[Congressional Record Volume 153, Number 24 (Thursday, February 8, 2007)]
[Senate]
[Pages S1763-S1766]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SENATE RULES CHANGE

  Mr. SPECTER. Madam President, I turn to the subject of submitting a 
resolution which I spoke about yesterday, and I do formally submit the 
resolution at this time. This resolution will eliminate the practice of 
filling the tree, which means there is a procedure to eliminate the 
opportunity of a Senator to offer an amendment.
  This is a particularly problemsome week for the Senate. We are on 
Thursday, and twice this week action has

[[Page S1764]]

been taken in the Senate, on two separate matters, to foreclose 
Senators from offering amendments. I spoke on Monday and again 
yesterday on the subject of U.S. policy in Iraq, and we have a bill 
which has been offered by Senator Levin, and the majority leader was 
expected to fill the tree, if given an opportunity to do so. No denial 
has been made of that practice, which was anticipated by the majority 
leader.
  A motion to proceed is a debatable motion under Senate rules. When 
you have a matter as important as the Iraq war, there ought to be very 
careful consideration given by the Senate--reputed to be the world's 
greatest deliberative body. Immediately upon taking up the bill, the 
majority leader filed a cloture motion. It was kind of odd, even for 
people not versed in Senate procedure, to bring up a bill which is 
debatable and immediately to file a motion to cut off debate, but that 
was what was done.
  On the Republican side, there was an interest in having alternative 
resolutions, ideas considered--by Senator McCain, to support the surge 
with benchmarks; by Senator Warner, to express opposition to a surge of 
21,500; and by Senator Gregg, to have a resolution which would deal 
with the prohibition against funding for the troops--which obviously 
nobody wants to do. The troops are in harm's way. We are not going to 
cut off funding.
  But behind the scenes what was happening was negotiations between 
Senator Reid and Senator McConnell--the agreement could not be reached 
giving the Republicans a fair opportunity to offer alternative 
resolutions, so almost all Republicans joined together to reject the 
cloture motion and keep the debate going.
  It is not understood in America what is happening because it is 
arcane, it is esoteric, it is unintelligible--they can't figure it out. 
But the popular view, the public perception was the Republicans were 
trying to protect the President, to cut off debate on the Iraq policy 
and not to have a vote. That, simply stated, was not true.
  I have been on the record for some time, expressing my skepticism 
about the surge position. There is no doubt that Senator Warner opposes 
the President's position because he is the author of the resolution to 
express disapproval on the surge position. He voted against cloture. No 
doubt, Senator Hagel was against the President's proposal. He has been 
the most severe critic of the President's proposal. Senator Hagel also 
voted against cloture, as did almost all Republicans. But the 
perception was the Republicans were trying to block debate in the 
consideration of the resolution of disapproval.
  After I announced my intention to introduce this rule change, I went 
to the third floor, to the press gallery, to sit down with the 
reporters to explain and to answer questions, to try to get a public 
discussion on what was happening. One of the reporters from the wire 
services commented that no story was written about it because it 
couldn't be explained to anybody beyond the beltway. It could not be 
explained.
  Two of the newspapers on Capitol Hill carried brief stories about it, 
but the matter has been dropped. Republicans have lost the public 
relations battle. The issue will be taken up in the House. Maybe it 
will be reconsidered in the Senate. But this procedure of allowing the 
majority leader to stop alternative considerations is inappropriate and 
unfair.
  There are some pretty good authorities for the proposition that this 
procedure is inappropriate. I wish to cite three very distinguished 
Senators: Senator Harry Reid, the majority leader; Senator Richard 
Durbin, the assistant majority leader; and Senator Chris Dodd, Democrat 
from Connecticut. As I said yesterday, this business about filling the 
tree has been practiced by both parties. The Congressional Research 
Service did a study that showed that going back to Senator Dole in the 
1985-1986 Congress, every majority leader has used this procedure--
Senator Dole, Senator Byrd, Senator Mitchell, Senator Lott, Senator 
Daschle, Senator Frist, and now Senator Reid, twice in 1 week. In the 
fifth week of the new session, it is twice already being used. So that 
Democrats and Republicans are equally at fault. If people want to know 
whom to blame in Washington, it is a pretty good conclusion it is 
equally divided, that the bickering is the responsibility of both 
parties--a plague on both houses.
  But when we Republicans controlled the Senate and we had the PATRIOT 
Act, Senator Reid had this to say on February 28 of last year. He was 
speaking in defense of a fellow Democrat's ability to offer amendments 
to the PATRIOT Act reauthorization. This is what Senator Reid said:

       Of course, even a good bill can be improved. That is why we 
     have an amendment process in the Senate . . . I am 
     disappointed that he has been denied that opportunity by a 
     procedural maneuver known as ``filling the amendment tree.''
       This is a very bad practice. It runs against the basic 
     nature of the Senate. The hallmark of the Senate is free 
     speech and open debate. Rule XXII establishes a process for 
     cutting off debate and amendments, but Rule XXII should 
     rarely be invoked before any amendments have been offered.

  That is what Senator Reid said less than a year ago. I couldn't say 
it better. In fact, I couldn't say it as well.
  Then, a few days later on March 2, Senator Reid said this:

       Don't fill the tree. This is a bad way, in my opinion, to 
     run the Senate.

  Then Senator Durbin spoke on May 11 of 2006 on the tax increase 
prevention and reconciliation act. Speaking about that conference 
report, this is what Senator Durbin had to say:

       The Republican majority brings a bill to the Senate, fills 
     the tree so no amendments can be offered, and then files 
     cloture, which stops debate. So we cannot have this 
     conversation. We cannot offer amendments.

  Well, that is exactly the plan for the Iraq issue, and that is what 
is being done now on the continuing resolution which has been filed.
  Senator Dole had this to say, speaking about health care legislation:

       I want to point out to our colleagues why I am terribly 
     disappointed with the procedures we have been confronted with 
     this evening dealing with this legislation . . . This is the 
     Senate. This Chamber historically is the place where debate 
     occurs. To have a process here this evening . . . to 
     basically lock out any amendments that might be offered to 
     this proposal runs contrary to the very essence of this body 
     . . . If you believe the Senate ought to be heard on a 
     variety of issues relating to the subject matter--when the 
     amendment tree has been entirely filled, then obviously we 
     are dealing with a process that ought not to be . . . the 
     Senate ought to be a place where we can offer amendments, 
     have healthy debate over a reasonable time, and then come to 
     closure on the subject matter.

  Well, Arlen Specter doesn't have to say anything more on the subject 
because Senator Reid, Senator Durbin, and Senator Dodd are much more 
eloquent than I. So I offer this resolution to correct this problem for 
the future. It is very hard to change a Senate rule, but nobody has 
proposed it in the past, to my knowledge, and today we will start on 
it.
  Beyond the procedure used by the majority leader, the leader of the 
Democrats, to shut off debate and consideration of alternative 
proposals on the Iraq policy, the majority leader has utilized the 
procedure again on the continuing resolution.
  Now the continuing resolution characteristically is a brief document, 
usually about a page, which says the Government will continue to 
operate under existing appropriations, since there has not been time to 
consider a new appropriations package. But what we have in H.J. Res. 20 
is an omnibus bill running 137 pages. I want to have an opportunity to 
amend it. Other Senators want to have an opportunity to amend it. Some 
have spoken on the floor of the Senate here today. But we are 
foreclosed from doing so.
  When the announcement was made that we were going to go to this kind 
of a procedure, in my capacity as chairman last year, now ranking 
member of the Appropriations Subcommittee on Labor, Health and Human 
Services, and Education, I wrote a letter to Senator Reid asking that 
we follow regular order and consider the appropriation bills 
sequentially. I sent identical letters to Speaker Pelosi, the 
Republican leader, Boehner, in the House, Senator McConnell, Senator 
Byrd, Representative Obey, Representative Lewis, and Senator Cochran, 
the leaders of both bodies and the chairmen and ranking members of both 
Appropriations Committees. Because if we had the will; we had the time; 
we had the way, to get it all done. But the leadership has chosen not 
to follow that path, and now we have a continuing resolution which does 
not allow for any amendments. That is not in the public interest.

[[Page S1765]]

  After having been in the Senate for 26 years and being on the 
Appropriations Committee for 26 years, I have turned into a 
rubberstamp. That is what the Senators are here, those who did not have 
a say in the preparation of this continuing resolution. We are all 
rubberstamps: Take it or leave it. Now we would employ the procedure 
used on the Iraqi issue to avoid cutting off debate, but the Treasury 
will run out of money at midnight on February 15--that is Thursday 
night--so we have the option of closing down the Government if we don't 
approve this rubberstamp procedure, and we are not going to do that. We 
had experience with the closing down of the Government back in December 
of 1995, and it was a very bitter experience; great political peril in 
closing down the Government.
  Here we have a very important measure. For a few minutes I want to 
point out what has happened to the subcommittee which funds health 
care, which is our No. 1 capital asset; you can't do anything if you 
don't have good health, and I can testify to that personally from my 
own experience in the last 2 years. Secondly, education. If you are not 
trained, you can't do anything, even with good health. The Department 
of Labor on job training and worker safety. The level of the budget for 
fiscal year 2005 was $143.4 billion. The President has proposed a 
budget for fiscal year 2008 of $141.5 billion. If you take a look at 
the cuts in the budget for Health, Education and Labor and you add in 
the inflationary factors, the committee is being asked to operate at a 
level of $14.7 billion less than the fiscal year 2005 budget. That 
simply is inadequate to take care of the National Institutes of Health, 
offering the greatest chance through medical research to find cures for 
Alzheimer's and Parkinson's and cancer and heart disease; funding for 
Head Start, funding for Title I, funding for education programs, 
funding for job training. It simply is totally insufficient.
  Those are the kinds of matters we ought to address on this continuing 
resolution. That is what we ought to be talking about, instead of 
having our last vote before noon on a Thursday as part of our 5-day 
workweek. We have yet to see that; we have yet to take the time we need 
to consider these matters. Had we taken up these appropriations bills 
in regular order, as I asked the leadership back on January 10, we 
would have had adequate time to do so.
  It is my hope that one day, and hopefully sooner rather than later, 
the Senate will change its rules so the majority leader will not be 
able to create a procedural morass to stop Senators from introducing 
amendments. It is my hope Senator Reid's admonitions when the shoe was 
on the other foot back last year, that filling the tree is a bad 
practice, it runs against the basic nature of the Senate, the hallmark 
of the Senate is free speech and open debate, and similar comments by 
Senator Durbin and Senator Dodd, that we will be able to have a process 
so when an issue such as Iraq comes before the Senate, we can function 
as a deliberative body and we can have debate; we can consider 
alternative matters, and we can decide what U.S. policy should be. 
Because the President is not the sole decider. It is a shared 
responsibility; that when we have a budget and a resolution to fund the 
U.S. Government, we are not shut out from offering amendments.
  Madam President, I ask unanimous consent that the resolution be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                              S. Res. ___

       Resolved,  That (a) rule XV of the Standing Rules of the 
     Senate is amended by adding at the end the following:
       ``6. Notwithstanding action on a first degree amendment, it 
     shall not be in order for a Senator to offer a second degree 
     amendment to his or her own first degree amendment.''.
        (b) The amendment made by subsection (a) shall take effect 
     at the beginning of the 111th Congress.

  Mr. SPECTER. Madam President, I ask unanimous consent that the 
summary of the statements of Senators Reid, Durbin, and Dodd be printed 
in the Record at this time.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Sen. Reid (NV)--talking to a new Senator in the chair, 
     ``she should have seen when the Republicans were in the 
     majority. We didn't have amendments. They filled every 
     tree.'' 2/6/07 (Tues.) Iraq debate
       Sen. Reid (NV)--Speaking in defense of a fellow Democrat's 
     ability to offer amendments to the Patriot Act 
     reauthorization: ``Of course even a good bill can be 
     improved. That is why we have an amendment process in the 
     Senate . . . I am disappointed that he has been denied that 
     opportunity by a procedural maneuver known as `filling the 
     amendment tree.' This is a very bad practice. It runs against 
     the basic nature of the Senate. The hallmark of the Senate is 
     free speech and open debate. Rule [twenty-two] XXII 
     establishes a process for cutting off debate and amendments, 
     but Rule XXII should rarely be invoked before any amendments 
     have been offered . . . I will vote against cloture to 
     register my objection to this flawed process.'' 2/28/06 
     Patriot Act Reauthorization
       Sen. Reid (NV)--``Don't fill the tree . . . That is a bad 
     way, in my opinion, to run this Senate.'' 3/2/06 Patriot Act
       Sen. Durbin--Speaking about the 2005 Tax Reconciliation 
     conference report: ``The Republican majority brings a bill to 
     the Senate, fills the tree so no amendments can be offered, 
     and then files cloture, which stops debate. So we cannot have 
     this conversation. We cannot offer other amendments.'' 5/11/
     06 Tax Increase Prevention and Reconciliation Act of 2005 
     Conf. Rept.
       Sen. Dodd--Speaking about healthcare legislation: ``I want 
     to point out to our colleagues why I am terribly disappointed 
     with the procedures we have been confronted with this evening 
     dealing with this legislation . . . This is the Senate. This 
     Chamber historically is the place where debate occurs. To 
     have a process here this evening . . . to basically lock out 
     any amendments that might be offered to this proposal runs 
     contrary to the very essence of this body . . . if you 
     believe the Senate ought to be heard on a variety of issues 
     relating to the subject matter--when the amendment tree has 
     been entirely filled, then obviously we are dealing with a 
     process that ought not to be . . . .the Senate ought to be a 
     place where we can offer amendments, have healthy debate over 
     a reasonable time, and then come to closure on the subject 
     matter.'' 05/11/06 Health Insurance Marketplace Modernization 
     and Affordability Act of 2006

  Mr. SPECTER. Madam President, I ask unanimous consent that a copy of 
my letter of January 10 to Senator Reid, which notes identical records 
to the other leaders in the House and Senate, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                 Washington, DC, January 10, 2007.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     Washington, DC.
       Dear Harry: In light of the significant problems caused to 
     so many entities funded by the federal government to operate 
     under a continuing resolution, I urge the leaders of both 
     Houses and the Chairmen and Ranking Members of the 
     Appropriations Committees of both Houses to bring the 
     unfinished Appropriation bills for fiscal year 2007 to the 
     floors of the House and Senate as early this year as 
     possible.
       The extraordinary problems caused for so many entities are 
     typified by a letter which I received yesterday from Chief 
     Judge Paul Michel of the United States Court of Appeals for 
     the Federal Circuit. With this letter, I am enclosing a copy 
     of Judge Michel's letter. I am also enclosing a copy of a 
     memorandum prepared by my Staff Director on Appropriations, 
     Bettilou Taylor, itemizing some of the major problems faced 
     by federally-funded entities.
       Last year, I tried repeatedly and unsuccessfully to have my 
     Subcommittee's bill on Labor, Health & Human Services and 
     Education brought to the Senate floor for action. My House 
     counterpart, Chairman Ralph Regula, and I were prepared to 
     conclude our bill and wrap it up in a conference report. We 
     could still do so on short order. As an alternative to 
     considering the bills individually, there could obviously be 
     an omnibus bill excluding earmarks which could be taken up in 
     relatively short order.
       I know there is other pressing business to be taken up by 
     both Houses on many matters, but we could find time to 
     complete action on key items from last year's appropriation 
     process if we have a sense of urgency to do so.
       I appreciate your consideration of this request.
       I am sending identical letters to Speaker Pelosi, 
     Representative Boehner, Senator McConnell, Chairman Byrd, 
     Chairman Obey, Representative Lewis and Senator Cochran.
           Sincerely,
                                                    Arlen Specter.

  Mr. SPECTER. Madam President, I ask unanimous consent that a letter 
from Judge Paul Michel to me, dated December 18, about the problems 
caused to the Federal judiciary to the U.S. Court of Appeals for the 
Federal Circuit, which was referenced in my letter to Senator Reid and 
others, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


[[Page S1766]]


                                             U.S. Court of Appeals


                                      for the Federal Circuit,

                                Washington, DC, December 18, 2006.
     Hon. Arlen Specter,
     U.S. Senate,
     Washington, DC.
       Dear Arlen: With the new Congressional leadership 
     suggesting a Continuing Resolution at the 2006 appropriated 
     level, the Judiciary is threatened with degradation of 
     essential functions because of increased costs mandated by 
     law. Thus, the funding level of 2006 applied in 2007 has the 
     effect of nearly a ten percent reduction.
       Although the Judiciary can and should improve efficiency 
     and do its share of belt-tightening, the funding reduction 
     suggested would impede critical operations to a material 
     degree.
       As your own proposals on habeas corpus, NSA wire taps, 
     immigration and other priorities illustrate, federal courts 
     are becoming not less but more important to the welfare of 
     the country and to its security.
       I imagine the new leaders are so focused on eliminating 
     earmarks that they are unaware of the operational impact of 
     the cuts being discussed. In addition to the Appropriations 
     Committee and subcommittees, surely the Judiciary Committee 
     has a crucial role here. As a member of the Executive 
     Committee of the Judicial Conference, I would welcome the 
     opportunity to brief you and Senator Leahy on this urgent 
     subject.
           Best,
                                                   Paul R. Michel,
                                                      Chief Judge.

  Mr. SPECTER. Madam President, I ask unanimous consent that the chart 
showing the fiscal impact on the budgetary process from the fiscal year 
2005 to the President's recommended budget of 2008 be printed in the 
Record, demonstrating the problems we have on adequately funding 
health, education, job training, and worker safety.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                       Fiscal Years 05 Through 07


                                                    Dollars in billions
FY'05 Enacted....................................................$143.4
FY'06 Enacted.....................................................141.5
FY'07 President's Budget..........................................137.4
FY'07 Budget Resolution--Specter/Harkin amendment passed (73-27) 
  Assumed an additional $7 billion.....................................
FY'07 302(b) allocation for Labor-HHS over the FY'07 budget........+5.0
                                                             __________
                                                             
FY'07 Senate reported bill........................................142.4
FY'07 Continuing Resolution thru Feb 15, 2007.....................142.1
FY'07 H.J. Res 20 plus additional subcommittee allocation..........+2.3
                                                             __________
                                                             
  Total Labor-HHS in H.J. Res 20..................................144.4
  Total over FY'07 President's budget..............................+7.0

                             Fiscal Year 08


                                                    Dollars in billions
FY'05 Enacted....................................................$143.4
Inflation as measured by the price index for the GDP:
  To restore to the FY'05 level plus FY'06 inflation--3.1...........3.5
  To restore to the second year (FY'07) inflation--2.5%.............2.9
  To restore to the FY'08 inflation--2.4%...........................2.9
NIH:
  To restore NIH plus FY'06 biomedical inflation--4.5%..............1.3
  To restore NIH plus FY'07 biomedical inflation--3.7%..............1.1
  To restore NIH plus FY'08 biomedical inflation--3.7%..............1.1
FY'08 with inflation only.........................................156.2
FY'08 President's budget..........................................141.5
                                                             __________
                                                             
Shortfall..........................................................14.7

Based on the updated inflationary costs--the FY'08 President's budget 
would require an additional $14.7 billion or 10.4% more to fund 
programs at the FY'05 inflation adjusted level.
  Mr. SPECTER. Madam President, I ask unanimous consent that the 
summary prepared by the Congressional Research Service as to the use of 
the procedure to fill the tree since the 99th Congress be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     TABLE 1.--INSTANCES WHERE A SENATE MAJORITY LEADER OR DESIGNEE FILLED THE AMENDMENT TREE: 1985-2006 \1\
----------------------------------------------------------------------------------------------------------------
                                                                     Number of times
                                                                      floor leader/       Measures/subjects on
               Congress                   Senate Majority Leader     designee filled     which tree was filled
                                                                        the tree
----------------------------------------------------------------------------------------------------------------
99th (1985-1986)......................  Robert Dole (R-KS).......                  5   Congressional Budget
                                                                                        Resolution
                                                                                       Public Debt Limit
                                                                                        Legislation
                                                                                       National Defense
                                                                                        Authorization Act
100th (1987-1988).....................  Robert C. Byrd (D-WV)....                  3   Parental and Medical
                                                                                        Leave Act
                                                                                       Campaign Finance Reform
                                                                                       Omnibus Trade and
                                                                                        Competitiveness Act of
                                                                                        1987
101st (1989-1990).....................  George J. Mitchell (D-ME)                  0   .........................
102nd (1991-1992).....................  George J. Mitchell (D-ME)                  1   Balanced Budget Amendment
103rd (1993-1994).....................  George J. Mitchell (D-ME)                  9   Economic Stimulus
                                                                                        Legislation
                                                                                       Gays in the Military
                                                                                       Senate Whitewater
                                                                                        Investigation
104th (1995-1996).....................  Robert Dole (R-KS).......                  5   Minimum Wage Increase
                                        Trent Lott (R-MS) (As of                       White House Travel Office
                                         06/12/96).                                     Investigation
                                                                                       Constitutional Amendment
                                                                                        on Congressional Term
                                                                                        Limits
                                                                                       Immigration Control and
                                                                                        Financial Responsibility
                                                                                        Act
105th (1997-1998).....................  Trent Lott (R-MS)........                  3   Bipartisan Campaign
                                                                                        Reform Act
                                                                                       ISTEA/Transportation
                                                                                        Funding
106th (1999-2000).....................  Trent Lott (R-MS)........                  9   Education (Ed-Flex)
                                                                                       Social Security Lockbox
                                                                                       Year 2000 (Y2K)
                                                                                        Legislation
                                                                                       Africa Growth Act
                                                                                       H1-B Visa Immigration
                                                                                       Labor-HHS/Ergonomics
107th (2001-2002).....................  Thomas A. Daschle (D-SD).                  1   Homeland Security Act of
                                        01/03/01--01/20/01 and                          2002
                                         also.
                                        06/06/02--01/07/03.......
                                        Trent Lott (R-MS)........
                                        01/20/01--06/06/02.......
108th (2003-2004).....................  William H. Frist (R-TN)..                  3   Energy Policy Act of 2003
                                                                                       Class Action Fairness Act
                                                                                       Jumpstart our Business
                                                                                        Strength Act.
109th (2005-2006).....................  William H. Frist (R-TN)..                  5   Lawful Commerce in Arms
                                                                                        Act
                                                                                       Tax Relief Extension
                                                                                        Reconciliation
                                                                                       USA Patriotic Act
                                                                                        Amendments
                                                                                       Health Insurance
                                                                                        Marketplace
                                                                                        Modernization Act
----------------------------------------------------------------------------------------------------------------
\1\ As of September, 2006. Preliminary draft, subject to additional review and revision.

  Mr. SPECTER. I thank the Chair, and I yield the floor. I know my 
colleagues are waiting to speak.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.

                          ____________________