. So that is called
a filibuster.
I daresay if you count those so-called filibusters in that red bar on
the chart there, you will find most of them are cloture motions that
were entered on requests to proceed that were objected to and
immediately a cloture motion was filed. That is no filibuster. We go on
to something else. We do not spend 2 days debating that matter. We go
on to something else. That is no filibuster. But in order to enhance
their arguments that we need to do away with the so-called filibuster
rule, they spread it all over the country that the Senate is plagued
with filibuster after filibuster after filibuster. There is no question
but that our friends on the other side of the aisle, in my opinion,
have recently abused the rule. But as I say, the rule is there. The
majority leader has the power and he can move to proceed, and that is
nondebatable under rule VIII.
Let me hasten to say that after that first 2 hours in a new
legislative day, of course, any motion to proceed is debatable. I am
willing to cure that. Let us change the rule and allow for a debatable
motion with a limit thereon of, say, 2 hours on any motion to proceed
to take up any measure or matter, with the exception of a measure
affecting a rule change. I am for that. So there can be no excuse about
holds on bills, and any majority leader worth his salt is not going to
honor a ``hold'' except for a few days. When he gets ready to move, he
will send word to the Senator who has a hold on a bill, as I did on a
number of occasions to Senator Dole. I said: Please tell the Senator I
am going to move next week to take up thus and so, on which he has a
hold. And the hold generally goes away. If it does not, there is no one
man in the Senate that can tie up the Senate long. I can tie it up for
as long as I can stand on my feet. That is not long.
It takes a very sizable minority in this Senate to hold up the
Senate. It takes 41 Members of the Senate, a minority of 41 Members to
really stop the process. And they say, well, I am for delay. We ought
to have time to delay, to debate, but let us not give the minority the
right to stop.
The minority sometimes is right, and a minority in the Senate often
represents a majority out there beyond the beltway. Moreover, an
extended discussion here may convince what is today a minority of the
people out there as to what is really right, and it may change to a
majority from a minority out there. So the minority can be right, and I
say the minority should retain the right that it has had since 1806 in
this Senate to stop a measure. If a measure is bad, it ought to be
stopped.
Perhaps it can be amended and improved. But let us not do away with a
rule here that gives this Senator, that Senator from Connecticut, that
Senator from Iowa, that Senator from Nevada, that Senator from
Mississippi, gives him the right to stand on his feet as long as his
lungs will carry breath and his voice can be heard to stand up for the
rights of his State.
This is a forum of the States. There is no other forum of the States
in this Government. This is the forum of the States.
And a minority can be right. The States are equal in this body. But
out there, for example, in New York, Pennsylvania, Ohio, Illinois,
California, Texas, and Florida, there is a minority of the States but a
majority of the population. You take away this right of unlimited
debate, you may take away the right of a whole region of this country.
The people of that region may be right. They may be in the majority as
to population, but in the Senate, they may be in the minority.
So, Mr. President, let us not take away this right. As long as the
U.S. Senate provides the right of unlimited debate, then the people's
liberties will be assured.
An urge to be efficient is commendable, but not at the expense of
thorough debate which educates the public and educates the Members. And
there is a need in this body for more debate and not less.
Mr. President, do I have any time remaining?
The PRESIDING OFFICER. The Senator has 1 minute remaining.
Mr. BYRD. Mr. President, the Founding Fathers were wise. The current
rules are the result of experience and trial and testing over the
period going back to the beginning of this republic. The previous
question was done away with, as I have already stated, almost 200 years
ago. Let us retain the right to debate. The majority, if it has the
majority, can presently cut off debate and avoid many of the so-called
filibusters by using the rules we have already. But most of the so-
called filibusters, most of the so-called filibusters, have not been
filibusters.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. COCHRAN. Mr. President, will the Senator yield?
I thank the distinguished Senator from Iowa [Mr. Harkin] for
yielding.
When the Senator concludes his remarks at 11:30, I will move to
table his amendment and ask for the yeas and nays.
I am opposed to this amendment, and I urge the Senate to vote for
the motion to table it.
It has been my experience to observe the importance of the current
cloture rules on several occasions in protecting legitimate minority
interests here in the Senate. On at least one occasion it was a
regional minority interest at stake--the ports that are located on the
Gulf of Mexico.
It is obvious that the States on the gulf coast comprise a minority
of the whole membership here, but when we banded together to debate at
length a proposal to write into law a preference for Great Lakes ports
over gulf coast ports under the Public Law 480 program, we were
successful in assuring a decision that treated all port ranges fairly.
To assume that all uses of the right of unlimited debate are evil or
ought to be restrained under a new cloture rule ignores the legitimate
and important protection the rule now provides to all Senators, all
minorities, and all regions of the country.
The one example I have cited related to a regional interest that
would have been trampled under foot by a majority vote but for the
leverage our region had the right to use, and did use to full
advantage, under the unique Senate rule of unlimited debate.
I hope the Senate will act today to protect this rule from the injury
that
[[Page S437]] would be done by the Harkin amendment.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 7 minutes.
Mr. HARKIN. Mr. President, the distinguished Senator from West
Virginia has focused most of his attention and remarks on the motion to
proceed, because that is where most of the problem lies. I admitted to
that same thing myself last night.
But, to do away with the motion to proceed or to do away with the
possibilities of a filibuster of a motion to proceed, only takes away
one hurdle of six.
The Senator from West Virginia is right. You can file a motion to
proceed, you can move on to other bills and get the cloture motion
filed. But if you get to a bill and you filibuster the bill, it takes
unanimous consent then to move off of that and pick up some other
legislation.
Now, I submit that the reason most of the time that we have had
objections to motions to proceed was because there was the implied
threat that, if you did move ahead, there would be a filibuster on the
bill. That threat was always there.
There are six hurdles: motion to proceed, cloture, disagreement with
the House, insisting on amendments, appointing conferees, and a
conference report. Any one of those can be filibustered. Any one of
those can be filibustered.
If you take away the motion to proceed, you have only taken away one
hurdle. In fact, I submit you would make the situation even worse,
because at least under the motion to proceed you can move to other
business.
Now, in 1975, the rules were changed.
Mr. BYRD. Will the Senator yield just for a correction?
Mr. HARKIN. Yes.
Mr. BYRD. I want to verify that this is correct with the
Parliamentarian.
The Senator from Iowa says that if a measure is before the Senate it
takes unanimous consent to go to another measure. That is not the case.
That is not the case. I have been majority leader and minority leader
and I know what I am talking about, but I wanted to verify it.
The leader can go to another measure by motion. It does not require
unanimous consent.
Mr. HARKIN. Well, that motion is then debatable. That motion is then
debatable and that motion can be filibustered. I believe the Senator is
right.
Mr. BYRD. I wanted to correct the Senator on that point.
Mr. HARKIN. I do stand corrected on that.
But then there are other avenues. As I pointed out, there are other
hurdles on the filibuster. You can get rid of the motion to proceed,
but you still have all these other hurdles, and you can filibuster any
one of them.
I might also add that I find it a curious argument of the Senator
from West Virginia that, if the minority feels the legislation is bad,
they ought to have a right to stop it.
Let me quote again from James Madison.

If more than a majority [were required] for a decision . .
., the fundamental principle of free government would be
reversed. It would be no longer the majority that would rule;
the power would be transferred to the minority.

Maybe we have a fundamental disagreement here. I do not believe that
the minority ought to be able to stop legislation they consider as bad.
They ought to be able to amend it, slow it down, debate it, change
public attitudes and opinions, go to their colleagues to get their
opinions changed. But I find it curious that the Senator from West
Virginia would say that a minority ought to have a right to stop
legislation they consider bad. That is rule by the minority.
The Senator from West Virginia says a Senator ought to have a right
to stand and speak until his breath runs out. But that is not the
situation we have. Under the present rule XXII, you can start a
filibuster and go home. It takes 60 Senators, three-fifths of those
duly chosen and sworn, to break a filibuster. And you do not have 60
Senators. You do not have to stand here and talk at all. You can go
home. We have seen that happen. We have seen that happen last year. So
we do not have that situation.
Forget about Mr. Smith goes to Washington. That is not the situation
we have today.
Mr. BYRD. Will the Senator yield?
Mr. HARKIN. Yes.
Mr. BYRD. His proposal does not correct that fact. Why does the
Senator not offer a proposition that will provide cloture only by two-
thirds of those present and voting or by three-fifths of those present
and voting?
Mr. HARKIN. Well, if the Senator wants to propose that.
Mr. BYRD. No, I say, why does the Senator not do that? His proposal
does not cure that.
Mr. HARKIN. Because, under my proposal, a Senator could stand here
and talk until his breath runs out. Fifty-seven days we allow. I do not
think any Senator here can speak for 57 days. So it is not as though we
are taking away the right of a Senator to stand here and speak until
his breath runs out.
Our amendment will allow 19 days, 19 legislative days, just to bring
the bill up. Then, on the other hurdles, there is more. It is a total
of 57 days that a determined Senator can filibuster a bill. And I have
not even mentioned the amendments to the bill.
The Senator says we need time for more debate and not less. I agree
with the Senator. I wish we could have more debates like this. I think
they are good debates.
Threaten to filibuster, the people go home.

I would close my remarks, Mr. President, by saying this is the first
vote of this Congress in the Senate. I believe it is the most important
vote of all the so-called reforms that we with will be voting on. We
will reform the way we do business here, and we will apply the laws
that apply to businesses to Congress, and we will have gift bans and
all that. Fine.
This is the single most important reform. The people of this country
want this body to operate more effectively. They do not want gridlock.
Yes, we want the rights of the minority protected. We want the minority
to be able to debate, to amend, to speak freely. To slow things down.
As Washington said to Jefferson, ``to cool down the legislation.'' But
to enable one or two or three Senators to stop everything? No. It is
time to change. This is the single most important vote and I ask
Senators to heed what the public said in November. They want change in
this place. Not the status quo.
Mr. DOLE. Mr. President, during yesterday's debate, my distinguished
colleague from Iowa, Senator Harkin, incorrectly compared his current
filibuster proposal with a proposal that I endorsed in 1971.
I would like to take a few moments now to set the record straight.
In 1971, rule XXII of the Standing Rules of the Senate required the
affirmative vote of two-thirds of those Senators present in order for
cloture to be invoked. As my colleagues know, the current rule XXII
requires the affirmative vote of just three-fifths of the Members duly
chosen and sworn in order to invoke cloture.
With this in mind, the rules change that I endorsed in 1971 is far
different from the rules change proposed today by my colleague from
Iowa. My proposal in 1971 would have reduced by one the number of votes
required to limit debate each time a cloture petition was voted upon.
On the first vote, an affirmative two-thirds of the Senators present
and voting would have been required to invoke cloture; on the second
vote, two-thirds less one of the Senators present and voting would have
been required; on the third vote, two-thirds less two, and so on until
the point of three-fifths of those present and voting was reached.
In other words, under the terms of my 1971 proposal, at no time would
the number of votes needed, to invoke cloture have fallen below three-
fifths of those Senators present and voting. The amendment offered by
my colleague from Iowa, on the other hand, contemplates that the number
of votes needed to invoke cloture would decline to 51, a simple
majority, after a series of attempts to invoke cloture have failed.
So, Mr. President, there should be no misconceptions about where I
stand. I oppose the amendment, offered by my distinguished colleague
from Iowa. And
[[Page S438]] I have never endorsed his proposal, even in principle.
Thank you for giving me the opportunity to make this clarification.
Mr. LEVIN. Mr. President, I share the concern of the proponents of
this proposal to modify Senate rule XXII that the right to filibuster
has been abused in the Senate in recent years.
In the entire 19th century only 16 filibusters occurred. In the 26
Congresses from 1919 to 1970, there were a total of 50 votes on cloture
motions, an average of less than 2 cloture motions per Congress.
However, in the 103d Congress, the Senate's majority leader was
forced to file a cloture petition to cut off a filibuster 72 times. The
tactic was used repeatedly to stop legislation. Filibuster was piled
upon filibuster until, at one point five were pending at the same time.
While minorities in Congress have, in the past, used the filibuster
on matters of fundamental principle, to force compromise, it has
recently been used to reject, frustrate, and prevent compromise. In the
case of the campaign finance reform bill in the last Congress, a
filibuster was used to prevent a conference committee from even being
formed to discuss and work out the differences between the House and
Senate legislation. A filibuster for that purpose had not been seen in
the more than 200 years of Senate history.
However, we must be very careful not to discard the baby with the
bathwater. The rules of the Senate protect the rights of the minority.
Throughout American history the Senate has been the more deliberative
body--sometimes for the good, other times not--but always assuring that
matters of great consequence cannot be rammed through by a majority
even if backed by the currents of sometimes changeable public passion.
I believe the cloture procedure should be reformed by reducing the
number of opportunities for its use on the same matter. Currently,
there are six opportunities, including the motion to proceed to its
consideration and three motions necessary to send a measure to a
conference committee with the House. In my view, the opportunity to
extend debate through the use of what we have come to call filibuster
should be preserved only on the consideration of a matter itself and on
the conference report when it returns to the Senate.
The Senate is unique. We should not take for granted the tone of
bipartisanship and civility which normally characterize this body.
While we have our moments of heated debate and partisan rigidity,
virtually everyone familiar with the Congress recognizes that the
Senate, in contrast to the other body perhaps, is the arena in which
the parties are more likely to join together in a spirit of
bipartisanship or at least work together seeking areas of compromise.
During my 16 years in the Senate, I've found that the best policies
come from reaching across the aisle that divides the two parties.
This environment of compromise and comity grows in part from the
existence of the rights of the minority in the Senate rules. All of us
in the Senate know that the majority party can do little here without
the cooperation and the votes of at least some Members of the minority.
This improves the tone of our debate, the manner in which the
leadership of each party proceeds, and, indeed, virtually everything of
importance we do in the Senate. In a legislative body which operates
solely on majority rule it is necessary only to possess the keys to the
bulldozer.
Any party which gains the majority can prevail without the
cooperation or support of any part of the minority. The majority knows
that although it can be delayed, the final outcome is known. In the
words of House Majority Leader Richard Armey, referring to the
majority's plans for the marathon first day session of the House and
urging the minority Democrats not to delay matters, ``The pain may be
inevitable, but the suffering is optional.'' He meant that the majority
knew what the outcome of all of the first day votes in the House of
Representatives would be; the majority would prevail. The minority
could delay, the minority could raise procedural roadblocks, but the
final result was assured.
I am also concerned that although the proposal before us attempts to
strengthen the hand of a majority frustrated in its efforts to
accomplish its will by the minority, the procedure contemplated does
not even assure that a majority is involved throughout. Since a cloture
petition requires the support of only 16 Senators, a minority could
force the series of cloture votes proposed without demonstrating
majority support until the threshold is lowered to 51 votes. At that
point, the measure might be sweetened by proponents in order to gain
the necessary additional votes to then reach a majority and invoke
cloture. This might be used as a means to limit debate on the final
bill, the real bill.
Mr. President, while I believe that rule XXII should be modified,
while I hope that our colleagues, as we begin the 104th Congress, will
resist the temptation to abuse and trivialize the right to unlimited
debate in the Senate, and while I greatly respect the creative effort
of the Senator from Iowa to craft a reform of rule XXII, I will vote to
table the amendment because I think it goes too far in weakening
fundamental minority rights. However, I hope the search for ways to
reform rule XXII will not stop here. I encourage the leadership of the
Senate and the Rules Committee to examine ways to reduce abuse of the
filibuster, including providing for limitation of debate on motions to
proceed and on motions to send a measure to conference with the House.
The PRESIDING OFFICER. Under the previous order the Senator's time
has expired. The Senator from Mississippi is recognized.
Mr. COCHRAN. I move to table the Harkin amendment, and I ask for the
yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to
lay on the table the amendment of the Senator from Iowa. The clerk will
call the roll.
The assistant legislative clerk called the roll.
Mr. FORD. I announce that the Senator from Colorado [Mr. Campbell],
the Senator from South Carolina [Mr. Hollings], and the Senator from
West Virginia [Mr. Rockefeller] are necessarily absent.
I further announce that the Senator from Vermont [Mr. Leahy] is
absent on official business.
I also announce that the Senator from Georgia [Mr. Nunn] is absent
because of illness.
The result was announced--yeas 76, nays 19, as follows:

[Rollcall Vote No. 1 Leg.]

YEAS--76

Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Bond
Bradley
Breaux
Brown
Burns
Byrd
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feinstein
Ford
Frist
Glenn
Gorton
Gramm
Grams
Grassley
Gregg
Hatch
Hatfield
Heflin
Helms
Hutchison
Inhofe
Inouye
Jeffords
Johnston
Kassebaum
Kempthorne
Kohl
Kyl
Levin
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moynihan
Murkowski
Murray
Nickles
Packwood
Pressler
Reid
Roth
Santorum
Shelby
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner

NAYS--19

Bingaman
Boxer
Bryan
Bumpers
Feingold
Graham
Harkin
Kennedy
Kerrey
Kerry
Lautenberg
Lieberman
Moseley-Braun
Pell
Pryor
Robb
Sarbanes
Simon
Wellstone

NOT VOTING--5

Campbell
Hollings
Leahy
Nunn
Rockefeller
So the motion to lay on the table the amendment (No. 1) was agreed
to.
Mr. COCHRAN. Mr. President, I move to reconsider the vote by which
the motion was agreed to.
Mr. FORD. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER. The Senator from West Virginia.
[[Page S439]] Mr. BYRD. Mr. President, I ask unanimous consent to
address the Senate for not to exceed 5 minutes.
The PRESIDING OFFICER. Is there objection? Without objection, the
Senator may proceed for 5 minutes.
Mr. BYRD. Mr. President, may we have order in the Senate.
The PRESIDING OFFICER. Will Senators please take their chairs.
The Senator seeks to address the Senate for 5 minutes. The Chair asks
that Senators please clear the aisles.
The Senator from West Virginia.
Mr. BYRD. Mr. President, I want to correct something I said last
night I see in the Record.
I said last night that Brutus married the sister of Cato. Actually,
Brutus was the son of Servilia, who was the sister of Cato--just to
make that little correction for the record.
Mr. President, the Senate by a decisive vote has moved to table the
matter presented to the Senate by Mr. Harkin. This will not be the last
time the effort will be made to amend rule XXII. That is why I impose
on the Senate for these few minutes while there is something of a
larger audience than there was last night and this morning. And I want
to compliment the distinguished Senator from Iowa and the distinguished
Senator from Connecticut. I thought we had some good exchanges in this
debate.
But while there are Senators who are listening, let me point out to
them, as I have pointed out in this debate, paragraph 2 of Rule VIII of
the Standing Rules of the Senate.
Mr. President, most of the so-called filibusters have occurred on
motions to proceed. Once that motion to proceed is approved, once the
matter itself is taken up, generally the filibusters have gone away. It
has too often been the practice here of late that when the leader asks
unanimous consent to take up a matter, there is an objection heard from
the other side of the aisle, and that is then called a filibuster. The
leader immediately puts in a cloture motion. That is all the debate
there is on that matter for the next few days. That is called a
filibuster. And it goes out over the land what a horrendous thing this
filibuster is, and Senators stand up here with these charts and point
out how many times--10 times--as many filibusters in the last year as
there were in the last 100 years, or something to that effect. Well,
these are really not filibusters.
I think the rule has been abused. But I do not think we ought to take
a sledgehammer to kill a beetle.
We have the standing rules here. Let me read paragraph 2, rule VIII.
Senators should know what is in the current rules before they start so-
called reforms of the Senate and of the rules.
Rule VIII, paragraph 2:

All motions made during the first two hours of a new
legislative day to proceed to the consideration of any matter
shall be determined without debate, except motions to proceed
to the consideration of any motion, resolution, or proposal
to change any of the Standing Rules of the Senate shall be
debatable.

As I ascertained through a parliamentary inquiry earlier today, that
rule was never used in the last session.
So, Mr. President, the rules are here. The type of filibuster, the
type of so-called filibuster that we have seen recently, which is
filibuster by delay, with no debate on it, is not good. But most
problems with this filibuster can be addressed within the existing
rules, and I have just read the rule which has not been used. It was
not used in the last session. It was not used in the session before
that. And yet we complain about there being so many filibusters.
Mr. President, we can handle most of the minifilibusters around here.
If there is a sizable minority, one that consists of 41 Members, that
is a large minority. That minority may represent a majority of the
people outside the beltway. Who knows?
I maintain that, as long as the United States Senate retains the
right of unlimited debate, then the American people's liberties will
not be endangered.
They do not have unlimited debate on the other side of the Capitol,
and there are those over there who want the Senate to do away with the
filibuster. But under the Constitution, each House shall determine its
own rules. It is not my place to attempt to tell the other body what
they should do with their rule. But this rule has been in effect since
1806 when the Senate did away with the previous question, when it
recodified the rules in 1806. And it did so upon the recommendation of
Aaron Burr, the Vice President, who, when he left the Senate in 1805,
recommended that the previous question be done away with. It had not
been used but very little during the previous years since 1789. So that
rule on the previous question, which is to shut off debate, was
eliminated from the Standing Rules of the Senate and it has been out of
there ever since.
So, Mr. President, I commend Senators for voting to table the Harkin
amendment. I also commend those who differ with me. I commend those who
offered the amendment to change the rule. I think the Senate has acted
wisely in retaining the rule that has governed our proceedings since
1806. I hope that Senators will read the Standing Rules of the Senate.
I thank all Senators for their patience.
The PRESIDING OFFICER (Mr. Shelby). The question now is on the
adoption of the resolution.
The resolution (S. Res. 14) was agreed to, as follows:

S. Res. 14

Resolved, That paragraph 2. of Rule XXV of the Standing
Rules of the Senate is amended for the 104th Congress as
follows:
Strike ``18'' after ``Agriculture, Nutrition and Forestry''
and insert in lieu thereof ``17''.
Strike ``29'' after ``Appropriations'' and insert in lieu
thereof ``28''.
Strike ``20'' after ``Armed Services'' and insert in lieu
thereof ``21''.
Strike ``21'' after ``Banking, Housing and Urban Affairs''
and insert in lieu thereof ``16''.
Strike ``20'' after ``Commerce, Science, and
Transportation'' and insert in lieu thereof ``19''.
Strike ``20'' after ``Energy and Natural Resources'' and
insert in lieu thereof ``18'';
Strike ``17'' after ``Environment and Public Works'' and
insert in lieu thereof ``16''.
Strike ``19'' after ``Foreign Relations'' and insert in
lieu thereof ``18''.
Strike ``13'' after ``Governmental Affairs'' and insert in
lieu thereof ``15''.
Strike ``14'' after ``Judiciary'' and insert in lieu
thereof ``18''.
Strike ``17'' after ``Labor and Human Resources'' and
insert in lieu thereof ``16''.
Mr. COCHRAN. Mr. President, I move to reconsider the vote.
Mr. STEVENS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

____________________