[Congressional Record Volume 156, Number 21 (Thursday, February 11, 2010)]
[Senate]
[Pages S571-S574]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SENATE RESOLUTION 416--AMENDING THE STANDING RULES OF THE SENATE TO
PROVIDE FOR CLOTURE TO BE INVOKED WITH LESS THAN A THREE-FIFTHS
MAJORITY AFTER ADDITIONAL DEBATE
Mr. HARKIN (for himself, Mrs. Shaheen, and Mr. Durbin) submitted the
following resolution; which was referred to the Committee on Rules and
Administration:
S. Res. 416
Resolved,
SECTION 1. SENATE CLOTURE MODIFICATION.
Paragraph 2 of rule XXII of the Standing Rules of the
Senate is amended to read as follows:
``2. (a) Notwithstanding the provisions of rule II or rule
IV or any other rule of the Senate, at any time a motion
signed by sixteen Senators, to bring to a close the debate
upon any measure, motion, other matter pending before the
Senate, or the unfinished business, is presented to the
Senate, the Presiding Officer, or clerk at the direction of
the Presiding Officer, shall at once state the motion to the
Senate, and one hour after the Senate meets on the following
calendar day but one, he shall lay the motion before the
Senate and direct that the clerk call the roll, and upon the
ascertainment that a quorum is present, the Presiding Officer
shall, without debate, submit to the Senate by a yea-and-nay
vote the question: `Is it the sense of the Senate that the
debate shall be brought to a close?' And if that question
shall be decided in the affirmative by three-fifths of the
Senators duly chosen and sworn--except on a measure or motion
to amend the Senate rules, in which case the necessary
affirmative vote shall be two-thirds of the Senators present
and voting--then said measure, motion, or other matter
pending before the Senate, or the unfinished business, shall
be the unfinished business to the exclusion of all other
business until disposed of.
``Thereafter no Senator shall be entitled to speak in all
more than one hour on the measure, motion, or other matter
pending before the Senate, or the unfinished business, the
amendments thereto, and motions affecting the same, and it
shall be the duty of the Presiding Officer to keep the time
of each Senator who speaks. Except by unanimous consent, no
amendment shall be proposed after the vote to bring the
debate to a close, unless it had been submitted in writing to
the Journal Clerk by 1 o'clock p.m. on the day following the
filing of the cloture motion if an amendment in the first
degree, and unless it had been so submitted at least one hour
prior to the beginning of the cloture vote if an amendment in
the second degree. No dilatory motion, or dilatory amendment,
or amendment not germane shall be in order. Points of order,
including questions of relevancy, and appeals from the
decision of the Presiding Officer, shall be decided without
debate.
``After no more than thirty hours of consideration of the
measure, motion, or other matter on which cloture has been
invoked, the Senate shall proceed, without any further debate
on any question, to vote on the final disposition thereof to
the exclusion of all amendments not then actually pending
before the Senate at that time and to the exclusion of all
motions, except a motion to table, or to reconsider and one
quorum call on demand to establish the presence of a quorum
(and motions required to establish a quorum) immediately
before the final vote begins. The thirty hours may be
increased by the adoption of a motion, decided without
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debate, by a three-fifths affirmative vote of the Senators
duly chosen and sworn, and any such time thus agreed upon
shall be equally divided between and controlled by the
Majority and Minority Leaders or their designees. However,
only one motion to extend time, specified above, may be made
in any one calendar day.
``If, for any reason, a measure or matter is reprinted
after cloture has been invoked, amendments which were in
order prior to the reprinting of the measure or matter will
continue to be in order and may be conformed and reprinted at
the request of the amendment's sponsor. The conforming
changes must be limited to lineation and pagination.
``No Senator shall call up more than two amendments until
every other Senator shall have had the opportunity to do
likewise.
``Notwithstanding other provisions of this rule, a Senator
may yield all or part of his one hour to the majority or
minority floor managers of the measure, motion, or matter or
to the Majority or Minority Leader, but each Senator
specified shall not have more than two hours so yielded to
him and may in turn yield such time to other Senators.
``Notwithstanding any other provision of this rule, any
Senator who has not used or yielded at least ten minutes, is,
if he seeks recognition, guaranteed up to ten minutes,
inclusive, to speak only.
``After cloture is invoked, the reading of any amendment,
including House amendments, shall be dispensed with when the
proposed amendment has been identified and has been available
in printed form at the desk of the Members for not less than
twenty-four hours.
``(b)(1) If, upon a vote taken on a motion presented
pursuant to subparagraph (a), the Senate fails to invoke
cloture with respect to a measure, motion, or other matter
pending before the Senate, or the unfinished business,
subsequent motions to bring debate to a close may be made
with respect to the same measure, motion, matter, or
unfinished business. It shall not be in order to file
subsequent cloture motions on any measure, motion, or other
matter pending before the Senate, except by unanimous
consent, until the previous motion has been disposed of.
``(2) Such subsequent motions shall be made in the manner
provided by, and subject to the provisions of, subparagraph
(a), except that the affirmative vote required to bring to a
close debate upon that measure, motion, or other matter, or
unfinished business (other than a measure or motion to amend
Senate rules) shall be reduced by three votes on the second
such motion, and by three additional votes on each succeeding
motion, until the affirmative vote is reduced to a number
equal to or less than an affirmative vote of a majority of
the Senators duly chosen and sworn. The required vote shall
then be an affirmative vote of a majority of the Senators
duly chosen and sworn. The requirement of an affirmative vote
of a majority of the Senators duly chosen and sworn shall not
be further reduced upon any vote taken on any later motion
made pursuant to this subparagraph with respect to that
measure, motion, matter, or unfinished business.''.
Mr. HARKIN. Mr. President, this past week, New York Times columnist
Gail Collins noted that ``Washington was immobilized by snow on Friday.
This is highly unusual. Normally, Washington is immobilized by
senators.''
Sadly, Gail Collins is right. The unprecedented abuse of Senate rules
by Republicans has overwhelmed the legislative process. The same week
that Washington saw a large snow storm shut down the city and close the
Federal Government, we saw the unprecedented action of a minority
blocking Senate confirmation of every single executive branch nominee.
Last week, we saw Republicans require the Senate to debate for 30 hours
one Department of Labor nominee in lieu of conducting other business
and I use the term ``debate'' generously since during that time one
Member spoke in opposition to her confirmation. This Congress, we have
seen the minority require the Senate clerk to read lengthy bills out
loud. And, most significantly, the minority has used the filibuster at
an unheard of level in the history of this body.
The U.S. Senate cannot continue to function this way. That is why
today I am introducing a bill to change the Standing Rules of the
Senate to reform the cloture procedure in the U.S. Senate. I am
introducing this bill as a member of the majority party in the Senate.
I note, however, that this bill is identical to the one I first
introduced in 1995, when I was a member of the minority party in the
Senate. So this legislation is not about one party or the other gaining
an advantage. It is about the Senate as an institution operating more
fairly, effectively, and democratically.
I will explain the details of my proposal shortly. But first I would
like to provide some historical background.
In 1995, for the first time in 8 years I found myself a member of the
minority party in the Senate. At the beginning of that Congress,
although Republicans outnumbered Democrats 53 to 47, I introduced
legislation to change the Senate rules regarding the filibuster. My
plan would have ensured ample debate and deliberation--the original
purpose of the filibuster--but it would have allowed a bill, over time,
to be passed by a simple majority vote. Unfortunately, my proposal did
not pass.
In the intervening years, it has become even more apparent that for
our government to properly function, we must reform and curb the use of
the filibuster.
I readily acknowledge, changing the Senate rules is a tall order; and
my goal is not to change the rules halfway through the 111th Congress.
Instead, it is to lay down a marker and to focus attention on the
unprecedented level of obstruction that occurs in the Senate today. The
sad reality is that, today, because of the promiscuous use of the
filibuster, the ability of our government to legislate and to address
problems is severely jeopardized.
The filibuster was once an extraordinary tool used in the rarest of
instances. When many people think of the filibuster they think of the
climax of the classic film ``Mr. Smith Goes to Washington,'' when Jimmy
Stewart's character singlehandedly uses a filibuster to stop a corrupt
piece of legislation favored by special interests.
The reality is that in 1939, the year ``Mr. Smith Goes to
Washington'' was filmed, there were zero filibusters in this body. In
the 1950s, there was an average of just one filibuster per Congress.
Yet, over the past half century, the use of this device has grown
exponentially. The concerns I raise today are not new. The problem,
however, has become far more serious.
In 1982, my good friend and colleague Senator Dale Bumpers of
Arkansas said this about procedures like the filibuster:
Unless we recognize that things are out of control and
procedures have to be changed, we'll never be an effective
legislative body again.
During the 2 years of that Congress, the 97th, there were 31
filibusters, as measured by the number of cloture motions filed.
In 1985, former Senator Thomas Eagleton of Missouri remarked:
The Senate is now in the state of incipient anarchy. The
filibuster, once used, by and large, as an occasional
exercise in civil rights matters, has now become a routine
frolic in almost all matters. Whereas our rules were devised
to guarantee full and free debate, they now guarantee
unbridled chaos.
During that Congress, the 99th, there were 40 filibusters.
In 1994, former Senator Charles Mathias of Maryland said:
Today, filibusters are far less visible but far more
frequent. The filibuster has become an epidemic used whenever
a coalition can find 41 votes to oppose legislation. The
distinction between voting against legislation and blocking a
vote, between opposing and obstructing, has nearly
disappeared.
During that Congress, the 103rd, right before I first introduced
legislation to modify the filibuster, there were 80 filibusters.
Remarkably, from 1995 through 2008, the number of filibusters per
Congress has increased 75 percent. In the last Congress, the 110th
Congress, there were an astonishing 139 motions to end filibusters.
In the current 111th Congress, now near its midpoint, there have been
74. Last year alone, in one year--2009--there were 67 filibusters. In
just 1 year, Republicans tripled the amount of filibusters that
occurred in the entire 20-year period between 1950 and 1969.
I would also point out that, according to a study by UCLA Professor
Barbara Sinclair, in the 1960s, just 8 percent of major bills were
subject to a filibuster. In the last Congress, 70 percent of major
bills were targeted.
The simple fact is that, today, rather than an unusual event, the
filibuster, or the threat of a filibuster, has become a routine
occurrence. Let me repeat these figures. In the 1950s, an average of
one bill was filibustered in each Congress. In the 104th Congress, when
Democrats were in the minority, there were 82 filibusters. In the last
Congress, 139 bills were filibustered. In the current Congress, there
have already been 74 filibusters.
What was once a procedure used very rarely and judiciously has become
an almost daily procedure used routinely and often recklessly.
[[Page S573]]
A quarter century ago, faced with 40 filibusters in the course of one
Congress, Senator Eagleton remarked that the Senate was in a situation
of ``unbridled chaos.''
Sixteen years ago, faced with 80 filibusters in one Congress, Senator
Mathias warned that the Senate was facing an ``epidemic.''
In this Congress, we are on pace to far surpass those earlier
numbers. At the current pace, we will face approximately 140
filibusters in the 111th Congress. It is no accident that Norm
Ornstein, the esteemed Congressional scholar, wrote an article in 2008
titled ``Our Broken Senate.''
And, it is not just scholars. Editorials throughout the country have
recognized that the use of the filibuster must be changed. The Newark
Star-Ledger called the filibuster a ``rule that cripples our
democracy.'' The San Jose Mercury News recently noted that the
``Senate's abuse of filibuster rule threatens democracy.'' The
Sacramento Bee wrote that it is ``time to bust up [the] filibuster.''
The extraordinary number of filibusters by Republicans are not just
statistics. Behind each filibuster is an attempt by Republicans to
block the majority from passing legislation and confirming nominees to
help everyday working Americans.
In the 71 years since Hollywood filmed ``Mr. Smith Goes to
Washington,'' the aim of the filibuster has been turned completely
upside down. Seven decades ago, Jimmy Stewart, ``Senator Smith,'' was
the little guy using the filibuster to battle the special interests.
Today, it is the special interests that are using the filibuster to
kill legislation that would benefit the little guy.
What is particularly striking, moreover, is not just the sheer number
of filibusters today. It is the fact that this once rare tactic--what
was once a dramatic challenge to majority rule only used in
extraordinary circumstances--is now used or threatened to be used on
virtually every measure and every nominee. To quote Norm Ornstein:
The Senate has taken the term ``deliberative'' to a new
level, slowing not just contentious legislation but also
bills that have overwhelming support.
For example, late last year, the Republicans filibustered a motion to
proceed to the Defense Appropriations bill for the sole purpose to
delay a vote on health care reform. In other words, Republicans risked
denying our troops the resources they need at a time of war for no
other purpose than to delay the Senate. After a filibuster and delay,
the bill passed 88 to 10.
The Republicans filibustered a motion to proceed to a bill to extend
unemployment compensation. After delaying and then grinding Senate
business to a halt, the bill passed 97 to l. In other words,
Republicans filibustered a bill they fully intended to support, simply
in order to stall or stop business in the Senate.
Similarly, the Republicans filibustered the agriculture
appropriations bill that funded key agriculture, conservation, and
nutrition programs. That bill passed 84 to 11.
The Republicans filibustered the Credit Card Holders Bill of Rights.
That bill passed 92 to 2.
The Republicans filibustered the Fraud Enforcement and Recovery Act.
That bill passed 84 to 4.
As the Defense Appropriations bill and unemployment compensation bill
examples show, in many cases Republicans have filibustered motions to
proceed. This is truly remarkable. In fact, last Congress there were
over 50 filibusters of motions to proceed to consider bills.
Republicans filibustered efforts for this body to consider efforts to
provide low-income home energy assistance, efforts to strengthen the
Consumer Product Safety Commission to ensure our children are not
exposed to unsafe toys, and efforts to ensure women are guaranteed
equal pay for equal work. In all of these cases and many others,
Republicans objected to this body even bringing up for debate and
deliberation important issues that matter to the American people.
There is absolutely no purpose to filibuster a motion to proceed
except delay and obstruction. If one does not like a piece of
legislation, one has an opportunity to offer amendments to try to
improve the measure. But one cannot do that if the Senate is prevented
from even considering a bill.
One of the most striking features of the abuse of this extraordinary
tool by Republicans is how quickly it has become accepted that
literally any legislation needs 60 votes to pass the Senate. If 41
senators do not like a bill, it does not get a vote. Newspapers and
pundits regularly pronounce that 60 votes are ``needed to pass the
bill'', even as we all know, only 51 Senators are, in fact, needed.
So accepted is this extraordinary abuse by the minority, that after
the most recent election in Massachusetts, the media regularly
pronounced that Democrats going from a 20-seat majority to an 18-seat
majority was the equivalent to losing majority status. A Philadelphia
Metro newspaper headline asked: ``How will Dems recover after losing
majority?'' CNN reported: ``Brown's election tips Senate balance of
power to GOP.'' The New York Times reported that ``Brown's Senate win
has cost them their razor-thin advantage.'' One paper, the Village
Voice, even wrote satirically, ``Scott Brown wins Mass. Race, Giving
GOP 41-59 Majority in the Senate.'' When the rules are abused in such a
manner that a majority of 18 seats is now treated as the equivalent to
being in the minority, it is time to change the rules.
This is not how it is supposed to be. To be sure, the Founders put in
place a system of checks and balances that made it difficult to enact
legislation. A bill must pass in both Houses of Congress. It is then
subject to the President's veto power. A law can be challenged in
court. These are all very significant checks.
What was never intended, however, was that a supermajority of 60
votes would be needed to enact virtually any piece of legislation.
Indeed, the Framers of the Constitution were very clear about
circumstances where a supermajority is required. There were only five:
ratification of a treaty, override of a veto, votes of impeachment,
passage of a constitutional amendment, and the expulsion of a Member.
James Madison specifically rejected the idea that more than a
majority would be needed for decisions. Responding to anti-Federalist
arguments that the Constitution should have required more than a
majority, Madison argued that such rules would lead to minority rule,
something inconsistent with fundamental republican principles. As he
wrote in Federalist No. 58:
That some advantages might have resulted from such a
precaution, cannot be denied. It might have been an
additional shield to some particular interests, and another
obstacle generally to hasty and partial measures. But these
considerations are outweighed by the inconveniences in the
opposite scale. In all cases where justice or the general
good might require new laws to be passed, or active measures
to be pursued, the fundamental principle of free government
would be reversed. It would no longer be the majority that
would rule; the power would be transferred to the minority.
James Madison would be appalled by the current abuse of the
filibuster to impose minority rule.
Proponents of the filibuster regularly quote the oft told story of
George Washington's description of the Senate to Thomas Jefferson.
Jefferson had returned from France and was breakfasting with
Washington. Jefferson asked Washington why he agreed to have a Senate.
``Why,'' asked Washington, ``did you just now pour that coffee into
your saucer before drinking it?'' ``To cool it,'' said Jefferson.
``Even so,'' said Washington,'' ``we pour our legislation into the
Senatorial saucer to cool it.''
As one author recently noted, however, the increasing use of the
filibuster has converted the Senate from the ``saucer'' George
Washington intended, in which scalding ideas from the more passionate
House of Representatives might ``cool'' into a ``deep freeze and a dead
weight.''
At issue is a fundamental principle of our democracy--rule of the
majority in a legislative body. As Alexander Hamilton noted in the
Federalist Papers, ``The fundamental maxim of republican government . .
. requires that the sense of the majority should prevail.''
Mr. President, elections should have consequences. My feeling in 1995
was that if the Nation elects a majority of Republicans to the Senate,
as it did, then after the minority has an opportunity to make its case,
the majority should prevail. And, it should be the same when the people
send a majority
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of Democrats to the Senate. If the people do not like how the majority
is governing, then they have the ability to change the composition of
the Senate at the next election.
Fifteen months ago, a sizable majority of voters sent Democrats to
Washington to implement real change and reform. It is no surprise that
people are now frustrated. Largely, because of the filibuster their
hopes for change have been frustrated. Instead, the public sees nothing
but gridlock.
Because of Senate rules, a minority as small as one Senator can block
action by the majority. Even when a party is resoundingly repudiated at
the polls, that party retains the power, thanks to the filibuster, to
prevent the majority from legislating and effectively governing.
Regrettably, the filibuster has become a bludgeon that the minority
uses to thwart the will of the majority, to mire the Senate in
procedural impasses and repeatedly to hold the entire Senate hostage
for extended periods of time. Today, even simple, noncontroversial
bills and nominations are not permitted to come to a vote. This is
wrong. As a result of the filibuster, the legislative process itself
has been overwhelmed.
The legislation I introduce today would amend the Standing Rules of
the Senate to permit a decreasing majority of Senators to invoke
cloture on a given matter. On the first cloture vote, 60 votes would be
needed to end debate. If the motion does not get 60 votes, a Senator
can file another cloture motion and two days later have another vote;
that vote would require 57 votes to end debate. If cloture is not
obtained, a Senator can file another cloture motion and wait two more
days; in that vote, 54 votes would be required to end debate. If
cloture is still not obtained, a Senator could file one more cloture
motion, wait 2 more days, and--at that point--just 51 votes would be
needed to move to the merits of the bill.
Let me be clear, this proposal has absolutely nothing to do with
limiting minority rights. Under this proposal, a determined minority
could slow down any bill. In this way, proper deliberation is ensured.
Senators would have ample time to make their arguments and attempt to
persuade the public and a majority of colleagues. However, a minority
of members would no longer be able to stymie the majority by grinding
the Senate to a halt, as sadly too regularly happens today.
Mr. President, this is hardly radical legislation. There are
currently numerous rules and laws that forbid the filibuster in
numerous circumstances. For example, we cannot filibuster a federal
budget resolution. We cannot filibuster a resolution authorizing the
use of force. We cannot filibuster international trade agreements. We
cannot filibuster a reconciliation bill.
Reform of the filibuster should not be a Democrat or Republican
issue. Indeed, it was the former Republican Majority Leader Bill Frist
who said when he nearly shut this body down over the use of
filibusters: ``This filibuster is nothing less than a formula for
tyranny by the minority.''
A majority in this body--whether Democratic Senators, Republican
Senators, or a bipartisan coalition of Senators--should be allowed to
work its will. When a given party wins the Presidency and both houses
of Congress by significant margins, that party should be allowed to
carry out its agenda, and then should be held accountable in the next
election.
But, I do not see how we can effectively govern a 21st century
superpower when a minority of just 41 senators can dictate action--or
inaction--not just to the majority of senators but to a majority of the
American people. This is all the more true when you consider that those
41 senators could come from small states and represent as little as 15
percent of the American population. This is not democratic. Certainly,
it is not the kind of democracy envisioned and intended by our
Founders. Instead, it is a sure-fire formula for national paralysis,
drift, and decline.
I urge my colleagues to join me in restoring the best traditions of
the United States Senate, a legislative body committed to debate and
deliberation, but also one guided by our Founders' bedrock democratic
principles of majority rule.
Mr. DURBIN. Would the Senator from Iowa yield?
Mr. HARKIN. Yes.
Mr. DURBIN. Mr. President, I ask unanimous consent to be added as a
cosponsor on this bill.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
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