[Congressional Record Volume 157, Number 1 (Wednesday, January 5, 2011)]
[Senate]
[Pages S19-S33]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            FILIBUSTER RULE

  Mr. HARKIN. Mr. President, I have a resolution for myself, Senator 
Durbin, Senator Mikulski, and Senator Shaheen, which I send to the desk 
and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The assistant legislative clerk read as follows:

       A resolution (S. Res. 8) amending the Standing Rules of the 
     Senate to provide for cloture to be invoked with less than 
     three-fifths majority after additional debate.

  The PRESIDING OFFICER. Is there objection?
  Mr. ALEXANDER. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, I had a good discussion with the 
Senator from Iowa. This is a longstanding proposal of his. He has 
thoughtfully considered it. Even though I admire him, I do not admire 
the proposal.
  What we would like to do is let the Senator from Iowa make his 
proposal. I will listen, and when he has made the proposal, I will ask 
him to yield me a few minutes and we may have a little discussion back 
and forth on the merits of the proposal. With that in mind, I object.
  The PRESIDING OFFICER. Objection having been heard, the resolution 
will go over under the rules.
  Mr. HARKIN. Mr. President, I am sorry my good friend from Tennessee 
had to object, but I understand. We are going to engage for some time 
now on the Senate floor in a discussion on the filibuster, something 
that has been around a long time but which, in the last several years, 
few years--I would not say ``several''--in the last 20, 30 years, has 
gotten to the point where it has paralyzed the Senate and has paralyzed 
the country.
  I intend to make some remarks for a while. I appreciate my friend 
from Tennessee and also my friend from Kansas who is here. I hope we 
can engage in a nice colloquy and a discussion about this in a back-
and-forth way. I look forward to doing that. I do wish to take some 
time to at least lay out my case, as I did 15 years ago--I am sorry, 16 
years ago. On January 4, 1995, I submitted this same resolution. I was 
a member of the minority party in the Senate for the first time in 8 
years. When I first came to the Senate, the Republicans were in charge 
and then the Democrats got in charge and then the Republicans got in 
charge and then the Democrats got in charge and then the Republicans 
got in charge and then the Democrats got in charge. Since I have been 
here, since 1985, five times the Senate has changed hands.
  I note that at the beginning of that Congress in 1995, the 
Republicans outnumbered Democrats 53 to 47, the same majority-minority 
ratio that exists today, just on the other side. Even though I was 
opposed to the then-majority party's agenda, I submitted the

[[Page S20]]

same basic resolution to change the Senate rules regarding the 
filibuster.
  My plan would have ensured ample debate and deliberation. The stated 
purpose of a filibuster is to have debate and deliberation. But it 
would also have allowed a bill or nominee to receive a ``yes'' or 
``no'' vote. Unfortunately, my proposal did not pass. It received 19 
votes. My cosponsors were Senator Lieberman, Senator Pell, and Senator 
Robb of Virginia.
  I submitted my bill--and if you care to go back and read that debate, 
it is the January 4, 1995, Congressional Record in the Senate. I saw an 
escalating arms race, where each side ratcheted up the use of the 
filibuster. That is what I called it then.
  Sadly, in the intervening years, my prediction has been fulfilled. 
The sad reality is that today, because of the indiscriminate use of the 
filibuster, the ability of our government to legislate and to address 
problems is severely jeopardized. Sixteen years after I first submitted 
my proposal, it is even more apparent that for our government to 
properly function, we must reform and curb the use of the filibuster.
  The filibuster was once an extraordinary tool used in the rarest of 
circumstances. When many people think of the filibuster, many times it 
brings to mind the classic film of ``Mr. Smith Goes to Washington.'' It 
is ironic that in 1939, the year Frank Capra filmed ``Mr. Smith,'' 
there were zero filibusters in the Senate. From 1917 across the entire 
19th century--for 100 years--there were 23 filibusters in 100 years. 
Indeed, through 1879, there were only four. From 1917, when the Senate 
first adopted rules to end the filibuster, until 1969, there were fewer 
than 50--less than 1 filibuster a year. Unfortunately, since then, the 
number has skyrocketed.
  The current concerns I raise are not new. The problem has become far 
more serious. In 1982, my good friend and colleague, Senator Dale 
Bumpers of Arkansas, said this about 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.'' That was 
1982.
  During the 2 years of that Congress, 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.

  That was 1985, my first year here. But during that Congress there 
were 40 filibusters.
  Again, I wish to refer to the number of filibusters as a visual aid 
to see what has happened.
  As we go back to 88th, 89th, 90th, and on up, we can see the number 
of filibusters escalating from less than 10 a year--4 or 5--up to 
almost 140, 139. In 1994, former Republican Senator Charles Mathias of 
Maryland said:

       Today, filibusters are far less visible but far more 
     frequent. The filibuster has become an epidemic,--

  An epidemic. That is former Republican Senator Charles Mathias--

     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.

  That was Senator Mathias of Maryland.
  During that Congress, again right before I first submitted 
legislation to modify the filibuster, there were 80 filibusters that 
year. If I may quote myself, 1 year after Senator Mathias made his 
statement about the filibuster, this is what I said in 1995:

       It is used, Mr. President, as blackmail, for one Senator to 
     get his or her way on something they could not rightfully win 
     through the normal process. I am not accusing any one party 
     of this. It happens on both sides of the aisle.

  I said that in 1995. Quoting myself from the Record:

       Mr. President, I believe each Senator needs to give up a 
     little of our pride, a little of our prerogatives, and a 
     little of our power for the good of this Senate and the good 
     of this country. I think the voters of this country were 
     turned off by the constant bickering, the arguing back and 
     forth that goes on in this Senate Chamber, the gridlock that 
     ensued here, the pointing of fingers of blame. Sometimes in 
     the fog of debate, like the fog of war, it is hard to 
     determine who is responsible for slowing something down. It 
     is like shifting sand. People hide behind the filibuster. I 
     think it is time to let the voters know that we have heard 
     their message in the last election.

  I said this in 1995.
  They did not send us here to bicker and to argue and to point 
fingers. They want us to get things done to address the concerns facing 
this country. They want us to reform this place. They want this place 
to operate a little better, a little more openly, and a little more 
decisively.
  I said that when the Republicans were in charge.
  With all those filibusters, it was not until the 110th and 111th 
Congress that the true scope of the filibuster abuse would truly be 
realized. In the 110th Congress, there were an astonishing 139 motions 
to end filibusters. In the 111th, there were 136--275 filibusters in 
just 4 years.
  The fact is, in successive Congresses, Democrats and Republicans have 
made the filibuster an everyday weapon of obstruction, not as a way to 
ensure debate and deliberation but as a way of obstruction. I say both 
sides have done it. I said that in 1995. I predicted an escalating arms 
race. I said: If we do not do something about it, it is going to get 
worse--and, unfortunately, it has.
  On almost a daily basis, one Senator is able to use just the threat 
of a filibuster to stop bills from coming to the floor for debate and 
amendment. In the past Congress, we started seeing the minority 
filibuster bills they did not even object to solely in order to slow 
down unrelated measures they did oppose. The result is a legislative 
process that is simply overwhelmed, squeezing out the ability to do 
important, relatively noncontroversial legislation.
  It is no accident that Norm Ornstein, the esteemed congressional 
scholar, wrote an article, titled ``Our Broken Senate,'' in which he 
wrote that ``the expanded use of formal rules on Capitol Hill is 
unprecedented and is bringing the government to its knees.''
  Just the other day, I received a petition signed by nearly 300 top 
historians, legal scholars, and political scientists urging Senators 
``to restore majority rule to the United States Senate.'' I ask 
unanimous consent to have this petition printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                  January 4, 2011.
       ``We, the undersigned, American historians, political 
     scientists, and legal scholars, call upon our senators to 
     restore majority rule to the United States Senate by revising 
     the rules that now require the concurrence of 60 members 
     before legislation can be brought to the floor for debate and 
     restoring majority vote for the passage of bills.
       Joyce Appleby, UCLA, retired; Katy Harriger, Wake Forest 
     University; Senator Gary Hart, University of Colorado, 
     Denver; Sanford Levinson, University of Texas Law School; 
     Lawrence Lessig, Harvard Law School; Peter Onuf, University 
     of Virginia; Jack Rakove, Stanford University; David RePass, 
     University of Connecticut, retired; John K. White, Catholic 
     University; Richard D. Lamm, Gov. of Colorado, 1975-1987; 
     Coit D. Blacker, Stanford University; James Gelvin, UCLA; H. 
     Robert Baker, Georgia State University; Darryl Holter, 
     University of Southern California; Robert Rapetto, Yale 
     University; David Orr, Oberlin College; Manuel J.R. Montoya, 
     University of New Mexico; Kathleen M. Beatty, University of 
     Colorado, Denver; Morton T. Tenzer, University of 
     Connecticut; David S. Tannenhaus, University of Nevada, Las 
     Vegas.
       Robert H. Abzug, University of Texas, Austin; David H. 
     Hall, Harvard University; Carrie Menkel-Meadow, Georgetown 
     Law School, University of California, Irvine; Carla Gardina 
     Pestana, Miami University, Ohio; Michael Zucker, University 
     of Notre Dame; Thomas A. Foster, De Paul University; John 
     Kukla, Richmond, Virginia; Corey Robin, Brooklyn College and 
     City University of New York Graduate Center; David Thelen, 
     University of Indiana; T.H. Breen, Northwestern University; 
     Jonathan D. Varat, UCLA Law School; Michael Koppedge, 
     University of Notre Dame; Michael Johnson, Johns Hopkins 
     University; Toby L. Ditz, Johns Hopkins University; Teofilo 
     Ruiz, UCLA; Laurel Ulrich, Harvard University; Pauline Maier, 
     Massachusetts Institute of Technology; Anne Lombard, 
     California State University, San Marcos; Gabrielle M. 
     Spiegel, Johns Hopkins University.
       Robert A. Hill, UCLA; Buie Seawell, University of Denver; 
     Edward Countryman, Southern Methodist University; Sara Berry, 
     Johns Hopkins University; Thomas Bender, New York University; 
     David Hollinger, University of California, Berkeley; Franklin 
     W. Knight, Johns Hopkins University; Lucia Stanton, 
     Monticello; Alan Trachtenberg, Yale University; Warren M. 
     Billings, University of New Orleans; James Drake, 
     Metropolitan State College of Denver; M. Gregory

[[Page S21]]

     Kendrick, UCLA; Benjamin H. Johnson, Southern Methodist 
     University; Kenneth Karst, UCLA Law School; Robert 
     Johnson, University of Illinois, Chicago; Thomas S. Hines, 
     UCLA; Herbert Sloan, Barnard College, Columbia University; 
     Alexis McCrossen, Southern Methodist University; Ira 
     Berlin, University of Maryland; Fred G. Notehelfer, UCLA, 
     emeritus.
       Gerald L. Weinberg, University of North Carolina; Richard 
     M. Pious, Barnard College, Columbia University; Thomas J. 
     Knock, Southern Methodist University; Michelle Nickerson, 
     University of Texas, Dallas; John Chavez, Southern Methodist 
     University; Gabriel Piterberg, UCLA; John P. Kaminski, 
     University of Wisconsin, Madison; Graham A. Peck, Saint 
     Xavier University; Jonathan Gross, De Paul University; Jean 
     R. Sunderland, Lehigh University; Dennis D. Cornell, Southern 
     Methodist University; James M. Banner, Washington DC; David 
     D. Leon, Howard University; Jeremy Adams, Southern Methodist 
     University; Fred M. Woodward, Lawrence, Kansas; Hal S. 
     Barron, Harvey Mudd College; Glenna Mathews, independent 
     scholar; Carol Karsen, University of Michigan; David DuFault, 
     San Diego State University, retired; Jess Stoddard, San Diego 
     State University, retired.
       Philip Flemion, San Diego State University, retired; Gregg 
     Herken, University of California, Merced; Karl Inderfurth, 
     Center for Strategic and International Studies; Natalie Zemon 
     Davis, Princeton University, emeritus; Edward A. Alpers, 
     UCLA; John Snetsinger, California Polytechnic State 
     University, San Luis Obispo; Kenneth T. Jackson, Columbia 
     University; Margaret Jacob, UCLA; Simone Weil David, 
     University of Toronto; Margaret Hunt, Amherst College; 
     Charles Capper, Boston University; Ellen Carol DuBois, UCLA; 
     Olivier Zunz, University of Virginia; John R. Chavez, 
     Southern Methodist University; Joanne Ferraro, San Diego 
     State University; Mary F. Corey, UCLA; Joseph Kett, 
     University of Virginia; Ralph E. Luker, Morehouse College, 
     retired; Gregory L. Kaster, Gustavus Adolphus College.
       Michael Kazin, Georgetown University; Jeremy Young, Indiana 
     University; James Brewer Stewart, Macalestar College; Mary 
     Beth Norton, Cornell University; Steven Conn, Ohio State 
     University; John Carson, University of Michigan; Ruth 
     Perry, Massachusetts Institute of Technology; Akhil Reed 
     Amar, Yale Law School; Peter Reill, UCLA; Robert E. 
     Bieder, Indiana University; Robert E. Mutch, Washington, 
     D.C.; Edwin G. Burrows, Brooklyn College; Jeffrey K. 
     Tulis, University of Texas, Austin; Fredrika J. Teute, 
     Omohundre Institute of Early American History and Culture; 
     Francis H. Stites, San Diego State University; Albert 
     O'Brien, San Diego State University; John H. Coatsworth, 
     Columbia University; Jack M. Balkin, Yale Law School; 
     Christopher Bates, California Polytechnic State 
     University, Pomona.
       Iryne Black, Newport Beach, California; Timothy Black, 
     Newport Beach, California; Walter LaFeber, Cornell 
     University; Maeva Marcus, George Washington University Law 
     School; Isaac Kramnick, Cornell University; Michael Meranze, 
     UCLA; Ross Frank, University of California, San Diego; Ron 
     Hayduk, Queens College; Lucas A. Powe, Jr., University Texas 
     Law School; Paul Finkelman, Albany Law School; Stanley N. 
     Katz, Princeton University; Susan Strasser, University of 
     Delaware; Claudrena Harold, University of Virginia; Pauline 
     Maier, Massachusetts Institute of Technology; Jeremy I. 
     Adelman, Princeton University; Ann Heiney, Newport Beach, 
     California; Anthony Grafton, Princeton University; Charles S. 
     Maier, Harvard University; James Kloppenberg, Harvard 
     University; Trace B. Strong, University of California, San 
     Diego.
       Jeffrey C. Isaac, Indiana University; Jay Driskell, Hood 
     College; Nancy Fraser, New School for Social Research; Ellen 
     Schrecker, Yeshiva University; Stephen W. Feldman, University 
     of Wyoming; Frances Fox Piven, City University of New York; 
     Alyson M. Cole, Queens College, CUNY Graduate Center; Thomas 
     Dunim, Amherst College; Joshua Freeman, Queens College, CUNY 
     Graduate Center; Hendrik Hartog, Princeton University; Rick 
     Perlstein, Chicago; Thomas Geoghegen, Desprese, Schwartz & 
     Geoghegen; John Majewski, University of California, Santa 
     Barbara; Anne Norton, University of Pennsylvania; Eric 
     Alterman, Brooklyn College, CUNY; Maximillian E. Novak, UCLA, 
     emeritus; Rogers M. Smith, University of Pennsylvania; Andrew 
     Sabl, UCLA; Carol W. Lewis, University of Connecticut.
       Kate Wittenstein, Gustavus Adolphus College; Ruth Anne 
     Baumgartner, Fairfield University and Central Connecticut 
     State University; Ronald Walters, Johns Hopkins University; 
     Charles Venator, University of Connecticut; John R. Wallack, 
     Hunter College and CUNY Graduate Center; Herbert Kaufman, 
     formerly Yale University; Ed Edelman, former Los Angeles 
     County Supervisor; Peter Truowitz, University of Texas, 
     Austin; Ruth Bloch, UCLA; Catherine Allgor, University of 
     California, Riverside; David L. Richards, University of 
     Connecticut; Naomi Merzey, Georgetown University Law Center; 
     Philip Green, New School for Social Research; Robert Westman, 
     University of California, San Diego; Nancy Unger, Santa Clara 
     University; Joseph Lowndes, University of Oregon; Michael 
     Holt, University of Virginia; Neil Sapper, Armarillo College, 
     retired; Alan Lessoff, Illinois State University; Peter 
     Kingstron, University of Connecticut.
       David Gerber, University of Buffalo, SUNY; Philip Rubio, 
     North Carolina Arts and Technology University; Philip Nord, 
     Indiana University; Aziz Rana, Cornell Law School; John R. 
     Bowman, Queens College and CUNY Graduate Center; Todd Gitlin, 
     Columbia University; Sandra Moats, University of Wisconsin, 
     Parkside; James M. McPherson, Princeton University; Jason 
     Frank, Cornell University; Charles Pastel, San Francisco 
     State University; Jill Lepore, Harvard University; Jane 
     Kamensky, Brandeis University; Alejandro E. Camacho, 
     University of California, Irvine Law School; Donald Kennedy, 
     president emeritus, Stanford University; Paul Seaver, 
     Stanford University; Geoffrey Symcox, UCLA; Leslie E. Gerwin, 
     Princeton University; Richard H. Kohn, University of North 
     Carolina; Michael D. Wilson, Vanguard University of Southern 
     California; Karl Manheim, Loyola Law School.
       Berry M. Sax, Department of Defense Administrative Judge 
     retired; David Montgomery, Yale University; Michael Holt, 
     University of Virginia; Lisa Jacobson, University of 
     California, Santa Barbara; Walter Giger, Jr., University of 
     Hartford; Julie Novkov, University of Albany, SUNY; Denis Z. 
     Davidson; Adolph Grundman, Metropolitan State College of 
     Denver; Brian Balogh, University of Virginia; John A. Mears, 
     Southern Methodist University; Bennett Ramberg, Los Angeles; 
     Shanti Singham, Williams College; Steve Hochstadt, Illinois 
     College; Charles Tandy, Ria University Institute for Advanced 
     Study; Nancy F. Cotton, Harvard University; Jon Butler, Yale 
     University; Eric Thomas, Jacksonville University; Elaine 
     Tyler May, University of Minnesota; Jonathan McLeod, San 
     Diego Mesa Community College; Thomas Zoumaras, Truman 
     State University.
       Michelle Mart, Pennsylvania State University, Berks; Mitch 
     Kachun, Western Michigan State University; Bill Chafe, Duke 
     University; Walter Nugent, University of Notre Dame; Lizabeth 
     Cohen, Harvard University; Judith Smith, University of 
     Massachusetts, Boston; Gary Gerstle, Vanderbilt University; 
     Elizabethy Cohgen, Syracuse University; Allen W. Trelease, 
     University of North Carolina, Greensboro; Tera W. Hunter, 
     Princeton University; James H. Merrell, Vassar College; Peter 
     Novick, University of Chicago; Craig Steven Wilder, 
     Massachusetts Institute of Technology; Seth L. Schein, 
     University of California, Davis; Jenna Gibbs, Florida 
     International University; Michael Latham, Fordham University; 
     Michael Green, College of Southern Nevada; Martin Kaplan, 
     University of Southern California; Valerie Matsumoto, UCLA; 
     Sanford M. Jacoby, UCLA.
       Alexander Saxton, UCLA emeritus; Thomas J. Sugrue, 
     University of Pennsylvania; Thomas S. Hines, UCLA; Albion M. 
     Urdank, UCLA; James Grossman, University of Chicago; Lynn 
     Hunt, UCLA; Ron Pagnucco, College of St. Benedict, St. John's 
     University; David Konig, Washington University at St. Louis; 
     Brenda Stevenson, UCLA; Linn Shapiro, Washington, DC; Peter 
     Loewenberg, UCLA; Christian McMillen, University of Virginia; 
     Estelle B. Freedman, Stanford University; Daniel Howe, UCLA; 
     Ann C. McGinley, University of Nevada, Las Vegas; Mary La 
     France, University of Nevada, Las Vegas; Christopher 
     Blakesley, University of Nevada, Las Vegas; Thomas B. 
     McAffee, University of Nevada, Las Vegas; Robert Brenner, 
     UCLA; Gail Cline, University of Nevada. Las Vegas; George 
     Rabinowitz, University of North Carolina, Chapel Hill.
       Norton Wise, UCLA; Patricia Bonomi, New York University; 
     Jon Wiener, University of California, Irvine; Paul Finkelman, 
     Albany Law School; Joseph Miller, University of Virginia; 
     James MacGregor Burns, Williams College; Susan Dunn, Williams 
     College; Lori Anne Ferrell, Claremont Graduate University; 
     David Warren Sabean, UCLA; Isabel V. Hull, Cornell 
     University; Edward Ayers, Richmond University; Tom Donnelly, 
     Harvard Law School; Donald Kersey, San Jose State 
     University; Peter H. Wood, Duke University; Joseph Scott 
     Miller, Lewis and Clark Law School; Jonathan Lurie, 
     Rutgers University; Maxine N. Lurie, Rutgers University; 
     Elizabeth Fenn, Duke University; Richard Worthington, 
     Pomona College.
       Richard Olsen Harvey, Mudd College; Thomas Zoumaras, Truman 
     State University; Anne K. Nelson, American University; Peter 
     Kuznick, American University; Howard M. Wasserman, Florida 
     International University; Diane Mazur, University of Florida 
     Levin College of Law; David K. Robinson, Truman State 
     University; John Wintterle, San Jose State University; 
     William Marotti, UCLA; Peter Brandon Bayer, University of 
     Nevada, Las Vegas; Stephen Aron, UCLA; Ediberto Roman, 
     Florida International State University; Mellisa Stockdale, 
     University of Oklahoma; David W. Levy, University of 
     Oklahoma; Elyssa Faison, University of Oklahoma; Robert 
     Savage, Florida International University Law School; Ronald 
     Steel, University of Southern California, retired; Robert 
     Dawidoff, Claremont Graduate University; Judith S. Lewis, 
     University of Oklahoma.
       Steve Raphael, University of California, Berkeley; Robert 
     Garwin, Chula Vista, California; Ann Caylor, Ranchos de Taos, 
     New Mexico; Thomas McClendon, Southwestern University; Kim 
     Lane Scheppele, Princeton University; Ira Chernus, University 
     of Colorado, Boulder; Mark Cammack, Southwestern Law School; 
     Myra Rich, University of Colorado, Denver; Tim Borstelmann, 
     University of Nebraska, Lincoln; Sara Evans, University of 
     Minnesota, retired; Gowri

[[Page S22]]

     Ramachandran, Southwestern Law School; Vicki Ruiz, University 
     of California, Irvine; Fay A. Yarbrough, University of 
     Oklahoma; Harry Watson, University of North Carolina, Chapel 
     Hill; Pamela W. Laird, University of Colorado, Denver; Gloria 
     Main, University of Colorado, Boulder, emerita; Thomas R. 
     Clark, California Assembly Judiciary Committee; Joshua Goode, 
     Claremont Graduate University; Marjorie Cohn, Thomas 
     Jefferson Law School.

  Mr. HARKIN. Mr. President, last month, our former colleagues, Gary 
Hart, a Democrat, and Chuck Hagel, a Republican, published an essay in 
Time magazine calling on us to ``restore democracy to the U.S. Senate'' 
by reforming the filibuster. In their words, the abuse of the 
filibuster ``is no way to govern a great democracy.''
  I ask unanimous consent to have that essay printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                       [From Time, Dec. 21, 2010]

                 Restoring Democracy to the U.S. Senate

                     (By Chuck Hagel and Gary Hart)

       Few principles are as central to democracy and the ideals 
     of the American Republic as majority rule. Though James 
     Madison and his colleagues in The Federalist acknowledged the 
     necessity of protecting the rights of minorities, the course 
     of our nation was to be determined by the will of the 
     majority. No other system consistent with democracy would 
     prove workable.
       There is nothing in the United States Constitution that 
     permits a minority to frustrate the will of the majority.
       Yet in the early 21st century, the will of the majority of 
     Americans, expressed on a daily basis by our elected 
     representatives in Congress, is consistently thwarted by a 
     minority in the United States Senate. This minority resorts 
     to the Senate rule requiring a three-fifths vote--60 votes--
     to close (invoke cloture on) debate.
       Article One, Section five, of the U.S. Constitution 
     provides that ``Each house [of Congress] may determine the 
     rules of its proceedings. . .'' Based upon Thomas Jefferson's 
     notion that the Senate was to be the saucer in which 
     controversies cooled, Senators have, from the beginning, been 
     at liberty to express their views at such length as they 
     wish. (Jefferson, it should be noted, was the author of the 
     Manual of Parliamentary Procedures for the Use of the Senate 
     of the United States in 1801.) But the Senate has always 
     recognized that even the principle of unlimited speech has 
     its conditions based upon comity and common sense.
       Yet today the Senate conducts its business, or not, under 
     the constant threat of a filibuster. Important legislative 
     measures having to do with the vital interests of our nation 
     and the rights of our citizens will not even be introduced if 
     a minority of Senate members refuse to permit them to be 
     considered. Thus, a rule to protect debate is systematically 
     used to prevent debate. Even worse, secret ``holds'' by 
     individual Senators prevent confirmation of federal judges 
     and administration officials.
       Though the Senate filibuster rose to prominence during 
     civil rights debates in the 1950s and '60s, it ran its course 
     and the majority prevailed. Today, it is commonplace and a 
     matter of course for such a lock-step minority systematically 
     to prevent consideration of the clear majority will.
       The Constitution prevails over congressional rules. Can it 
     be seriously argued that the Senate could adopt a rule that 
     individual Senators could only vote on every other bill or 
     that they could only vote on trade issues, for example, in 
     the fourth year of their term?
       Rules of the Senate cannot trump the obvious intention of 
     the Founding Fathers that legislation passed by majorities of 
     both houses, except for the explicit exceptions for 
     ratification of treaties, becomes the law of the land. This 
     is not a partisan question; today the filibuster, real or 
     threatened, dominates virtually every significant issue 
     confronting the Senate and our nation. The law of political 
     payback will ensure that today's Senate majority, once it 
     becomes the minority, will exact its revenge on today's 
     opposition minority party.
       Examples of recent abuse of the cloture rule include the 53 
     to 36 Senate vote to end tax cuts for the wealthy. 
     Regardless, the measure, like so many others (including an 
     earlier attempt to repeal the military's ``Don't Ask, Don't 
     Tell'' policy), failed under the threat of a filibuster. 
     These and other examples are clear violations of the 
     fundamental principle of majority rule.
       This is no way to govern a great democracy, not to say also 
     a democracy seeking to democratize other nations.
       We believe the abuse of the cloture rule ending debate is a 
     violation of fundamental Constitutional principles. Should a 
     judicial test of this notion occur, it will at the least 
     prove which of the current Supreme Court Justices are, or are 
     not, true ``originalists.'' Resolutions have been introduced 
     in the Senate to alter the cloture rule and permit majority 
     rule, while continuing to protect the rights of individual 
     Senators.
       In the interest of the nation and the U.S. Constitution, 
     the Senate must once again become a democratic institution.

  Mr. HARKIN. Mr. President, editorialists from across the country have 
recognized the filibuster must end. The Concord Monitor of New 
Hampshire called on the Senate to ``Remove the Senate filibuster 
roadblock,'' noting, ``The filibuster rule has rendered the Senate 
dysfunctional and harmed the nation's ability to deal with pressing 
issues.''
  The Los Angeles Times said `` . . . both parties should be willing to 
eliminate such anti-democratic practices as the filibuster. . . .''
  Editorials throughout the country have called for reform of the 
filibuster. I ask unanimous consent to have printed in the Record these 
editorials.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Concord Monitor, Dec. 17, 2010]

                 Remove the Senate Filibuster Roadblock

                             (By Anonymous)

       On Jan. 5, 2011, the first day of the first session of the 
     112th Congress, Iowa Sen. Tom Harkin and other Democrats 
     promise to hold a historic vote to change the Senate's 60-
     vote cloture rule. The vote to end the filibusters that have 
     made the Senate a place where needed legislation and 
     presidential appointments go to die could be the first of 
     Senator-elect Kelly Ayotte's career. How she votes will be 
     telling.
       A super-majority voting requirement makes sense in rare 
     circumstances, ratifying a treaty for example or overriding a 
     presidential veto. But the filibuster rule is not in the 
     Constitution; it's an artifact that may have worked once but 
     has broken and jammed the Senate. When used judiciously, as 
     it was throughout most of its history, the filibuster rule 
     safeguards the rights of the minority. But when abused, as it 
     has been by Senate Republicans who have called for 87 such 
     votes to end debate so far this year, it creates a tyranny of 
     the minority.
       There are divisions in both parties on the issue, in part 
     because there are dangers for both parties. Republicans are 
     currently filibustering to stop any and all legislation--and 
     will not vote to end debate until they succeed in winning tax 
     breaks for the nation's wealthiest citizens. Change the 
     filibuster rule--one proposal calls for a simple majority 
     vote--and Republicans will not so easily be able to block 
     legislation supported by the next session's 53-Democrat 
     majority. But if Republicans take the Senate in 2012--and 
     especially if there's also Republican in the White House--
     Democrats could sorely regret their loss of the ability to 
     filibuster.
       When, in his capacity as president of the Senate, Vice 
     President Joe Biden calls for the Senate to write the rules 
     governing the next session, Harkin and others believe that 
     they will have at least 51 votes. Some of them may come from 
     Republicans. The filibuster rule has rendered the Senate 
     dysfunctional and harmed the nation's ability to deal with 
     pressing issues. Ayotte should vote to change the filibuster 
     rule, so the Senate can once again be an effective 
     legislative body worthy of respect.
                                  ____


              [From the Los Angeles Times, Dec. 28, 2010]

                            A nuclear Senate

       The U.S. Senate, once proudly known as the world's greatest 
     deliberative body, has in recent years degenerated into 
     something else: The place where legislation goes to die. It 
     earned that distinction after Democrats won a majority in 
     2006 and Republicans took unprecedented advantage of long-
     standing Senate rules allowing the minority to block 
     progress.
       There's a good chance Democrats won't hold the majority 
     much longer, however. That's why both parties should be 
     willing to eliminate such anti-democratic practices as the 
     filibuster and the placing of secret holds on legislation. 
     And an opportunity to do so, which only comes along once 
     every two years, is about to arrive.
       The filibuster originated in 1806, when the Senate 
     eliminated a rule that had allowed the chamber to end debate 
     by majority vote; in effect, that meant a senator or group of 
     senators could delay progress by simply talking incessantly. 
     But that hardly ever happened in the 19th century. It wasn't 
     until 1917 that the Senate decided to limit these stemwinders 
     by imposing a rule that debate could be ended by a 
     supermajority vote. Since then there have been some other 
     rule changes altering the vote threshold, along with frequent 
     arguments about whether the Senate should go back to its 
     original rule allowing debate to be ended with a simple 
     majority vote. We think it should.
       Under the current system, senators don't even have to stand 
     up and speak until they're hoarse in order to filibuster a 
     bill; a party leader just has to refuse to allow a bill to be 
     brought up by unanimous consent, forcing supporters to find 
     60 votes in favor of a motion to end debate. Southern 
     Democrats were the first to seriously misuse this tactic 
     during the civil rights era, but Republicans have perfected 
     such abuse in the last three years. According to the good-
     government advocacy group Common Cause, which once defended 
     the filibuster rule but now aims to eliminate it, 8% of major 
     legislation was affected by threatened or actual filibusters 
     in the 1960s, compared with 70% since 2006. The result is 
     gridlock, which will only get worse now that the balance of 
     partisan power is close to even.

[[Page S23]]

       Secret holds are another serious problem. They allow 
     senators to anonymously block bills or confirmations of 
     presidential nominees from reaching the floor for an 
     unlimited time span, making naked obstructionism politically 
     safe. It's largely thanks to such holds that more than one in 
     10 federal judgeships remain vacant and federal departments 
     still lack key staff two years into the Obama administration. 
     Abuse of holds has become endemic in recent years, sometimes 
     allowing a single senator to take the entire chamber hostage 
     by placing holds on important legislation until backers agree 
     to support that senator's pet project.
       The Constitution gives each chamber the power to choose the 
     rules governing its procedures at the beginning of the two-
     year congressional session, slated this year for Jan. 5. So 
     why doesn't the majority simply do away with the filibuster 
     rule, or amend it? Because changing a long-standing rule 
     requires a two-thirds vote, an impossibly high hurdle. Yet 
     that supermajority rule may be invalid, as argued by then-
     Vice President Richard Nixon in 1957: ``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 the Senate in a previous Congress,'' 
     he wrote. This is the basis of the so-called nuclear option 
     (or as supporters prefer to call it, the ``constitutional 
     option'').
       Sen. Tom Udall (D-N.M.) is leading a push to reform the 
     filibuster rules on Jan. 5, a fight joined by assorted good-
     government groups and labor unions. Last week, all the 
     returning Senate Democrats sent a letter to Majority Leader 
     Harry Reid (D-Nev.) expressing frustration with the 
     filibuster and urging a change to the rules, though they 
     weren't specific about solutions (and it's unlikely many 
     would favor eliminating the filibuster entirely--most seem to 
     support weaker reforms such as a lowering of the 60-vote 
     threshold). In order to change the rules by a simple majority 
     vote, they would also need the backing of Vice President Joe 
     Biden, because as president of the Senate, the vice president 
     has traditionally ruled when constitutional questions about 
     procedures are raised.
       Biden hasn't taken a position, and not a single Republican 
     has joined the effort. The apparent partisan split seems odd 
     given that it was Republicans who most recently brought up 
     the nuclear option when they were in the majority in 2005 and 
     Democrats were blocking President Bush's judicial nominees, 
     but a form of amnesia often sets in when a party is in the 
     minority. For conservatives, opposition is all the more 
     shortsighted given that twice as many Democratic-held seats 
     are up for reelection in 2012 as Republican seats.
       Partisan fears about losing a cherished power have 
     prevented the Senate from going nuclear for decades, but 
     abuses of the filibuster and anonymous holds have never been 
     so rampant. The resulting dysfunction is a big part of the 
     reason Congress' approval rating has fallen to 13%, the 
     lowest in the history of the Gallup Poll. The chamber has a 
     chance to save itself from itself on Jan. 5, and it should 
     take it.

  Mr. HARKIN. Mr. President, 275 filibusters in 4 years is not just a 
cold statistic; it represents the minority blocking measures that 
sometimes--not all the time but sometimes--enjoy broad support among 
the American people. Just in the last Congress, the filibuster was used 
to kill many bills that enjoyed majority and often bipartisan support. 
Need I mention the DREAM Act? It had broad bipartisan support and big 
support among the American people. There was the DISCLOSE Act, which 
polls showed that over 80 percent of the American people supported. We 
had a majority vote here for it, but we didn't have a supermajority. So 
it is no surprise that Americans are fed up and angry with their 
Federal Government. In too many critical areas, people see a 
legislature that is simply unable to respond effectively to the most 
urgent challenges of our time.
  Make no mistake, the problem goes beyond the sheer number of 
filibusters. This once-rare tactic is now used or threatened to be used 
on virtually every measure and nominee, even those who may enjoy near 
universal support. In the past Congress, for nearly 8 months, the 
minority filibustered confirmation of Martha Johnson as Administrator 
of the General Services Administration--certainly a relatively 
noncontroversial position. She was ultimately confirmed 96 to 0. So 
what was that filibuster all about? And for nearly 5 months, the 
minority filibustered confirmation of Barbara Keenan to the Fourth 
Circuit Court of Appeals. She was ultimately confirmed 99 to 0.
  What was that filibuster all about?
  Again, 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.

  Secondly, the filibuster has increasingly been used to prevent 
consideration of bills and nominees. Rather than to serve to ensure the 
representation of minority views and to foster debate and deliberation, 
by filibustering motions to proceed, the minority has been allowed to 
prevent debate and prevent deliberation. The filibuster has been used 
to defeat bills and nominees without their ever receiving a discussion 
here on the floor of the Senate. In other words, the Senate, which was 
formerly renowned as the world's greatest deliberative body, has now 
become the world's greatest nondeliberative body. We can't even debate 
important national issues.
  That is why I fully support the commonsense proposals to reform the 
filibuster and restore the Senate to a body in which issues can be 
fully debated and deliberated. I support eliminating the filibuster on 
the motion to proceed, and I believe those who are filibustering a bill 
or a nominee should be required to come to the floor, hold the floor, 
and make their case to their colleagues and the American people. 
Senators should not be able to hide behind a curtain of secret holds. 
The reality is, however, because of the filibuster, the minority has 
unchecked veto power in this body.
  Now, I want to make it clear, when I say ``the minority,'' I am not 
talking about the Republicans; I am talking about the minority. It may 
be the Democrats or it may be the Republicans. As I said, five times it 
has changed since I have been--since 1985. When I say ``the minority,'' 
I mean the minority; I don't mean a political party.
  This is what James Madison noted when rejecting a supermajority 
requirement to pass legislation:

       . . . it would no longer be the majority that would rule, 
     the power would be transferred to the minority.

  Unfortunately, Madison's prediction has come true. We are the only 
Democratic body that I know of in the world where the minority, not the 
majority, controls. In today's Senate, American democracy is turned on 
its head. The minority rules; the majority is blocked. The majority has 
responsibility and accountability but lacks the power to govern. The 
minority has power but lacks accountability and responsibility. This 
means the minority can block bills that would improve the economy, 
create jobs, and turn around and blame the majority for not fixing the 
economy. The minority can block popular legislation and then accuse the 
majority of being ineffective.
  I repeat, when I say ``the minority,'' I am not saying Republicans or 
Democrats; I am saying the minority, whoever it may happen to be. Both 
parties have abused the filibuster in the past, and both will, absent 
real reform, abuse the filibuster in the future. Although Republicans 
are currently in the minority, there is no question that control of 
this body will change, as it periodically does.
  The fact is, reform is urgently needed. That is why I am 
reintroducing my proposal which would permit a decreasing majority of 
Senators over a period of days to invoke cloture on a given matter. 
Under my proposal, a determined minority could slow down any bill. 
Senators would have ample time to make their arguments and attempt to 
persuade the public and a majority of their colleagues. This protects 
the rights of the minority to full and vigorous debate and 
deliberation, maintaining the hallmark of the Senate. But at the end of 
ample debate, the majority should be allowed to act. There should be an 
up-or-down vote on legislation or a nominee. As former Senator Henry 
Cabot Lodge, a Republican, stated many years ago, ``To vote without 
debating is perilous, but to debate and never vote is imbecile.''
  My plan has another advantage. The fact is that right now, the 
minority has no incentive to compromise. Not only do they know they 
have the power to block legislation, but they can go out and campaign 
on the message that the majority can't get anything done. In contrast, 
if the minority knows that at the end of a period of time a bill or 
nominee will be subject to majority vote, they will be more willing to 
come to the table and negotiate seriously. Likewise, the majority would 
want to compromise because they want to save time. There is nothing 
more valuable to the majority party in the Senate than time.
  So under my proposal, on the first cloture vote, you would need 60 
votes.

[[Page S24]]

If you don't get 60 votes, you would have another vote in 3 days and 
you would need 57 votes; in 3 more days, 54 votes; 3 more days, 51 
votes. So the majority would finally act, but you would chew up almost 
2 weeks of time. So on the first vote, let's say 53 Senators voted for 
cloture. Well, the minority would know that in several days or maybe in 
a couple weeks' time, 53 Senators will get cloture. The minority then 
would go to the majority and say: Look, we can drag this out for a 
couple of weeks, chew up all your time, but we have some things we 
would like to have considered. The majority--and I say there is nothing 
more important to the majority than time here--not wanting to spend a 
couple weeks on a bill, on a cloture or a filibuster, would say: OK, 
maybe we can make an agreement. We will collapse the timeframe, the 
minority gets some of the things they want, and the majority is able 
then to have a vote. So I see my proposal as a means of encouraging 
compromise. Right now, there is no reason to compromise for the 
minority.
  Again, I am not talking about Republicans or Democrats; I say ``the 
minority'' because they know they can absolutely block it.
  I have changed my resolution since I introduced it in 1995, and I 
have changed it because Republicans have said and I heard the minority 
leader say earlier that they have done this because Democrats in the 
majority--the majority this time--have employed procedural matters to 
deprive the Republicans of the right to offer amendments. Well, I am 
very sympathetic to this argument. That is why I included in this 
resolution a guaranteed right to offer germane amendments to the 
minority, filed in advance of the cloture vote so everyone would know 
what was coming. Again, the minority should have the right to offer 
some amendments that are germane to the bill. No matter who the 
majority is, both parties are concerned about amendments from the 
minority. Perhaps you have a bill dealing with housing and someone 
wants to offer an amendment dealing with abortion. Well, there may be a 
time and place for that but not on that bill. So that is why I say it 
should be germane to the bill. If the minority has ideas to improve the 
bill, strike something from the bill, that would be germane to that 
bill.

  I have heard it said--and I heard it on the radio this morning 
driving in--that this is something like a power grab by a Democratic 
Senator reacting to recent elections in which my party lost numerous 
seats. Well, I want to make clear that the reforms I advocate are not 
about one party or one agenda gaining an unfair advantage; it is about 
the Senate as an institution operating more fairly, effectively, and 
democratically. Again, I wish to point out that I first offered this in 
1995 when I was in the minority. So to use the legal term, I come here 
with clean hands. The truth is, with Republicans controlling the House, 
any final legislation will need to be bipartisan with or without the 
filibuster.
  So I don't see reform of the filibuster as a Democratic or Republican 
issue. Indeed, it was former Republican majority leader Senator Frist 
who, when he nearly shut this body down over the use of filibusters on 
a handful of judges, said:

       This filibuster is nothing less than a formula for tyranny 
     by the minority.

  That was in 2004, Senator Frist, the Republican majority leader at 
that time.
  Well, as I said, one of the problems here was this was done in the 
middle of a term. See, I think the Senate ought to be able to set its 
rules at the beginning, on the first legislative day, which we are in 
now and which will extend for some time. The Senate ought to be able to 
set its rules at the beginning of a Congress. You can't go changing the 
rules every month, but you should be able to set the rules at the 
beginning of a Congress so that you know for 2 years what the rules are 
that you are operating under.
  So it is time for the arms race to end. That is what this is--it is 
an arms race. I daresay that if we don't do anything about this, if the 
Republicans take control of the Senate, as they think they will in 2 
years, well, Democrats are going to do the same thing to them. 
Guarantee it. Guarantee it. The Republicans did--what did I say?--136 
filibusters--139? Bet your bottom dollar, if we don't change the rules, 
Democrats will match them. You wait and see.
  Well, a lot of people sometimes say: Well, Harkin, what you are 
advocating is the Senate would become like the House. I ask my friends 
and any Senator on either side of the aisle, since when did the Senate 
become defined by rule XXII, which is the filibuster? Why does that 
define the Senate? I thought the Senate was defined by the fact that 
you get two Senators from every State--two Senators from North Dakota, 
two Senators from California, two Senators from New York, two Senators 
from Iowa. I thought the Senate was defined by the fact that we have 
unlimited debate. When a Senator gets the floor, you can't take it away 
from him. We operate under unanimous consent. The power of one single 
Senator would remain. But in the Senate, what do we do? We do treaties, 
we do nominations, we sit in judgment on impeachments. The Senate is 
not like the House. And just because we don't have the filibuster as we 
have known it for the last 94 years does not mean the Senate becomes 
like the House. Eliminating the filibuster will not change the basic 
nature of the Senate. So I say to those who say the Senate would be 
like the House if we did away with this filibuster, would they also 
suggest that the Senate of Henry Clay or Daniel Webster or Lyndon 
Johnson or Everett Dirksen was the same as the House of 
Representatives? I don't think so.
  The fact is, what was never intended was that a supermajority of 60 
votes would be needed to enact virtually any piece of legislation or 
for any nominee. In fact, the Framers of the Constitution were very 
clear about where a supermajority is required. There were only five in 
the original Constitution: ratification of a treaty, override of a 
veto, votes of impeachment, passage of a constitutional amendment, and 
expulsion of a Member. If they wanted to have supermajorities, they 
would have said so. But it is not in the Constitution. The filibuster 
is not in the Constitution.
  The first Senate expressly included a rule permitting the majority to 
end debate and bring a measure to a vote by moving the previous 
question. I repeat: The first Senate--the first Senate--had a rule that 
permitted the majority to end debate. Alexander Hamilton explained that 
a supermajority requirement would mean a small minority could ``destroy 
the energy of government.''
  Hamilton said that the government would be subject to the ``caprice 
or artifices of an insignificant, turbulent or corrupt junta.'' Those 
are Hamilton's words.
  Moreover, reform of filibuster rules stands squarely within the 
tradition of updating Senate rules as needed to foster an effective 
government that can respond to the challenges of the day. The Senate 
has adopted rules that forbid the filibuster in certain cases, such as 
the War Powers Act and the budget. Imagine that. What should be more 
debatable than the budget? But our rules do not permit a filibuster of 
the budget. So we passed rules here limiting the filibuster.
  Since 1917, we have passed four significant reforms concerning the 
filibuster. The fact is, as Senator Tom Udall has powerfully made 
clear, article I, section 5, clause 2 of the Constitution specifies 
that ``each House may determine the rules of its proceedings.''
  As Senator Robert Byrd, who was opposed to filibuster reform--he and 
I had a great debate back in 1995 on this--as he emphasized, and he 
said this--Senator Byrd: ``At any time that 51 Senators are determined 
to change the rule . . . that rule can be changed.''
  I am reading here from what Senator Byrd said. He said at that time:

       The Constitution in article I, 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.

  ``The dead hand.''
  I listened to the minority leader when he said we have--the majority 
has never changed rules except by following those rules. The rules set 
down by a Congress a long time ago, by a Senate a long time ago, said 
that in order to change the rules, you need a two-thirds vote of the 
Senate. I submit that is unconstitutional. I submit that this Congress, 
this Senate, on this first legislative day, does not have to abide

[[Page S25]]

by that. What if, in some Senate, one party got 90 Senators one time, 
and they adopted a rule that said that from here on out, you have to 
have 90 votes in order to change the rules, here are the rules, and 
they set up rules that pretty much made it impossible for the minority 
to ever become the majority? Would that be constitutional? I don't 
think so.
  Senator Byrd said we are not obliged to be bound by the dead hand of 
the past. The first Senate, Senator Byrd said, which met in 1789, 
approved 19 rules by majority vote. Those rules have been changed from 
time to time. So the Members of the Senate who met in 1789 and approved 
that first body of rules did not for one moment think or believe or 
pretend that all succeeding Senates would be bound by that Senate.
  Here is the essence of what Senator Byrd said:

       It is my belief--which has been supported by rulings of 
     Vice Presidents of both parties and by votes of the Senate--
     in essence upholding the power and right of a majority of the 
     Senate to change the rules of the Senate at the beginning of 
     a new Congress.

  I would say Senator Byrd has not been alone in his views or tactics. 
The constitutional option has been endorsed by three Vice Presidents 
and three times by the Senate itself. Why was it not used? Because 
Senators then reached a compromise, and therefore we never had the 
constitutional option. But that does not mean we cannot use that. The 
Constitution is very clear. I think three votes of the Senate and three 
former Vice Presidents have made clear in their rulings that at the 
beginning of a Congress, we can set the rules.
  Chief Justice John Marshall once said:

       Any enduring Constitution must be able to respond to the 
     various crises of human affairs.

  I said many times that I don't believe we can be a 21st-century 
superpower bound by archaic rules of the 19th century. We have to have 
a responsive government, responding to the challenges of our time.
  I am not afraid. I say to my friends on the Republican side, I am not 
afraid. What the minority leader said--he said that at some time the 
Republicans might be in charge, and they might want to undo what the 
Democrats did, and the Democrats better be careful. That was in his op-
ed piece in the Post this morning. I am not afraid of democracy. I am 
not afraid of the votes of the people. If the people vote to put 
certain conservatives in power, then they ought to have the right to 
govern. They ought to have the right to respond to the people of this 
country. The minority--I would be in the minority at that time--I think 
the minority ought to have the right to be heard, we ought to have the 
right to debate, we ought to have the right to amend, but we should not 
have the right to totally obstruct. I am not afraid.
  People say that the tea party in the House--they are going to do all 
this stuff. I am sorry, I am not afraid. The people voted. There ought 
to be things that happen because people vote a certain way. No wonder 
so many people are frustrated. They vote, they think things are going 
to happen, they don't happen, and they say: A pox on both your Houses.
  So, yes, I don't know why we should be so afraid of each other. Why 
should I be afraid that the Republicans are going to institute 
legislation I don't like? They have in the past, and our country has 
endured. I would say there are times when the Democrats have passed 
legislation Republicans did not like and our country has endured. So I 
just do not like this fear, that we have to be afraid that somehow the 
majority is going to do things.
  What we want to make sure of is that the rights of the minority are 
guaranteed--the right to be heard, the right of the minority to offer 
amendments. But I don't think it ought to be the right of the minority 
to obstruct, and I don't think it ought to be the right of the minority 
to demand that their views be implemented. That is the right of the 
majority.
  I close where I began, and I thank my friends for this indulgence. I 
believe the bedrock of the principle of our Constitution, our Founders, 
was majority rule with respect for minority rights. But I say this, and 
I have said it many times. It is kind of the dirty little secret of the 
Senate. And here is the dirty little secret: The power of an individual 
Senator comes not by what he can do but by what he can stop. That is 
the dirty little secret of the Senate. One Senator can stop something, 
can block it. I say that each Senator--each of us needs to give up a 
little of our privilege, give up a little of our power, give up a 
little of our prerogatives for the greater good of this country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. I thank the Senator from Iowa for his consistency over 
the years with his proposal. I wonder if I can make a few remarks on 
his proposal, and if he has time, if he is still here, maybe I will 
pose a question to him. I see the Senator from Kansas is also here. He 
spent a lot of time on the Rules Committee on this subject. He is one 
of our most forceful speakers on the matter, and I would defer to him, 
and then I know there are other Senators--the Senator from Oregon, the 
Senator from New Mexico--who have some proposals to offer. There may be 
other Senators on the Republican side who come to the floor.
  First, I ask unanimous consent to have printed in the Record an 
address I made yesterday at the Heritage Foundation entitled ``The 
Filibuster: Democracy's finest show . . . the right to talk your head 
off.''
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. ALEXANDER. I borrowed those words from H.V. Kaltenborn and ``Mr. 
Smith Goes to Washington.''
  I am a little amused by the suggestion the Senator from Iowa made and 
others made that somehow the Senate has been paralyzed for the last 
couple of years. Most of the people I know are concerned about what the 
Senate did do, not what it did not do. It is hard to say you are 
paralyzed when you pass a $1 trillion stimulus bill, health care law, 
financial regulation law, et cetera, et cetera.
  As far as the claim that Republicans are holding things up goes, I 
have a few comments. We did not have a budget last year. Most 
households have to have budgets. The Senate ought to have one. Why 
didn't we have a budget? It wasn't the Republicans holding it up. As 
the Senator from Iowa said, under our rules, it only takes 51 votes to 
pass a budget. During the last couple of years, the Democrats had 59 or 
60 votes. So the reason we did not have a budget is because the 
Democrats did not want to pass a budget, or at least that they did not 
pass a budget. It had nothing to do with the Senate being ``broken.''

  The Senator from Iowa made this Rules proposal in 1995. He has made 
some modifications in his proposal but basically this is the same as he 
offered in 1995. I remember those days pretty well. It was right after 
the so-called Gingrich revolution, in 1994. Republicans took control of 
the Senate and of the House of Representatives. The Senator from Iowa 
made his proposal to diminish the effectiveness of a filibuster. What 
did the Republicans do? The Republicans, had the most to gain--at least 
temporarily--from being able to get their agenda through the Senate. 
But every single one opposed the proposal. Every single Republican 
Senator in 1995 said: No, we may love our agenda, but we do not want to 
change the Senate. We don't want to jeopardize the Senate as a forum 
for forcing consensus and protecting minority rights and letting the 
voices of all of the people be heard on the Senate floor.
  Not only the Republican Senators in 1995 had that opinion. Here are 
some things that were said mostly in 2005 by Democratic leaders. There 
were some Republicans who had the same idea the Senator from Iowa has 
about diminishing the effectiveness of the filibuster. In this case, 
they wanted to diminish the use of filibusters on judicial nominations. 
There was great consternation because Democrats decided to filibuster 
President Bush's judges. I didn't like that either. This is what has 
been said by Democrats.
  Senator Robert Byrd in his last testimony before the Rules Committee:

       We must never, ever, ever, ever tear down the only wall, 
     the necessary fence, that this Nation has against the 
     excesses of the Executive Branch.


[[Page S26]]


  What is that necessary fence? That necessary fence is anchored in the 
filibuster.
  Senator Schumer of New York in 2005:

       The checks and balances which have been at the core of this 
     Republic are about to be evaporated.

  This was in response to the Republicans who were trying to diminish 
the effectiveness of the filibuster in 2005. ``The checks and 
balances'' Senator Schumer said, ``which say that if you get 51 percent 
of the vote, you don't get your way 100 percent of the time.''
  Former Senator Hillary Clinton:

       You've got majority rule. Then you've got the Senate over 
     here where people can slow things down, where they can 
     debate, where they have something called the filibuster. You 
     know, it seems like it's a little less than efficient. Well, 
     that's right, it is. And deliberately designed to be so.

  Senator Dodd more recently:

       I'm totally opposed to the idea of changing the filibuster 
     rules. I think that's foolish, in my view.

  Senator Byrd:

       That's why we have a Senate, to amend and debate freely.

  Senator Dodd:

       I can understand the temptation to change the rules that 
     make the Senate so unique and simultaneously so terribly 
     frustrating. But whether such temptation is motivated by a 
     noble desire to speed up the legislative process or by pure 
     political expediency, I believe such changes would be unwise 
     . . .
       Therefore, to my fellow Senators who never served a day in 
     the minority, I urge you to pause in your enthusiasm to 
     change Senate rules.

  Just two more.
  Senator Reid, who was then the Democratic leader but the minority 
leader, said in 2005:

       The filibuster is far from a ``procedural gimmick.'' It's 
     part of the fabric of this institution that we call the 
     Senate. For 200 years we've had the right to extend the 
     debate. It's not procedural gimmick. Some in this chamber 
     want to throw out 214 years of Senate history in the quest 
     for absolute power. They want to do away with Mr. Smith, as 
     depicted in that great movie, being able to come to 
     Washington. They want to do away with the filibuster. They 
     think they're wiser than our Founding Fathers. I doubt that's 
     true.

  Then there was one other Senator who spoke and who said this, the 
Senator from Illinois, Senator Obama:

       Then if the majority chooses to end the filibuster, if they 
     choose to change the rules and put an end to the Democratic 
     debate, then the fighting and the bitterness and the gridlock 
     will only get worse.

  I think the last 2 years in the Senate have been an aberration. We 
have had no incentive for the majority to take the ideas of the 
minority because the majority had these huge majorities, nearly 60 
votes here, and a Democratic President.
  So when Senator Corker, my colleague from Tennessee, began to work on 
the financial regulation bill, there came a time in the process where 
the Democrats said: Well, you know, we like Corker, and he has got some 
good ideas, but we do not need his vote to pass this bill. We have got 
the votes. We won the election. We will write the bill.
  So the Senate has had no consensus. Instead, we had a Democratic 
financial regulation bill. We had a Democratic health care bill. We had 
a mostly Democratic stimulus bill. We might have had one or two 
Republicans vote for it.
  For the last 2 years, we have not had any experience in working 
across party lines. What the filibuster does is say, you are not going 
to pass anything in the Senate unless at least some Republicans and 
some Democrats agree. You will not pass anything unless you get a 
consensus.
  Then that will change behavior, and people say, okay, let's bring a 
No Child Left Behind bill to the floor. But it has got to have the 
support of Senator Enzi and Senator Harkin or it is not going anywhere, 
because it has got to have 60 votes to move forward. What is the 
advantage of that? The advantage of that is the comparison of the Civil 
Rights bill in 1964, and the health care law of 2009.
  In 1964, after a bitter fight led by Senator Russell of Georgia, the 
Civil Rights bill passed the Senate, overcoming a filibuster. The bill 
was written in the Republican leader's office. It was not just sent 
over there in the middle of the night during Christmas, it was written 
in his office. You had President Johnson, a Democrat, and Senator 
Dirksen saying, this is good for the country. A lot of people hated the 
bill. And some people thought it did not go far enough.
  What did Senator Russell do, who had fought that bill for his whole 
term here? He went home to Georgia and said, I did everything I could 
to stop it, but it is the law, and we must obey it. So not only does 
the Senate need a consensus to get a better bill, we need a bill that 
the country will accept.
  Compare that to the health care law in 2009. A lot of good intentions 
went into the health care law. I know that. Senator Harkin was in the 
middle of that, but the fact of the matter was that it was a Democratic 
bill. It was rammed through Christmas Eve in the middle of the night. 
We barely had a chance to look at the bill, and it passed with a solely 
partisan vote.
  And what happened? Instead of everybody going home and saying, it is 
the law of the land, we support it, an instant movement was created to 
repeal it and replace it. I hope we will not do what Senator Harkin 
suggests. I think his proposal will create a situation where the 
majority says: well, we are going to hang you, but we will hang you in 
3 days instead of tonight. They will narrow it down until they can pass 
a measure with 51 votes.
  So if the Republican House of Representatives passes a bill to repeal 
the health care law, then you know Senate Republicans would pass it, 
too, if we have got 51 votes. Or if the Democratic House, as they did 
last year, passes a bill to repeal the ballot in secret elections then 
the Democrats over here will pass it, too, if they have 51 votes. But 
when a consensus is required, if bills such as that come from the House 
to the Senate, we in the Senate say, whoa, let's think this over. We do 
not pass it. We do not pass it unless we have some kind of consensus.
  That does not mean all the Republicans and all of the Democrats must 
always agree. We had almost all of the Republicans and some of the 
Democrats on the tax agreement that was passed in December. On the New 
START treaty, we had almost all of the Democrats and some of the 
Republicans support it. But in each case, at least you had substantial 
consensus from both parties, and I think the country respects and 
appreciates that.
  I think the Framers knew what they were doing when they created a 
majoritarian House, in other words, the freight train that can run 
through whatever the result of election is. And when they created a 
different kind of Senate. A different kind of Senate that Senator Byrd 
eloquently has said has been one where we can say, you are not going to 
pass anything unless we do it together. That is called consensus. That 
is called cooperation. I think the American people would be greatly 
relieved.
  My question I wish to pose through the Chair to Senator Harkin is, 
what is a filibuster? Senator Sanders was on the floor for several 
hours on the tax debate last month. He spoke for 8 or 9 hours. I guess 
that is a filibuster in the traditional sense. But I think the kind of 
filibuster the Senator from Iowa is counting is this: let's say Senator 
Reid brings a health care bill to the floor, and I rush over to offer 
an amendment to the health care bill, and Senator Reid says: Sorry, I 
am going to cut off your amendment. Then I object. Senator Reid calls 
what I tried to do a filibuster.
  If we are just talking and amending and debating, that is not a 
filibuster. It is not a filibuster until the majority leader cuts off 
debate and amendments. So what the Democrats are counting as 
filibusters is the number of times they have cut us off from doing what 
we are supposed to do, which is, amend and debate.
  It is like being invited to sing on the Grand Ole Opry, and getting 
there and you are not allowed to sing. The people of Tennessee do not 
expect me to come up here and sit on a log just because the 
distinguished majority leader says he does not want my amendments. What 
was traditional in the Senate is that Senators could offer amendments 
and debate, at almost any time, on almost any bill. In the days of 
Senator Byrd and Senator Baker, they would have 300 amendments filed. 
They would start voting. So some Senators would say, well, it is 
Thursday, don't we go home? The Leaders would say no, we are going to 
vote, unless you want to

[[Page S27]]

give up your amendment. Instead of doing that, we did not vote on one 
Friday in the Senate this past year, and a lot of Senators on both 
sides of the aisle do not want to vote on controversial issues. If we 
look for consensus, if we were willing to vote on controversial issues, 
and if we ended the 3-day work week, if the majority thinks the 
minority is abusing the filibuster, they can confront it. They can sit 
over there and they can say to us, okay, Senator Alexander, 60 of us 
are ready to cut this off. We are ready to get on to a vote. So you 
have got 7 hours that you can speak, then you have got to get 23 other 
Senators to take the other hours. If you stop talking, we are going to 
put the question to a vote, and we have got some motions we can make 
about your being dilatory. In other words, we can make life miserable 
for you, because we are going to do this all night long.
  Senator Byrd said in his last testimony: The rules exist today to 
confront a filibuster.
  So my question to the Senator from Iowa which I would pose through 
the Chair is: What is a filibuster? Is a filibuster when I come down to 
the floor to amend the health care bill, and the majority leader says, 
sorry, I am going to use my powers to cut it off? You cannot amend the 
bill. And then he files cloture.
  That is what he calls a filibuster, I think. What I call it is 
cutting off my right to amend, right to debate, right to do my job.

                               Exhibit 1

The Filibuster: ``Democracy's Finest Show . . . The Right To Talk Your 
                               Head Off''

(Address by Senator Lamar Alexander, Heritage Foundation, Jan. 4, 2011)

       Voters who turned out in November are going to be pretty 
     disappointed when they learn the first thing some Democrats 
     want to do is cut off the right of the people they elected to 
     make their voices heard on the floor of the U.S. Senate.
       In the November elections, voters showed that they remember 
     the passage of the health care law on Christmas Eve, 2009: 
     midnight sessions, voting in the midst of a snow storm, back 
     room deals, little time to read, amend or debate the bill, 
     passage by a straight party line vote.
       It was how it was done as much as what was done that 
     angered the American people. Minority voices were silenced. 
     Those who didn't like it were told, ``You can read it after 
     you pass it.'' The majority's attitude was, ``We won the 
     election. We'll write the bill. We don't need your votes.''
       And of course the result was a law that a majority of 
     voters consider to be an historic mistake and the beginning 
     of an immediate effort to repeal and replace it.
       Voters remembered all this in November, but only 6 weeks 
     later Democratic senators seemed to have forgotten it. I say 
     this because on December 18, every returning Democratic 
     senator sent Senator Reid a letter asking him to ``take steps 
     to bring [Republican] abuses of our rules to an end.''
       When the United States Senate convenes tomorrow, some have 
     threatened to try to change the rules so it would be easier 
     to do with every piece of legislation what they did with the 
     health care bill: ram it through on a partisan vote, with 
     little debate, amendment, or committee consideration, and 
     without listening to minority voices.
       The brazenness of this proposed action is that Democrats 
     are proposing to use the very tactics that in the past almost 
     every Democratic leader has denounced, including President 
     Obama and Vice President Biden, who has said that it is ``a 
     naked power grab'' and destructive of the Senate as a 
     protector of minority rights.
       The Democratic proposal would allow the Senate to change 
     its rules with only 51 votes, ending the historical practice 
     of allowing any senator at any time to offer any amendment 
     until sixty senators decide it is time to end debate.
       As Investor's Business Daily wrote, ``The Senate Majority 
     Leader has a plan to deal with Republican electoral success. 
     When you lose the game, you simply change the rules. When you 
     only have 53 votes, you lower the bar to 51.'' This is called 
     election nullification.
       Now there is no doubt the Senate has been reduced to a 
     shadow of itself as the world's greatest deliberative body, a 
     place which, as Sen. Arlen Specter said in his farewell 
     address, has been distinctive because of ``the ability of any 
     Senator to offer virtually any amendment at any time.''
       But the demise of the Senate is not because Republicans 
     seek to filibuster. The real obstructionists have been the 
     Democratic majority which, for an unprecedented number of 
     times, used their majority advantage to limit debate, not to 
     allow amendments and to bypass the normal committee 
     consideration of legislation.
       To be specific, according to the Congressional Research 
     Service:
       1. the majority leader has used his power to cut off all 
     amendments and debate 44 times--more than the last six 
     majority leaders combined;
       2. the majority leader has moved to shut down debate the 
     same day measures are considered (same-day cloture) nearly 
     three times more, on average, than the last six majority 
     leaders;
       3. the majority leader has set the record for bypassing the 
     committee process bringing a measure directly to the floor 43 
     times during the 110th and 111th Congresses.
       Let's be clear what we mean when we say the word 
     ``filibuster.'' Let's say the majority leader brings up the 
     health care bill. I go down to the floor to offer an 
     amendment and speak on it. The majority leader says ``no'' 
     and cuts off my amendment. I object. He calls what I tried to 
     do a filibuster. I call what he did cutting off my right to 
     speak and amend which is what I was elected to do. So the 
     problem is not a record number of filibusters; the problem is 
     a record number of attempts to cut off amendments and debate 
     so that minority voices across America cannot be heard on the 
     floor of the Senate.
       So the real ``party of no'' is the majority party that has 
     been saying ``no'' to debate, and ``no'' to voting on 
     amendments that minority members believe improve legislation 
     and express the voices of the people they represent. In fact, 
     the reason the majority leader can claim there have been so 
     many filibusters is because he actually is counting as 
     filibusters the number of times he filed cloture--or moved to 
     cut off debate.
       Instead of this power grab, as the new Congress begins, the 
     goal should be to restore the Senate to its historic role 
     where the voices of the people can be heard, rather than 
     silenced, where their ideas can be offered as amendments, 
     rather than suppressed, and where those amendments can be 
     debated and voted upon rather than cut off.
       To accomplish this, the Senate needs to change its 
     behavior, not to change its rules. The majority and minority 
     leaders have been in discussion on steps that might help 
     accomplish this. I would like to discuss this afternoon why 
     it is essential to our country that cooler heads prevail 
     tomorrow when the Senate convenes.
       One good example Democrats might follow is the one 
     established by Republicans who gained control of both the 
     Senate and House of Representatives in 1995. On the first day 
     of the new Republican majority, Sen. Harkin proposed a rule 
     change diluting the filibuster. Every single Republican 
     senator voted against the change even though supporting it 
     clearly would have provided at least a temporary advantage to 
     the Republican agenda.
       Here is why Republicans who were in the majority then, and 
     Democrats who are in the majority today, should reject a 
     similar rules change:
       First, the proposal diminishes the rights of the minority. 
     In his classic Democracy in America, Alexis de Tocqueville 
     wrote that one of his two greatest fears for our young 
     democracy was the ``tyranny of the majority,'' the 
     possibility that a runaway majority might trample minority 
     voices.
       Second, diluting the right to debate and vote on amendments 
     deprives the nation of a valuable forum for achieving 
     consensus on difficult issues. The founders knew what they 
     were doing when they created two very different houses in 
     Congress. Senators have six-year terms, one-third elected 
     every two years. The Senate operates largely by unanimous 
     consent. There is the opportunity, unparalleled in any other 
     legislative body in the world, to debate and amend until a 
     consensus finally is reached. This procedure takes longer, 
     but it usually produces a better result--and a result the 
     country is more likely to accept. For example, after the 
     Civil Rights Act of 1964 was enacted, by a bipartisan 
     majority over a filibuster led by Sen. Russell of Georgia, 
     Sen. Russell went home to Georgia and said that, though he 
     had fought the legislation with everything he had, ``As long 
     as it is there, it must be obeyed.'' Compare that to the 
     instant repeal effort that was the result of jamming the 
     health care law through in a partisan vote.
       Third, such a brazen power grab by Democrats this year will 
     surely guarantee a similar action by Republicans in two years 
     if Republicans gain control of the Senate as many believe is 
     likely to happen. We have seen this happen with Senate 
     consideration of judges. Democrats began the practice of 
     filibustering President Bush's judges even though they were 
     well-qualified; now Democrats are unhappy because many 
     Republicans regard that as a precedent and have threatened to 
     do the same to President Obama's nominees. Those who want to 
     create a freight train running through the Senate today, as 
     it does in the House, might think about whether they will 
     want that freight train in two years if it is the Tea Party 
     Express.
       Finally, it is hard to see what partisan advantage 
     Democrats gain from destroying the Senate as a forum for 
     consensus and protection of minority rights since any 
     legislation they jam through without bipartisan support will 
     undoubtedly die in the Republican-controlled House during the 
     next two years.
       * * *
       The reform the Senate needs is a change in its behavior, 
     not a change in its rules. I have talked with many senators, 
     on both sides of the aisle, and I believe most of us want the 
     same thing: a Senate where most bills are considered by 
     committee, come to the floor as a result of bipartisan 
     cooperation, are debated and amended and then voted upon.
       It was not so long ago that this was the standard operating 
     procedure. I have seen the Senate off and on for more than 
     forty years, from the days in 1967 when I came to the Senate 
     as Sen. Howard Baker's legislative assistant. That was when 
     each senator

[[Page S28]]

     had only one legislative assistant. I came back to help Sen. 
     Baker set up his leadership office in 1977 and watched the 
     way that Sen. Baker and Sen. Byrd led the Senate from 1977 to 
     1985, when Democrats were in the majority for the first four 
     years and Republicans were the second four years.
       Then, most pieces of legislation that came to the floor had 
     started in committee. Then that legislation was open for 
     amendment. There might be 300 amendments filed and, after a 
     while, the majority would ask for unanimous consent to cut 
     off amendments. Then voting would begin. And voting would 
     continue.
       The leaders would work to persuade senators to limit their 
     amendments but that didn't always work. So the leaders kept 
     the Senate in session during the evening, during Fridays, and 
     even into the weekend. Senators got their amendments 
     considered and the legislation was fully vetted, debated and 
     finally passed or voted down.
       Sen. Byrd knew the rules. I recall that when Republicans 
     won the majority in 1981, Sen. Baker went to see Sen. Byrd 
     and said, ``Bob I know you know the rules better than I ever 
     will. I'll make a deal with you. You don't surprise me and I 
     won't surprise you.''
       Sen. Byrd said, ``Let me think about it.''
       And the next day Sen. Byrd said yes and the two leaders 
     managed the Senate effectively together for eight years.
       What would it take to restore today's Senate to the Senate 
     of the Baker-Byrd era?
       Well, we have the answer from the master of the Senate 
     rules himself, Sen. Byrd, who in his last appearance before 
     the Rules Committee on May 19, 2010 said: ``Forceful 
     confrontation to a threat to filibuster is undoubtedly the 
     antidote to the malady [abuse of the filibuster]. Most 
     recently, Senate Majority Leader Reid announced that the 
     Senate would stay in session around-the-clock and take all 
     procedural steps necessary to bring financial reform 
     legislation before the Senate. As preparations were made and 
     cots rolled out, a deal was struck within hours and the 
     threat of filibuster was withdrawn. . . . I also know that 
     current Senate Rules provide the means to break a 
     filibuster.''
       Sen. Byrd also went on to argue strenuously in that last 
     speech that ``our Founding Fathers intended the Senate to be 
     a continuing body that allows for open and unlimited debate 
     and the protection of minority rights. Senators,'' he said, 
     ``have understood this since the Senate first convened.''
       Sen. Byrd then went on: ``In his notes of the 
     Constitutional Convention on June 26, 1787, James Madison 
     recorded that the ends to be served by the Senate were 
     `first, to protect the people against their rulers, secondly, 
     to protect the people against the transient impressions into 
     which they themselves might be led. . . They themselves, as 
     well as a numerous body of Representatives, were liable to 
     err also, from fickleness and passion. A necessary fence 
     against this danger would be to select a portion of 
     enlightened citizens, whose limited number, and firmness 
     might seasonably interpose against impetuous councils.' That 
     fence,'' Sen. Byrd said in that last appearance, ``was the 
     United States Senate. The right to filibuster anchors this 
     necessary fence. But it is not a right intended to be 
     abused.''
       ``There are many suggestions as to what we should do. I 
     know what we must not do. We must never, ever, ever, ever 
     tear down the only wall--the necessary fence--this nation has 
     against the excess of the Executive Branch and the resultant 
     haste and tyranny of the majority.''
       What would it take to restore the years of Sens. Baker and 
     Byrd, when most bills that came to the floor were first 
     considered in committee, when more amendments were 
     considered, debated and voted upon?
       1. Recognize that there has to be bipartisan cooperation 
     and consensus on important issues. The day of ``we won the 
     election, we jam the bill through'' will have to be over. 
     Sen. Baker would not bring a bill to the floor when 
     Republicans were in the majority unless it had the support of 
     the ranking Democratic committee member.
       2. Recognize that senators are going to have to vote. This 
     may sound ridiculous to say to an outsider, but every Senate 
     insider knows that a major reason why the majority cuts off 
     amendments and debate is because Democratic members don't 
     want to vote on controversial issues. That's like 
     volunteering to be on the Grand Ole Opry but then claiming 
     you don't want to sing. We should say, if you don't want to 
     vote, then don't run for the Senate.
       3. Finally, according to Sen. Byrd, it will be the end of 
     the three-day work week. The Senate convenes on most Mondays 
     for a so-called bed-check vote at 5:30. The Senate during 
     2010 did not vote on one single Friday. It is not possible 
     either for the minority to have the opportunity to offer, 
     debate and vote on amendments or for the majority to 
     forcefully confront a filibuster if every senator knows there 
     will never be a vote on Friday.
       There are some other steps that can be taken to help the 
     Senate function better without impairing minority rights.
       One bipartisan suggestion has been to end the practice of 
     secret holds. It seems reasonable to expect a senator who 
     intends to hold up a bill or a nomination to allow his 
     colleagues and the world know who he or she is so that the 
     merits of the hold can be evaluated and debated.
       Second, there is a crying need to make it easier for any 
     President to staff his government with key officials within a 
     reasonable period of time. One reason for the current delay 
     is the President's own fault, taking an inordinately long 
     time to vet his nominees. Another is a shared responsibility: 
     the maze of conflicting forms, FBI investigations, IRS 
     audits, ethics requirements and financial disclosures 
     required both by the Senate and the President of nominees. I 
     spoke on the Senate floor on this, titling my speech 
     ``Innocent until Nominated.'' The third obstacle is the 
     excessive number of executive branch appointments requiring 
     Senate confirmation. There have been bipartisan efforts to 
     reduce these obstacles. With the support the majority and 
     minority leaders, we might achieve some success.
       Of course, even if all of these efforts succeed there still 
     will be delayed nominations, bills that are killed before 
     they come to the floor and amendments that never see the 
     light of day. But this is nothing new. I can well remember 
     when Sen. Metzenbaum of Ohio put a secret hold on my 
     nomination when President George H.W. Bush appointed me 
     education secretary. He held up my nomination for three 
     months, never really saying why.
       I asked Sen. Rudman of New Hampshire what I could do about 
     Sen. Metzenbaum, and he said, ``Nothing.'' And then he told 
     me how President Ford had appointed him to the Federal 
     Communications Commission when he, Rudman, was Attorney 
     General of New Hampshire. The Democratic senator from New 
     Hampshire filibustered Rudman's appointment until Rudman 
     finally asked the president to withdraw his name.
       ``Is that the end of the story?'' I asked Rudman.
       ``No,'' he said. ``I ran against the [so-and-so] and won, 
     and that's how I got into the Senate.''
       During his time here Sen. Metzenbaum would sit at a desk at 
     the front of the Senate and hold up almost every bill going 
     through until its sponsor obtained his approval. Sen. Allen 
     of Alabama did the same before Metzenbaum. And Sen. John 
     Williams of Delaware during the 1960's was on the floor 
     regularly objecting to federal spending when I first came 
     here forty years ago.
       * * *
       I have done my best to make the argument that the Senate 
     and the country will be served best if cooler heads prevail 
     and Democrats don't make their power grab tomorrow to make 
     the Senate like the House, to permit them to do with any 
     legislation what they did with the health care law. I have 
     said that to do so will destroy minority rights, destroy the 
     essential forum for consensus that the Senate now provides 
     for difficult issues, and surely guarantee that Republicans 
     will try to do the same to Democrats in two years. More than 
     that, it is hard to see how Democrats can gain any partisan 
     advantage from this destruction of the Senate and invitation 
     for retribution since any bill they force through the Senate 
     in a purely partisan way during the next two years will 
     surely be stopped by the Republican-controlled House of 
     Representatives.
       But I am not the most persuasive voice against the wisdom 
     of tomorrow's proposed action. Other voices are. And I have 
     collected some of them, mostly Democratic leaders who wisely 
     argued against changing the institution of the Senate in a 
     way that would deprive minority voices in America of their 
     right to be heard:

                   From Mr. Smith Goes to Washington

       Jimmy Stewart: Wild horses aren't going to drag me off this 
     floor until those people have heard everything I've got to 
     say, even if it takes all winter.
       Reporter: H.V. Kaltenborn speaking, half of official 
     Washington is here to see democracy's finest show. The 
     filibuster--the right to talk your head off.

   Sen. Robert Byrd's final appearance in the Senate Rules Committee

       SENATOR ROBERT BYRD: We must never, ever, ever, ever, tear 
     down the only wall, the necessary fence, that this nation has 
     against the excesses of the Executive Branch.
       SEN. CHUCK SCHUMER: The checks and balances which have been 
     at the core of this Republic are about to be evaporated. The 
     checks and balances which say that if you get 51% of the 
     vote, you don't get your way 100% of the time.
       FORMER SEN. CLINTON: You've got majority rule. Then you've 
     got the Senate over here where people can slow things down 
     where they can debate where they have something called the 
     filibuster. You know it seems like it's a little less than 
     efficient, well that's right, it is. And deliberately 
     designed to be so.
       SEN. DODD: I'm totally opposed to the idea of changing the 
     filibuster rules. I think that's foolish in my view.
       SEN. BYRD: That's why we have a Senate, is to amend and 
     debate freely.
       SEN. ALEXANDER: The whole idea of the Senate is not to have 
     majority rule. It's to force consensus. It's to force there 
     to be a group of Senators on either side who have to respect 
     one another's views so they work together and produce 60 
     votes on important issues.
       SEN. DODD: I can understand the temptation to change the 
     rules that make the Senate so unique and simultaneously so 
     terribly frustrating. But whether such temptation is 
     motivated by a noble desire to speed up the legislative 
     process or by pure political expediency, I believe such 
     changes would be unwise.
       SEN. ROBERTS: The Senate is the only place in government 
     where the rights of a

[[Page S29]]

     numerical minority are so protected. A minority can be right, 
     and minority views can certainly improve legislation
       SEN. ALEXANDER: The American people know that it's not just 
     the voices of the Senator from Kansas or the Senator from 
     Iowa that are suppressed when the Majority Leader cuts off 
     the right to debate, and the right to amend. It's the voices 
     that we hear across this country, who want to be heard on the 
     Senate floor.
       SEN. GREGG: You just can't have good governance if you 
     don't have discussion and different ideas brought forward.
       SEN. DODD: Therefore to my fellow Senators, who have never 
     served a day in the minority, I urge you to pause in your 
     enthusiasm to change Senate rules.
       SEN. REID: The Filibuster is far from A `Procedural 
     Gimmick.' It's part of the fabric of this institution that we 
     call the Senate. For 200 years we've had the right to extend 
     the debate. It's not procedural gimmick. Some in this chamber 
     want to throw out 214 years of Senate history in the quest 
     for absolute power. They want to do away with Mr. Smith, as 
     depicted in that great movie, being able to come to 
     Washington. They want to do away with the filibuster. They 
     think they're wiser than our Founding Fathers, I doubt that's 
     true.
       FORMER SEN. OBAMA: Then if the Majority chooses to end the 
     filibuster, if they choose to change the rules and put an end 
     to Democratic debate, then the fighting and the bitterness 
     and the gridlock will only get worse.

  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. I will respond to my friend from Tennessee who makes 
cogent arguments, as he always does. He is a good friend of mine, and 
we have worked together on a lot of things. I hope this is the 
beginning of some colloquies we can have here. I do want to indulge and 
let other Senators have their say because they were so kind to let me 
have my say too. But I intend to be here as long as anybody wants to 
say anything or to engage in some colloquies here on the Senate floor.
  I say to my friend from Tennessee, that as I listened to him, and I 
did very carefully, there are a couple of things I want to point out in 
terms of this idea of a filibuster and being able to amend things. My 
friend referred many times to the health care bill. I do not know if my 
friend said this, but I have heard it said that we wrote it behind 
closed doors and all of that kind of stuff.
  Let me point out that when it came to our committee, the HELP 
Committee, we had 13 days of markup, 54 hours. We allowed any amendment 
to be offered. The Senator is a member of that committee. We allowed 
any Senator on our committee to offer any amendment. We adopted 161 
Republican amendments, either through some votes, which they won, or 
through just adopting the amendments. Then after that, after all of 
that, all Republicans voted no. That is fine. There are a lot of times 
I know in the past when I have had an amendment on a bill which I 
thought improved it, but overall I did not like the bill, and I voted 
against it. I think that is the right of the minority. But then to 
obstruct it and to try to obstruct it to keep it from even being 
enacted I do not think is right. So I would say to my friend that I do 
not think the health care bill is a good example.
  I say to my friend, he quoted someone, I think maybe it may have been 
Senator Reid, saying, do people think they are wiser than our Founding 
Fathers. Please show me where our Founding Fathers ever set up a system 
where the Senate could have unlimited debate? They never did that. It 
is not in the Constitution.
  As I pointed out, the first Senate actually had the motion, the 
previous question, to cut off debate. And they did not set up a 
majoritarian House. Article I section 5, I say to my friend from 
Tennessee, article I, section 5 is very clear. Each House sets up its 
rules. If the new majority in the House wanted to, they could set up 
rules to be like the Senate. They could do that. They could set up 
rules however they wanted, as long as they were constitutional. I 
suppose someone could take it to court to see if it was constitutional. 
But they do not have to operate under those rules. We do not have to 
operate under these rules. The Constitution gives us the right to 
change those rules.
  Our Founding Fathers never set up this system, by the way, never. 
There is no mention of it anywhere in the Constitution. They did not 
set up a majoritarian House, they set up article I, section 5, which 
said each House can set up its own rules. But then in the Constitution, 
they outlined certain prerogatives. The Senate has certain 
prerogatives, the House has certain prerogatives, such as, for example, 
all bills of revenue have to originate in the House, not in the Senate. 
Treaties are done by the Senate, not by the House. But they never set 
up any kind of majoritarian type of thing.
  I say to my friend, on the filibuster, I think there is a reason for 
a filibuster. I think there ought to be filibusters. I think there 
ought to be times when the minority can slow down things in order to 
get their views heard, or in order for them to be able to offer 
amendments, to make the bill better, in their views. That is the right 
of the minority.
  I do not think it is the right of any minority--I say minority. When 
I say that, I am not talking about Republicans. I am saying any 
minority here. I do not think it is the right of any minority here to 
say, if I do not get my way, I am going stop everything. That is kind 
of what I see happening around here. If I do not get my way, one 
Senator can stop things.
  I point out one other bill, I say to my friend from Tennessee, that I 
thought was a great bipartisan bill. We worked hard on it in our 
committee. The Senator from Tennessee was instrumental. That was the 
food safety bill. We reported it out of our committee a year ago in 
November, unanimous vote. Everyone voted for it, Republicans and 
Democrats on our committee. We got it out. But there were some things 
in the bill that Senators not on our committee, and maybe one Senator 
on our committee, did not like. So we had to work through the ensuing 
months to get everybody onboard and to work it out, which is fine. I 
have no problems with that. That is the legislative process. I have 
patience. As my friend from Kansas knows, I have a lot of patience 
working on farm bills. They take time.
  But we worked it all out. And yet one Senator, one Senator who really 
disagreed with it, was able to hold it up from coming on the floor. We 
finally got it on the floor, but it took almost a year. One Senator was 
able to do that.
  So I say, one Senator should be able to have the right to offer 
amendments, to be heard, but not to stop everything. I guess that is 
what I come down to, I say to my friend from Tennessee, that there 
ought to be a--I think there is a reason and a good reason for the 
Senate to be that saucer that cools things down, the story about 
Jefferson and Washington. But it should be at some point in time where 
the majority has not only the authority but the power to act after a 
due consideration and a due period of time.
  I believe, I say to my friend in all sincerity, that will promote 
more compromise than the present system. You may disagree, but I feel 
that would. I am not trying to take away compromise. I believe in 
compromise. I believe in working things out. As chairman of the 
Agriculture Committee for two farm bills, we worked things out. I am 
sure there were things in the farm bill that the Senator from Kansas 
did not like, and there were things in there that I did not like, even 
though I was chairman. But you work these things out. You compromise 
and you get things done. So I believe in that spirit of compromise. But 
I think what we have here now--and that escalating arms race--is doing 
away with that spirit of compromise and working things out and moving 
things. That is why I think we have to change the rules.
  I do not know if I adequately responded to my friend from Tennessee, 
but these were my thoughts at the end. I am looking forward to other 
comments from other Senators and engaging in our colloquies. I promise 
I will not take so long.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. ROBERTS. Mr. President, I thank my colleagues for their pertinent 
remarks.
  The Senator from Iowa said in the past he had entered into a colloquy 
with colleagues on our side of the aisle where they wandered over into 
each other's pastures. I am going to put down this microphone for a 
moment and speak from here in a gesture of bipartisanship on how we can 
improve the Senate.
  I know we have heard a lot of talk about Robert C. Byrd, a beloved 
individual. I know the Presiding Officer

[[Page S30]]

was very close to the former Senator. The last time Bob Byrd spoke 
publicly was in the rules committee, when he rose to the occasion in a 
very passionate way. The chairman, of course, Chuck Schumer, the 
Senator from New York, with great deference recognized Senator Byrd. We 
were all on the edge of our chairs. The Senator from Tennessee has 
already gone over what Senator Byrd said at that time and previously. 
But I remember when I first came to the Senate, it was required that we 
go to school, so to speak, and Senator Byrd talked to all of the 
freshmen at that particular time.
  The keeper of the institutional flame was the tag I put on Senator 
Byrd. My wife Franki and I became very close friends of the Senator. At 
any rate, he recounted the story attributed to Jefferson and 
Washington, he would tell every incoming class about the role of the 
people's House and perhaps what happened, when they put the coffee pot 
on in regards to legislation, that the coffee was so hot it would boil 
over, and it was the Senate's duty to act as the saucer, as folks did 
back in West Virginia in the earlier days, or Kansas or Iowa or 
Tennessee or Texas, that they would pour the coffee out in the saucer 
and let it cool off a little bit so they could put their biscuit in it 
and actually eat it, and then the legislation would pass.
  The problem is, sometimes on our side maybe we want tea, maybe we 
want to start over. I think the Senator from Tennessee basically hit 
the nail on the head with the massive three. If we are going to talk 
about getting things done or not getting things done, there are three 
massive things that have happened with regard to legislation. I say 
``massive'' because they were so overreaching, so overwhelming, we are 
now just learning what their implications are. The massive three are 
financial regulatory reform, the health care act, and the stimulus.
  Now the health care act, I have a personal feeling about that in that 
I had 11 amendments, all on rationing.
  By the way, the Senate never confirmed the nomination of Dr. Donald 
Berwick, the head of CMS, the Center for Medicare and Medicaid 
Services. We planned to ask a lot of questions to the doctor because of 
statements he made in the past. Obviously, that confirmation did not 
happen. He was a recess appointment. That is something I think we ought 
to deal with as well.
  Now, the health care act, it was 12:30 in the morning in the Finance 
Committee. I had several amendments, all on rationing. Finally, we got 
to the last two. I said: Why don't we consider them en bloc? I had 
about a minute or two to explain each amendment. They were voted down 
automatically on a party-line vote. By the time we got to 12:30 or 1 
o'clock and my amendments, I noticed Senator Schumer was in the room so 
I stuck on one of his amendments along with mine. It was defeated on a 
party-line vote. Then I let Senator Schumer know that we had defeated 
his amendment as well. He wasn't too happy with that.
  I just showed that the process has broken down to the point that even 
in committee, if you had two amendments, if you had five, if you had 
one, you were simply ignored. Then the health care act came to the 
floor and worked its way. I think the Senator from Tennessee brought up 
the ``Grand Ole Opry.'' I saw it as making a bill behind closed doors. 
That is a famous country western song. We didn't like that process at 
all.
  I finally had only one other recourse and that was to go to the 
reconciliation process, which I knew was not going to be successful, 
but I had several amendments, all were defeated. My main concerns about 
the health care bill were not allowed, as far as I was concerned, on 
the floor of the Senate, and that has happened a lot.
  Now we are seeing an effort to repeal the health care act and also an 
effort to try to fix it, if we possibly can. I am not as upset about 
that as some people are because I think we could get the proper kind of 
debate, but the debate must proceed in regular order and under the 
standing rules of the Senate as a continuing body.
  I am not going to go into the quotes by Senator Byrd. That has 
already been done by Senator Alexander. But I would like to quote 
Senator Dodd in his valedictory speech.

       The history of this young democracy, the Framers decided, 
     should not be written solely in the hand of the majority.

  This isn't about the filibuster. That is the most important statement 
he made.

       What will determine whether this institution works or not 
     is whether each of the 100 Senators can work together.

  How can we do that? Here is a classic example. Right before 
Christmas, there were several bills the majority wanted to pass without 
allowing the minority and the American people the right to debate or 
amend them. So the tree was filled, and that is the parliamentary 
language to say: I am sorry, we are going to cut off debate. In the 
first three years and four months of this majority, the use of filling 
the tree went up over 300 percent compared to the average for the 
previous 22 years. Ninety-eight times in the 110th Congress, cloture 
was filed the moment the question was raised on the floor. A debate was 
not even allowed to take place. So on one hand you can talk about 
filibusters; the other hand is filling the tree, or not allowing 
Members to offer amendments, and same day clotures.
  The Senator from Tennessee offered the classic example. Let's go back 
to a few days ago, right before Christmas. The DREAM Act was a House 
bill. I know the Senate leadership wanted to pass it. It never had a 
legislative hearing in the House, never had a markup in the House. The 
Senate version of the DREAM Act had not had a markup since 2003. In 
sum, the DREAM Act, a controversial measure with very passionate 
beliefs on both sides of the aisle and within the parties as well had 
not had an amendment offered to it in either House of Congress either 
in committees or on the floor.
  Some may believe the DREAM Act is perfect or certainly is the best 
bill possible and would not need any amendments to improve it. But, 
obviously, our constituents don't feel that way. It is a very 
controversial bill. Instead of addressing their concerns, the majority 
shut down debate and amendments and in the process shut down the rights 
of Americans to be heard. As a result, the minority refused to end 
debate and, obviously, there was a filibuster. It would be interesting 
to know, of the times that bills have been filibustered, what was being 
filibustered.
  Contrast this with the approach taken on the 9/11 bill which the 
majority sought to pass just a few days later. The goal of providing 
help to the victims of 9/11 is one Members of both parties share, but 
Senate Republicans noted that the particular version of the bill Senate 
Democrats supported was problematic in regards to how much money we 
were spending and certainly would need improvement.
  So we insisted on having our concerns addressed. Most of them were 
addressed with a revised bill on which we did provide input. That bill 
passed the Senate by unanimous consent, and even the proponents of the 
original legislation would admit that the final bill is a better one 
and now enjoys broader support due to the minority's input.
  What I think the majority needs to do is involve the minority like it 
did on the 9/11 bill, not shut us out, not shut us down as it did on 
the DREAM Act and other acts.
  If that happened, if we did not fill the tree, I think possibly 75 
percent, 80 percent of the filibusters would go away. There are some 
who would like to filibuster anything, I know. But it gets back to what 
the Senator asked: Why are we here? It is important to pass 
legislation. But it is equally important to prevent bad legislation 
from passing or, if you have an alternative you would like to offer, to 
at least have the ability to do so.
  In the last 2 years that process has simply broken down. Why can't we 
work together? That is what Senator Dodd said. He asked whether each of 
the 100 Senators can work together. That was on the question of 
filibusters.
  We can stop this business of secret holds. It seems to me we could 
have a timely pace on nominations. It seems to me we could certainly 
end these recess appointments where people who should be confirmed have 
to go through the confirmation process instead of all of a sudden 
parachuting somebody in who is controversial and now we have over 
100,000 regulations pouring out of the Department of HHS. Health care 
providers throughout the Nation--in Iowa, Tennessee, Kansas--are 
wondering what on Earth is happening.

[[Page S31]]

  When I go home, I don't get the question of why a bill didn't pass. I 
get the question: What on Earth are you guys doing back there passing 
all the legislation with all the regulatory stuff that I have to put up 
with, taxes I have to pay, et cetera, et cetera?
  As a matter of fact, when they pose that question, I say: I am not a 
you guy; I am an us guy. Then we have a debate, but it is a debate that 
should have taken place on the floor of the Senate instead of on the 
plains of Kansas. Unfortunately, because of the majority, we were not 
able to have that debate here, on the floor.
  The question I have for the distinguished Senator from Iowa--and I 
appreciate his reference to our work in previous farm bills. We were 
able to work it out. Sometimes it was very contentious, and sometimes 
the farm bill would come to the floor, and it would take a week and a 
half. Then we would have an appropriations bill, and then the 
appropriators would think they could rewrite the farm bill and take 
another week and a half. But we worked through it. Nobody filled the 
tree and said: I am sorry, you can't have that amendment.
  I am making a speech instead of asking the question. I apologize for 
that.
  I am in agreement on secret holds. I think there should be timely 
pace on nominations. I do think we should go through the regular 
confirmation process.

  But I do feel exactly as the Senator from Tennessee has put out, that 
once you get on this business of ending the filibuster or going down on 
the number of requisite votes, you are on a slippery slope, and then 
you are into the tyranny of the majority, and that is not what the 
Senate is all about.
  I will stop at this point and ask the Senator from Iowa if he has any 
comments.
  The PRESIDING OFFICER (Mrs. McCaskill). The Senator from Iowa.
  Mr. HARKIN. Madam President, I thank my friend from Kansas. I think 
he makes some good points.
  I would say to my friend, I think we ought to go through processes in 
our committees to have hearings on nominees to flush out things such as 
that. So to that extent, the Senator from Kansas is right. We should 
not have, especially if there is any controversy at all--I suppose some 
of them are noncontroversial--but if there is some controversy out 
there, yes, I think the committees ought to have the responsibility to 
bring them forward. Let the committees question them. We did that in 
our HELP Committee, I say to my friend from Kansas. I am trying to 
remember the person we had--oh, a lot of controversy about Craig 
Becker, I think, who was going to the NLRB.
  Mr. ROBERTS. If the Senator will yield, I think the Senator is 
exactly right. I am on the HELP Committee, as the Senator may recall, 
and I was trying to get one amendment to say that we would prohibit the 
use of rationing to achieve cost containment, and it involved several 
of the commissions that have been in the bill. I regret that bill sort 
of sat somewhere and collected dust. We never got a score. I thought it 
was, quite frankly, a better bill than the one in the Finance 
Committee.
  I say to the Senator, you recognized me, and I had an opportunity to 
offer some amendments. At least there was some debate. And I think it 
was a much more bipartisan effort. So I give the chairman----
  Mr. HARKIN. If it was out of our committee, obviously it was a better 
bill than coming out of the Finance Committee. But I say to my friend, 
again, that----
  Mr. ROBERTS. Senator Cornyn wants to be heard, so I am going to be 
quiet and listen to you.
  Mr. HARKIN. I thought there were some things we should talk about. I 
say to my friend, in listening to my friend from Kansas say this, it 
occurred to me that certain of his amendments were allowed. The Senator 
was allowed to debate them and offer them, but they were not adopted. 
It seems to me, as I have said before, the right of the minority ought 
to be to offer amendments, to have them considered, to have them voted 
on, but it does not mean it is the right of the minority to win every 
time on those amendments.
  I say to my friend, on that financial services bill, I had an 
amendment too and I could not get it in. I was on the majority side, 
and they would not let me offer one either. So both sides have some 
legitimate points.
  I also say to my friend from Kansas, and others, we can get into this 
tit for tat, who started it. I think we have to kind of quit that. I 
could come back and say: Well, yes, in the last 2 years, the tree was 
filled 44 times. In this last session, 44 times the tree was filled, 
but there were 136 filibusters. Why wouldn't there be 44 filibusters? 
Why were there 136? We can get into that tit for tat, who did what to 
whom. I wish to forget about all that. We could go back, probably, to 
the 18th century--tit for tat, who did what to whom at some point in 
time.
  I ask my friend from Kansas, who has been here a long time--we served 
together in the House; my friend was chairman of the Agriculture 
Committee in the House. We have done a lot of legislation together--
does my friend from Kansas feel the Senate is operating today in the 
best possible way? Does my friend from Kansas believe there could be 
some things done to make the Senate operate a little bit more openly 
and fairly with rights for the minority to be protected but without 
letting the minority--and I do not mean Republicans when I say 
``minority,'' I mean whoever happens to be in the minority--to keep the 
minority from obstructing things? Does my friend feel there could be 
some changes made?
  Mr. ROBERTS. I will answer the question, no. I do not think we are 
doing the job we could do, and we should do better, and I stand ready 
to work with all concerned to see if we can do that.
  But my time is up, and I am going to cease here and allow the Senator 
from Texas to be recognized.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Madam President, may I inquire how much more time there 
is on our side?
  The PRESIDING OFFICER. Three-and-a-half minutes.
  Mr. CORNYN. Madam President, I am going to ask unanimous consent, 
with the indulgence of my colleagues, to allow me to speak for up to 10 
minutes. I probably will speak about 5 minutes or so, unless I get 
particularly wound up, which could take 10 minutes. But I ask unanimous 
consent for an additional 10 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. CORNYN. I thank the Chair.
  Madam President, I think we are playing with fire when we talk about 
amending the Senate rules. All of us have been here for different 
periods of time. I have been here for 8 years, which actually sounds 
like a long time, but in the life of the Senate is not very long at all 
in an institution that has existed for more than 200 years.
  I have been here when our side was in the majority. As a matter of 
fact, we had the White House, we had both Houses of Congress. And I 
have been here when we have had President Obama in the White House and 
Democrats controlling both Houses of Congress. I can tell you, 
unequivocally, it is a whole lot more fun to be here when you are in 
the majority.
  But there are certain temptations that the majority has which I think 
are exacerbated when, for example, during most of the last 2 years, one 
party or the other has the ability in the Senate to basically pass 
legislation by essentially a party-line vote; in other words, as I 
recall on that morning at 7 a.m. on Christmas Eve a year ago, when the 
vote on the health care bill came up where all 60 Democrats voted for 
the bill and no Republicans voted for the bill.
  My point being: The temptation is, when you have such a large 
majority--60 or more--there is a huge temptation in both parties--not 
just the Democrats; Republicans, I am sure, would be tempted as well--
to try to go it alone. Thus, I think it detracts from what is one of 
the great strengths of this institution, which is that this 
institution's rules force consensus, and unless there is consensus, 
things do not happen. We are, thus, the saucer that cools the tea from 
the cup, and all the various analogies we have heard.
  But the important thing is not how this affects us as individual 
Senators. This is not just an abstract discussion about the rules. This 
is about what is in the best interests of a country of

[[Page S32]]

more than 300 million people. I would submit any time one party or the 
other is not only tempted but yields to that temptation to go it alone 
to try to push legislation through without achieving that consensus, I 
think it hurts the institution and I think it provokes a backlash, much 
as we saw on November 2. Because the American people understand that 
checks and balances are important.
  When we do not have checks and balances, either through the self-
restraint of the majority or through recognizing the rights of the 
minority to offer amendments, to have debates, to contribute to 
legislation, then the American people are going to fix that by changing 
the balance of power, as they did on November 2.
  Here again, I do not want to be misunderstood as making a partisan 
argument. I think Republicans would be just as tempted as Democrats to 
do the same thing. But I think that is where we have to show self-
restraint and where, if we do not show self-restraint, then the 
American people will change the balance of power and establish those 
checks and balances.
  Here again, I think for most people who are listening--if there is 
anyone listening out there on C-SPAN or elsewhere to this debate--this 
should not be about us. This should not be about the arcana of these 
rules. This should be about the rights of the American people to get 
legislation that affects all 300-plus million of us debated, amended, 
in a way to try to achieve that consensus and, thus, achieves broad 
support by the American people. Because anytime, again, we yield to the 
temptation to go it alone to do things on a partisan basis, it will 
ultimately provoke the kind of backlash we have seen over the health 
care bill, to mention one example.
  This is not a small thing. I have the honor of representing 25 
million people in the Senate, and this is not just about my rights as 
an individual Senator or even the minority's rights, this is about 
their right--their right to be heard through an adequate time for 
debate, their right to have an opportunity to change or amend 
legislation, and then to have a chance to have it voted on.
  I understand the frustration of our colleagues when the majority 
leader, due to his right of prior recognition, can get the floor. He 
can put something on the Senate calendar that has not gone through a 
committee markup and that sort of due process and fair opportunity for 
amendment and participation; and then again, if he has 60 votes on his 
side to be able to push it through, then deny us any opportunity to 
offer amendments, much less to have a fulsome debate on these important 
issues.
  I think our country suffers from that. I think the American people 
suffer when we are denied on their behalf an opportunity to have a 
fulsome debate and to offer amendments.
  I do not doubt the good faith of our colleagues who are offering some 
of these propositions. There are even some of them that I find somewhat 
attractive. The idea of secret holds, for example--if there ever was a 
time for that, that time is long past gone. I know we are not going to 
agree on everything. But we ought to at least have an opportunity for 
everyone to be heard, and for individual Senators' rights to be 
respected, not because they are Senators but because they represent a 
large segment of the American people, and it is their rights that are 
impinged when the majority leader, for whatever reason, decides to deny 
a Senator a right to offer an amendment and a right to have a fulsome 
debate on the amendment in the interest of getting legislation passed.
  Although Senator Reid said this morning the 111th Congress has to go 
down in history as being one of the most productive Congresses, at the 
same time, he complained about Republicans filibustering legislation. 
There seems to be kind of an inherent contradiction there. But I 
suggest the explanation for that is the fact that our friends on the 
other side have had such a large supermajority, they have been able to 
muster the 60 votes and to go it alone. Again, I think that is yielding 
to a temptation that everyone would understand, and the American people 
have now since corrected that as a result of the November 2 election.
  I would suggest, in closing, to all of our friends on both sides of 
the aisle, again, I recognize the sincerity of those who have offered 
these proposals, but I would suggest there is not a malfunction, or 
should I say the rules themselves are not broken, but the rules 
contemplate that the rules will not be abused. I think the temptation 
to abuse those rules by going it alone is understandable but something 
that needs to be avoided. I think because of the election now--since we 
are more evenly divided so nobody will be able to get to 60 votes 
unless there is a bipartisan consensus, to the extent that 60 votes are 
needed--that the American people have sort of fixed the problem some of 
our colleagues have perceived.
  I thank the Chair.
  Mr. HARKIN. Madam President, will the Senator yield for a question?
  Mr. CORNYN. I am happy to yield for a question.
  Mr. HARKIN. I thank my friend from Texas. Again, he and I have worked 
together on some legislation in the past too. He is a thoughtful 
Senator and a good legislator.
  I ask my friend from Texas this: In listening to him, I almost have 
the feeling that my friend from Texas is saying we ought to have a 
supermajority to pass anything, that we should have 60 votes in order 
to pass anything.
  I ask my friend, is that what my friend really means or implies, that 
everything should have 60 votes before it can go through here? Is that 
what my friend is suggesting?
  Mr. CORNYN. I appreciate the question from my friend, the Senator 
from Iowa. That is not what I am suggesting. But I do think we need to 
have a process which allows for an opportunity for amendments and 
debate. And if we do not have a process requiring a threshold of 60 
votes, the temptation is going to be, again, for the majority leader to 
deny the opportunity for amendments, constrict time allowed for an 
amendment, for debate, by filing cloture, and we are going to see 
things shooting through here that have not had an adequate opportunity 
for deliberation.
  This institution has famously been called the world's greatest 
deliberative body, but I daresay we have not demonstrated that in 
recent memory. And, again, I think, as the Senator from Tennessee and 
others have observed, this is not a problem with the rules. This is the 
way the rules have actually been implemented. I think we have learned 
an important lesson from this and one I hope will help us respect the 
rights of all Senators, whether they be in the majority or the 
minority, to offer amendments and to debate these amendments not 
because they are about our rights but because they are about the 
rights, for example, of the 25 million people I represent. They have 
the right to be heard. They have a right to have any suggestions or 
improvements to legislation be considered. That is all I am saying.

  Mr. HARKIN. Madam President, if my friend will yield further, again, 
in my resolution there is a guarantee that the minority has the right 
to offer amendments--absolute guarantee. As I said, that is something I 
have urged since 1995. I am very sympathetic to the argument that 
people are cut out from offering amendments. I know because that has 
happened to me by the majority at times. So I believe there ought to be 
rights for the minority. I always hasten to add when I say ``minority'' 
I am not saying Republicans, I am saying the minority. It may be us 
pretty soon. It goes back and forth, as my friends knows. There ought 
to be the right for the minority to offer amendments and to have their 
voice heard and to, as the Senator says, represent the people of our 
States adequately.
  But I ask my friend again, what happens when we have one or two or 
three or four Senators who don't want to see a bill passed in any 
form--some bill, just take any bill--that maybe has been worked on by 
both Republicans and Democrats, has broad bipartisan support maybe to 
the tune of even 70 or so Senators, but there is one or two or three 
Senators who don't want it to pass anyway, and they are able to 
gridlock the place under rule XXII. I know the Senator talked about 
exercising self-restraint, and I say that is fine. But what if we had 
that situation where we have two or three Senators saying: I don't care 
how many Senators are on it I don't want it to move. And

[[Page S33]]

they invoke their rights under rule XXII. How do we get over that 
hurdle?
  Mr. CORNYN. Madam President, I would say to my friend the people who 
came before us thought achieving consensus was good, not unanimity, 
perhaps recognizing it is impossible to get 100 Senators to agree. So I 
would say to my friend I sometimes am as frustrated as he is when one 
or two or three or four Senators say: We are going to force this to a 
cloture vote because we are just not going to agree. I think that is 
frustrating to all of us, depending on which foot the shoe is on.
  But I would say that is a small price to pay, that frustration, to 
insist on assuring the rights of the minority--again, not because of an 
individual Senator because we aren't all that important. It is the 
rights of our constituents whom we represent that are so important, and 
it is so important we get it right because there is nobody else after 
we get through who gets to vote. It becomes the law of the land, and 
unless it is unconstitutional not even the Supreme Court of the United 
States can set it aside. So it is very important we get it right. I am 
just saying that we take the time necessary, and I think that is what 
the rules are designed to provide for.
  Mr. HARKIN. Madam President, if the Senator would indulge me for one 
more moment, so it is not the position of my friend from Texas that 
everything needs 60 votes in which to move in the Senate; is that 
correct?
  Mr. CORNYN. Madam President, there are a long list of bills that pass 
on a regular basis by unanimous consent, and it is like--we are almost 
focused on the exception rather than the rule. There are many times--a 
lot of times; I can't quantify it--where legislation will pass by 
unanimous consent because it has gone through the committees, people 
have had an opportunity to offer amendments, both sides have had an 
opportunity to contribute to it, and then it passes without objection. 
Again, I can't quantify that, but the ones we seem to be focused on are 
the ones that seem to be more or less the exception to the rule where 
there are genuine disagreements, when there is a need to have a more 
fulsome debate and the opportunity for amendments.
  So I think the current rules serve the interests of our constituents 
and the American people well.
  I thank the Chair and I thank my colleague.
  The PRESIDING OFFICER. The Senator from Oregon.

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