[Congressional Record Volume 156, Number 95 (Wednesday, June 23, 2010)]
[Senate]
[Pages S5312-S5315]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SECRET HOLDS
Mr. UDALL of New Mexico. Mr. President, the Senate Rules Committee
held another important hearing today to review yet another example of
how the Senate rules are abused. I want to thank Chairman Schumer again
for holding these hearings--they have been
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invaluable in exploring ways to make the Senate work better for our
country.
Over the past few months during this series of hearings, we have
discussed and debated example after example of how the filibuster in
particular--and the Senate's incapacitating rules in general--too often
stand in the way of achieving real progress for the American people.
Today's hearing topic--secret holds and the confirmation process--was
just one more example of how manipulation of the rules continues to
foster a level of gridlock and obstruction unlike any we have seen
before.
Senators Wyden, Grassley, and McCaskill testified at the hearing
about their efforts to end the practice of secret holds. I applaud
their work and dedication to transparency in government. Their fight to
end the practice of secret holds is a worthy one that I wholeheartedly
support.
Earlier this year I was proud to sign on to Senator McCaskill's
letter to the majority and minority leaders, in which we pledged to no
longer place anonymous holds and asked for Senate leadership to end the
practice altogether.
At today's hearing, Senator McCaskill said that she has gathered
enough support to surpass the 67-vote threshold required to consider
and amend the Senate rules. That is no small task, as everyone in the
Senate would attest. She should be congratulated for her work, as
should all of our colleagues--Democrat and Republican--who have signed
on to this effort. This bipartisan effort is proof that we are capable
of working together.
But the mere fact that we have to have this conversation, that
Senator McCaskill had to work for months for 67 votes to change rules
that the Constitution clearly authorizes us to do with a simple
majority vote, illustrates that secret holds are just another symptom
of a much larger problem.
That problem is the Senate rules themselves.
The current rules--specifically rules V and XXII--effectively deny a
majority of the Senate the opportunity to ever change its rules. This
is something the drafters of the Constitution never intended.
As I have explained numerous times in committee hearings and here on
the floor, a simple majority of the Senate can adopt or amend its rules
at the beginning of a new Congress because it is not bound by the rules
of the previous Congress.
Many colleagues, as well as constitutional scholars, agree with me.
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.
It is through this path--by a majority vote at the beginning of the
next Congress--that we can reform the abuse of holds, secret
filibusters, and the broken confirmation process. We can end the need
for multiple cloture votes on the same matter, and we can instead begin
to focus on the important business at hand.
Now, critics will argue that the two-thirds vote requirement for
cloture on a rules change is reasonable. They'll say that Senator
McCaskill managed to gather 67 Senators, so it must be an achievable
threshold.
As I said at today's hearing, I commend Senator McCaskill for her
diligence in building support to end secret holds. But I think it is
also important to understand that other crucial reform efforts have
failed because, inexplicably, it takes the same number of Senators to
amend our rules as it takes to amend the U.S. Constitution.
As Senators Wyden and Grassley said in their testimony today, their
efforts to end secret holds goes back more than a decade. Indeed, the
effect of holds, on both legislation and the confirmation of nominees,
is hardly a new problem.
In January 1979, Senator Byrd--then majority leader--proposed
changing the Senate rules to limit debate to 30 minutes on a motion to
proceed. Doing so would have significantly weakened the power of
holds--and thus curbed their abuse.
At the time, Leader Byrd took to the Senate Floor and said that
unlimited debate on a motion to proceed, ``makes the majority leader
and the majority party the subject of the control and the will of the
minority. If I move to take up a matter, then one senator can hold up
the Senate for as long as he can stand on his feet.'' Despite the
moderate change that Senator Byrd proposed, it did not have the
necessary 67 votes to overcome a filibuster.
Efforts to reform the motion to proceed have continued since.
In 1984, a bipartisan study group recommended placing a 2-hour limit
on debate of a motion to proceed. That recommendation was ignored.
And in 1993, Congress convened the Joint Committee on the
Organization of Congress to determine how it can be a better
institution. Senator Pete Domenici, my immediate predecessor, was the
co-vice chairman of the committee. At a hearing before the committee,
he said, ``If we abolish [the debatable motion to proceed], we have
gone a long way to diffusing the validity of holds, because a hold is
predicated on the fact that you can't get [a bill] up without a
filibuster.''
The final report of that joint committee stated: ``There was
significant agreement that the motion to proceed to a bill should not
be debatable, or that debate on the motion should be limited to 2
hours.'' Despite the recommendation, nothing came of it.
And here we are again today--31 years after Senator Byrd tried to
institute a reform that members of both parties have agreed is
necessary.
Talking about change, and reform, does not solve the problem. We can
hold hearings, convene bipartisan committees, and study the problem to
death. But until we agree that the Constitution provides the right for
each Senate to adopt its rules of proceedings by a simple majority
vote, there will be no real reform.
Recognizing our constitutional right to change Senate rules by a
majority will not only allow reform, but it will help prevent abuse.
Members are less likely to abuse a rule if they know that it can be
changed by a majority in the next Congress. Conversely, if they think
it takes 67 votes to change the rule, there is no disincentive against
abuse.
I look forward to future hearings in the Rules Committee and
exploring ways that we can bring needed reform to the Senate at the
beginning of the 112th Congress.
I ask unanimous consent that an April 19 Roll Call article titled,
``In Senate, Motion to Proceed' Should be Non-Debatable'' and Senator
Hatch's 2005 article from the National Review Online be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From Roll Call, Apr. 19, 2010]
Stevenson: In Senate,``Motion To Proceed'' Should Be Non-Debatable
(By Charles A. Stevenson)
There's a simple step the Senate could take that would
prevent a lot of the current delay and obstruction, while
still permitting lawmakers to debate some controversial
matters at length.
The ``motion to proceed'' should be made non-debatable and
subject to an immediate majority-rule vote.
This may seem like an arcane parliamentary matter, but in
practice the chance to kill a bill or nomination before it is
open to debate and amendment is a key weapon in the hands of
obstructionists. They don't even have to oppose the measure;
they just argue that ``now is not the time'' to take it up.
In fact, in the past 20 years, more than one-fourth of the
cloture petitions to end debate have been on motions to
proceed.
Maybe the Senate, under pressure from voters and stymied by
the recent surge in filibusters, will change or repeal the
current rule that requires a 60-vote supermajority to cut off
debate. But that isn't likely, since it takes 67 votes to
change the rules and since all Senators can envision
circumstances when they might want to fight even though
outnumbered.
Even if lawmakers eliminated the 60-vote rule,
obstructionists would retain numerous tools to block or delay
action.
A compromise might be found on the motion to proceed, which
would have substantial additional benefits while still
preserving
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the right of extended debate on substantive matters.
Right now, the motion to take up legislation is non-
debatable only in very special circumstances: if the Senate
has adjourned rather than recessing at the end of the
previous day, if it has a period of morning business the next
day and if it is in the second hour of the session. Even
then, the bill goes back to the calendar if debate continues
at the end of morning business.
The biggest problem in the Senate's current rules isn't
that the majority can't work its will, but that a handful of
Senators can clog the legislative stream, preventing action
even on broadly supported measures.
Cutting off debate requires a day's wait after the first
cloture petition is filed, and then 30 more hours of debate
even if cloture is invoked. This means that the leadership
needs at least four days just to end debate on the motion to
proceed, plus many more on controversial amendments.
Four days on one measure is four days that can't be devoted
to other matters--and the Senate has averaged only 167 days
in session each year this decade.
Making the motion to proceed non-debatable would not only
reduce the opportunities for filibusters but would also end
the practice of individual ``holds'' on bills and
nominations.
Those holds aren't in the rules, but they are the result of
rules that require, for example, the Senate to take up bills
and nominations in the order they were added to the
calendar--that is, oldest first, with more urgent matters or
more recent versions delayed until all previous matters have
been disposed of.
A non-debatable motion to proceed could still be rejected
by majority vote, and a matter being debated could still be
filibustered, but the opponents would have to muster their
troops, whereas now a single Member can hold the whole Senate
hostage.
There are other rules changes that the Senate might adopt
to have a more orderly and businesslike legislative process.
It could change the rule (XIX) that requires that ``all
debate shall be germane and confined to the specific question
then pending before the Senate'' for only the first three
hours and it could enforce more rigorously the section of
that rule that ``no Senator shall speak more than twice upon
any one question in debate on the same legislative day.''
Senators could also drop the provision saying that the
rules continue from one Congress to another unless changed by
a two-thirds vote. That was added in 1959 under pressure from
Senators fighting civil rights bills in order to overturn a
ruling that would have allowed each new Congress to adopt
rules by majority vote--as the House of Representatives does
every two years.
But if Senators are unwilling to change the basic rule on
filibusters, they should at least make the motion to proceed
non-debatable so that the Senate can get to work without
petty delays.
____
[From the National Review Online, Jan. 12, 2005]
Crisis Mode: A Fair and Constitutional Option To Beat the Filibuster
Game
(By Senator Orrin G. Hatch)
Judicial nominations will be one of the most important
issues facing the Senate in the 109th Congress and the
question is whether we will return to the tradition of giving
nominations reaching the Senate floor an up or down vote. The
filibusters used to block such votes have mired the judicial-
confirmation process in a political and constitutional crisis
that undermines democracy, the judiciary, the Senate, and the
Constitution. The Senate has in the past changed its
procedures to rebalance the minority's right to debate and
the majority's right to decide and it must do so again.
Newspaper editorials condemning the filibusters outnumber
supporting ones by more than six-to-one. Last November, South
Dakotans retired former Senate Minority Leader Tom Daschle,
in no small part, because he led the filibuster forces. Yet
within hours of his election to succeed Senator Daschle as
Minority Leader, Senator Harry Reid took to the Senate floor
to defend them. Hope is fading that the shrinking Democratic
minority will abandon its destructive course of using
filibusters to defeat majority supported judicial
nominations. Their failure to do so will require a deliberate
solution.
DIAGNOSING THE CRISIS
If these filibusters were part of the Senate's historical
practice or, as a recent NRO editorial put it, merely made
confirming nominees more difficult, a deliberate solution
might not be warranted. But this is a crisis, not a problem
of inconvenience.
Senate rules reflect an emphasis on deliberation and
debate. Either by unanimous agreement or at least 60 votes on
a motion to invoke cloture under Rule 22, the Senate must end
debate before it can vote on anything. From the Spanish
filibustero, a filibuster was a mercenary who tries to
destabilize a government. A filibuster occurs most plainly on
the Senate floor when efforts to end debate fail, either by
objection to unanimous consent or defeat of a cloture motion.
During the 108th Congress, Senate Democrats defeated ten
majority-supported nominations to the U.S. Court of Appeals
by objecting to every unanimous consent request and defeating
every cloture motion. This tactic made good on then-
Democratic Leader Tom Daschle's February 2001 vow to use
``whatever means necessary'' to defeat judicial nominations.
These filibusters are unprecedented, unfair, dangerous,
partisan, and unconstitutional.
A POLITICAL CRISIS
These are the first filibusters in American history to
defeat majority supported judicial nominations. Before the
108th Congress, 13 of the 14 judicial nominations on which
the Senate took a cloture vote were confirmed. President
Johnson withdrew the 1968 nomination of Abe Fortas to be
Supreme Court chief justice the day after a failed cloture
vote showed the nomination did not have clear majority
support. In contrast, Democrats have now crossed the
confirmation Rubicon by using the filibuster to defeat
judicial nominations which enjoy clear majority support.
Focusing on President Clinton's judicial nominations in
1999, I described what has been the Senate's historical
standard for judicial nominations: ``Let's make our case if
we have disagreement, and then vote.'' Democrats' new
filibusters abandons this tradition and is unfair to senators
who must provide the ``advice and consent'' the Constitution
requires of them through a final up or down vote. It is also
unfair to nominees who have agreed, often at personal and
financial sacrifice, to judicial service only to face
scurrilous attacks, trumped up charges, character
assassination, and smear campaigns. They should not also be
held in permanent filibuster limbo. Senators can vote for or
against any judicial nominee for any reason, but senators
should vote.
These unprecedented and unfair filibusters are distorting
the way the Senate does business. Before the 108th Congress,
cloture votes were used overwhelmingly for legislation rather
than nominations. The percentage of cloture votes used for
judicial nominations jumped a whopping 900 percent during
President Bush's first term from the previous 25 years since
adoption of the current cloture rule. And before the 108th
Congress, the few cloture votes on judicial nominations were
sometimes used to ensure up or down votes. Even on
controversial nominees such as Richard Paez and Marsha
Berzon, we invoked cloture to ensure that we would vote on
confirmation. We did, and both are today sitting federal
judges. In contrast, these new Democratic filibusters are
designed to prevent, rather than secure, an up or down vote
and to ensure that targeted judicial nominations are defeated
rather than debated.
These filibusters are also completely partisan. The average
tally on cloture votes during the 108th Congress was 53-43,
enough to confirm but not enough to invoke cloture and end
debate. Democrats provided every single vote against
permitting an up or down vote. In fact, Democrats have cast
more than 92 percent of all votes against cloture on judicial
nominations in American history.
A CONSTITUTIONAL CRISIS
Unprecedented, unfair, and partisan filibusters that
distort Senate procedures constitute a political crisis. By
trying to use Rule 22's cloture requirement to change the
Constitution's confirmation requirement, these Democratic
filibusters also constitute a constitutional crisis.
The Constitution gives the Senate authority to determine
its procedural rules. More than a century ago, however, the
Supreme Court unanimously recognized the obvious maxim that
those rules may not ``ignore constitutional restraints.'' The
Constitution explicitly requires a supermajority vote for
such things as trying impeachments or overriding a
presidential veto; it does not do so for confirming
nominations. Article II, Section 2, even mentions ratifying
treaties and confirming nominees in the very same sentence,
requiring a supermajority for the first but not for the
second. Twisting Senate rules to create a confirmation
supermajority undermines the Constitution. As Senator Joseph
Lieberman once argued, it amounts to ``an amendment of the
Constitution by rule of the U.S. Senate.''
But don't take my word for it. The same senators leading
the current filibuster campaign once argued that all
filibusters are unconstitutional. Senator Lieberman argued in
1995 that a supermajority requirement for cloture has ``no
constitutional basis.'' Senator Tom Harkin insisted that
``the filibuster rules are unconstitutional'' because ``the
Constitution sets out . . . when you need majority or
supermajority votes in the Senate.'' And former Senator
Daschle said that because the Constitution ``is
straightforward about the few instances in which more than a
majority of the Congress must vote. . . . Democracy means
majority rule, not minority gridlock.'' He later applied this
to judicial nomination filibusters: ``I find it simply
baffling that a Senator would vote against even voting on a
judicial nomination.'' That each of these senators voted for
every judicial-nomination filibuster during the 108th
Congress is baffling indeed.
These senators argued that legislative as well as
nomination filibusters are unconstitutional. Filibusters of
legislation, however, are different and solving the current
crisis does not require throwing the entire filibuster baby
out with the judicial nomination bathwater. The Senate's
authority to determine its own rules is greatest regarding
what is most completely within its jurisdiction, namely,
legislation. And legislative filibusters have a long history.
Rule 22 itself did not even potentially apply to nominations
until decades after its adoption. Neither America's founders,
nor the Senate that
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adopted Rule 22 to address legislative gridlock, ever
imagined that filibusters would be used to highjack the
judicial appointment process.
TRYING TO CHANGE THE SUBJECT
Liberal interest groups, and many in the mainstream media,
eagerly repeat Democratic talking points trying to change,
rather than address, the subject. For example, they claim
that, without the filibuster, the Senate would be nothing
more than a ``rubberstamp'' for the president's judicial
nominations. Losing a fair fight, however, does not
rubberstamp the winner; giving up without a fight does.
Active opposition to a judicial nomination, especially
expressed through a negative vote, is the best remedy against
being a rubberstamp.
They also try to change the definition of a filibuster. On
March 11, 2003, for example, Senator Patrick Leahy, ranking
Judiciary Committee Democrat, used a chart titled
``Republican Filibusters of Nominees.'' Many individuals on
the list, however, are today sitting federal judges, some
confirmed after invoking cloture and others without taking a
cloture vote at all. Invoking cloture and confirming
nominations is no precedent for not invoking cloture and
refusing to confirm nominations.
Many senators once opposed the very judicial nomination
filibusters they now embrace. Senator Leahy, for example,
said in 1998: ``I have stated over and over again. . .that I
would object and fight against any filibuster on a judge,
whether it is somebody I opposed or supported.'' Since then,
he has voted against cloture on judicial nominations 21 out
of 26 times. Senator Ted Kennedy, a former chairman of the
Judiciary Committee, said in 1995 that ``Senators who believe
in fairness will not let a minority of the Senate deny [the
nominee] his vote by the entire Senate.'' Since then, he has
voted to let a minority of the Senate deny judicial nominees
a vote 18 out of 23 times.
Let me put my own record on the table. I have never voted
against cloture on a judicial nomination. I opposed
filibusters of Carter and Clinton judicial nominees, Reagan
and Bush judicial nominees, all judicial nominees. Along with
then-Majority Leader Trent Lott, I repeatedly warned that
filibustering Clinton judicial nominees would be a
``travesty'' and helped make sure that every Clinton judicial
nomination reaching the full Senate received a final
confirmation decision. That should be the permanent standard,
no matter which party controls the Senate or occupies the
White House.
SOLVING THE CRISIS
The Senate has periodically faced the situation where the
minority's right to debate has improperly overwhelmed the
majority's right to decide. And we have changed our
procedures in a way that preserves the minority's right to
debate, and even to filibuster legislation, while solving the
crisis at hand.
The Senate's first legislative rules, adopted in 1789,
directly reflected majority rule. Rule 8 allowed a simple
majority to ``move the previous question'' and proceed to
vote on a pending matter. Invoked only three times in 17
years, however, Rule 8 was dropped in the Senate rules
revision of 1806, meaning unanimous consent was then
necessary to end debate. Dozens of reform efforts during the
19th century tried to rein in the minority's abuse of the
right to debate. In 1917, President Woodrow Wilson described
what had become of majority rule: ``The Senate of the United
States is the only legislative body in the world which cannot
act when its majority is ready for action. . . . The only
remedy is that the rules of the Senate shall be altered.''
Leadership turned gridlock into reform, and that year the
Senate adopted Rule 22, by which \2/3\ of Senators present
and voting could invoke cloture, or end debate, on a pending
measure.
Just as the minority abused the unanimous consent threshold
in the 19th century, the minority abused the \2/3\ threshold
in the 20th century. A resolution to reinstate the previous
question rule was introduced, and only narrowly defeated,
within a year of Rule 22's adoption. A steady stream of
reform attempts followed, and a series of modifications made
until the current 60-vote threshold was adopted in 1975. The
point is that the Senate has periodically rebalanced the
minority's right to debate and the majority's right to
decide. Today's crisis, with constitutional as well as
political dimensions and affecting all three branches of
government, presents an even more compelling case to do so.
These filibusters are an unprecedented shift in the kind,
not just the degree, of the minority's tactics. After a full,
fair, and vigorous debate on judicial nominations, a simple
majority must at some point be able to proceed to a vote. A
simple majority can achieve this goal either by actually
amending Rule 22 or by sustaining an appropriate
parliamentary ruling.
A SIMPLE MAJORITY CAN CHANGE THE RULES
The Senate exercises its constitutional authority to
determine its procedural rules either implicitly or
explicitly. Once a new Congress begins, operating under
existing rules implicitly adopts them ``by acquiescence.''
The Senate explicitly determines its rules by formally
amending them, and the procedure depends on its timing. After
Rule 22 has been adopted by acquiescence, it requires 67
votes for cloture on a rules change. Before the Senate adopts
Rule 22 by acquiescence, however, ordinary parliamentary
rules apply and a simple majority can invoke cloture and
change Senate rules.
Some object to this conclusion by observing that, because
only a portion of its membership changes with each election,
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.
A SIMPLE MAJORITY CAN UPHOLD A PARLIAMENTARY RULING
An alternative strategy involves a parliamentary ruling in
the context of considering an individual nomination. This
approach can be pursued at any time, and would not actually
amend Rule 22. The precedent it would set depends on the
specific ruling it produces and the facts of the situation in
which it arises.
Speculation, often inaccurate, abounds about how this
strategy would work. One newspaper, for example, offered a
common description that this approach would seek ``a ruling
from the Senate parliamentarian that the filibuster of
executive nominations is unconstitutional.'' Under long-
standing Senate parliamentary precedent, however, the
presiding officer does not decide such constitutional
questions but submits them to the full Senate, where they are
debatable and subject to Rule 22's 60-vote requirement. A
filibuster would then prevent solving this filibuster crisis.
Should the chair rule in favor of a properly framed non-
debatable point of order, Democrats would certainly appeal,
but the majority could still sustain the ruling by voting for
a non-debatable motion to table the appeal.
Democrats have threatened that, if the majority pursues a
deliberate solution to this political and constitutional
crisis, they will bring the entire Senate to a screeching
halt. Perhaps they see this as way to further escalate the
confirmation crisis, as the Senate cannot confirm judicial
nominations if it can do nothing at all. No one, however,
seriously believes that, if the partisan roles were reversed,
Democrats--the ones who once proposed abolishing even
legislative filibusters--would hesitate for a moment before
changing Senate procedures to facilitate consideration of
judicial nominations they favored.
A FAMILIAR FORK IN THE ROAD
The United States Senate is a unique institution. Our rules
allowing for extended debate protect the minority's role in
the legislative process. We must preserve that role. The
current filibuster campaign against judicial nominations,
however, is the real attack on Senate tradition and an
unprecedented example of placing short-term advantage above
longstanding fundamental principles. It is not simply
annoying or frustrating, but a new and dangerous kind of
obstruction which threatens democracy, the Senate, the
judiciary, and even the Constitution itself. As such, it
requires a more serious and deliberate solution.
While judicial appointments can be politically contentious
and ideologically divisive, the confirmation process must
still be handled through a fair process that honors the
Constitution and Senate tradition. If the fight is fair and
constitutional, let the chips fall where they may. As it has
before, the Senate must change its procedures to properly
balance majority rule and extended debate. That way, we can
vigorously debate judicial nominations and still conduct the
people's business.
____________________