Congressional Record, Volume 151 Issue 165 (Monday, December 19, 2005)

[Congressional Record Volume 151, Number 165 (Monday, December 19, 2005)]
[Senate]
[Pages S13977-S13982]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

ANWR

Mr. FEINGOLD. Madam President, I wish to bring to the attention of
the body the extremely troubling tactics that some in this body have
used over the past few days to try to push through a legislative
proposal that, standing on its own, does not have the support of a
majority of the U.S. Congress. And I think these tactics reflect poorly
on this body and its leadership. Discarding the rules that govern all
of us demonstrates contempt not only for the need to have and follow
rules, but for the history, and future, of the United States Senate.
To be clear, I am talking about the inclusion of the Arctic National
Wildlife Refuge drilling provision in the Department of Defense
appropriations bill, a provision we all know is controversial and has
not been able to pass Congress on a variety of occasions.
Drilling in the Arctic has absolutely nothing to do with funding the
Defense Department. The distinguished minority leader has already
submitted into the Record a letter from five retired U.S. generals who
are arguing this very point: Funding for our brave men and women in
uniform should not be jeopardized by including a highly controversial
and unrelated provision to open up the Arctic National Wildlife Refuge
for drilling.
I ask unanimous consent that this letter be again printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

December 17, 2005.
Hon. Bill Frist,
Majority Leader,
Hon. Harry Reid,
Minority Leader,
U.S. Senate, Washington, DC
Dear Senator Frist and Senator Reid: We are very concerned
that the FY2006 Defense Appropriations Bill may be further
delayed by attaching a controversial non-defense legislative
provision to the defense appropriations conference report.
We know that you share our overarching concern for the
welfare and needs of our troops. With 160,000 troops fighting
in Iraq, another 18,000 in Afghanistan, and tens of thousands
more around the world defending this country, Congress must
finish its work and provide them the resources they need to
do their job.
We believe that any effort to attach controversial
legislative language authorizing drilling in the Arctic
National Wildlife Refuge (ANWR) to the defense appropriations
conference report will jeopardize Congress' ability to
provide our troops and their families the resources they need
in a timely fashion.
The passion and energy of the debate about drilling in ANWR
is well known, and a testament to vibrant debate in our
democracy. But it is not helpful to attach such a
controversial non-defense legislative issue to a defense
appropriations bill. It only invites delay for our troops as
Congress debates an important but controversial non-defense
issue on a vital bill providing critical funding for our
nation's security.
We urge you to keep ANWR off the defense appropriations
bill.
Sincerely,
Joseph P. Hoar,
General, U.S. Marine Corps (Ret.).
Anthony C. Zinni,
General, U.S. Marine Corps (Ret.).
Claudia J. Kennedy,
Lieutenant General, U.S. Anny (Ret.).
Lee F. Gunn,
Vice Admiral, U.S. Navy (Ret.).
Stephen A. Cheney,
Brigadier General, U.S. Marine Corps (Ret.).

Mr. FEINGOLD. Thank you, Madam President.
For the benefit of my colleagues, I would like to read from the
Senate's Web page and the Web page of the Senate Committee on Rules and
Administration--the very places the American public would refer to when
interested in learning how the Senate has said it will conduct
business. I have printed copies of the relevant pieces of these U.S.
Government Web sites, and I ask unanimous consent that these be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Standing Rules of the Senate

chapter 28: conference committees; reports; open meetings

2. Conferees shall not insert in their report matter not
committed to them by either House, nor shall they strike from
the bill matter agreed to by both Houses. If new matter is
inserted in the report, or if matter which was agreed to by
both Houses is stricken from the bill, a point of order may
be made against the report, and if the point of order is
sustained, the report is rejected or shall be recommitted to
the committee of conference if the House of Representatives
has not already acted thereon.
____

History of Committee on Rules and Administration

I. INTRODUCTION

All legislative bodies need rules to follow if they are to
transact business in an orderly fashion. Legislatures must
have established rules if they are to operate fairly,
efficiently, and expeditiously.
Mr. Jefferson wrote in his Manual of Parliamentary Practice
that whether the rules ``be in all cases the most rational or
not, is really not of so great importance. It is much more
material that there should be a rule to go by than what that
rule is; that there may be a uniformity of proceeding in
business, not subject to the caprice of the Speaker or
captiousness of the members. It is very material that order,
decency, and regularity be preserved in a dignified public
body.''
The first Senate understood this concept, and on the next
day after a quorum of the Senators appeared and took their
oath of office, a special committee was created to ``prepare
a system of rules for conducting business.''
The committee consisting of Senators Ellsworth (Conn.), Lee
(Va.), Strong (Mass.), Maclay (Pa.), and Bassett (Del.) was
appointed on April 7, 1789, and on April 13, it filed a
report which ``was read, and ordered to lie until tomorrow,
for consideration.''
The following day the report was read again, but
consideration thereof was put off until April 15. On April
16, the new set of rules, consisting of 19 in total, was
adopted, but on April 18, another rule numbered XX, not
reported by the committee, was adopted.
The members of this first committee were qualified for
their task; all five were lawyers with experience in various
legislative bodies. Senators Ellsworth, Strong, and Bassett,
in addition to their other legislative experiences, were
members of the Federal Convention. Mr. Lee had been President
of the Continental Congress as well as a member of other
legislative bodies, and Mr. Maclay had served in the
Pennsylvania Provincial Assembly.
Other special committees formed to revise or reexamine the
Senate rules and to recommend changes therein, were created
from time to time until April 17, 1867. On this date a
committee of three Senators was appointed ``to revise the
rules of the Senate, and to report thereon early in the next
session.'' This committee became known as the Select
Committee on the Revision of the Rules and, as such, was a
continuous committee until December 9, 1874, when it was
designated as a standing committee to be known as the
Committee on Rules.
From 1789, when the first committee was appointed, until
1867, the beginning of a continuous committee on rules, the
Senate created nine special committees to revise the rules
of the Senate, but only seven (3) filed reports to the
Senate, and, pursuant to such reports during that time,
the Senate adopted three general revisions of its rules,
none of which were at the beginning of a new session.
During that same period, the Senate

[[Page S13978]]

occasionally amended its existing rules and adopted
various procedural orders, some or most of which were
included in the body of the rules when each next general
revision was adopted.
The select committee, begun in 1867, consisted of three
Senators and was directed by resolution adopted on April 13,
``to revise the rules of the Senate, and to ``report thereon
early in the next session.'' The committee filed its report,
which was ordered printed, on February 21, 1868, and the
Senate adopted this general revision of its rules on March
25, 1868. On December 21, 1874, the Senate adopted a
resolution instructing the standing Committee on Rules ``to
consider the propriety of revising and reclassifying the
rules of the Senate,'' and that it report accordingly at the
earliest day practicable. The committee made its first report
on March 2, 1875, which was ordered printed and recommitted.
On July 14, 1876, the committee filed another report on
rules revision; the Senate proceeded to consider this report
on December 18, 1876, which it recommitted on the same day.
On December 26, 1876, the Committee filed another report
which was ordered to lie on the table. The Senate began
consideration of this report on January 15, 1877, and after
three days of consideration and the adoption of various
amendments, the revision of the rules was adopted on January
17, 1877.
On March 2, 1883, the Senate adopted a resolution
instructing the standing Committee on Rules ``to sit during
the recesses of Congress, at Washington or elsewhere, for the
purpose of revising, codifying, and simplifying the rules of
the Senate.'' On December 10 of that year, a report was
submitted, which the Senate began to consider on December 13
and continued with from time to time until January 11, 1884,
when another general revision of the rules was adopted.
On May 10, 1976, the Senate adopted Senate Resolution 156
(submitted by Mr. Byrd, the majority leader) to authorize and
direct the Committee on Rules and Administration to prepare a
revision of the Standing Rules of the Senate. On November 7,
1979, a report was filed pursuant to the above resolution in
the form of Senate Resolution 274 (submitted by Mr. Byrd for
himself and Mr. Baker, the minority leader), to revise and
modernize the Standing Rules of the Senate without
substantive change in Senate procedure and to incorporate
therein certain other rules of the Senate. The resolution was
called up on November 14, 1979, and passed by a vote of 97 to
0, after a brief discussion thereon.
Between 1884 and 1979, many changes were made in the rules
of the Senate and its procedure. The history of these changes
has been piecemeal. Some amendments to the rules were
proposed by the Rules Committee in the form of resolutions
reported by that committee and adopted by the Senate, and
some resolutions amending the rules in various ways were
submitted, considered, and passed immediately or soon
thereafter without reference to a committee. Some changes
were made by the Senate agreeing to unanimous consent
requests to that effect, and precedents and practices of the
Senate since 1884 have had a great effect on the rules and
procedure. Additionally, some changes were made by a
combination of the above methods. For example, one of the
most controversial provisions of the changes in the Senate
rules since 1884 includes the cloture rule. The Committee
on Rules reported S. Res. 195 on May 16, 1916, to amend
Rule XXII to provide for a cloture procedure. It was
debated but did not come to a vote. On March 7, 1917, the
Senate was called into special session, and Senator Martin
of Virginia submitted a resolution (S. Res. 5) to provide
for a cloture procedure. It was similar to the resolution
reported by the committee and was adopted on March 8,
1917. A number of amendments have been made to this rule--
some reported and adopted; and some submitted, called up
for consideration without reference to a committee and
adopted. The so-called post-cloture amendment to rule
XXII, adopted in 1979, was called up without reference and
adopted, but the Committee on Rules and Administration had
reported a resolution in the previous Congress containing
a section therein that was very similar to the resolution
adopted in 1979.

II. Rules Committee--A Brief Sketch of its Development

HISTORY OF SPECIAL COMMITTEES ON RULES BEFORE THE CREATION OF A
STANDING COMMITTEE ON RULES

The Senate first convened on March 4, 1789 without a quorum
(only eight Senators appeared) and without any rules. It was
not until April 6 that a quorum of the membership appeared.
During the interim, the Senate adjourned from day to day
without transacting any business except acting on proposed
communications to absent members requesting their attendance.
On April 7, a special committee to prepare and propose a
system of rules was created (Journal, p. 10) as follows:
``Ordered, That Mr. Ellsworth, Mr. Lee, Mr. Strong, Mr.
Maclay, and Mr. Bassett, be a committee to prepare a system
of rules to govern the two Houses in cases of conference, and
to take under consideration the manner of electing Chaplains,
and to confer thereupon with a committee of the House of
Representatives.'' ``Ordered, That the same committee prepare
a system of rules for conducting business in the Senate.''
This committee performed its assignment and filed a report
on April 13, 1789, proposing 19 rules for conducting business
in the Senate. The report was adopted on April 16, 1789,
which gave the Senate the following 19 rules (Journal, p.
13):
The, report of the committee appointed to determine upon
rules for conducting business in the Senate, was agreed to.
Whereupon, ``Resolved, That the following rules, from No. I,
to XIX, inclusive, be observed.''
I. The President having taken the chair, and a quorum being
present, the journal of the preceding day shall be read, to
the end that any mistake may be corrected that shall have
been made in the entries.
II. No member shall speak to another, or otherwise
interrupt the business of the Senate, or read any printed
paper while the journals or public papers are reading, or
when any member is speaking in any debate.
III. Every member, when he speaks, shall address the chair,
standing in his place, and when he has finished, shall sit
down.
IV. No member shall speak more than twice in any one debate
on the same day, without leave of the Senate.
V. When two members rise at the same time, the President
shall name the person to speak; but in all cases the member
first rising shall speak first.
VI. No motion shall be debated until the same shall be
seconded.
VII. When a motion shall be made and seconded, it shall be
reduced to writing, if desired by the President, or any
member, delivered in at the table, and read by the President,
before the same shall be debated.
VIII. While a question is before the Senate, no motion
shall be received unless for an amendment, for the previous
question, or for postponing the main question, or to commit
it, or to adjourn.
IX. The previous question being moved and seconded, the
question from the Chair shall be: ``Shall the main question
be now put?'' And if the nays prevail, the main question
shall not then be put.
X. If a question in debate contains several points, any
member may have the same divided.
XI. When the yeas and nays shall be called for by one-fifth
of the members present, each member called upon shall, unless
for special reasons he be excused by the Senate, declare,
openly and without debate, his assent or dissent to the
question. In taking the yeas and nays, and upon the call of
the House. the names of the members shall be taken
alphabetically.
XII. One day's notice at least shall be given of an
intended motion for leave to bring in a bill.
XIII. Every bill shall receive three readings previous to
its being passed; and the President shall give notice at
each, whether it be the first, second, or third; which
readings shall be on three different days, unless the Senate
unanimously direct otherwise.
XIV. No bill shall be committed or amended until it shall
have been twice read, after which it may be referred to a
committee.
XV. All committees shall be appointed by ballot, and a
plurality of votes shall make a choice.
XVI. When a member shall be called to order, he shall sit
down until the President shall have determined whether he is
in order or not; and every question of order shall be decided
by the President, without debate; but, if there be a doubt in
his mind, he may call for the sense of the Senate.
XVII. If a member be called to order for words spoken, the
exceptionable words shall be immediately taken down in
writing, that the President may be better enabled to judge of
the matter.
XVIII. When a blank is to be filled, and different sums
shall be proposed, the question shall be taken on the highest
sum first.
XIX. No member shall absent himself from the service of the
Senate without leave of the Senate first obtained.
Two days later (April 18) the Senate adopted the following
motion, giving the Senate a total of 20 rules (Journal, p.
14): On motion, Resolved, That the following be subjoined to
the standing orders of the Senate:
XX. Before any petition or memorial, addressed to the
Senate, shall be received and read at the table, whether the
same shall be introduced by the President, or a member, a
brief statement of the contents of the petition or memorial
shall verbally be made by the introducer.
After the first session of the first Congress, a
considerable number of orders and resolutions to study a
particular rule or a general revision of the rules were
adopted before the Rules Committee became a standing
committee. This review will concern itself only with the
creation of special committees which were concerned with a
general revision of the rules as opposed to those created to
explore a certain procedure or particular operations of the
Senate. There were more special committees created to study
general revisions of the rules than there were general
revisions adopted; some committees never filed a report and
others filed reports which were rejected.
During the entire history of the Senate, only seven general
revisions of the rules since 1789 have been adopted, namely:
March 26, 1806; January 3, 1820; February 14, 1828; March 25,
1868; January 17, 1877; January 11, 1884; and November 14,
1979. The last three revisions were considered and reported
by the standing Committee on Rules before being adopted by
the Senate.
Mr. FEINGOLD. Thank you, Madam President.
Let me start with reading from the Senate Web page's description of
the legislative process--our description to

[[Page S13979]]

the public as to how we do business in our Nation's Capitol.
Under the heading ``Conference Committees; reports; open meetings,''
the first sentence reads:

2. Conferees shall not insert in their report matter not
committed to them by either House, nor shall they strike from
the bill matter agreed to by both Houses.

This section goes on in more detail, but let me turn to what our
constituents, members of the public whom we expect to abide by the laws
we pass, would find if they visited the Senate Committee on Rules and
Administration Web site:

The committee Web site goes on to quote from Thomas Jefferson's 1801
edition of the ``Manual of Parliamentary Practice,'' saying that:

. . . whether the rules ``be in all cases the most rational
or not, is really not of so great importance. It is much more
material that there should be a rule to go by than what the
rule is; that there may be a uniformity of proceeding in
business, not subject to the caprice of the Speaker or
captiousness of the members. It is very material that order,
decency, and regularity be preserved in a dignified public
body.''

A logical follow-up question is then: How is it that we find it
acceptable to knowingly break our own rules? I am truly astonished at
the contempt I see certain of my colleagues showing for this
institution on this issue.
I could stand here and read at length from the history of the Senate
rules, as written by the Senate Committee on Rules and Administration,
to reflect on how our rules came to be. I will not do that. But I do
encourage my colleagues to read up on this history, because if we go
forward on the path that some have set, I worry what it means for the
future of this body. It most definitely opens the door to future
abuses. If you don't like the rules, you break them. In fact, those who
want the drilling provision included in the defense spending bill,
recognizing that it breaks Senate rules, have actually put language
into the conference report that says once the bill is signed into law,
Senate rule 28 would come back into effect.
In fact, let me read the exact language:

Section 13, Legislative Procedure: Effective immediately,
the Presiding Officer shall apply all of the precedents of
the Senate under rule 28 in effect at the beginning of the
109th Congress.

So apparently you can break the rules because you will immediately
reinstate the rules. Is this the message the Senate is willing to send
to the American public? I have more faith in this body than to believe
we are willing to sink so low.
Let's imagine the consequences if, in fact, this conference report is
accepted. You can't move an unpopular proposal through the legislative
process? No need to worry. You just attach language to an important
funding bill that says you want to reinstate the rules after you have
broken them. Is this the precedent that we, Members of both parties,
want to set, a precedent that says you can break the rules because you
will put them back in place? I sincerely hope not.
Additionally, how will we respond when our constituents ask us, how
is it that the very people who make the laws that govern public
behavior simply ignore the rules governing their own behavior? What
will we say?
Madam President, I hope when it comes time for the Senate to go on
record as to whether it believes its rules are important enough to
stand, that a majority of this body will take the honorable position
that this institution's rules are worth defending.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Alaska.
Mr. STEVENS. Madam President, I am sad to hear a Senator say that
this amendment that is controversial, the amendment to allow
exploration and development of the Arctic Coastal Plain, has never
passed the Senate. It passed the Senate this year as part of the
reconciliation package. It passed both bodies in 1995 and was vetoed by
President Clinton.
With regard to the question of the concept of matters being added to
conference reports, we voted in 1995 on a motion to overturn the Chair.
It was a motion to overturn the Chair on the aviation reauthorization
reform bill. It was the last bill before the Congress at that time. At
that time, there was an appeal from the Chair, and there was a vote to
overturn the Chair. The Chair was not sustained. On that vote, there
were a series of Senators, here now, who voted to disagree with the
Chair.
We are not changing the rules at all. Rule XXVIII is not affected by
the amendment I am presenting to the Senate. I have been around here 37
years. I know the rules. I was chairman of the Rules Committee for a
while. As a matter of fact, I think I wrote, during the time I was
Rules Committee chair--I am still on the Rules Committee--the comments
the Senator read.
As a practical matter, the right to disagree with a ruling of the
Chair is inherent in any body, any legislature. In Roberts Rules of
Order, it is a little different than it is here. But we have the right
to appeal the ruling of the Chair. When we do, it is not destroying the
rule. It represents a difference of opinion.
Do you know what the difference of opinion now is? It is whether this
amendment, which is the amendment to go forward, as the Congress
indicated in 1980 in the Alaska National Interest Conservation Lands
Act, with the exploration and development of the Arctic Plain of
Alaska, whether that is part of and related to national security.
Oil is related to national security. I will provide the statistics
later on how much oil the Department of Defense uses. This is an
amendment to pursue domestic production of oil, without which we will
be in great difficulty. The largest consumer of oil in the United
States is the Department of Defense. If the opposition disagrees with
us on that position, then let's see whether the Senate believes that
this is a matter that is in the interest of national security.
We should not be having people say that it has never been done, that
I am trying to do something that breaks the rules. We don't break the
rules. We are living by the rules. This amendment is here because of
the rules. I intend to enforce the rules. One of the procedures in this
Senate is to appeal the ruling of the Chair. We haven't had that ruling
yet. There appears to be a presumption that it will happen.
But let's go back to 1980, to that time when we had the Alaska oil
pipeline amendment. At that time, we had the same opposition from the
extreme environmental groups. It was going to destroy Alaska. It was
going to destroy caribou. It was going to be inconsistent with our
environment. There was no filibuster. There wasn't even the threat of
filibuster. The Senate at that time agreed that oil was a matter of
national security, and we don't filibuster national security issues. As
a matter of fact, in defense matters, on the defense Appropriations
bill, et cetera, we need 51 votes, not 60, on various matters with
regard to compliance and whatnot of the Senate. There are exceptions
here. They could get a couple of 60-degree votes when we have this bill
before the Senate.
But the point I am trying to make is, the Senate, at the time we
passed the Alaska oil pipeline amendment, did not filibuster. What has
happened is the constant filibuster now during this decade by people
who persist in trying to reverse the provisions of the 1980 act.
I will never forget the 1980 act because that act, in 1978, had been
blocked by my then-colleague, Senator Gravel, in the closing minutes of
the Congress in 1978. It had passed the House. It passed the Senate. It
had gone to conference. It came out of conference, and Senator Gravel
blocked that by demanding that the bill be read after the adjournment
resolution had been presented to the Senate.
In the next Congress in 1979, my good friend Senator Jackson of
Washington came to me and said: Ted, if you want to be involved in
consideration of this bill this year, you must come back to the
Interior and Insular Affairs Committee. I had left that committee to
come to the Appropriations Committee. But as a matter of fact, I did. I
left the Appropriations Committee and went back to the Interior and
Insular Affairs Committee. We worked on that same bill then for 1979
and 1980.
That was a period of extreme stress for me. I lost my wife in the
1978 accident that happened after the blocking of that bill. We all
knew that we had to

[[Page S13980]]

come back in. As a matter of fact, the flight we were on was a flight
to raise money to come back and ask people to help us lobby for the
passage of something to get that bill done.
At that time Alaska's selection of lands under the act were blocked
by what was called a freeze. They were blocked by an order made by
President Carter under the Antiquities Act. We could not go forward
without getting an act passed. So I split off from my then-colleague
and said: I am going to help you. I only want one thing in this bill
for sure. And that is, I wanted the right to continue to explore the
Arctic Plain. The two Senators in charge of that bill, Senator Tsongas
of Massachusetts, Senator Jackson of Washington said: You are right.
And they put in the amendment that created section 2002 in the 1980
Alaska National Interest Lands Conservation Act. It was their
amendment.
These people are filibustering fulfilling the commitment of Senator
Tsongas and Senator Jackson. As a matter of fact, I did vote for that
bill and, at the time, there were enormous full-page ads in newspapers
in my State which said: Come home, Ted. You no longer represent us. We
can't trust the Congress.
I said: I trust the Congress. I particularly trust Senator Tsongas
and Senator Jackson. Unfortunately, God willed otherwise. Those two
gentlemen left us prematurely and, as a consequence, we have fought now
for 25 years to fulfill that commitment.
Let me tell you a little bit more history, Madam President. I was in
the Department of Interior during the Eisenhower days. In 1958, I
helped write the order that created what was known as the Arctic
Wildlife Range. In that range, 9 million acres in northeast Alaska, oil
and gas exploration was permitted.
The reason I asked for this amendment in 1980 was that I wanted to
continue the fact that oil and gas exploration would be permitted.
I see I am close to the end of my time. I will finish my statement
later; others want to speak but I want to finish with this one comment,
with the permission of the Chair.
I am not trying to turn over the rules. I am not trying to do
anything that others have not done. We have a full right to appeal the
ruling of the Chair, should it take place, that we disagree with the
basic assumption that oil is not needed in the interest of national
security. And those of us who will vote to make sure we vote on this
conference report are ones who believe in national security. We cannot
mention the vote in the House, but we can mention the statements in the
House. See what they said on the House floor. We believe in national
security. This amendment must go through as part of the National
Security Defense Appropriations Act of 2005.
I yield the floor. I will be back throughout the day, Madam
President.
The ACTING PRESIDENT pro tempore. The Senator from Wisconsin.
Mr. FEINGOLD. Madam President, I wish to make a couple quick points
regarding the remarks of the Senator from Alaska.
Let's be clear, the Senate has never passed the version of the Arctic
drilling that is included in this Department of Defense bill. That is
simply not the case.
Mr. STEVENS. The Senator didn't say that.
Mr. FEINGOLD. The Senator indicated we passed this provision before,
and we had not. And if the Senator is not breaking the rules, why does
he need to create language that explicitly reinstates the rule? He
can't have it both ways--have language that says the rule doesn't apply
in this instance but will go right back into effect. It clearly is
breaking the rule, and the Senator is trying to set a precedent for all
this. The aviation bill from the midnineties--I remember that one--they
didn't have the votes to put in this special interest provision for
Federal Express business. It is something that never passed any
committee in the whole Congress. Yes, they violated the rules and
abused the rules to get that one done, too. I wouldn't use that as a
precedent. It is merely a precedent of the abuse that is occurring
here.
Mr. STEVENS. Madam President, is it possible for me to regain the
floor?
The ACTING PRESIDENT pro tempore. Yes. The Senator is recognized.
Mr. STEVENS. Madam President, let me say this. If it was possible to
have an appeal of the ruling of the Chair in 1996, it is possible now.
That is not breaking the rules. With regard to the version of this
bill, we took the bill that passed the House and have added to it the
provisions that allow funding for disaster areas and other items, but
the basic portion of this bill that is coming to us in this amendment
is, in fact, the bill that passed the House before.
Again, I want to say this. I think there is a lot of really extreme
comments about this Senator's actions. They can't come close to really
offending the rules themselves. I have done nothing illegal. I have
done nothing immoral. I have done nothing wrong. I am pursuing--as a
matter of fact, there hasn't been a ruling of the Chair yet, but
thinking there might be, we followed the procedure that was established
by the distinguished minority leader in 2000. We put a provision in
there saying, look, if there is a ruling and consideration of this
amendment, we do not want to disturb the rules.
By the way, after the aviation ruling that I mentioned, the Federal
Aviation Reauthorization Reform Act, the rule wasn't changed; it was
the interpretation of the Parliamentarian. The Parliamentarian believes
that after a Chair is overruled, the rule is no longer enforceable. It
is still there, but it is a question of enforcement, not a question of
repealing.
Even if we have an appeal of the Chair, and the Chair is overruled,
we won't take rule XXVIII out of the rules. It will be a question of
whether the Parliamentarian will tell the Chair that based upon
precedent that rule would no longer be enforceable.
So we put a provision in the bill saying in the event a ruling of the
Chair is overturned and there is a situation where the Parliamentarian
would advise the Chair that means rule XXVIII is no longer enforceable,
then we use the same approach of the Senator from Nevada, and we say
that will not be the case. We do not intend to destroy the rule. We
intend to support the rule. We don't want it to be in hiatus.
After the 1996 act, it was inoperable for 4 years because of the
interpretation of the Parliamentarian, based upon precedent. I am not
criticizing the Parliamentarian; that is the basic precedent of the
Senate. Once the Chair is overruled, that rule is unenforceable until
reinstated. We are saying that is not our intent this time. We don't
intend to attack the rule. We want the rule to stay in place. We want
to make sure anybody who votes for this, in the national security
interest, that we must proceed with oil exploration in the Arctic, is
not being told, Oh, you are going to destroy rule XXVIII. It wasn't
destroyed in 1996. It was made inoperable by an interpretation of the
Parliamentarian.

By the way, again, that was consistent with precedent. We are saying
that precedent will not apply to this bill, the Department of Defense
appropriations bill, when it comes before the Senate.
This is going to go on for a long time, but one thing I know is that
I am not violating the rules. When I proceed with this amendment in the
conference report, which I fully intend to do, and trust the Senate--I
am putting my faith in the Senate to support national security as a
part of the conference report.
Remember now, we don't have an amendment. We have a conference report
now. That is treated in a different manner than an amendment to the
bill. I am not offering an amendment to the bill. I am managing a
conference report on the Defense appropriations bill for 2006. As such,
I expect that bill to pass, and I expect that bill to pass containing
the provision which is in the interest of national security, that we
now proceed with exploration and development of the Arctic Plain as was
intended by two great Senators, Senator Scoop Jackson and Senator
Tsongas. It was their concession to the State of Alaska, as President
Carter insisted on withdrawing 105 million acres of Alaska. Only 1.5
million acres were assured for the future development of our State. One
point five million were assured for the future development of the
State, and 105 acres were set aside and not available for development.
There can be no oil and gas development in those other areas. In this
area,

[[Page S13981]]

we allowed 1.5 million acres to stay open for development.
More will be said later. I thank the Chair for her patience.
Mr. REID. Parliamentary inquiry, Madam President: If the Chair is
overruled on rule XXVIII exceeding the scope point of order, would that
set a precedent that would lower the standard for enforcement of that
rule to such an extent as rendered almost impossible to enforce?
The ACTING PRESIDENT pro tempore. It would lower the standard with
respect to enforcing the rule.
Mr. REID. Madam President, let me say this. Clearly what is being
attempted by the distinguished Senator from Alaska is wrong. As the
Senator will recall, we had another Parliamentarian who was fired over
a matter similar to this. This is absolutely wrong what is being
attempted here.
This is the Defense appropriations bill, and to wave the flag of
national defense, even at the very best, if ANWR goes forward, it will
be 10 years before any oil is produced. Oil companies made, as I
indicated last night, $100 billion last year. This is a speck of oil
if, in fact, it goes forward.
I know how strongly the Senator from Alaska feels about it. Why not
do it the right way? Even though I voted against this being inserted in
the reconciliation, which I think was wrong, it was done according to
the rules, and the Senator from Alaska and what he wanted prevailed. To
do it this way is absolutely wrong. It shows that if it is
inconvenient, if the rules are inconvenient, then just overrule them.
We will play around with it. We will sustain the Parliamentarian at one
point, overrule him in another, and then come back in the same bill and
pretend as if nothing had ever happened. This has never been done
before.

It shows absolute contempt for the rules of this body, and it shows
that Lord Acton was right. Power tends to corrupt, and absolute power
tends to corrupt absolutely. That is what we have here. That is what is
going on in Washington.
I will be happy to run through what I think are the ethical lapses
that have taken place in this town, led by the Republicans over the
past year, but that is not necessary. I believe what we have is
intellectual games being played in a negative fashion. This is
absolutely wrong to do this, to hold up this bill.
We will have a vote. As things now stand, we will vote on cloture
probably on Wednesday. Following that cloture vote, there will be a
vote in upholding the ruling of the Chair, and we will see what happens
at that time. The votes are very close. I would not be a betting person
either way on either cloture or this rule, but understand that sticking
this in this bill has nothing to do with the national defense of this
country. It has everything to do with breaking the rules to the
convenience of the powerful.
I am disappointed that this happened. I think it is wrong. I think
when the history of this body is written, if this is allowed to go
forward, it will be a dark day in the Senate.
The ACTING PRESIDENT pro tempore. The Senator from Alaska.
Mr. STEVENS. Madam President----
Mr. REID. Madam President, let me just finish. I have one additional
thing to say.
Mr. STEVENS. Pardon me. I apologize.
Mr. REID. I will be finished just quickly.
The ACTING PRESIDENT pro tempore. The minority leader.
Mr. REID. Regarding conversations we had on this floor about this has
been done before, returning to the Chair and later fixing it, it has
not been done before. This is a unilateral fix of a precedent in the
same bill. Anything that has been done before has been done on a
bipartisan basis. I was part of changing it back with Senator Trent
Lott. It was the right thing to do. Scope of conference is very
important. It should not be changed willy-nilly. It should not be
changed because it is inconvenient. The precedents of this body are
extremely important, and I think they are being played with at this
time. It is really unfortunate.
The ACTING PRESIDENT pro tempore. The Senator from Alaska.
Mr. STEVENS. Madam President, I again apologize to the Senator from
Nevada. I thought he had completed his statement.
I want to read to the Senate the comments I made in 1996 at the time
the point of order was pending on the FAA conference report, just to
show I have maintained a constant position with regard to this. I said
this:

Mr. President, this is a rather difficult situation. We
have just passed, recently, a Defense appropriations bill. I
was the chairman of that conference. Before it was over, we
had a whole series of other bills, a series of legislative
items. It was not necessary to raise a point of order.
Everybody knew we had exceeded the scope of the conference.

Now, this is 1996. I am again quoting:

I ask any chairman of a conference if he or she has ever
really been totally restricted by this rule? . . . When the
leader became aware that Senator Kennedy was going to raise
this point of order, the leader determined to raise it
himself. I take it that having done that, there is no
question this is a rather significant occasion. I hope it
will be a rather narrow precedent.
I point out to the Senate that this provision is not only
the only matter that exceeds the scope of the conference. We
had to include, at this administration's request, special
authority for the executive branch to purchase and deploy
explosive detection devices. We put in here the provisions
that pertain to the rights of survivors of victims of air
crashes. We put in the provisions requiring passenger
screening companies to be certified by the FAA. That is not
required under any existing law. We put in restrictions on
underage pilots, following the one disaster that involved a
young girl who was a pilot. We put in a provision requiring
the FAA to deal with structures that interfere with air
commerce.
My point is, as we get to the end of a session, we, of
necessity, include in a bill extraneous matters totally
beyond the scope. We know they are beyond the scope. As
the chairman of the Defense Appropriations Committee, I
knew all those items we brought to the floor earlier this
week were beyond the scope of the conference, but we did
not anticipate anyone would raise a point of order.
Anticipating that Senator Kennedy would bring this point of
order before the Senate, the leader made this point of order.
I ask the Senate to keep in mind this will be a rather
limited precedent, in my opinion. I do not know whether the
Chair will agree with me, but clearly when you get to the end
of a Congress, some things have to be done. We did not have
time to take up separate bills. We held a hearing on the bill
in the Senate Commerce Committee dealing with the rights of
victim-survivors of air disasters. They pleaded with us to
include that bill in this legislation. We have done so.
In other words, this point of order is not only valid, in
my judgment, against the amendment offered by Senator
Hollings, but against the other provisions where we have
exceeded the scope on various matters on this bill.

What I am saying is we have had this process year after year. I know
of other amendments that have gone into bills like this at the last
minute where people tried to get passed something that did not pass
before, and because of the circumstances they passed.
In this instance, again, the Senate is going to hear this over and
over again, that this is a matter of national security that I have for
25 years tried to support the position taken by the Senator from
Washington and the Senator from Massachusetts that this area should be
open to oil and gas exploration. We have had two environmental impact
statements. They have proved that no permanent damage will be done to
this area. We have disproved all the allegations concerning destruction
of wildlife. As a matter of fact, there are seven to eight times more
caribou on the North Slope today than there were at the time the oil
pipeline was built and at the time we were told if that pipeline is
built there will never be another caribou in Alaska, in effect. They
said we would destroy it.
The other day, they called it the Serengeti. I do not want to point
out the Senator who said it, but one Senator went up there and viewed
it. When that Senator got off the helicopter, that Senator said: What
the blank is this all about? That person had looked over the area when
it was snowing and said: Why would someone possibly block this?
I have to say that this is the beginning of a long debate. I yield
the floor.
The ACTING PRESIDENT pro tempore. The minority leader.
Mr. REID. Madam President, if a Senate filibuster over ANWR stops a
Defense bill, the legislation can be quickly modified and passed. So
there is no impact on military finances. If someone proposing this
loses, then we will reconstitute the conference and ANWR will be out.
Now, this is not me talking. This is the distinguished

[[Page S13982]]

President pro tempore of the Senate, Mr. Stevens, quoted in yesterday's
Fairbanks Daily News-Miner.
Senator Stevens said: If the Senate filibuster stops the Defense
bill, the legislation will be quickly modified and passed. There is no
impact on military finances. If we lose, the distinguished Senator went
on to say, we will reconstitute the conference and ANWR will be out.
That is the point. I appreciate the honesty of the interview with my
friend from Alaska with this newspaper because that is the way it is.
If we prevail, that is, those who oppose this being in the bill, on the
point of order which will likely be on Wednesday, then the Defense bill
goes forward. No one voting on this point of order will stop the
Defense bill. No one voting for cloture will stop the Defense bill.
This bill will go forward. There is a continuing resolution that takes
us to the end of the year, and we need not get that far. If, in fact,
we have a majority of the Senators who vote on this point of order and
it prevails, then the bill will go forward, just as the Senator from
Alaska said yesterday in the Fairbanks newspaper.
So I would hope that there would come a time--we could go home today.
We could be finished today. The Senator from Alaska knows he has the
votes to do what he did on reconciliation again. As soon as the new
session of this Congress convenes, we could take this out and goodwill
would prevail. We would go home tonight, and we would be home 4 or 5
days before Christmas.
Mr. STEVENS. Will the Senator yield?
Mr. REID. I am happy to yield.
Mr. STEVENS. I agree. I agree with the statement the Senator read. I
think that is true. I am not accusing anyone of delay. I would be happy
to have a time agreement on the conference report, and I would be happy
to have a time agreement on any type of point of order or motion to be
raised on the conference report. I will be glad to have a vote on the
conference report by voice vote if it passes. I am anxious to let
people get home. I will be happy to get time agreements, and I do
believe if we lose we can go back to conference and protect the
Department of Defense.
I am not accusing anyone of harming the Department of Defense. I am
urging people to think about national defense.
Would the Senator agree to any type of time agreement?
Mr. REID. I will be happy to consider anything that is reasonable. I
am sure there are things we can do.
Mr. STEVENS. Good.
Mr. REID. One of the things I think would be appropriate, the way I
understand things now, if everything is here by midnight tonight and
cloture is filed, there will be a Wednesday cloture vote. After that
Wednesday cloture vote, there will be a vote on this point of order.
That would be Wednesday.
If it is necessary that there be cloture invoked on the Defense
authorization bill--and I am not sure that is necessary, but it is
possible--the two cloture votes would be back to back.
So I would be happy to consider working out some reasonable time
agreement. Maybe we could even have the vote on the point of order
first.
Mr. STEVENS. I thank the Senator. I think that is the way to go.
The ACTING PRESIDENT pro tempore. The Senator from Washington.

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