[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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