[Congressional Record Volume 156, Number 9 (Monday, January 25, 2010)]
[Senate]
[Pages S198-S200]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SUBMITTED RESOLUTIONS
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SENATE RESOLUTION 396--TO ENABLE EACH NEWLY CONSTITUTED SENATE TO CARRY
OUT ITS RESPONSIBILITY TO DETERMINE THE RULES OF ITS PROCEEDINGS AT THE
BEGINNING OF EACH CONGRESS
Mr. UDALL of New Mexico submitted the following resolution; which was
referred to the Committee on Rules and Administration:
S. Res. 396
Whereas article I, section 5 of the United States
Constitution provides that ``Each House may determine the
Rules of its Proceedings'';
Whereas it is a longstanding common law principle, upheld
in Supreme Court decisions, that one legislature cannot bind
subsequent legislatures;
Whereas rule V of the Standing Rules of the Senate states
that ``the Rules of the Senate shall continue from one
Congress to the next unless they are changed as provided in
these rules'';
Whereas rule XXII of the Standing Rules of the Senate
requires an affirmative vote of two-thirds of Senators
present and voting to limit debate on a measure or motion to
amend the Senate Rules; and
Whereas rule V and rule XXII of the Standing Rules of the
Senate, taken together, can effectively deny the Senate the
opportunity to exercise its constitutional right to determine
the Rules of its Proceedings under article I, section 5, thus
allowing one Congress to bind its successors; Now, therefore,
be it
Resolved, That upon the expiration of the Standing Rules of
the Senate at the Sine Die Adjournment of the 111th Congress,
the Senate shall proceed in accordance with article I,
section 5 of the Constitution to determine the Rules of its
Proceedings by a simple majority vote.
Mr. UDALL of New Mexico. Mr. President, it is with great humility and
respect for the institution of the Senate, reverence for the many great
men and women who have served here, and affection for my colleagues
that I rise today to discuss what I believe is an issue of great
importance.
Reflecting on my first year as a Member of this body, I have come to
believe that we are failing to represent the best interests of the
American people. We as elected representatives have a duty to our
constituents. But partisan rancor and the Senate's own incapacitating
rules often prevent us from fulfilling that duty.
While I am convinced that our inability to function is our own fault,
we have the authority within the Constitution to act. Article I,
section 5, of our Constitution states in clear language that ``Each
House may determine the rules of its proceedings. . . .''
Yet at the beginning of the 111th Congress, we implicitly acquiesced
to the rules adopted decades and sometimes more than a century ago,
rules that most Members of this Senate have never voted to adopt.
Today these rules put in place generations ago make effective
legislating nearly impossible. Specifically, under rule XXII, it is not
possible to limit debate, end a filibuster, invoke cloture without 60
votes. Such cloture votes used to occur perhaps seven or eight times
during a congressional session. But in the 110th Congress alone, there
were 112 cloture votes, and most of these were occasioned simply by the
threat of a filibuster.
The American people spoke loudly in the 2008 election. They clearly
desired a President and a Congress that would set a new direction. It
was not necessarily an endorsement of one ideology over another but
instead a call for us to put partisanship aside and to take care of the
country's business.
Although this Chamber was able to pass historic health care
legislation last year, we are far from finished. More than anything,
what the health care debate has demonstrated is how difficult the rules
have made our legislative process. And it is not just health care.
Other important pieces of legislation still languish, Federal judicial
vacancies remain unfilled, and many of the President's appointees to
key positions are still not confirmed. The American people deserve
better.
I applaud Leader Reid for what he has been able to accomplish, given
the way this Chamber's rules have been used to impede progress. Senate
rules are designed to allow for substantive debate and to protect the
views of the minority, as our Founders intended. But they have been
used instead to prevent the Senate from beginning to even debate
critical legislation.
[[Page S199]]
Protecting the views of the minority makes sense, but not at the
expense of the will of the majority. Indeed, as the rules are being
used today, a single Senator can hold a bill hostage until his or her
demands are met. This is not the spirit of compromise and collegiality
our Founders envisioned for this body.
Even worse, the rules as they exist today make any effort to change
them a daunting process. Under the current Standing Rules of the
Senate, rule V states:
The Rules of the Senate shall continue from one Congress to
the next unless they are changed as provided in these rules.
As adopted in 1975, rule XXII requires two-thirds of Senators present
and voting to agree to end debate on a change to the Senate rules, in
most cases 67 votes. Taken together, these two rules effectively deny
the Senate the opportunity to exercise its constitutional right to
determine the rules of its proceedings and serve to bind this body to
rules adopted by its predecessors.
Many of my colleagues will argue that the Senate is not designed to
be efficient, that the use of filibusters and delay tactics was what
the Founders intended. They will quote George Washington's comment to
Thomas Jefferson that the Framers created the Senate to cool House
legislation, just as a saucer was used to cool hot tea. While I
understand their argument, I do not believe that the Framers envisioned
the Senate as the graveyard for good ideas. We can have lengthy debate
about the merits of legislation, but there should come a time when we
actually vote on the bill. We can discuss the qualifications of a
judicial nominee, but each nominee deserves an up-or-down vote. To
quote one of this body's most esteemed Members, Senator Henry Cabot
Lodge:
To vote without debating is perilous, but to debate and
never vote is imbecile.
This is a bipartisan issue. I express my opinions today as a member
of the majority. But they will not change if I become a member of the
minority party.
We are all too aware of the power of rule XXII, the filibuster rule,
adopted in 1975. Yet except for the distinguished Senators Byrd,
Inouye, and Leahy, none of us--Republicans or Democrats alike--has ever
voted to adopt this rule.
Opponents of rules reform argue that the Senate is a continuing body
and, therefore, the rules must remain in effect from one Congress to
the next. I disagree with this assertion. Even if the Senate is deemed
to have continued because two-thirds of its Members remain in office,
there is no reason that the rules must remain in effect.
Many things change with a new Congress. It is given a new number. All
of the pending bills and nominations from the previous Congress are
dead, and each party may choose its leadership. If the party in the
majority changes, the new Senate becomes substantially different from
the last.
Senators of both parties have argued that the rules may change with a
new Congress, as my esteemed colleague from Utah, Senator Hatch, stated
in a National Review article in 2005:
The Senate has been called a ``continuing body.'' Yet
language reflecting this observation was included in Senate
rules only in 1959. The more important, and much older, sense
in which the Senate is a continuing body is its ongoing
constitutional authority to determine its rules. Rulings by
vice presidents of both parties, sitting as the President of
the Senate, confirm that each Senate may make that decision
for itself, either implicitly by acquiescence or explicitly
by amendment. Both conservative and liberal legal scholars,
including those who see no constitutional problems with the
current filibuster campaign, agree that a simple majority can
change Senate rules at the beginning of a new Congress.
I agree with Senator Hatch. And I agree with our good friend Senator
Ted Kennedy who said:
The notion that a filibuster can be used to defeat an
attempt to change the filibuster rule cannot withstand
analysis. It would impose an unconstitutional prior restraint
on the parliamentary procedure in the Senate. It would turn
rule XXII into a Catch-XXII.
The early history of this body suggests that the use of unlimited
debate as a tool of obstruction was not an issue.
The original Senate rules adopted under article I, section 5, of the
Constitution included a provision allowing a Senator to make a motion
``for the previous question.'' If passed, the motion allowed a simple
majority of Senators to halt debate on a pending issue. This simple
rule for limiting debate was inadvertently dropped in 1806--perhaps for
lack of need--and the Senate entered a period with no means to limit
debate. It was not until the 1830s that the Senate saw the first
filibusters, as Members recognized that the lack of any rule to limit
debate could be used to effectively block legislation opposed by even a
minority of the minority. It was not, however, until 1917 that the
Senate adopted a formal cloture rule.
Woodrow Wilson's armed ships bill had just been filibustered by 11
Senators. The President was furious, demanding a change in Senate
procedural rules. In response, Montana Senator Thomas Walsh, citing
article I, section 5, of the Constitution introduced the constitutional
option.
Walsh argued that a newly convened Senate was not bound by the rules
of the previous Senate and could adopt its own rules, including a rule
to limit debate. He reasoned that every new Senate had the right to
adopt rules, saying that ``it is preposterous to assume that [the
Senate] may deny future majorities the right to change'' the rules. In
response to Walsh's proposal, the Senate reached a compromise and
amended rule XXII. The compromise permitted cloture on any pending
measure at the will of two-thirds of all Senators present and voting.
Back then, the toxic partisanship we face today had not yet poisoned
the system, but the manipulative use of the filibuster had already
taken hold. It was used to block some of the most important legislation
of that time--anti-lynching bills in 1922, 1935, and 1938, and anti-
race discrimination bills were blocked almost a dozen times starting in
1946.
By the 1950s, a bipartisan group of Senators had had enough. On
behalf of himself and 18 other Senators, New Mexico's Clinton Anderson,
my predecessor, attempted to limit debate and control the use of a
filibuster by adopting the 1917 strategy of Thomas Walsh. Just as
Senator Walsh did almost four decades earlier, Senator Anderson argued
that each new Congress brings with it a new Senate entitled to consider
and adopt its own rules. On January 3, 1953, Anderson moved that the
Senate immediately consider the adoption of rules for the Senate of the
83rd Congress.
Anderson's motion was tabled, but he introduced it again at the
beginning of the 85th Congress. In the course of that debate, Senator
Hubert Humphrey presented a parliamentary inquiry to Vice President
Nixon, who was presiding over the Senate. Nixon understood the inquiry
to address the basic question, ``Do the rules of the Senate continue
from one Congress to another?'' Noting that there had never been a
direct ruling on this question from the Chair, Nixon stated that:
While the rules of the Senate have been continued from one
Congress to another, the right of a current majority of the
Senate at the beginning of a new Congress to adopt its own
rules, stemming as it does from the constitution itself,
cannot be restricted or limited by rules adopted by a
majority of a previous Congress. Any provision of Senate
rules adopted in a previous Congress which has the expressed
or practical effect of denying the majority of the Senate in
a new Congress the right to adopt the rules under which it
desires to proceed is, in the opinion of the Chair,
unconstitutional.
Nixon's opinion was consistent with the longstanding common law
principle, upheld in Supreme Court decisions, that one legislature
cannot bind subsequent legislatures.
Nixon went on to explain that under the Constitution, a new Senate
had three options to deal with the rules at the beginning of a new
Congress: No. 1, proceed under the rules of the previous Congress and
``thereby indicate by acquiescence that those rules continue in
effect''; No. 2, vote down a motion to adopt new rules and thereby
``indicate approval of the previous rules''; and No. 3, ``vote
affirmatively to proceed with the adoption of new rules.''
Despite Nixon's opinion from the chair, Anderson's motion was tabled.
In 1959, Anderson raised the constitutional option again at the start
of the 86th Congress, with the support of some 30 other Senators. This
time, he raised the ire of then-Majority Leader Johnson, who realized
that a majority of Senators might join Anderson's cause. To prevent
Anderson's motion from receiving a vote, Johnson came forward
[[Page S200]]
with his own compromise--changing rule XXII to reduce the required vote
for cloture to ``two-thirds of Senators present and voting.'' And to
appease a small group of Senators, Johnson also included new language
that stated that the rules continued from one Congress to the next
unless they were changed under the rules. It was a move that would
effectively bind all future Senates.
Throughout his career, Clinton Anderson relied on the constitutional
option as the basis to ease or at least reconsider the cloture
requirements laid out in rule XXII. As he said in 1959:
My motion does not prejudge the nature of the rules which the Senate
in its wisdom may adopt, but it does declare in effect that the Senate
of the 85th Congress is responsible for and must bear the
responsibility for the rules under which the Senate will operate. That
responsibility cannot be shifted back upon the Senate of past
Congresses.
In 1975, 2 years after Anderson left office, the Senate adopted the
rule we operate under today: It takes the vote of ``three-fifths of all
Senators duly chosen and sworn'' to cut off debate or the threat of
unlimited debate.
As the junior Senator from New Mexico, I have the honor of serving in
Senator Clinton Anderson's former seat, and I have the desire to take
up his commitment to the Senate and his dedication to the principle
that in each new Congress, the Senate should exercise its
constitutional power to determine its own rules. Let me be very clear.
I am not arguing for or against any specific changes to the rules, but
I do believe each Senate has the right, according to the Constitution,
to determine all of its rules by a simple majority vote.
As my distinguished colleague Senator Byrd, the longest serving
Member in the history of Congress, once said:
The Constitution in article 1, section 5, says that each
House shall determine the rules of its proceedings. Now we
are at the beginning of Congress. This Congress is not
obliged to be bound by the dead hand of the past.
It is time for reform. There are many great traditions in this body
that should be kept and respected, but stubbornly clinging to
ineffective and unproductive procedures should not be one of them.
There is another way.
The resolution I am introducing today is simple. It would enable the
112th Congress to carry out its responsibility to determine the rules
of its proceedings in accordance with the Constitution. This is not to
say that between now and the beginning of the 112th Congress we cannot
use our political will to find a way to avoid the gridlock of 2009. It
is to say that at the beginning of the 112th Congress, the Senate can
exercise its constitutional right to adopt its rules of procedure by a
simple majority vote. The Senate may choose to adopt new rules or it
may choose to continue with some or all of the rules of the previous
Congress. The point is, it is our choice. It is our responsibility.
As Clinton Anderson said:
It is a responsibility that cannot be shifted back upon the
Senate of past Congresses.
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