[Congressional Record Volume 154, Number 94 (Monday, June 9, 2008)]
[Senate]
[Pages S5378-S5380]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          CONSUMER-FIRST ENERGY ACT OF 2008--MOTION TO PROCEED

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the motion to proceed to S. 3044, 
which the clerk will report.
  The legislative clerk read as follows:

       Motion to proceed to S. 3044, to provide energy price 
     relief and hold oil companies and other entities accountable 
     for their actions with regard to high energy prices, and for 
     other purposes.

  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania is 
recognized.


                            Filling the Tree

  Mr. SPECTER. Mr. President, I have sought recognition to comment 
about a practice that is being employed on a widespread basis, which I 
believe undercuts the fundamental institutional integrity of the 
Senate. I am referring now to a procedure known as filling the tree. 
That is an expression used inside the beltway--inside the Senate 
Chamber--for action taken by the majority leader to establish a 
procedural situation where no Senator can offer any other amendment.
  The long tradition of the Senate has been it is an institution that 
encourages, harbors, fosters open debate, the presentation of issues, 
the discussion of matters, to bring not only in this limited Chamber, 
or beyond on C-SPAN2, if anybody is watching, but to the entire 
country.
  That is what distinguished the Senate from the House of 
Representatives, for example. In the House, they have what is called a 
rule, and Members may offer amendments only in a very limited, 
circumscribed way and then in a limited period of time. But under 
Senate rules, any Senator may offer virtually any amendment virtually 
at almost any time on any subject and speak in an unlimited way, as 
long as he retains the floor.

  Last week, the Senate took up legislation of great importance on 
global

[[Page S5379]]

warming. There are many complex issues involved in that subject. We 
started off with legislation which had been offered by Senator 
Lieberman and Senator Warner that had been modified by Senator Boxer, 
the chairperson of the Environment and Public Works Committee, and 
there were many other proposals in the wings waiting to be considered. 
One of those proposals was legislation prepared by Senator Bingaman and 
myself, the Bingaman-Specter bill.
  In the consideration of global warming, there were many complex 
matters. I don't intend to go through all of them now, but illustrative 
of that is the issue of technology. Is the technology adequate to 
accommodate the goals and standards of Lieberman-Warner? What would be 
the economic impact on the provisions of global warming in terms of 
encouraging foreign countries to ship to the United States on 
exclusions where they might not have the same limitations?
  For example, in the steel industry. On that particular subject, I 
testified before the Finance Committee last February 14 about the need 
for the United States to be a leader on global warming, but at the same 
time not to sacrifice our industry to foreign goods, and noted that the 
Chinese wanted a 30-year exemption. If they had gotten that, there 
would not be any steel industry. But there were many issues.
  I came to the Senate floor a week ago today to speak on the subject 
on June 2. And then I returned to speak again on June 3. Then, by 
Wednesday, June 4, I found out that we were on our way to having the 
tree filled. Actually, I spoke on June 2, 3, and June 5 and found when 
there was no opportunity to offer amendments, I filed four amendments.
  I bring up that matter because then there was a cloture motion on 
Friday. A cloture motion requires 60 votes. If we are going to do it on 
a Friday, it is extremely difficult to find enough Senators to have an 
adequate showing as to what it means.
  In any event, the cloture motion vote was held, and the cloture 
motion fell far short. The majority leader took the bill down, and now 
we are no longer considering the question of global warming. That is a 
matter which, in my judgment, warrants very considerable time by the 
Senate. I don't know whether it is 2 weeks or 3 weeks or how many weeks 
it is, but I know it is a lot more than 4 days. And now it is gone.
  Regrettably, it is not just global warming which is involved. Not 
long ago, we have had the issue of the so-called Ledbetter Fair Pay 
Act, S. 1843, legislation which would change the statute of limitations 
on enforcing employment rights for equal pay. This bill was introduced 
because the Supreme Court of the United States, in a 5-to-4 decision, 
enforced a 6-month statute of limitations on a woman who wanted to 
claim her Federal rights to equal pay.
  It seemed to me the decision of the Supreme Court of the United 
States was wrong. The plaintiff was being foreclosed an opportunity to 
go to court to get equal pay when she didn't even know she had the 
cause of action or the right to do that.
  This issue then was the subject of a cloture motion. The motion to 
proceed failed on cloture 56 to 42. The bill was given no process. 
There was no committee referral, no debate, no opportunity for 
amendments, just talking points for Democrats, an illustration where 
cloture was filed.
  The tradition of the Senate has always been to have legislation 
offered, to have it debated. If there is objection, people oppose it. 
If people are very determined not to allow it to come to a vote without 
a supermajority--that is, getting 60 votes for cloture--then they 
filibuster. But in the course of that process, there is an awakening of 
the American people about what is going on.
  A good illustration would be the historic civil rights debates which 
went on in this Chamber for very protracted periods of time. But the 
American people hardly have any idea about what is involved in equal 
pay for women when the matter is called to the Senate floor and in a 
virtual nanosecond is dispensed with.
  Had the Ledbetter Fair Pay Act received extensive debate, had there 
been opposition, had there been discussion, had there been some idea by 
the American people about what was going on, there could have been some 
public opinion registered on that as a very important matter.
  The great difficulty is this is not a machination of the current 
majority leader. This is a practice which has been building up for a 
considerable period of time and, as with the case of so many matters, 
it is a matter of equal blame on both sides of the aisle, both 
Republicans and Democrats.
  In a survey by CRS, going back to 1985, it was used infrequently. 
Senator Dole used it five times in 1985 and 1986; Senator Byrd, three 
times in 1987 and 1988. Senator Mitchell did not use it at all in 1989 
and 1990. Then in 1991 and 1992, Senator Mitchell used it one time. 
Then in 1993 and 1994, Senator Mitchell used it nine times. In 1995 and 
1996, Senator Dole and Senator Lott used it five times. In 1997 and 
1998, Senator Lott used it three times. In 1999 and 2000, Senator Lott 
used it nine times. Senator Daschle then used it once in the next 2 
years. The following 2 years, 2003 and 2004, Senator Frist used it 
three times. Then in 2005 and 2006, Senator Frist used it nine times. 
And in the 110th Congress, so far, Senator Reid has used it 12 times. 
Every time that it is used, it totally undercuts the ability of the 
Senate to function in its traditional way.
  Senator Reid had this to say about this practice when he was not the 
majority leader but when he was the leader of the minority, the leader 
of the Democrats back on February 28, 2006. He was speaking in defense 
of a fellow Democrat's ability to offer amendments to the PATRIOT Act 
reauthorization. Senator Reid of Nevada said this:

       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.''

  Senator Reid goes on:

       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 . . 
     . I will vote against cloture to register my objection to 
     this flawed process.

  Senator Reid made similar comments a short time later on March 2, 
2006, saying:

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

  Senator Durbin, speaking on May 11, 2006, on the 2005 tax 
reconciliation conference report said:

       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.

  I cite Senator Reid and Senator Durbin with particularity because 
they are the two leaders of the Democrats at the present time.
  An eloquent statement on this subject was made by Senator Dodd on May 
11, 2006. Senator Dodd had this to say when he was 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.

  I could go on at considerable length with other Senators making the 
same point. But here we have issues of gigantic importance which are 
not being considered. They are not being debated. They are not being 
explained. They are not being subject to questioning on the Senate 
floor, one Senator on another.
  The educational process of telling America what the alternatives and 
prospects are for legislative change is not being explored. Not 
surprisingly, it is bipartisan. About the only thing that is bipartisan 
around this place is various mechanisms to gain political advantage.
  We have had furious debates over the issue of confirmation of judges, 
a subject on which I have spoken repeatedly

[[Page S5380]]

and have noted that in the past 20 years, every time the Senate is 
controlled by a party opposite the President, there is a slowdown of 
the confirmation process. It happened during the last 2 years of 
President Reagan's administration in 1987 and 1988 when Democrats won 
control of the Senate in the 1986 election. It happened in the last 2 
years of the administration of President George H.W. Bush, and during 
the administration of President Clinton where we Republicans controlled 
the Senate for the last 6 years, it was exacerbated. It was even worse 
in blocking President Clinton's nominations.
  As I have said on this floor on occasion, I voted with the Democrats. 
I thought the Republican caucus was wrong and said so. But each time it 
has been exacerbated and become more intense.
  Then this body saw a very sharp debate in 2005 where there was the 
consideration of the so-called nuclear or constitutional option, which 
would have changed the filibuster rule from 60 to 51. Now we are, 
again, in a period of gridlock. There is no doubt that the very low 
public opinion ratings of us are due to the public realization, the 
public disgust about all the bickering that goes on here. The public 
sees it on many items, the partisanship and the effort at a partisan 
advantage. But I do believe the public does not have an understanding 
of these arcane rules, like filling the tree. They can hardly have an 
understanding since most Members of this body don't understand exactly 
how it works.

  Mr. President, this is not a matter that comes to me this afternoon 
or yesterday or the day before. I have been watching it for a 
considerable period of time, and 18 months ago, on February 15, 2007, I 
introduced S. Res. 83, a resolution to amend the Standing Rules of the 
Senate to prohibit filling the amendment tree. So far there has not 
been a hearing and not been any action on that, but I intend to press 
this issue. I intend to try to bring some understanding to the American 
people beyond the confines of this Chamber.
  I don't think I am going to have a whole lot of effect on my 
colleagues this afternoon because there are none of my colleagues here 
this afternoon, except for the--no, no, I know the distinguished 
Senator from Maryland is here--except for the distinguished Presiding 
Officer. And I compliment my colleague, Senator Ben Cardin, on his fast 
start in the Senate. Of course, he had a lot of advanced training 
having come from the House of Representatives and been a leader in the 
Maryland Legislature. I work with him on the Judiciary Committee, and 
he is a first-class Senator. That extract can be used--let's see, you 
ran in 2006--you can use it in 2012, 2018, 2024, and 2030, Senator 
Cardin, but beyond 2030, I am reserving my judgment.
  But Senators are busy, and I am not in any way critical of Senators 
not being here, but I intend to speak on the subject repetitively. I 
don't know that will do any good, but I intend to do that.
  For years, Senator Proxmire used to stand at his seat on the aisle 
speaking about genocide. Every day he came to the Senate floor, and he 
was motivated because there was no television at the time he was 
speaking about genocide. I think television came while he was still 
speaking on the subject. Senator Proxmire was a remarkable Senator in 
many ways. My recollection is that he had 17,000 votes, which he didn't 
miss. I am not sure about the exact statistic, but I am sure he spoke 
extensively on genocide, and he had an impact. And now we know that 
genocide has been picked up as a crime against humanity and has been 
the subject of prosecutions under the War Crimes Tribunal.
  So I intend to speak about this subject with some frequency, and I 
intend to press for a hearing on my resolution. I intend to press to 
see if we can get some action because if the American people knew what 
was going on, the American people would not like it. The American 
people live under the illusion that we have a United States Senate. The 
facts show that the Senate is realistically dysfunctional. It is on 
life support, perhaps even moribund. The only facet of Senate 
bipartisanship is the conspiracy of successive Republican and 
Democratic leaders to employ this procedural device known as filling 
the tree. It is known that way to insiders, and it is incomprehensible 
to outsiders.
  Once known as a unique legislative institution, the Senate was 
referred to as the world's greatest deliberative body because any 
Senator could introduce almost any amendment on virtually any subject 
and get a vote on it. That was, as noted, the distinguishing feature 
from the House of Representatives, which is tightly controlled by the 
Rules Committee to restrict the parameters on what amendments are in 
order.
  A principal reason, perhaps the main reason for the use of the 
procedural device of filling the tree, was to save the majority from 
taking tough votes. That backfired on Republicans in the last Congress, 
where the filling the tree rule was used in order to avoid bad votes. 
And, of course, we know the procedure backfired pretty hard for 
Republicans to lose control of the Senate. In the 2006 election we had 
to lose seven seats, a virtual impossibility, but we managed to do it.
  But more important than the partisanship, more important than the 
increased use by both Democratic and Republican majority leaders is the 
impact it has on this institution. And more important than that is the 
impact it has on the legislative process and the working through 
legislation, which ought to be considered and, where warranted, enacted 
for the benefit of the American people.
  Mr. President, in the absence of any Senator seeking recognition, I 
suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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