[Congressional Record Volume 157, Number 1 (Wednesday, January 5, 2011)]
[Senate]
[Pages S33-S54]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
AMENDING SENATE RULES
Mr. UDALL of New Mexico. Madam President, I submit on behalf of
myself and Senators Harkin, Merkley, Durbin, Klobuchar, Brown, Begich,
Blumenthal, Gillibrand, Shaheen, Boxer, Tester, Cardin, Mikulski,
Warner, and Manchin a resolution to amend rule VIII and rule XXII of
the Standing Rules of the Senate, and I ask unanimous consent to
proceed to the immediate consideration of the resolution.
The PRESIDING OFFICER. Is there objection?
Mr. ALEXANDER. Madam President, reserving the right to object, I have
had a number of discussions with the Senator from New Mexico and the
Senator from Oregon. I respect their proposals and will have more to
say about them, but I think since they have waited such a long time to
make their presentations I will merely state my objection now and have
more to say later. So I object.
The PRESIDING OFFICER. The objection having been heard, the
resolution will go over under the rule.
Mr. UDALL of New Mexico. Madam President, let me just inquire through
the Parliamentarian, it is my understanding that by objecting to this
resolution being immediately considered now, the result is the
resolution will go over under the rule, allowing it to be available to
be brought up at a future time. Is that understanding correct?
The PRESIDING OFFICER. That is correct.
Mr. UDALL of New Mexico. Thank you very much.
Madam President, I rise today to introduce the resolution I just
mentioned. I have worked very hard with all of my colleagues, including
my two colleagues from Iowa and Oregon, Senators Harkin and Merkley, to
reform the rules of this unique and prestigious body. I do so after
coming to the floor last January--January 25, in fact, now almost 1
year ago--to issue a warning, a warning because of partisan rancor and
the Senate's own incapacitating rules, that this body was failing to
represent the best interests of the American people. The unprecedented
abuse of the filibuster, of secret holds, and of other procedural
tactics routinely prevent the Senate from getting its work done. It
prevents us from doing the job the American people sent us here to do.
Since that day in January things haven't gotten better. In fact, I
would
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say they have gotten worse--much worse. Here in the Senate open and
honest debate has been replaced with secret backroom deals and partisan
gridlock. Up-or-down votes on important issues have been unreasonably
delayed and blocked entirely at the whim of a single Senator. Last
year, for example, one committee had almost every piece of legislation
held up by holds from one Senator.
The Senate is broken. In the Congress that just ended, because of
rampant and growing obstruction, not a single appropriations bill was
passed. There wasn't a budget bill. Only one authorization bill was
approved, and that was only done at the very last minute. More than 400
bills on a variety of important issues were sent over from the House.
Not a single one was acted upon. Key judicial nominations and executive
appointments continue to languish.
The American people are fed up with it. They are fed up with us, and
I don't blame them. We need to bring the workings of the Senate out of
the shadows and restore its accountability. That begins with addressing
our own dysfunction, specifically the source of that dysfunction--the
Senate rules.
Last year the Senate Rules Committee took a hard look at how our
rules have become so abused and how this Chamber no longer functions as
our Founders intended. I applaud Chairman Schumer and his excellent
staff for devoting so much time to this important issue. I thank
Senator Alexander and Senator Roberts. We have some very good
Republican colleagues on the committee, and we have had some good
exchanges. They know we had six hearings and heard from some of the
most respected experts in the field.
But these hearings demonstrated that the rules are not broken for one
party, or for only the majority. Today the Democrats lament the abuse
of the filibuster and the Republicans complain they are not allowed to
offer amendments to legislation. Five years ago, those roles were
reversed. Rather than continue on this destructive path, we should
adopt rules that allow a majority to act while protecting the
minority's right to be heard. Whichever party is in the majority, they
must be able to do the people's business.
I think that is what Senator Harkin spoke so persuasively to in his
comments on the filibuster--that the majority has to be able to govern.
The way the filibuster is being used the minority thwarts the
majority's ability to govern.
At a hearing in September, I testified before the committee about my
procedural plan for amending the Senate's rules--the constitutional
option. Unlike the specific changes to the rules proposed by other
Senators and experts, my proposal is to make the Senate of each
Congress accountable for all of our rules. This is what the
Constitution provides for, and it is what our Founders intended.
Rule XXII is the most obvious example of the need for reform. Last
amended in 1975, rule XXII demonstrates what happens when the Members
of the current Senate have no ability to amend the rules adopted long
ago--rules that get abused.
I have said this before, but it bears repeating. Of the 100 Members
of the Senate, only two of us have had the opportunity to vote on the
cloture requirement in rule XXII--Senators Inouye and Leahy.
So if 98 of us haven't voted on the rule, what is the effect? Well,
the effect is that we are not held accountable when the rule gets
abused, and with a requirement of 67 votes for any rules change that is
a whole lot of power without restraint.
But we can change this. We can restore accountability to the Senate.
Many of my colleagues, as well as constitutional scholars, agree with
me that a simple majority of the Senate can end debate--that is the
first step--and adopt its rules at the beginning of a new Congress.
Critics of my position argue that the rules can only be changed in
accordance with the current rules, and that rule XXII requires two-
thirds of Senators present and voting to agree to end debate on a
change to the Senate rules.
Since this rule was first adopted in 1917, members of both parties
have rejected this argument on many occasions.
In fact, advisory rulings by Vice Presidents Nixon, Humphrey, and
Rockefeller, sitting as President of the Senate, have stated that a
Senate, at the beginning of a Congress, is not bound by the cloture
requirement imposed by a previous Senate. They went on to say that each
new Senate may end debate on a proposal to adopt or amend the standing
rules by a majority vote. That bears repeating--by a majority vote--
cloture and amendment, majority vote.
Even in today's more partisan environment I hope my colleagues will
extend to us the same courtesy, and our constitutional rights will be
protected as we continue to debate the various rules reform proposals
at the beginning of this Congress.
In 2005, Senator Hatch--someone who understands constitutional issues
perhaps better than any other Member of this Chamber--wrote the
following:
The compelling conclusion is that, before the Senate
readopts Rule XXII by acquiescence, a simple majority can
invoke cloture and adopt a rules change. This is the basis
for Vice President Nixon's advisory opinion in 1957. As he
outlined, the Senate's right to determine its procedural
rules derives from the Constitution itself and, therefore,
``cannot be restricted or limited by rules adopted by a
majority of the Senate in a previous Congress.'' So it is
clear that the Senate, at the beginning of a new Congress,
can invoke cloture and amend its rules by a simple majority.
That was Senator Hatch's quote. As Senator Alexander and Senator
Corker know, he was for many years chairman of the Judiciary Committee,
and I think that is a very powerful quote.
This is the basis for introducing our resolution today, just as
reformers have done at the beginning of Congresses in the 1950s, 1960s,
and 1970s, and it is why I am here on the floor on the first day--to
make clear I am not acquiescing to the rule XXII adopted by the Senate
over 35 years ago. That Senate tried to tie the hands of all future
Senates by leaving the requirement in rule XXII for two-thirds of the
Senate to vote to end a filibuster on a rules change. But this is not
what our Founders intended.
Article I, section 5 of the Constitution clearly states that ``each
House may determine the Rules of its Proceedings.'' There is no
requirement for a supermajority to adopt our rules, and the
Constitution makes it very clear when a supermajority is required to
act. Therefore, any rule that prevents a majority in future Senates
from being able to change or amend rules adopted in the past is
unconstitutional.
The fact that we are bound by a supermajority requirement that was
first established 93 years ago also violates the common law principle
that one legislature cannot bind its successors.
This principle goes back hundreds of years and has been upheld by the
Supreme Court on numerous occasions. This is not a radical concept. The
constitutional option has a history dating back to 1917, and it has
been a catalyst for bipartisan rules reform several times since then.
The constitutional option is our chance to fix rules that are being
abused--rules that have encouraged obstruction like none ever seen
before in this Chamber.
Amending our rules will not, as some have contended, make the Senate
no different than the House. While many conservatives claim that the
Democrats are trying to abolish the filibuster, our resolution
maintains the rule but addresses its abuse. But, more importantly, the
filibuster was never part of the original Senate. The Founders made
this body distinct from the House in many ways, but the filibuster is
not one of them.
So here we are today on the first day of a new Congress offering a
resolution to reform the Senate's rules. We don't intend to force a
vote today; in fact, we hope that we can return from the break and
spend some time on the floor debating our resolution, considering
amendments to make it better, and debating other resolutions. This
should not be a partisan exercise. I think almost every one of us who
have spoken today have said that. We know both sides have abused the
rules, and now it is time for us to work together to fix them.
But we believe the Senate of the 112th Congress has two paths from
which to choose. There is the first path: We do nothing and just hope
the spirit of bipartisanship and deliberation returns--the truth is we
have been
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on this path for a while now, and I think the results are pretty
clear--or we can take a second path: We can take a good, hard look at
our rules, how they incentivize obstructionism, how they inhibit rather
than promote debate, and how they prevent bipartisan cooperation, and
then we should implement commonsense reforms to meet these challenges,
reforms that will restore the uniquely deliberative nature of this
body, while also allowing it to function more efficiently.
I contend that we not only should but have a duty to choose the
second path. We owe it to the American people and to the future of this
institution we all serve.
The reform resolution we introduce today is our attempt at the second
path. It contains five reforms that should garner broad, bipartisan
support--if we can act for the good of the country and not the good of
our parties.
The first two provisions in our resolution address the debate on
motions to proceed and secret holds. These are not new issues. Making
the motion to proceed nondebatable or limiting debate on such a motion
has had bipartisan support for decades and is often mentioned as a way
to end the abuse of holds.
I was privileged to be here for Senator Byrd's final Rules Committee
hearing, where he stated:
I have proposed a variety of improvements to Senate rules
to achieve a more sensible balance, allowing the majority to
function while still protecting minority rights. For example,
I have supported eliminating debate on the motion to proceed
to a matter . . . or limiting debate to a reasonable time on
such motions.
In January, 1979, Senator Byrd--then-majority leader--took to the
Senate floor and said unlimited debate on a motion to proceed ``makes
the majority leader and the majority party the subject of the minority,
subject to the control and the will of the minority.''
Despite the moderate change that Senator Byrd proposed--limiting
debate on a motion to proceed to 30 minutes--it did not have the
necessary 67 votes to overcome a filibuster.
At the time, Senator Byrd argued that a new Senate should not be
bound by that rule, stating:
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 PRESIDING OFFICER. The Senator's time has expired.
Mr. UDALL of New Mexico. Madam President, I ask unanimous consent for
another 2 minutes--also recognizing the Republican side has speakers--
to wrap up.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. UDALL of New Mexico. Madam President, efforts to reform the
motion to proceed have continued since. In 1984, a bipartisan Study
Group on Senate Practices and Procedures recommended placing a 2-hour
limit on debate of a motion to proceed. That recommendation was
ignored.
In 1993, Congress convened the Joint Committee on the Organization of
Congress. That was a bipartisan, bicameral attempt to look at Congress
and determine how it can be a better institution. My predecessor,
Senator Domenici, was the co-vice chairman of that committee. He was a
long-time Republican here, and he supported that.
The third provision in the resolution is included based on the
comments of Republicans at last year's Rules Committee hearings. Each
time Democrats complained about filibusters on motions to proceed,
Republicans responded that it was their only recourse because the
majority leader fills the amendment tree and prevents them from
offering amendments. Our resolution provides a simple solution,
guaranteeing the minority the right to offer amendments.
The fourth provision in the resolution, which Senator Merkley will
cover extensively, is regarding the talking filibuster. We want to
replace a silent filibuster with a talking filibuster.
Finally, our resolution reduces postcloture time on nominations from
30 hours to 1. Postcloture time is meant for debating and voting on
amendments--something that is not possible on nominations.
Instead, the minority now requires the Senate use this time simply to
prevent it from moving on to other business.
These reforms will not, as some have contended, make the Senate the
same as the House. We understand, and respect, the Framers intent in
structuring the Senate to be a uniquely deliberative body. Minority
rights are a critical piece to its unique operations. Which is exactly
why they remain protected in our reform resolution.
But the current rules have done away with any deliberation and we
have instead become a uniquely dysfunctional body.
Our resolution will make actual debate a more common occurrence. It
would bring our legislative process into the light, and hopefully, it
would help restore the Senate's role as the ``world's greatest
deliberative body.''
With that, I will sum up and say that reform is badly needed. We have
a responsibility to the Constitution and to the American people to come
together and fix the Senate. We were sent to Washington to tackle the
Nation's problems. But we find that the biggest problem to tackle is
Washington itself.
With that, I ask unanimous consent that an editorial on the
filibuster that appeared in the Washington Post, and an op-ed piece in
the New York Times by Walter Mondale be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Jan. 2, 2011]
Reform and the Filibuster
The new Senate will face one of its most momentous
decisions in its opening hours on Wednesday: a vote on
whether to change its rules to prohibit the widespread abuse
of the filibuster. Americans are fed up with Washington
gridlock. The Senate should seize the opportunity.
A filibuster--the catchall term for delaying or blocking a
majority vote on a bill by lengthy debate or other
procedures--remains a valuable tool for ensuring that a
minority of senators cannot be steamrollered into silence. No
one is talking about ending the practice.
Every returning Democratic senator, though, has signed a
letter demanding an end to the almost automatic way the
filibuster has been used in recent years. By simply raising
an anonymous objection, senators can trigger a 60-vote
supermajority for virtually every piece of legislation. The
time has come to make senators work for their filibusters,
and justify them to the public.
Critics will say that it is self-serving for Democrats to
propose these reforms now, when they face a larger and more
restive Republican minority. The facts of the growing
procedural abuse are clearly on their side. In the last two
Congressional terms, Republicans have brought 275 filibusters
that Democrats have been forced to try to break. That is by
far the highest number in Congressional history, and more
than twice the amount in the previous two terms.
These filibusters are the reason there was no budget passed
this year, and why as many as 125 nominees to executive
branch positions and 48 judicial nominations were never
brought to a vote. They have produced public policy that we
strongly opposed, most recently preserving the tax cuts for
the rich, but even bipartisan measures like the food safety
bill are routinely filibustered and delayed.
The key is to find a way to ensure that any minority
party--and the Democrats could find themselves there again--
has leverage in the Senate without grinding every bill to an
automatic halt. The most thoughtful proposal to do so was
developed by Senator Jeff Merkley of Oregon, along with Tom
Udall of New Mexico and a few other freshmen. It would make
these major changes:
NO LAZY FILIBUSTERS
At least 10 senators would have to file a filibuster
petition, and members would have to speak continuously on the
floor to keep the filibuster going. To ensure the seriousness
of the attempt, the requirements would grow each day: five
senators would have to hold the floor for the first day, 10
the second day, etc. Those conducting the filibuster would
thus have to make their case on camera. (A cloture vote of 60
senators would still be required to break the blockade.)
FEWER BITES OF THE APPLE
Republicans now routinely filibuster not only the final
vote on a bill, but the initial motion to even debate it, as
well as amendments and votes on conference committees.
Breaking each of these filibusters adds days or weeks to
every bill. The plan would limit filibusters to the actual
passage of a bill.
MINORITY AMENDMENTS
Harry Reid, the majority leader, frequently prevents
Republicans from offering amendments because he fears they
will lead to more opportunities to filibuster. Republicans
say they mount filibusters because they are precluded from
offering amendments. This situation would be resolved by
allowing a fixed number of amendments from each side on a
bill, followed by a fixed amount of debate on each one.
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Changing these rules could be done by a simple majority of
senators, but only on the first day of the session.
Republicans have said that ramming through such a measure
would reduce what little comity remains in the chamber.
Nonetheless, the fear of such a vote has led Republican
leaders to negotiate privately with Democrats in search of a
compromise, possibly on amendments. Any plan that does not
require filibustering senators to hold the floor and make
their case to the public would fall short. The Senate has
been crippled long enough.
____
[From the New York Times, Jan. 1, 2011]
Resolved: Fix the Filibuster
(By Walter F. Mondale)
Minneapolis, MN--We all have hopes for the New Year. Here's
one of mine: filibuster reform. It was around this time 36
years ago--during a different recession--that I was part of a
bipartisan effort to reform Senate Rule 22, the cloture rule.
At the time, 67 votes were needed to cut off debate and thus
end a filibuster, and nothing was getting done. After long
negotiations, a compromise lowered to 6o the cloture vote
requirement on legislation and nominations. We hoped this
moderate change would preserve debate and deliberation while
avoiding paralysis, and for a while it did.
But it's now clear that our reform was insufficient for
today's more partisan, increasingly gridlocked Senate. In
2011, Senators should pull back the curtain on Senate
obstruction and once again amend the filibuster rules.
Reducing the number of votes to end a filibuster, perhaps
to 55, is one option. Requiring a filibustering senator to
actually speak on the Senate floor for the duration of a
filibuster would also help. So, too, would reforms that bring
greater transparency--like eliminating the secret ``holds''
that allow senators to block debate anonymously.
Our country faces major challenges--budget deficits, high
unemployment and two wars, to name just a few--and needs a
functioning legislative branch to address these pressing
issues. Certainly some significant legislation passed in the
last two years, but too much else fell by the wayside. The
Senate never even considered some appropriations and
authorization bills, and failed to settle on a federal budget
for all of next year. Votes on this sort of legislation used
to be routine, but with the new frequency of the filibuster,
a supermajority is needed to pass almost anything. As a
result the Senate is arguably more dysfunctional than at any
time in recent history.
People give lots of reasons for not reforming the
filibuster. The minority often claims that it needs the
filibuster to ensure that its voice is heard, even though the
filibuster is now used to prevent debate from ever beginning.
What really gets me, though, is when opponents to reform
point to the provision left in Rule 22 after 1975 saying that
the Senate cannot change any of its rules without a two-
thirds supermajority to end debate.
This requirement cannot constrain any future Senate. A
long-standing principle of common law holds that one
legislature cannot bind its successors. If changing Senate
rules really required a two-thirds supermajority, it would
effectively prevent a simple majority of any Senate from ever
amending its own rules, which would be unconstitutional.
Article I, Section 5 of the Constitution states: ``Each House
may determine the rules of its proceedings.'' The document is
very explicit about the few instances where a supermajority
vote is needed -- and changing the Senate's procedural rules
is not among them. In all other instances it must be assumed
that the Constitution requires only a majority vote.
In other words, the fact that one Senate, decades ago,
passed the two-thirds majority rule does not mean that all
future Senates are bound by it. This year's new Senate could
use this ``constitutional option'' to force a vote on any
change to Senate rules, including Rule 22, and change them
with a simple majority.
At the very opening of Congress in 1975, my colleagues and
I announced our proposal to amend Rule 22, and threatened to
force a majority vote to end a filibuster on the change if
the minority tried to block it. In the end, we reached the
60-vote compromise, and never had to use the constitutional
option after all. A similar strategy would likely work today.
Tom Udall, Democrat of New Mexico, has said that in a few
days, at the beginning of the 112th Congress, he will call on
the Senate to exercise its constitutional right to change its
rules of procedure, including Rule 22, by a simple majority
vote. I wholeheartedly support his effort and encourage both
Democrats and Republicans to cooperate with him. The
filibuster need not be eliminated, but it must no longer be
so easy to use.
Mr. UDALL of New Mexico. I know my colleague, Amy Klobuchar, is here.
Senator Mondale was a distinguished former Vice President and leader in
the Senate, and he wrote the very passionate piece in the New York
Times that I have just had printed in the Record.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa is recognized.
Mr. GRASSLEY. Madam President, my colleagues and any of the public
watching the debate today know there is a great partisan divide thus
far. Senator Wyden has already referred to the motion he and I are
putting before the Senate. Senator Wyden, a Democrat, and I, a
Republican, are joined also by Senator McCaskill, who is the Presiding
Officer now, as well as Senator Collins, in this effort. It is the only
bipartisan issue before the Senate this particular day. I emphasize
that because I think the public ought to know that not everything in
the Senate is partisan.
Senator Wyden and I have been chipping away at the informal, backroom
process known as secret holds in the Senate. We have been working on
this for well over 10 years. So it should not surprise anybody that we
are back again at the start of another Congress, joined, as I said, by
Senator McCaskill of Missouri, who was very helpful in our pushing this
issue to the forefront at the end of the last Congress, and, as I said,
I am pleased that we have Senator Collins onboard again.
There has been a lot of talk lately about the possibility of far-
reaching reforms to how the Senate does business that have been hastily
conceived and could shift the traditional balance between the rights of
the majority and the rights of the minority parties.
In contrast, our resolution by Senator Wyden and this Senator is
neither of those two things. In other words, it does not shift any
balance between the majority and the minority.
This resolution is well thought out, a bipartisan reform effort that
has been the subject of two committee hearings and numerous careful
revisions over several years. In no way does it alter the balance of
power between the minority and majority parties, nor does it change any
rights of any individual Senator. This is simply about transparency,
and with transparency you get a great deal of accountability.
I wish to be very clear that I fully support the fundamental right of
any individual Senator to withhold his consent when unanimous consent
is requested. In the old days when Senators conducted much of their
daily business from their desks on the Senate floor and were on the
Senate floor for most of the day, it was quite a simple matter for any
Senator at that time to stand up and say ``I object'' when necessary,
if they really objected to a unanimous consent request, and that was
it. That stopped it. Now, since most Senators spend most of their time
off the Senate floor because of the obligation of committee hearings,
the obligation of meeting with constituents, and a lot of other
obligations we have, we now tend to rely upon our majority leader in
the case of the Democrats or the minority leader in the case of the
Republicans to protect our rights, privileges, and prerogatives as
individual Senators by asking those leaders or their substitutes to
object on our behalf.
Just as any Senator has the right to stand on the Senate floor and
publicly say ``I object,'' it is perfectly legitimate to ask another
Senator to object on our behalf if he cannot make it to the floor when
unanimous consent is requested. By the same token, Senators have no
inherent right to have others object on their behalf while at the same
time keeping their identity secret, thus shielding their legislative
actions from the public, because that is not transparency and it is
obviously not being accountable.
What I object to is not the use of the word ``holds'' or the process
of holding up something in the Senate, but I object to what is called
secret holds. The adjective ``secret'' is what we are fighting. If a
Senator has a legitimate reason to object to proceeding to a bill or a
nominee, then he or she ought to have the guts to do so publicly.
A Senator may object because he does not agree to the substance of a
bill and therefore cannot in good conscience grant consent or because
the Senator has not had adequate opportunity to review the matter at
hand. Regardless, we should have no fear of being held accountable by
our constituents if we are acting in their interest, as we are elected
to do. I have practiced publicly announcing my holds for many years,
and it has not hurt one bit. In fact, some of the Senators who are most
conscientious about protecting their prerogatives to review legislation
before granting consent to its consideration or passage are also quite
public about it.
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In short, there is no legitimate reason for any Senator, if they
place a hold, to have that hold be secret.
How does our proposal achieve transparency and the resultant
accountability? In our proposed standing order, for the majority or
minority leader to recognize a hold, the Senator placing the hold must
get a statement in the Record within 1 session day and must give
permission to their leader at the time they place the hold to object in
their name, not in the name of the leader. Since the leader will
automatically have permission to name the Senator on whose behalf they
are objecting, there will no longer be any expectation or pressure on
the leader to keep the hold secret.
Further, if a Senator objects to a unanimous consent request and does
not name another Senator as having the objection, then the objecting
Senator will be listed as having the hold. This will end entirely, once
and for all, the situation where one Senator objects but is able to
remain very coy about whether it is their own objection or some unnamed
Senator. All objections will have to be owned up to.
Again, our proposal protects the rights of individual Senators to
withhold their consent while ensuring transparency and public
accountability. In Congress, as well as almost anyplace in the Federal
Government--except maybe national security issues--the public's
business always ought to be public and the people who are involved in
the public's business ought to stand behind their actions. As I have
repeatedly said, the Senate's business ought to be done more in the
public than it is, and most of it is public, but this secret hold puts
a mystery about things going on in Washington that hurts the
credibility of the institution.
This principle of accountability and transparency is a principle that
I think the vast majority, if not all, of Senators can get behind. I
believe the time has come for this simple, commonsense reform.
I yield the floor. Under the UC, if it is permissible to retain the
remainder of our time, I do that.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. I yield the floor.
The PRESIDING OFFICER (Mrs. Hagan). The Senator from Oregon.
Mr. MERKLEY. Madam President, the Senate is broken. During the course
of my first 2 years in this body, there have been only a couple serious
debates in this Chamber. The first one happened just a couple weeks
ago, and that was an impeachment trial of a judge. The magic began
because the cameras were turned off. Senators were not speaking to the
camera; they were speaking to each other. Second, they were required to
be on the floor, so they were required to listen to each other. After
all the evidence had been presented, Senators started to engage back
and forth about their interpretations of the evidence, about the
standards that would constitute grounds for conviction. One would not
have been able to tell who was a Republican or who was a Democrat. We
had a real debate, but it took 2 years to have that first debate. Then
we had a debate over the START treaty. That was a pretty good debate
too. That also happened just a couple weeks ago. For the balance of 2
years, there has virtually never been a serious debate on this floor
with Senators hearing each other out, listening to each other,
considering the pros and cons, addressing each other's amendments.
That is a tremendously different Senate from the Senate I first
witnessed when I came here as a young man, as an intern for Senator
Hatfield in 1976. I was up in the staff section. I would come down to
meet Senator Hatfield on a particular tax reform bill that had a series
of amendments. I would brief him on the amendment that was being
debated. He would come in, talk it over with folks, and vote. An hour
later, there would be another vote, and an hour later, another vote,
with debate in between, back and forth, with enormous respect and
courtesy among the Members to the principle of the Senate being a body
of deliberation, a body of debate. But today, that respect is gone. The
most visible sign of the decrease in the mutual accord has been the
abuse of the filibuster.
``Filibuster'' is a common term we use for a decision to oppose the
termination of debate and oppose voting with a straight majority as
envisioned in the Constitution. That starts from a principle of mutual
respect, that is, as long as any individual has an opinion that bears
on the issue at hand, that Senator should be able to express that
opinion and we as a body should be able to hear it. Out of that would
come a better policymaking process. Unfortunately, over time, that
mutual respect has been yielded more and more as an instrument of
obstruction because each time a Senator objects to a simple majority
vote, under the rules they create a 1-week delay and a supermajority
hurdle. If one objects 50 times a year, they have wiped out every
single week of the year.
This chart gives some indication of how grossly the principle of
mutual respect and debate has been corrupted and abused.
From 1900 through 1970, there was an average of a single use of the
filibuster each year--an average of 1 per year over that 70-year
period. In the 1970s, that climbed to an average of 16 per year; in the
1980s, an average of 21 per year; in the 1990s, an average of 36 per
year; between 2000 and 2010, this last decade, 48 per year; and in the
last 2 years I have served in the Senate, 68 per year--an average of 68
per year or roughly 135, 136 in that 2-year period. If each one of
these absorbs 1 week of the Senate's time, one can see how this has
been used to essentially run out the clock and obstruct the very dialog
on which the Senate would like to pride itself.
There is a statement about the Senate: the world's greatest
deliberative body. But today in the modern Senate, that incredible
tribute to this Chamber has been turned into an exclamation of despair.
Where did that deliberative body go--not only not the greatest
deliberative body but virtually devoid of deliberation due to this
abuse. We went from mutual respect to essentially mutual legislative
destruction using this filibuster.
In 2010, this last year past, not a single appropriations bill
passed. We have a huge backlog of nominations. Our role of advice and
consent has been turned into obstruct and delay in terms of nominations
for the executive branch and the judiciary. We have a constitutional
responsibility to express our opinion, but this body, by using the
filibuster, has prevented Senators from advising and consenting, either
approving or disapproving these nominations. It certainly is terrible
to have our responsibilities as a legislature damaged, but not only
have we done that, we have proceeded to damage the executive branch and
the legislative branch--quite an intrusion on the balance of powers
envisioned in our Constitution. Then we have the hundreds of House
bills that are collecting dust on the floor because they cannot get to
this Chamber because of this abuse.
All of this needs to change. When I first came here in the 1970s,
when there was a challenge in 1975, there was a huge debate, and it
resulted in changing the level required to overcome the filibuster from
67 Senators to 60 Senators. Yet in 1973 and 1974, the 2 years that
preceded, there was only an average of 22 filibusters a year, not 68.
We have more than tripled the dysfunction that led to the last rules
debate.
That is why we are here today--to find a path forward. There are so
many who have been so instrumental in this debate. So many Members of
the class of 2006, 2008, and now Members of 2010 are engaged in this
effort. My hat goes off to Senator Schumer for leading the hearings in
the Rules Committee and trying to find that balance between every
Senator's right to be heard and our collective responsibility for the
majority to legislate. Senator Udall has done this enormous
investigation of the constitutional process for amending the rules and
so many others.
The first key part in the package of reforms a number of us--16, I
believe, now have cosponsored this resolution--is the talking
filibuster. The talking filibuster reform is essentially to make the
filibuster what all Americans believe it is; that is, if you believe so
strongly that this Chamber is headed in a direction that is misguided,
you should be willing to come and take this floor and make your case to
the American people.
Let's take a look at our image of that. Here we are: Jimmy Stewart
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playing the role of Jefferson Smith, who comes to this Chamber where I
now stand and says: I will take this floor to oppose the abuses that
otherwise might go forward, and he held that floor until he collapsed.
That is what the American people believe a filibuster is all about.
You want to make your case before the American people. But today we
don't have a talking filibuster in the Senate. We have the silent
filibuster.
Let's take a look at what that looks like. This is the way it works:
A Senator takes their phone--maybe an old or modern phone--they call
the cloakroom, and they say: I object to a majority vote, and then they
go off to dinner. They do not take the floor with principle and
conviction to say to the American people: Here is why I am delaying the
Senate. Here is why I am going to hold this floor. This is not a
situation we can allow to go forward and I am going to stand here and
make my case and, American citizens, please join me and help me
convince the other Senators in this room. That is the talking
filibuster. But now we have the silent filibuster.
My good colleague from Tennessee spoke earlier, and he said: I would
like to have the talk-your-head-off proposal. I am glad to hear him
back the talking filibuster--the Jimmy Stewart filibuster. That is what
this reform does. It says, when folks object to concluding debate, it
is because they have something to say, and so we are going to require
they come to the floor and say it. It is that simple. When nobody has
anything left to say, then we will proceed with a majority vote. We
don't change the number of Senators required one bit. It is still 60,
which completely honors that principle established in 1975.
The second main proposal is the right to amend. A number of our
colleagues on both sides of the aisle have been very concerned about
the fact that issues come to this floor and you can only amend if you
get unanimous consent to put an amendment forward, and that only works,
largely, if there is a deal that has been worked out between the
majority and the minority leaders. Some of my colleagues across the
aisle say they are offended by their inability to amend.
I can assure my colleagues across the aisle that I am equally
offended. I wanted desperately to be able to offer amendments to
President Obama's tax package that came through here because I think we
could have improved it, and I think we should have seen amendments from
the other side. This is an issue of concern from both sides. This
proposal addresses that and says there will be a guaranteed set of
amendments that the minority leader can pick from among the minority
members and a guaranteed set of amendments the majority leader can pick
from among the majority members, but we get the process of amendments
going.
If they want to have unanimous consent to increase that number to a
higher level, get more for the minority or the majority side, that
would be terrific, but at least they can't say no amendments. No leader
can block the principle that each side has the opportunity to amend.
The third point is on nominations. Right now, we have this huge
backlog. This resolution makes a modest change in nominations. It says
the period following cloture will be reduced from 30 hours to 2 hours.
We have already had the debate over the individual, let's have the
vote. That is what that says. This means Senators will be less tempted
to use the filibuster on nominations as an instrument to delay and
obstruct the Senate. It is not a completely pure reform but a step
forward in the right direction.
Our fourth is the ban on secret holds. Senator Grassley has spoken to
this, and Senator Wyden will speak to it. Senator McCaskill has joined
with them and others, and I believe at one time point there were as
many as 70 Senators expressing in a letter their support to get rid of
the secret hold. Anyone who wants to hold up legislation should have to
stand on this floor and present their objection to this Chamber, to
their colleagues, and to the American people.
When folks have to take a position on this floor, whether it be
through the talking filibuster or through publicly announced holds,
then the American public can weigh in. Then you are taking the business
out of the back rooms and onto the floor of this Chamber and American
citizens can say: You are a hero for your actions or you are a bum for
what you are doing.
The fifth point is a clear path to debate. Right now, a lot of times
we suffer through just getting to debate; that is, getting onto a bill
to begin with or proceeding to a bill. There is probably no better
example of the abuse of the filibuster--which was supposed to be mutual
respect for debate--being used to prevent debate. So under this
proposal, there would be 2 hours of debate over whether to proceed to a
bill and then we would vote. We would either go to the bill or we would
not. If Senators then want to filibuster on the bill, they can do it,
but it would be a talking filibuster, where we are not in the back
rooms, we are out here making our case.
These five concepts are not radical concepts. They are modest steps
toward saying that in this incredibly partisan environment we now
operate in, where so many press outlets are attacking on each side all
the time and so on and so forth, we have to set ourselves on the path
to taking ourselves out of that hyperpartisan atmosphere and start to
restore the Senate as a place of dialog and debate. Perhaps these are
modest steps but modest steps in the right direction, and that is an
extremely important way to go. So I call on my colleagues on both sides
of the aisle--colleagues who have said there should be amendments,
colleagues who have spoken in favor, on both sides of the aisle, of the
Jimmy Stewart model of holding this floor and having talking
filibusters--to approve this. Let's use the start of this 2-year period
to acknowledge that something is deeply wrong when, in a 2-year period,
we have 135 or 138 filibusters eating up all the floor time and
preventing modest bills from moving forward and keeping us on this path
to gridlock. The Senate is broken. Let's fix it.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Madam President, I have enjoyed this extensive
opportunity to hear my colleagues on a very important subject about
what the nature of the Senate will be. I am going to have about 10
minutes of remarks on the comments of Senators Merkley and Udall, and
then I will yield to Senator Wyden, for his comments.
If I could say anything from deep down within me to my colleagues who
are so exercised about this, it would be this: Before we change the
rules, use the rules.
We talk about Senator Byrd a lot because he understood the rules so
well. I have often told the story of when Senator Baker became the
Republican majority leader in 1981. He went to see Senator Byrd, the
Democratic leader, and said: Senator Byrd, I am suddenly the majority
leader. I will never know the rules as well as you do, so I will make a
deal with you. If you will not surprise me, I will not surprise you.
Senator Byrd said: Let me think about it. The next morning he told
Senator Baker he would do that.
The reason I mention those two Senators is because, before we get too
mired down in our differences, let us think for a moment about what our
goal ought to be. The goal for the Senate, to me, is to return the
Senate to the way it operated during those 8 years when Senator Byrd
and Senator Baker were the leaders of their parties. Four years Senator
Byrd was the majority leader and 4 years Senator Baker was the majority
leader.
I have talked to staff members, some of whom are still around.
Senator Merkley's history goes back to Senator Hatfield in 1976, but I
first came in 1967 as Senator Baker's legislative assistant, when there
was only one legislative assistant per Senator. In 1977, I came back
and spent 3 months with Senator Baker when he became the Republican
leader, and I followed him pretty closely during the next 8 years.
Here is the way it worked back then.
The majority leader--whether it was Senator Byrd or Senator Baker--
would bring a bill to the floor. He would get the bill to the floor
because Senators knew they were going to get to debate and amend the
bill. The Senator from Oregon is talking about no debates occurring
today. Well, of course there are no debates, because when Republicans
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come down here with amendments, the majority leader doesn't let us
offer them. All those cloture motions he is talking about means the
majority leader is cutting off my right to represent my people and
offer an amendment in a debate. They are calling a filibuster a cutoff.
It wouldn't be a filibuster if the majority leader weren't cutting off
my right, which he has done more than the last six majority leaders
combined.
But let's go back to what our goal should be. Senators Byrd or Baker
would say: OK. The Energy bill or the education bill is up, everybody
get their amendments in. They might get 300 amendments filed. At some
point, the majority leader would say: I ask unanimous consent that the
amendments be cut off. Of course, they would get that after a while
because everybody had all the amendments in that they could think of.
You didn't go to the majority leader down on your knees and say: Mr.
Majority Leader, may I please offer this amendment or that amendment.
You just put your amendment out there, and then they started voting.
Then Senators Byrd and Baker did something else we don't do today,
which is why I am talking about using the rules before we change the
rules. They debated, they voted; they debated, they voted; they
debated; they voted. Of course, 300 amendments are a lot of amendments
to get through. So the leaders and the staff would say to the Senator
from North Carolina or the Senator from Oregon: Are you sure you want
25 amendments? It is Wednesday night. No, 10 will be enough. On
Thursday night they might say: Are you sure you want these five
amendments? It is Thursday night. We are going to be here Friday, and
we are going to finish this bill. We will be here Saturday if we have
to be, and we will be here Sunday. You are going to get your
amendments, and we are going to vote on it, but we are going to finish
the bill. That is what the leaders did.
Sometimes there would be a piece of legislation that would come up
where one side or the other wanted to kill it and so they would try to
kill it. That's just like we would do today, if Democrats were to bring
up a bill to abolish the secret ballot in union elections. We would do
everything we could to kill it. If the House passes a bill and brings
it over here to repeal the health care law, the Democrats are going to
do everything they can to kill it. That is separate. But most of the
time under the leadership of Senators Byrd and Baker, the bill came to
the floor, there was bipartisan cooperation, and there were amendments.
Why was there bipartisan cooperation? Because the leaders knew that
unless they had it, they wouldn't move an inch. Being good Senators,
they wanted to do their jobs. In fact, Senator Baker would often tell
his Republican chairmen: Don't even bring the bill to the floor unless
the ranking member, the Democrat, is with you. So most of the time, you
would have the Democrat and the Republican there together and they
would allow amendments, would fight other amendments off, and they
would get to a conclusion. There weren't so many filibusters because
the majority leader wasn't cutting off the right to debate and calling
it a filibuster. This is a word trick is what this is.
I have talked to a lot of my friends on the Democratic side and a lot
of Republicans and I think we basically want the same thing. I think we
want a Senate that works better. I think it is now a mere shadow of
itself. I agree with Senator Merkley about that but not because of
filibusters. It is because the majority leader is cutting off debate
and calling it a filibuster.
The majority leader and the Republican leader I commend today because
they have been talking about how we can do better. We all know that
changing our behavior will be more lasting than changing the rules. I
am glad Senators Reid and McConnell are working on this. They have
asked Senator Schumer and me to work on it some more, and we are going
to do that. We have had several meetings and we have another this
afternoon and we will keep working. We will consider carefully these
proposals or any others that come, and we will see if we can come to
some agreement about how to move ahead.
My heartfelt plea is before we change the rules, let's use the rules.
Going down through the list of reform suggestions:
The motion to proceed--that is a difficult one for many of us because
if you are in the minority the motion to proceed is your weapon to
require the majority to give you amendments.
Secret holds--Senator Wyden tells me he and Senator Grassley have
been working on that for 15 years. They have Republican support and
Democratic support for it. Maybe this is the time to deal with secret
holds. I make my holds public. When I was nominated for the U.S.
Education Secretary by President Bush, the Senator from Ohio held me up
for 3 months and never said why. I went around to see the Senator
Rudman from New Hampshire and asked him what to do. He said when he was
nominated by President Ford to the Federal Communications Commission,
the Senator from New Hampshire held him up. Finally Rudman withdrew his
name and ran for the Senate against the Senator and beat him. That is
how Senator Rudman got in the Senate. Secret holds is an area that has
had a lot of work and bipartisan support.
The right to offer amendments--the problem I have with altering the
current rules is that offering amendments is what we do. I went to see
Johnny Cash one time in the 1980s, and I asked him a dumb question, I
said: Johnny, how many nights are you on the road? He said: Oh, 200. I
said: Why do you do that? He said: That is what I do. If you are on the
Grand Ole Opry, you sing. If you are in the Senate, you offer
amendments and you debate. That is what we do, that is what we are
supposed to do. Yet we have not been allowed to do it.
Talking filibusters--if we are talking about the postcloture period,
the problem with that is the majority has not used the rules. If I
object to going forward with a bill, the majority, if they think I am
abusing the rules, can say OK, Senator Alexander, get down there on the
floor because we are going to be here all night. And you can only get 7
hours and then you have to line up 23 other Senators to take 1 hour
each, and if you stop talking we are going to put the question to a
vote. If you do a number of certain other things we are going to make a
dilatory motion. In other words, the majority can make it really hard
for a Senator who objects.
Someone said one, two, three, or four Senators can hold this place
up. They cannot hold it up. Because if you have 60 votes you can pass
anything. If you have 60 votes you can pass anything and Senator Byrd
said in his last testimony before the Rules Committee that you can
confront a filibuster by using the rules.
The last two things we could do are, No. 1, we could stop complaining
about voting. It happens on the Republican side and the Democratic
side. If somebody offers an amendment that is controversial and
everybody runs up to the leader and says we don't want to vote on that,
then too bad. We are here to vote. That is why we are here so we should
do that.
The third thing we can do, and Senator Byrd suggested this in his
last testimony, is let's get rid of the 3-day work week. There is not
enough time for all the Senators to offer their amendments and there is
not enough time for the majority to confront the minority if they think
the filibuster is being abused if we have a 3-day work week, and we
never vote on Friday. We did not vote on Friday one time last year.
Let's use the rules. If you think we are holding something up
improperly, confront that Senator. Run over him. You can do it. You
have the power to do it if you have 60 votes. In this new Congress
there will be plenty of opportunities there.
Finally I am going to take these five suggestions and work with
Senator Schumer and work with my friends on the other side. They are
very thoughtful. Senator Udall spent a lot of time on this, Senator
Wyden and Senator Grassley spent 15 years. Senator Merkley used to be a
speaker. We have talked a number of times. I greatly respect his work
in his State and the fact that he has seen the Senate for a long period
of time. I am taking very seriously everything that is said here. I am
just worried about turning the Senate into the House.
We have a majoritarian organization over there. They can repeal the
health
[[Page S40]]
care law or they can get rid of the secret ballot in union elections
with a majority vote. If you turn this place into that, you just go
bam, bam and it is done. The Senate is the place for us to say: Whoa,
whoa, let's see if we can get a consensus before we do anything.
When we get a consensus we not only get a better bill, but usually,
the country accepts it better. The American people like to see us
cooperating. They like to see us coming up with a tax bill or treaty or
civil rights bill or a health care bill or a financial regulation bill,
where we all have something in it. They feel better about that product.
It is the check and the balance that is the genius of our system.
Obviously we can do some things better around here. I am committed to
trying. I thank my friends for the amount of time and effort they have
given. I am going to take everything they have said very seriously and
in the spirit they have offered it. But I hope a part of our solution
is that we use the rules before we change the rules because this is the
forum to protect minority rights, this is the forum to force a
consensus, and we dare not lose that. We dare not lose that.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Madam President, I ask unanimous consent the Senate
proceed to the immediate consideration of the bipartisan Wyden-
Grassley-McCaskill-Collins resolution to end secret holds, which is at
the desk.
The PRESIDING OFFICER. Is there objection?
Mr. ALEXANDER. Madam President, reserving the right to object, as I
said earlier, Senator Wyden and Senator Grassley and Senator McCaskill
and others have worked on this, some of them for as long as 15 years.
They have made significant progress in gaining bipartisan support. I am
going to object but only for the reason that this is one of the items
we will be discussing and working on over the next few weeks with the
hope that perhaps we can get agreement over here and agreement over
there. It has been mentioned by all of the speakers today. It is a very
serious proposal. But because we do not want to resolve it today, I
object.
The PRESIDING OFFICER. Objection having been heard, the resolution
will go over under the rule.
The Senator from Oregon.
Mr. WYDEN. Madam President, before he leaves the floor, let me thank
Senator Alexander for the discussions he has had with me on this issue.
Senator McConnell has also spoken with me about this. I wish we were
getting this done today, largely because this would give us a chance on
the first day of the Senate's new session to send a message that once
and for all we were deep-sixing secrecy, that we were saying public
business ought to be done in public. I wish it were being done today
but I understand completely the sentiments of the Senator from
Tennessee and the fact that he is willing to work with me is something
I appreciate.
As I have indicated, there are obviously significant differences
between the parties about how to reform the rules of the Senate. What I
hope will be done--certainly the very first day that the Senate comes
back and is in a position to formally act, which appears to be January
24--is once and for all we would bring Democrats and Republicans
together around an extraordinarily important change in the Senate
procedures that Senator Grassley and I have been trying to change for
literally 15 years. Particularly with the energy and enthusiasm Senator
McCaskill has brought to the cause, I think we are now on the cusp of
being able to finally get this done.
It has been clear that if you walk up and down the Main Streets of
this country, people do not know what a secret hold is. Probably a lot
of people think it is a hair spray. The fact of the matter is there are
practically more versions of secret holds in the Senate than there are
in pro wrestling. But what a secret hold is really all about, it is one
of the most extraordinary powers an individual Senator has here in the
Senate and it can be exercised without any transparency and without any
accountability whatsoever. What a secret hold is all about is one
Senator can block the American people, the entire country, from
learning about a piece of legislation that can involve billions of
dollars, scores and scores of people, or a nomination with the ability
to influence the lives of all Americans. One Senator can block that
consideration without owning up to the fact that Senator is the one who
is defying the public's right to know about how Senate business is
blocked.
That is wrong. It is not about how Republicans see it, or Democrats
see it, it is just common sense. Most people say, when you tell them
that a Senator can block an enormously important piece of legislation
or a nomination that affects millions of people and they can do it in
secret, I can't believe you have those kinds of rules.
The fact is, that is the way the Senate operates. Suffice it to say
it is getting worse. A few days ago, for example, Chief Justice Roberts
said that the number of vacancies on our courts is creating a judicial
emergency. Those are the words of Chief Justice Roberts.
At least 19 Federal judges have been approved by the Senate Judiciary
Committee unanimously or near unanimously and never got a vote on the
floor of the Senate. Not one Senator has publicly taken responsibility
for worsening the judicial crisis that Chief Justice Roberts has been
decrying over the last few days. Think about that. The Chief Justice of
the United States during the Christmas holidays included in his annual
report on the Judiciary that the delay in confirming federal judges is
creating an emergency in the judicial system.
Chief Justice Roberts, in my view, is correct. I think we do have an
emergency. We have been trying to get several judges in the State of
Oregon approved, Senator Merkley and I have been working to get this
done. But these nominees and others have been blocked and no Member of
the Senate will publicly take responsibility for worsening this crisis
that Chief Justice Roberts is appropriately so concerned about.
We have tried in the past with legislation to end secret holds. We
actually got a law passed at one time to get rid of secret holds. We
have tried with pledges from the leadership of both political parties.
In every instance, the defenders of secrecy have found their way around
the requirements and, in my view, the public interest.
I will make two points and then I want to allow Senator McCaskill to
have a chance to address this issue. There are two points with respect
to why this effort to end secret holds would be different. The first is
that every hold here in the Senate, after the passage of this
bipartisan resolution, would have a public owner. Every single hold
would have a public owner. Second, there would be consequences. In the
past, there have not been consequences for the individual who would
object anonymously. In fact, the individual who would object would
usually send someone else out to do their objecting for them and there
would be complete anonymity for, essentially, all concerned because the
person who would be objecting would be in effect saying this is not my
doing, I am doing it for somebody else.
The heart of this bipartisan compromise is to make sure that every
hold has a public owner and there would be consequences. There may be a
Senator around here who becomes known as ``Senator Obstruction.''
Senator Obstruction is the one who is trying to block public business.
Let him explain it to the American people.
I will have more to say about it in a little bit, and there is the
possibility of other colleagues coming to speak. But Senator McCaskill
has brought the kind of energy and passion to this that has made it
possible for us to, as I say, be on the cusp of finally forcing, here
in the Senate, public business to be done in public. I thank her for
all her help and will allow her to take the time. She said she thought
she might speak for around 10 minutes. Senator Klobuchar, who has also
been a great and passionate advocate of open government, will also
speak, and for colleagues who have an interest we have 30 minutes of
time.
I say to Senator McCaskill, with appreciation for all she has done,
the time is hers.
The PRESIDING OFFICER. The Senator from Missouri.
Mrs. McCASKILL. Madam President, when I arrived in this Chamber 4
years ago at this time, I had no idea what the ways of the Senate were.
I had an idea
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that this was a place where people came to debate and to have a
collegial relationship with fellow Senators across the aisle. There had
been a lot of problems with ethical issues in the Capitol. So one of
the first things that happened to the class of 2006 was S. 1, and S. 1
was a far-reaching ethics bill that included things such as no more
free flights on corporate jets. It included new requirements in terms
of gifts from lobbyists, and it also included a provision that I did
not know at the time had been worked on by Senator Wyden and Senator
Grassley for many years.
That provision said we were not going to have secret holds anymore.
So imagine how great I felt on January 18, 2007, that we had done this
comprehensive ethics bill that was going to clean up our act, and that
we were not going to have secret holds. Well, I find it ironic that
Senator Alexander says: Well, just use the rules. Just use them.
Well, so when I started figuring out that the game around here in the
last 18 months had developed into a game of secret holds, I asked my
staff: Hey, did we not have something in S. 1 about secret holds? Not
knowing really the relationship that language had to Senator Wyden and
Senator Grassley.
So my staff pulled out the legislation and we looked at it. I said:
Well, right here it says they cannot do it. So I began coming down to
the floor and using the law.
I did exactly what Senator Alexander recommended. I came down here
and began making motion after motion, which under the language of that
statute would seem to indicate all of the Senators supported--except
for a handful--that once you made these motions people would have to
come out of the shadows and claim their holds.
Well, that is when I discovered the people who voted for this, or a
bunch of them, did not mean it. They did not mean it. It was window
dressing. They were not sincere about ending secret holds because we
discovered, when we started trying to use that language, some of the
folks who voted for it were doing the old switcheroo. When they were
called upon under the law to reveal their holds, they would just hand
their hold off to someone else.
That is when I began getting frustrated with the games that were
being played. I thank Senator Wyden and Senator Grassley and others who
have worked on this, but I will tell you what is the most depressing
thing I have heard today: that this is something that has been worked
on for 15 years.
Now, seriously, think about that. We have allowed people to secretly
hold nominations and the people's business, and there have been Members
trying to clean it up for 15 years. We wonder why we are having trouble
with our approval ratings.
Nothing is more hypocritical than all of the sanctimonious stuff I am
hearing down the hall about the new era, no more business as usual, no
more. We are going to have accountability and transparency. But yet we
seem to be embroiled, down at this end of the hall, with not even being
able to get beyond a secret hold. This should not be hard; this should
be easy.
Now, some of the other provisions that are being debated today, I
understand there is concern about the power of the minority in the
Senate. I think those concerns have been addressed in the resolution
that has been presented by Senator Merkley and Senator Udall and
Senator Harkin from Iowa.
But if we cannot get 67 votes to end secret holds and amend the
rules, how seriously can we take anybody who claims they want
accountability and transparency in government? I mean, this is the hall
of fame of hypocrisy. This is not just hypocrisy, it is the hall of
fame. So that is why I think we have to get busy and get the secret
hold provision done.
I would like to see us get all of these reforms done. I wanted to
spend a second on what Senator Alexander's suggestion was. His
suggestion was to use the rules. Well, honestly, does he think the way
to solve this problem is to force the majority to stay here all night,
with staff, spending the taxpayers' money to force someone over and
over again to say, ``I object''?
We cannot make the minority talk. So that means the majority, whether
it is Democrats or Republicans, has to stay all night and call the
question. They do not have to have--I mean, we could do live quorum
calls, but that is what we need to do to make this place work? That is
his suggestion, to force the people who are objecting and the staff and
the people around here to stay here all night every night until someone
breaks? That is a good idea?
I think that means someone has probably been around here too long. It
does not sound like a good idea, that it is not a commonsense idea that
we would be promoting on Main Street in Missouri. I think it makes more
sense, if you are the minority and you want to block legislation that
you own it. Just own it. Block it. That is what the Senate is about.
The minority can continue to block legislation whether the Democrats
are in the minority or the Republicans are in the minority. They can
block all the legislation they want. They just have to own it. They
have to be willing to say they are blocking this for the following
reasons--because we think it is important--and let the people decide.
Same thing with holds. You want to hold something, hold it. But let
the people decide whether you are being reasonable or whether you are--
really what I was disgusted to learn is how many people were using
secret holds. In fact, they brag about it. They are using secret holds
to get something else. I am going to hold this nominee in this
department because I want money for a community center in my town. If
you do not give me money for a community center in my town, you cannot
get the Deputy Secretary of the Interior through. I mean, I am making
up this example, but this was actually going on. It is like you
secretly hold something so that you can get them to give you something
else. That is the essence of the backroom dealing that people are
disgusted with. Own it. Be proud of it. Defend it. Debate it. But do
not hide it. That is what this is all about.
I thank all of my colleagues who have worked on this. I just want to
close with this comment: Bad habits have consequences, and if we do not
take this opportunity to fix what is going on in the Senate--this is
not the way the Senate has operated for hundreds of years. If we do not
change this path, then we are going to be on this path forever. And if
the minority now does not think that when the time comes they may not
be in the minority anymore, if we do not think we have not learned from
them--seriously?
This place is going to be dysfunctional as far as the eye can see
because they will fill the tree and we will just block everything. Then
they will block everything and we will fill the tree. This is going to
go on forever until there are enough people around here who are willing
to set aside the political maneuvering and do what is right for the
future of deliberations in a body that we all want to be proud of. But
right now we cannot be so proud of the way we operate.
I thank the Senator from Oregon and all of the Senators who have
worked on this issue. I hope we can pull back from the brink because
that is where we are. We are about ready to institutionalize a way of
operating around here that is not something that any of us should be
proud of.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. How much time remains on our side?
The PRESIDING OFFICER. The Senator has 13 minutes remaining.
Mr. WYDEN. Madam President, I yield 5 minutes to the Senator from
Minnesota.
Ms. KLOBUCHAR. I thank Senator Wyden for his leadership.
Madam President, as we begin the 112th Congress, I first congratulate
my colleagues on how we ended the 111th Congress. We had an incredibly
productive lameduck session, ensuring that taxes were not raised on the
middle class during an economic downturn, ratifying the START treaty,
among other things. We worked together to solve problems. This was not
always the case during the last Congress. But we ended on a high note.
As our work begins today anew, we all know there is still a great
deal of work to be done. We have a lot of work ahead of us to ensure
that American workers can find jobs, to get our private sector economy
back on track, to find long-term solutions to our mounting deficit.
Because of the urgent business that is in front of us, I am hopeful
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that my fellow Senators and my colleagues across the aisle will agree
that it is time for change, that it is not time for business as usual.
We have heard from so many of my colleagues who have been working on
this issue--Senator Udall from New Mexico, Senator Merkley, Senator
Harkin, Senator Wyden, Senator McCaskill, and also Senator Grassley,
which is important work on the secret holds.
The elections on November 2 sent a message to every Member of
Congress that the American people are not interested in partisan
bickering or procedural backlogs or the gamesmanship and gridlock that
prevents elected officials from doing their job. We were not hired by
our constituents to hide behind outdated Senate rules as an excuse for
not accomplishing things or not taking tough votes. That is just what
the current Senate rules are allowing us to do.
I heard a lot from my friend from Tennessee about how we should use
the current rules. But the problem I have is that too many people have
been abusing the current rules. First, as Senator Wyden, Senator
McCaskill, Senator Grassley have so eloquently stated, we have to
permanently end the practice known as secret holds, which basically
allows one or two Members of the Senate to prevent nominations or
legislation from reaching the Senate floor without identifying
themselves.
We thought we had this done, as Senator McCaskill pointed out, with
the ethics bill we passed when we first came into this Chamber. But,
unfortunately, once again, those rules were abused. There are some
Senators who are playing games with the rules. They are following the
letter but not the spirit of the reforms we adopted.
Look at the kind of secret holds we have seen, secret holds
preventing the President from assembling the team he needs to run the
executive branch. This summer, for example, secret holds were placed on
two members of the Marine Mammal Commission for months. The Marine
Mammal Commission--held secret in a hold while the Deepwater Horizon
oilspill was continuing to play out in the gulf region.
A second example of what we have to get done is filibuster reform. It
is a long-standing tradition in the Senate that one Senator can, if he
or she chooses, hold the floor to explain objections to a bill. We
think of Jimmy Stewart's character, Jefferson Smith, in ``Mr. Smith
Goes to Washington,'' as a shining example of how individual conscience
can matter because an individual can stay on the Senate floor to the
point of exhaustion in order to stymie a corrupt piece of legislation.
Well, that is not how the filibuster works in practice today. Today,
an individual Senator virtually has the power to prevent legislation
from being considered by merely threatening a filibuster. At that
point, the majority leader must file a cloture motion in order to move
to that piece of legislation. This adds a great deal of time to an
already crowded Senate calendar. This is not governing. This is not how
we do the people's business. This is not how we come together to find
practical solutions to our common problems.
Our current system is a far cry from Jimmy Stewart. That is why a
group of us have been working to get some legislation passed to change
the rules going forward. When you think about the history of the
Senate--and I listened with great respect as my colleagues talked about
the tradition and the importance of the rules of the Senate, about
protecting the rules of the minority. None of these proposals will
interfere with the rights of the minority to filibuster any piece of
legislation.
But when you look at the history of the Senate, it is about
tradition. As time goes forward, there have been changes to the Senate
rules. Every few decades there are changes to the Senate rules. Look at
my former colleague, Vice President Mondale, a great leader who made
significant changes to the Senate rules.
This is all about transparency and accountability. I urge my
colleagues to support this resolution.
I yield the floor.
The PRESIDING OFFICER (Mr. Whitehouse.) The Senator from Oregon.
Mr. WYDEN. Mr. President, I do not see any of our colleagues who want
to speak on the bipartisan efforts to end secret holds, so let me make
a couple of comments in wrapping up.
The first is, Senator Grassley and I and others who have been at this
for so long have been willing in the past to just put a statement in
the Congressional Record when, in the handful of instances, we thought
it was important to block a particular piece of legislation or a
nomination. We felt it was important to be publicly accountable.
All we are asking is that principle of openness, transparency, and
government in the sunshine apply to all Members of the Senate.
The fact is, secrecy has real consequences. I mentioned the fact that
Chief Justice Roberts has been so concerned about the judicial
emergency he has seen develop in the court system. I saw during the
lameduck session, on a bipartisan bill Senator Cornyn and I spent many
months on to combat sex trafficking, the consequences of a secret hold.
When our bill passed the Senate, it went over to the House of
Representatives, was passed in the House, and then came back to the
Senate and was blocked secretly. And this was a bipartisan bill to
allow us to strengthen the tools law enforcement would have in order to
fight sex trafficking, to provide urgently needed shelters to sex
trafficking victims. A bipartisan bill Senator Cornyn and I spent many
months on did not become law during the lameduck session because of a
secret hold.
A lot of Senators have seen exactly these kinds of problems with
judges and U.S. attorney candidates. We had both from my home State,
two judges who couldn't be considered because of a hold and we could
not identify who was objecting, the same with the U.S. attorney
nominee. These are the real consequences of secret holds.
The big winners in these secret holds are the lobbyists. The
lobbyists benefit tremendously from secret holds. Practically every
Senator has received requests from a lobbyist asking if the Senator
would put a secret hold on a bill or a nomination in order to kill it
without getting any public debate and without the lobbyist's
fingerprints appearing anywhere. If you can get a Senator to go out and
put an anonymous hold on a bill, you have then hit the lobbyist
jackpot. No lobbyist can win more significantly than by getting a
Senator to secretly object because the Senator is protected by the
cloak of anonymity, but so is the lobbyist. With a secret hold,
Senators can play both sides of the street. They can give a lobbyist a
victory for their clients without alienating potential or future
clients.
Given the number of instances where I have heard of lobbyists asking
for secret holds, I wish to say that those who oppose our efforts to
end secret holds are basically saying we ought to give lobbyists an
extra tool, an extension of the tools they already have in order to
advocate for their clients and defy public accountability.
We passed stricter ethics requirements with respect to lobbyists. But
it looks to me to be the height of hypocrisy if the Senate adopts a
variety of changes to curtail lobbying, as has been done in the past,
and at the same time allows lobbyists to continue to benefit, as so
many special interests have, from secret holds.
This is the opportunity, after a decade and a half, for the public to
get a fair shake and for the public interest to come first. We have
tried this in the past. We have tried this in the past with pledges and
by passing a law and each time the supporters of secrecy found ways
around it. But I think the public has caught on.
Suffice to say, there are going to be plenty of differences between
Democrats and Republicans with respect to how to reform the rules of
the Senate. What I think has come to light is, it doesn't pass the
smell test to keep arguing that Senate business ought to be done in
secret. The American people don't buy that anymore. They think this
ought to be an open institution, a place where every Senator is held
accountable.
This time it is going to be different. There are going to be public
owners of any hold. There are going to be consequences for any Senator
who tries to block a bill or a nomination in secret. This is going to
be an important vote when we come back, a very important vote, and
finally one that will require
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that public business in the Senate be done in public.
I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in
morning business for 7 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mrs. Murray and Mrs. Hagan are printed in today's
Record under ``Morning Business.'')
Mrs. HAGAN. Mr. President, I yield the floor and suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. UDALL of New Mexico. Mr. President, I ask unanimous consent that
the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. UDALL of New Mexico. Mr. President, with the process we are in
right now--and we have had questions back and forth on this whole issue
of Senate rules reform--I want to respond to Senator Alexander because
Senator Alexander raised some questions, and some of those questions
were not answered on our side. So I want to put in a couple responses
here.
Senator Alexander asked the question: What is a filibuster? He was
asking our side. He was asking in this debate, what is a filibuster?
Well, all of us know and we have heard in this debate what a true
filibuster is. We saw a hero here on our side in terms of a true
filibuster when it came to Bernie Sanders just a week or so ago, where
he stood up for 8 hours to oppose a tax package on principle. He took
the floor and he spoke and spoke passionately.
I say to Senator Harkin, another example of a true filibuster is from
a movie the American public knows the best, a Jimmy Stewart movie,
``Mr. Smith Goes to Washington.'' Senator Merkley earlier had some
charts on that, and he showed Mr. Smith on the floor, surrounded by
other Senators, where he spoke until he collapsed.
Then you have the old-time tales of the Southern Democrats when civil
rights legislation was being pushed in the 1950s and 1960s, when a
number of what you would say were Northern Senators were pushing an
anti-lynching law because lynching was going on in the South. So they
were trying to say you cannot do that, and Southern Senators would
stand up--I think sometimes the record was in the range of 20 hours or
25 hours where they were completely exhausted from speaking on the
floor.
So that is what the American public thinks about a filibuster.
Well, we know that is not what is happening here. I have been here
for 2 years, and the only real filibuster I saw was the Bernie Sanders
filibuster. I asked one of the historians, I think: When was the last
one? And they said: Well, you would go back to 1992 and Alfonse
D'Amato, where he took 12 hours to talk about an issue in New York that
he was passionate about.
So when Senator Alexander asked us, What is a filibuster, that is my
description of what a filibuster is.
But what I think the real question is--and I would like Senator
Alexander, when he returns, to answer this--is, What impact has the
threat of a filibuster had? What impact has the threat of a filibuster
had? So people are probably asking: What are we talking about when we
say ``the threat of a filibuster''? Well, actually we have been talking
about it all day.
First of all, it is the secret holds. As our Presiding Officer, who
sits on the Judiciary Committee, knows, they work very hard in the
Judiciary Committee. They produce a bipartisan result on these judicial
nominations. These judicial nominations come out. They are put on the
calendar. Then months and months and months later some of them get up
for a vote.
I do not know about the exact number, but my understanding is that we
had to send back to the President a number of judicial nominations that
had received bipartisan support from the committee. We finished our
business in December, and we sent those nominations back, only to have
to have the President send them back down again because it is a new
Congress. We are going to have to have hearings all over. This is the
kind of situation we are in. So that is one specific case of the threat
of a filibuster. And we have these all the time.
One of the ones that is the most remarkable to me--and I am not going
to pick out the Senator or the exact committee--but a number of us, as
Senators, saw a stack of bills, a stack of legislation that had come
out, on a bipartisan basis, from one of our committees that was very
thick, and it was legislation from 2 years--2 years--of that committee
legislating in a bipartisan way, and those Democrats and Republicans
working together and doing the hard work, and one Senator--one
Senator--held up all of that legislation this last Congress, held it up
completely.
That is the threat of a filibuster. You may say: Well, how did that
happen? What happens is, the legislation comes out of committee, and a
Senator--whom we do not even know; a lot of us suspect after various
things that have happened over time, but the Senator comes down and
says, in a secret way to his leader: Well, if you bring any of those
bills to the floor, I am going to filibuster.
That is what the threat of a filibuster is. But that is an agreement
that none of us knows about. So the threat of a filibuster has had an
enormous impact on this institution.
Let me describe a couple of other things.
I talked about judicial nominations. As to executive nominations, I
come from the era when my father was Secretary of the Interior. I was a
kid. I remember when he went into office. In visiting with him about
that later, I said: We can't get executive people in place. They don't
have their team. He said: Tom, I had my whole team in place the first 2
weeks. So you are talking about the whole team for the Department of
the Interior in the first 2 weeks.
I remember the Washington Post did an extensive study of the first
year of the Obama administration. So imagine: President Obama takes
office. He goes through a year, and he only had 55 percent of his
executive nominations in place. So he only had 55 percent of his team.
Those of us who believe in government, believe that government does
good things out there, find that appalling because we believe if you
put people in place, they will be responsive to citizens on the
particular issues of those departments. So that is very important, I
believe, getting executive nominations in place. So that is what the
threat of a filibuster ends up doing.
I see my colleague from Mississippi, and I do not know whether he is
going to step in for Mr. Alexander and ask questions. We are in this
questioning back and forth period. Senator Harkin may want to say
something on the question issue here too. What impact has the threat of
a filibuster had?
We can hear the argument--Senator Alexander has made this a number of
times--look at all the great things you accomplished in the lameduck
and look at all the great things you feel you accomplished in terms of
health care, the stimulus package, and financial reform. But the
reality is, in order to accomplish those in the constant filibuster we
were in, we have basically destroyed our institution. As some of the
more senior Senators here have told me, the Senate is kind of a shadow
of itself.
What I do mean: ``We have destroyed the institution''? Well, it used
to be that our big oversight function was to look over the money bills
for the government, the appropriations bills. Guess what. Last year we
did not do a single appropriations bill on the floor of the Senate. You
do not have to go back very far when we used to bring all 12 of those
bills to the floor, and we would have 2 or 3 days of lively debate.
Every Senator could put in amendments.
Senator Harkin knows because he is one of the cardinals, he is the
chairman of one of these committees. It is a very helpful process, one
for the agency to know that all Senators are overlooking that agency,
and for a person in Senator Harkin's position, as the chair of the
committee, to know what the concern of the entire body is. But we have
given that up. We do not do that anymore, and it is because of the
constant filibuster and the threat of filibuster. So you have that
situation.
I would think my friend from Mississippi, the Senator from
Mississippi,
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would be very concerned about this one: We did not do a budget last
year. The one way we can impact--if you talk about fiscal
responsibility, and you talk about keeping the government under
control, and guiding it in the right direction, the one thing you want
to do is a budget. You want to pass a budget and set some outlines
there.
Well, we did not do a budget last year because we were in a constant
filibuster, the threat of a filibuster. And the story goes on and on.
So I say to Senator Harkin, we are in the question phase right now. I
am going to yield the floor. I am sure there is time still on the other
side. But I think the question is not, as Senator Alexander raised it,
What is a filibuster? The real question out there--for when Senator
Alexander returns--is, What impact has the threat of a filibuster had
on this institution we love of the Senate?
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I hope the Senator from New Mexico will
stay on the floor. I wish to engage in a colloquy with the Senator from
New Mexico on the topic on which he just spoke.
I say to my friend from New Mexico, the Senator from Tennessee, as I
understand, had propounded the question, what is a filibuster? The
Senator from New Mexico has been very eloquent in responding to that,
talking about the filibuster. But I think the better question is, what
has a filibuster become, because as the Senator pointed out and as
Senator Merkley pointed out, this whole image of someone standing on
the floor and speaking until they drop such as Senator D'Amato or
Senator Thurman back in the old days on the civil rights bills or even
Senator Sanders a few weeks ago, that is not really a filibuster any
longer. So what has a filibuster become?
Let me go back again a little bit in history. In the 19th century, in
the 1800s, the filibuster was used, if I am not mistaken, about 20
times during that whole 100 years. But it was used under a different
set of circumstances. In the 1800s, a Senator or a Congressman was
elected in November, but the session of Congress lasted until March.
The Senators or Congressmen elected in November actually did not take
their seats here until a year and a month later, in December of the
following year. So sometimes, in this ``lameduck'' session that ended
in March, people in the majority party--especially if they had lost the
election--would try to ram through a lot of stuff. The minority party
would speak until the session ended in March so that nothing would get
done, and then they would pick it up in December when the new Senate
and House would meet. So it was a means of stopping onerous legislation
for a short period of time.
That was in the 19th century. We have a different situation now. So
the filibuster is not used to speak now and to slow up one piece of
legislation or to stop one piece of legislation; it is used to slow
down everything. One case in point: We had before my committee last
year a nominee by the name of Patricia Smith to be Solicitor General of
the Department of Labor. We had our hearings, I say to my friend from
Kansas who is not here right now. We had our hearings in committee. She
answered questions, answered written questions. We reported her out of
committee. We came here to the floor. We had to file cloture on
Patricia Smith to be Solicitor of Labor, so we filed cloture. We got
the 60 votes. But as we know, under postcloture you get 30 hours. Well,
the minority forced us to use the 30 hours. Senator Enzi, our ranking
member, came and spoke for 15 minutes and left, and I sat here for 30
hours and no one spoke. So for 29 hours and 45 minutes we sat here
doing nothing, unable to do anything, on a nominee who had over 60
votes. At that time, the record will show, I kept asking: Why are we
here?
Why are we using 30 hours of the Senate's time, when nobody is even
speaking and we already have the 60 votes for Patricia Smith? That is
an example of what the filibuster has become. It has become a tool in
order to slow everything down.
For example, nominees. We had nominees who got through here on a 99-
to-0 vote after being held up for 6 months. Well, what if, I ask, we
have to file cloture on every nominee and then every nominee has a vote
on cloture and then you have 30 more hours. If you did that on every
nominee, I believe the majority leader said we would be here from
January through August doing nothing every day of the week except
nominations. How would we ever get anything else done?
The question is, What has the filibuster become? It has become a
means whereby a few--this, I guess, would be the question I might
propound to my friend from New Mexico or at least suggest that he might
respond. Has not the filibuster or the threat of a filibuster become a
tool by which one or two or three or four Senators can absolutely slow
down or stop things from coming to the Senate? Has not the filibuster
become a tool by which one Senator who publicly announces that his goal
is total gridlock of the Senate--total gridlock--has not the filibuster
then become the tool by which one Senator can impose gridlock on the
Senate? Is that not what the filibuster has become?
Mr. UDALL of New Mexico. The Senator from Iowa makes an excellent
point. I was here for his talk earlier, where the Senator led with the
filibuster and laid it out and Senator Alexander came back and asked
these questions. I think the key question is the one the Senator just
asked, which is: What has a filibuster become? The Senator seemed to be
defending the old-fashioned filibuster that no longer exists. That is
the situation we have.
Some of our friends on the other side--I hear them talk about this--
are saying this is the filibuster of the past; it is a very pure thing
and a wonderful thing. But it has been distorted, manipulated. The
filibuster has been twisted in a way that it does exactly what the
Senator is talking about--slowing everything down. It is an attempt, in
a way, to defeat the majority from governing.
I think the Senator cited the Federalist Papers. One of the biggest
dangers in a democracy is if you give the power to the minority to shut
down the ability of the majority to govern. If you do that, you have
rendered your democracy useless because then you get yourself into a
situation, as the Senator from Iowa knows, where they can prevent the
majority from doing anything and then run in a campaign and say: Well,
they didn't do anything, which is kind of a hypocritical way to
approach legislating.
One of the things that is remarkable to me--and I served over in the
House of Representatives for 10 years and I know we don't have to take
up every House bill the way it is written and we don't have to respond
to every bill, but when you hear the fact that 400 House of
Representatives bills in 2 years--the last session of Congress--were
sent over here and we ended up--the younger Members of the Senate were
interested in some of these bills. We looked into them. We found out
that these were on veterans issues and many were good bills. We found
out they had to do with small business, and they were good bills. We
found out they had to do with building the economy and economic growth
and those kinds of things and that they were good bills. But we didn't
have the time to act upon them because the way the filibuster is being
utilized is to defeat our ability to move forward.
The one other area I wish to mention--and I know this is something
that concerns our friends on the other side--if you are talking about
making government responsible, fiscally responsible, doing oversight
over government--and they say they are going to do all this oversight
in the House--one of the best ways to do oversight is in an
authorization bill. As everybody knows, we have an authorization
process, and we have an appropriations process. Well, apparently now,
with the studies being done at the Center for American Research--and
Senator Harkin would know this more than others because he serves on
the Appropriations Committee--a major part of our appropriations are
unauthorized now. I think the figure I saw was close to 40 percent. So
that means if these are unauthorized appropriations, it means the side
of our Senate and the side of our Congress that deals with
authorization, that is an oversight. You go in there in the
authorization process and look at an agency and you say: How is this
program functioning? Is this program effective, a good program,
something that is working?
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If the answers come back and you have evidence it is not working, you
write in the authorization we are getting rid of that. If you don't do
any authorizations at all and the authorization doesn't come to the
Senate floor and all Senators don't have an opportunity to participate,
then you are giving up that kind of essential oversight. I would think
they would be for that. Guess how many authorizations we did last year.
How many? We did one. We did it at the very last minute as we went out
of town, and that was the Defense Department authorization. That was
held up with a filibuster because it had don't ask, don't tell in the
bill.
So here we are at war--we have two wars going on. As Chairman Levin
said, a lot of the things in that bill were to help the military do a
better job and help the fighters on the ground in these two wars and we
weren't able to get them done at the start of the fiscal year and move
forward. So we were able to get it done before we left. I was happy
about that. How about intelligence and the huge agencies that run the
health care programs and all those? We have not done that oversight.
To the Senator's question what has the filibuster become, it has
become something pretty horrible in the history of the Senate. If we
don't fix this, we are going to be in a bad way. The way to fix it is
the constitutional option. That is the wonderful thing about where we
are today.
Today, we are in the first legislative day of the beginning of the
112th Congress. What everybody has told us on that first legislative
day is that we can have all these rules proposals. The Senator from
Iowa has one and Senator Merkley and myself have one and Senator Wyden.
Guess what. If we round up 51 Senators--and they don't have to be only
Democrats--who say, No. 1, here are rules changes we want to make with
51 Senators, we can cut off debate on those changes and 51 Senators--a
majority--can vote those rules in, and we can fix the situation we have
all been talking about here.
I think the Senator's question is the right one. The filibuster has
become a procedural morass.
Mr. HARKIN. I thank my friend from New Mexico. I also thank him for
his great leadership on the constitutional option. I am a cosponsor of
his resolution, which he sent to the desk earlier today. He is right on
target. The dead hand of the past cannot bind us. Every Congress, on
the first legislative day--as Senator Byrd said himself in the past--
has the authority, with 51 Senators, to set our rules--not two-thirds,
just 51. We are on that first legislative day today.
I understand the leader will put us into recess so we will stay in
the first legislative day when we come back. So we will be on this
issue when we come back on January 25.
I wonder if I might explore a little bit with my friends who are
here--and the Senator from Oregon has been a great leader in this
effort. As a former speaker of the legislature in Oregon, he has lent a
great deal of expertise to our thinking and in evolving how we modify
our rules to make this place function a little better. I thank Senator
Merkley for his leadership. A lot of what was in the measure that
Senator Udall sent to the desk earlier today is what Senator Merkley
has devised. These are things we need to do.
I ask again to bring this up here for maybe a brief discussion, if I
might. This is something Senator Cornyn and I got into a little bit
earlier. He went on at length about building consensus; that we want to
build consensus and have bills over here with a consensus. Well, I
agree with that. You try to get as much consensus as possible.
Obviously, if you can get 100 Senators, that is nice--or 80 or 70. It
is always nice to get as many as possible. I ask my friends, isn't it
sometimes true that legislation comes up that can be contentious, and
you can open it--I think it ought to be opened in the committee process
for amendments. I pointed to the health care bill that we had in our
HELP Committee, and the occupant of the chair was so vitally involved
with that. We had 54 hours and 13 days of open markup and open session.
No Senator was denied the opportunity to offer any amendment on that
bill--Republicans or Democrats. Senator Dodd was chairing at the time.
We adopted 161 Republican amendments. Imagine that, over 13 days, 161
Republican amendments. As I said, nobody was cut off.
Yet at end of that, when we finally brought it up for a vote, not one
Republican voted for it, even though they had a big hand in shaping it.
So whenever I hear comments that ``we didn't have a hand in shaping the
health care bill,'' I don't understand that. I know in the Finance
Committee Senator Baucus bent over backward to make sure Senators on
both sides could offer amendments and be a part of the process. I say,
if they don't want to vote for it in the end, fine; that is their right
and privilege. People can vote their conscience and on behalf of their
constituents. But we weren't able to get a consensus on it.
So if you have a bill on which you can't get a consensus, does that
mean we should stop? As I asked the Senator from Texas, does that mean
every bill has to have 60 votes? Is that what we have become--no bill
will pass here unless it has 60 votes or more? The Senator from Texas
pointed out, correctly, that some bills pass here by unanimous consent.
Fine. That is 100 votes. So do they mean we have to have a minimum of
60 to 100 votes in order for anything to pass? What happened to
majority rules? What happened to the idea that you only need 51
percent? Isn't that sort of the basis of a democratic government?
Again, I ask my friends about this idea of consensus. Yes, we all
want to get that. We all want as many Senators as possible on
legislation, and we try hard to do that. But if that is not possible,
does that mean that 53 or 54 or 55 or 56 Senators cannot then vote to
pass a piece of legislation or an amendment?
I ask my friends, what about this idea of consensus? Have we come to
where we have to have a supermajority? Is that the situation we are in
now?
Mr. UDALL of New Mexico. The Senator from Iowa and my good friend,
the Senator from Oregon, want to speak. The Senator mentioned--and I
want to put this quote in the Record--the Senator from Texas, Mr.
Cornyn, who came to the floor and talked today. One of the reasons I
have a real belief that we might have some common ground is he was a
judge before he came to the Senate. I think he was on the supreme court
in the State of Texas. On this issue of the constitutional option, he
wrote a law review article in the Harvard Journal of Law and Public
Policy. The name of the article was ``Our Broken Judicial Confirmation
Process and the Need for Filibuster Reform.''
Listen to this. This is Senator John Cornyn of Texas:
Just as one Congress cannot enact a law that a subsequent
Congress could not amend by majority vote, one Senate cannot
enact a rule that a subsequent Senate could not amend by
majority vote. Such power, after all, would violate the
general common law principle that one parliament cannot bind
another.
He is basically driving home the point that we have the authority
today, on the first day of the 112th Congress, the first legislative
day, to pull together and take a hard look at the rules. The Senator
from Iowa raised a very important issue on consensus. I am going to
pass this off to Senator Merkley in this colloquy and let him answer
that point. Maybe he may have another question.
I wish our friends on the other side of the aisle were here for this
discussion. Senator Alexander was here earlier. We had Senator Wicker.
But nobody is here to answer the questions we are putting that way, but
we are answering the ones this way.
Mr. HARKIN. Mr. President, hopefully, I say to my friend from New
Mexico, when we come back on the 25th we will engage in more of this
discussion.
I should yield the floor. I wanted to raise that question about
consensus because it sounds so good, and we all love consensus. Of
course we do. But sometimes we cannot get it. Does that mean then that
the majority cannot act if they do not get consensus of over 60? Does
that mean the majority simply cannot act?
Mr. President, I leave the question hanging and yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, continuing the conversation, my colleague
from New Mexico pointed out the challenge with authorization bills. We
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should add to that, during 2010, the Senate did not manage to pass a
single appropriations bill. It is dysfunction on top of dysfunction.
That is why we are here today.
I put back up the chart of Jimmy Stewart in the well because I think
at the heart of this conversation is a notion that, yes, every Senator
should be able to hold forth, to share their idea, to advocate that in
which they believe, to persuade their colleagues, but not to simply
lodge an objection and walk away and never present their case before
the American people.
Our good colleague from Tennessee said he wanted to see--how did he
put it?--something to the effect of a ``talking your heads off'' form
of filibuster, and he referred to Jimmy Stewart.
There is a sense of commonality in our views that if one is going to
vote to continue debate, then the debate should continue--it is that
simple--so the citizens can see if you have a case to make that makes
sense, and they can weigh in and help turn the tide in the direction of
the Senator, or that you have no case to make and they want you to sit
down and have the Senate get on with its business. That is simple.
There are many ideas for much more radical steps--steps in which we
would proceed to say, yes, we will do something different. We will
eliminate the filibuster. But that is not the proposal I am speaking to
today. It is not the proposal to which many of us are speaking. We are
saying, yes, you can keep speaking, but you have to speak. You cannot
go on vacation. You cannot hide from the American people. You cannot
object and hide. That is not in the tradition of the Senate.
There is a Wall Street Journal article that came out yesterday. I am
not sure if it was an editorial or an op-ed, so I will not attribute it
to anyone specifically. But it said there is no chance for filibuster
reform to address the filibusters on legislation because the Democrats
will not want to imperil their ability to obstruct the Republicans when
the Republicans are in power someday.
Here we are, we are Democrats, and we are saying we are talking about
rules that we have placed against the test of whether we can support
these rules, whether in the majority or in the minority. The proposal
we signed onto today--the five reforms we have laid out--we have run
through the test of saying: Will this meet a fairness standard? Would
this be fair if we were in the minority?
One of the proposals is to make sure the minority and the majority
get to have amendments. That is a valuable protection for whichever
party is in the minority.
Another piece of it is to say, yes, the filibuster can still be used.
But you have to invest time and energy and make your case before the
American people.
We have believed we can live with that in the minority. If we are
going to obstruct the Senate, we are willing to take this floor. We are
willing to make our case. But we are saying a Senator should not be
able to obstruct and hide. They should not be able to engage in the
silent, the secret filibuster but should have to have the talking
filibuster.
I applaud my colleague from Iowa, my colleague from New Mexico, and
my colleagues who are about to speak--Senator Mark Udall from
Colorado--and say we have a couple weeks now in America to have a
debate on the dysfunction and brokenness of the Senate. We are asking
the American public to engage, to call your Senators, to share your
concerns about a Senate that cannot do authorizations, that has not
done appropriations, that leaves hundreds of House bills on the floor,
and that cannot fulfill its constitutional responsibility to advise and
consent on nominations, thereby undermining our other two branches of
government.
This has to be addressed. That is why we are here.
The PRESIDING OFFICER (Mr. Manchin). The Senator from Iowa.
Mr. HARKIN. Mr. President, I thank the Senator from Oregon for his
leadership. I want to rephrase my question that I left hanging when I
yielded the floor the last time. I see our great friend from New York
is here to speak. I will not take more than a minute or two. I want to
rephrase the question.
I asked the question: What has the filibuster become? And I further
asked a question about consensus. If you do not get a consensus--that
is, over 60 people--to agree on something, should then the majority not
have the right to act? I want to rephrase that question and put it this
way: If consensus--meaning over 60 Senators--if over 60 Senators cannot
agree on something, then should the minority have the absolute total
veto power over what the majority is proposing? That is the essence of
it. If you cannot get a consensus, should the minority have the total,
absolute power to determine the outcome?
That is what has happened in the Senate. That is what has become of
this filibuster. The end result has become the fact that 41 Senators--
if you do not have 60 Senators or more--41 Senators decide what we do,
what we vote on, what comes before this body. How does that square with
the principle of democratic government and majority rule?
I leave that out there: Should we have and continue to have, if we
cannot reach a consensus, should we continue to have veto power by the
minority?
I also see the Senator from Colorado here to speak.
I also want to publicly thank the Senator from New York who I see is
about ready to speak, the chairman of our Rules Committee. Senator
Schumer has spent so many hours and so many days this past year on this
issue of reforming the Senate rules. He was kind enough to let me
testify before his committee and kind enough to actually let me sit
with his committee to listen to others.
Senator Schumer has been in harness on this issue trying to get us to
the point where we can have meaningful changes in the rules so that
this place can function a little bit better and a little bit more
democratically--with a small ``d,'' not democratically in terms of
political affiliation.
I know in the next few weeks Senator Schumer is going to be very much
involved as one on our leadership team, along with Senator Reid and
others, seeing what we can do to work things out so we can have a
meaningful change in the rules.
Again, I am all for getting rid of secret holds, but that seems to be
kind of a no-brainer. That would probably get close to 100 votes. But
if that is all we are going to do, that is not a very meaningful change
in the rules.
I submit that what Senator Udall, Senator Merkley, and others have
introduced, or I submitted myself going on for 15 years now, that is
meaningful change in the rules. I know Senator Schumer is going to be
very much involved in that discussion. I applaud him for his efforts
and leadership. We will be back on January 25 to take up this cause
again. I know I speak for my friend from Oregon that he is going to be
here on the 25th, and my friend from New Mexico and everyone else. We
are going to be here because we cannot let this go. We cannot permit
the Senate to be so dysfunctional that we cannot respond to the urgent
needs of America and our place in the world today. We cannot continue
to go downhill as a country and cannot continue to let the Senate be a
dumping ground and nothing ever gets done.
These rules need to be changed. We will be back on the 25th to do so.
I thank my friend from Colorado for his indulgence.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. UDALL of Colorado. Mr. President, I ask unanimous consent that
Senator Schumer be recognized after me for up to 15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. UDALL of Colorado. Mr. President, before I speak on the matter
today, which the group of Senators today so eloquently and powerfully
outlined for all of us, I want to acknowledge that the 111th Congress
was one of the most productive in history. Legislation we passed will
make real changes for American families who are struggling through a
tough economy, as the Presiding Officer knows, and with rising health
care costs. What we did also will make our military and Nation safe and
stronger. We should be proud of the work we accomplished in the
previous Congress.
But I have to also say that the last 2 years was a time of
unprecedented obstruction and partisanship. If you do
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not want to take my word for it, you do not have to go very far to
listen to many impartial observers of the Congress who will tell you
that it was exactly the case.
I rise today to add my voice to the growing number of Coloradans and
Members of the Senate who are deeply concerned about the gridlock that
at times has paralyzed our Chamber and prevented meaningful debate.
Many of us read with dismay an article by George Packer in the New
Yorker magazine several months ago, which detailed examples of Senate
dysfunction.
Americans from both political parties--and Independents as well--have
asked whether the rules of the Senate are working to help solve these
problems that face us. Some of my colleagues have understandably sought
to change or eliminate the filibuster to make it easier to pass
important legislation supported by a majority of Senators.
I come to this debate from a somewhat different perspective than my
colleagues. I come to this debate with this guiding principle; that is,
any attempt to limit the power of the minority by eliminating or
weakening the ability to filibuster will simply lead to a further
breakdown in what is already a fractured partisan relationship.
While I share much of the frustration expressed by many of our
colleagues, I believe we must be thoughtful about how we approach
changes to the Senate rules.
Several years ago, Minister Robert Fulghum had everyone using the
phrase, ``everything I need to know I learned in kindergarten.'' His
essays made the point that the simple rules we teach children about
getting along, about being kind to one another, about cleaning up after
ourselves apply throughout life.
On one level, you could boil down the debate we are engaging in this
week and say what we need are rules that will help us get along better
in the Senate's sandbox, and we need to talk with each other more and
we need to listen even more than we talk. Why? Because the
consequences, if we cannot find a way to work together, are extremely
serious.
No problem we face is more troubling or urgent than our economic
future. Our unemployment rate is still above 9 percent, and it is much
higher in some regions of the country. Home foreclosures are still
expected to rise. Even more troubling is this fact: Americans are less
optimistic about their economic prospects than they were during the
Great Depression. That is a very serious situation.
On top of those grim statistics, we face a massive budget deficit and
a crippling debt that not only threaten our long-term economic
stability but darken the horizon in a way that discourages investment
and innovation that we need to spur American job creation today.
Moreover, our apparent inability to squarely address the problem in a
partisan way is a signal to the American people--as if they need
further proof--that their institutions of government are not working.
And that, in my opinion, is as dangerous as any attack on our country.
Many have remarked that it is past time to have a serious discussion
about how to turn our economic situation around. I have faith we can do
that, but only if we are able to set aside the ideological differences
that have sidetracked our politics, and frankly our policymaking, up to
now.
We can't reach the level of bipartisan cooperation we need in this
body if we prevent substantive debate and cut off the rights of the
minority. But neither can we make necessary progress if Members of the
Senate continue to be able to use technical loopholes and procedural
gymnastics to hijack the Senate--literally--for days and, in some cases
weeks at a time.
That is why today's debate--so ably led by colleagues from across the
country--is more than just an esoteric debate about the Senate's rules.
It is a critical turning point, and it is why today I am again
introducing a resolution which I believe can help reduce the
opportunity for gridlock while also encouraging both sides to work
together on the most important issues we face in our Nation.
I developed this proposal after listening to and talking with experts
on Senate procedure from both sides of the aisle, including the noted
congressional scholar Norm Ornstein of the Conservative American
Enterprise Institute.
In a nutshell, I propose that by eliminating unnecessary
opportunities for delay--without making changes that would jam through
legislation at the expense of the minority party--we can improve the
way the Senate works and make it more effective and fairer for the
American people.
If I might, I want to make a couple of comments on some of the
specifics of what I am proposing, similar to what the Senators from
Oregon, New Mexico, Iowa, and others have put on the table.
I would first level the playing fields between the majority and the
minority on cloture votes and require Senators actually vote in
opposition to the bill they are filibustering. Currently, cloture is
invoked when three-fifths of the Chamber votes yes, so staying home is
the same as voting no, and Members can simply threaten to filibuster
and skip town with no recourse.
My proposal would require that Senators show up, debate, and actually
vote against a bill if they are conducting a filibuster, by changing
the rules to invoke cloture not on three-fifths of the Chamber but
invoking cloture when three-fifths of those voting to end debate create
an incentive to actually have a meaningful discussion. If Members don't
show, the threshold is lowered accordingly--three-fifths of 90 is 54
votes to end debate, three-fifths of 80 is 48 votes to cut off a
filibuster, and so on.
Second, I would reduce the number of votes required in debate on a
single bill. The Senate rules now allow for a filibuster on a motion to
proceed to a bill, a substitute amendment to a bill, final passage
after we have already overcome a filibuster on the exact same text--and
the list continues. There are three separate opportunities to
filibuster before sending a bill to a conference committee. My proposal
would eliminate all these opportunities to filibuster except for final
passage.
Third, I would shorten the timeframe required to invoke cloture. I
would propose we vote 24 hours after cloture is filed, instead of
waiting 2 days, as is required today. I would also allow the 30 hours
of postcloture debate to be split between the parties, to avoid
needless delays. In total, we could shorten the time required for
cloture by nearly 40 hours for a single cloture motion.
Fourth, I would end the requirement that amendments be read in their
entirety if they have been made available on line at least 24 hours in
advance.
Fifth, I would end the requirement that Senate committees seek
consent to meet.
Sixth, after I propose that we change the rules to move more quickly
on judicial nominations--allowing a final vote immediately after
cloture is invoked on a nomination.
Finally, I would provide a way to call up an amendment when a
majority leader has filled the amendment tree.
The Senate is famous for great debates and a free amendment process.
But in recent years the process of presenting amendments has frequently
been shut off by the majority party. So my proposal would, on a limited
basis, give Senators the opportunity to present their amendments when
they are otherwise being blocked from doing so.
The Senate has been called the world's greatest deliberative body.
But what happens if we don't deliberate? I am afraid we risk turning
the Senate into an extension of the 24-hour political spin cycle, which
seeks to separate us rather than allowing us to work out solutions to
the problems we face.
Every day, proud Americans come to our Capitol hoping to watch
debates such as those of years past. Many are increasingly dismayed to
see a small number of Senators, such as those here today, debating
among themselves in an empty Chamber. We don't even require Senators to
attend their own filibusters--no ``Mr. Smith Goes to Washington,'' no
actual debate.
I want the Senate to work the way Americans envision it does--where
Members discuss their differences, cooperate, vote on amendments, and
improve legislation for the good of the country.
With that in mind, I hope our colleagues will join me to seize the
opportunity we have before us. Let's work
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together to improve the way the Senate operates. I want to extend my
hand to the Republicans to ask for ideas in how we can improve the way
the Senate operates. I want to work with anybody, as I think all my
colleagues do, to solve these problems in front of us. We have a
responsibility to work together to bring about the cooperation and the
problem solving Americans expect and deserve.
Mr. President, I appreciate your attention, I appreciate the
important work all my colleagues have undertaken, and I look forward to
working with the 99 other Members of the Senate to make the Senate a
Senate we know and love and believe is the greatest deliberative body
in the world.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, I wish to talk a little about the issue
we have been discussing, and first let me congratulate my colleagues
who have been on the floor on this issue, particularly the Senator from
New Mexico, Senator Udall; the Senator from Oregon, Senator Merkley;
the Senator from Colorado, also named Udall; and the Senator from Iowa,
Senator Harkin; and many others who have participated in this debate.
They have done a great job today.
The other thing I think I appreciated--and Senator Harkin helped do
this--is there was not just debate, there was actual discussion, even
when we didn't agree. I thought it was pretty interesting watching on
the TV in my office when Senator Roberts came and stood by a desk here
on the Democratic side, a desk away from Senator Harkin, and they
didn't agree on the issues but they debated the issues. What a great
first-step metaphor for the kind of debates we want to have here on the
Senate floor. So this has been a very positive and hopefully prescient
opening of the debate to change the rules because we all know that in
the last Congress the Senate didn't function effectively and the time
for change has come. I want to salute the leaders, as well as Senator
Klobuchar, Senator Franken, Senator Lautenberg, and so many others, who
have been so involved in our discussion and for the work they have
done.
I also want to say to my colleagues this is not something that has
just happened recently. This idea that all of a sudden this has popped
up in the Senate is wrong. Last year, the Rules Committee--and I was
urged by Senator Udall to do this among the first days of the session 2
years ago, and I think we did a pretty extensive and good job--held six
hearings that examined the history of the filibuster, trends in the use
of the filibuster, secret holds, stalled nominations, and proposals for
change. In those hearings, we heard from Senators from both parties who
have valuable ideas about the need to reform the filibuster. Senators
Harkin, Lautenberg, Wyden, Grassley, Udall, Udall, McCaskill, Gregg,
and Bennet all testified at the hearings. We also brought former
Senators of both parties, scholars, and former Senate staff of both
parties to come and testify.
In the first half of the 20th century, filibusters and filibuster
threats were relatively rare events. That has been documented already,
and our hearings documented it extensively. But since that time, the
number has continued to dramatically increase. When you face an average
of two cloture motions per week--which is what has happened currently--
then we know there is a problem, and it is no mystery that the Senate
has been labeled as ``dysfunctional.''
Between 1917 and 1971, there was an average of one cloture motion
filed per year. In the 110th and 111th, we had more than 70 cloture
motions. These cloture motion counts are a response to the filibuster,
and it is distorting the way the Senate does business.
For the legislative branch, hundreds of bills passed by the House in
the 111th Congress were not considered, even though they had passed the
House by voice vote or with a majority of House Republicans voting yes.
The Senate is supposed to be a cooling saucer, not an ice box.
In the executive branch and the judiciary, dozens of judicial
appointments were delayed or blocked from floor consideration for
months and months in the last Congress. Many of these were approved
unanimously by both Democrats and Republicans in committee, yet sat on
the Executive Calendar for months because of secret holds. This is
dangerous at a time when we need a Federal Government using all its
resources to fight terrorism, protect our country, and address our
economic needs.
I salute Senators Wyden, McCaskill, and Grassley for focusing our
attention on this issue. It is important to end anonymous or secret
holds and shine some light on the kinds of long-term delays that can
hold up a nomination or a bill for weeks or months or even longer.
Also, during the fiscal year 2010, half of all nondefense spending--
$290 billion--was appropriated without legal authority because Congress
hadn't reauthorized the programs. The unprecedented threat of a
filibuster--not even the actual use of the filibuster--has prevented
debate with such frequency that extended deliberation is a dying
commodity. Make no mistake about it, the everyday threat of the
filibuster does not ensure debate, it restricts it.
Reforming the rules in a thoughtful way would clear the way for more
legislating, not less. Filibusters provide a minority of Senators a way
to make their voices heard, but they should not provide a way for a
minority of Senators or even a single Senator to grind the Senate to a
halt regardless of whether they are Democrats, Republicans, or
Independents.
Reform will engage the American people and reenergize this
institution. This will not end the filibuster or cut off debate. On the
contrary, it will pull back the curtain and show the American people
what we actually believe and what our deliberations are really about.
There have been many ideas for reform presented by my colleagues that
are worthy of discussion. The Senator from New Jersey, Mr. Lautenberg,
testified before the Rules Committee about his plan, which he called
the ``Mr. Smith Goes to Washington'' proposal. Senator Merkley, Senator
Udall, and others have developed their own versions of this important
concept, which I call the talking filibuster. This talking filibuster
idea would require filibustering Senators to keep speaking on the floor
after cloture fails, to show clearly their wish to continue debate and
to allow them to talk for as long as they wish.
Currently, the only evidence that a Senator is facing a filibuster is
the vote on cloture. The Senate floor has evolved into a place where
the majority assumes that each bill will be opposed and that little
actual debate will occur on legislation. The rules require a vote of
three-fifths of the Senators chosen and sworn to end debate on a matter
or measure. The very question that is posed to the Senate in a cloture
vote is, Is it the sense of the Senate that debate should be brought to
a close? Those are the words. If it turns out that enough Senators
answer that question: No, we want more debate, then those Senators
should actually be required to debate. It is difficult to explain to
the American people that the Senators who voted for additional debate
are silent when then given that opportunity. If they want to debate,
well, then let's debate.
One way we can guarantee fair and meaningful debate after Senators
vote on cloture to continue debate--and cloture fails--the Senate
remains on that measure and Senators must actually debate the bill.
Senators may be recognized one after the other, as long as debate is
continuous. If no more Senators seek to debate the issue, then the
majority leader can move to close debate.
Obviously, there are technical things that have to be worked out--and
we are working hard to do that--to make sure this proposal works and is
viable. In the past, attempts at debate have been frustrated by quorum
calls or unnecessary motions, all aimed at avoiding actual debate. If
we change the rules to encourage extended debate after cloture fails,
then the priority during this period will be to either debate the
matter or move forward and not play parliamentary games. The American
people deserve better of their elected officials than what the Senate
has been giving them. Governing is not a game of charades.
The majority will not choose to waste floor time on a matter the
minority is committed to stop. But will
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the minority choose to filibuster every single piece of legislation if
actual debate is required? I don't think so.
That would apply whether Republicans are in the majority or Democrats
are in the majority.
In addition to the other worthy options proposed for reform, I think
this proposal is strong because it allows the minority the same ability
to debate and block legislation--so long as they actually debate. If
there is no actual debate, there can be no filibuster, and the Senate
can proceed to do its business for the American people.
I believe this modest proposal is one on which both Democrats and
Republicans should agree. It could be a point of bipartisan agreement,
and I will present it in the bipartisan negotiations happening over the
next few weeks.
Of course there are other good-faith proposals that my colleagues
have put forward. Many of them are thoughtful. Most all of them would
represent meaningful change without altering in a too jarring way the
rules of this institution. Nobody wants us to become the House of
Representatives. Everyone understands that we should not rule simply by
majority vote on every issue. However, we can pull the curtain back and
make sure that when people say they want more debate, they debate.
In the next 2 weeks, we should look at these proposals--all of them.
During the recess, we need to talk to each other, Democrats and
Republicans, about genuine ways to reform this body, to restore the
Senate to its traditional role as the world's greatest deliberative
body, and to do so in a way that encourages full and open debate--both
for the majority which proposes and for the minority which wishes to
modify what the majority proposes.
I believe we owe it to the American people to reform the Senate so it
functions in a way that best represents their interests.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, first, let me thank the Senator from
New York for his very distinguished leadership of the Rules Committee
and for the very open and thorough way in which he engaged that
committee on these issues of addressing the filibuster and problems
that have been caused by its current abuse on the Senate floor. Let me
also thank Senators Udall and Merkley, who worked so hard to organize
this and who have put together what I think is a very good proposal.
At the outset of my remarks, I ask unanimous consent that I be added
as a cosponsor to the rules resolution that is here, at this point.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WHITEHOUSE. The distinguished Senator from Oregon, Mr. Merkley,
showed a photograph a little while ago of Jimmy Stewart in ``Mr. Smith
Goes to Washington.'' That has become the sort of emblematic, signature
demonstration of the American Senate filibuster.
There is a scene in that movie that I am sure the Senator is familiar
with where a reporter is up in the galleries and is describing the
action down here on the Senate floor, is describing Jimmy Stewart--the
Senator he represents engaging in the filibuster. The reporter
describes the filibuster as ``democracy's finest show . . . the right
to talk your head off . . . the American privilege of free speech in
its most dramatic form . . . one lone and single American holding the
greatest floor in the land . . . bleary-eyed, voice gone.'' That is
what we think of when we think of the traditional Senate filibuster. In
those days, you stood up and you filibustered against a bill because
you were opposed to it, because you hated it, because on principle you
wanted to stand and fight against it. That was the old filibuster.
Now when this Chamber is engaged in a filibuster, how does the
American public know? When they are watching this floor on C-SPAN and
they are looking for a filibuster, they don't see democracy's finest
show, they don't see anybody talking their head off, they don't see the
American privilege of free speech in its most dramatic form. What they
see is a droning, tedious quorum call as the parliamentary staff read
off, one by one, the names of Senators who are not present, and this
Chamber stands useless during that period. Why is that? Partly it is
because when Jimmy Stewart was undertaking his filibuster, he was
exercising the right of an individual Senator to take this floor and to
hold it and to speak. What is different is that when it is filibuster
by party rather than filibuster by one individual Senator, then there
is a whole array of procedural mechanisms the minority party has to
provoke the majority leader to file for cloture.
Cloture is the filing that allows the majority leader to bring debate
to a conclusion and to limit amendments. When cloture is filed, then
there is 30 hours mandatory for debate. What has happened here is that
the 30 hours mandatory for debate has become the prize, has become the
goal of the modern filibuster. That explains why we are no longer
filibustering bills we are opposed to when we are in the minority. The
minority actually filibusters bills their Members support. They
filibuster nominees who get voted through unanimously when the vote is
finally held.
What is the filibuster about? It is about forcing cloture and forcing
those 30-hour increments of time to be burned up. If you are
filibustering the bill itself and you are filibustering the motion to
proceed, you have a dual filibuster, and if you are filibustering
amendments, you can load on an awful lot of 30-hour periods to the
Senate floor and you can prevent anything from being done in those 30-
hour periods just by sitting back and doing nothing and objecting when
the majority party tries to move to the vote. All it takes is one
person waiting in the cloakroom for the minority to force that 30-hour
period to run. If you stacked up dozens and dozens of 30-hour periods,
what you do is you take up the entire time available to the Senate and
you impede this institution in its ability to get its work done.
That is what we are doing right now. That is why I think it is so
important that the changes we are recommending restore the Senate to
the traditional filibuster. We do it in two ways. First of all, if
these rule changes pass, you will not get to filibuster the motion to
proceed to the bill and then get to filibuster all over again on the
bill and double the filibuster. If you really care about the bill, if
you are really opposed to the bill, if you really hate the bill, you
can come and talk your head off, but you don't get to do it twice--once
on a pure parliamentary measure. That will cut down some of the wasted
time, some of these droning hours that you watch on C-SPAN with nothing
happening in the Senate and the time being wasted, locked in the
filibuster.
There is another rules change that I believe is important. The 30-
hour period is called the period for debate. What this rule change
would do is, when the debate stops, the 30-hour period stops. Whoever
is presiding would simply note that there is no longer debate and would
call the vote. You can still debate the whole 30 hours if you want to
come here and debate, but when the talking stops, you vote. You are not
in a position where you can commandeer 30 hours of Senate time, force
the Senate into quorum calls, and defend against going to the vote with
one lone Senator back in the cloakroom, able to come out and object
whenever the majority tries to move the Senate to a vote and get the
Senate back in its business again.
These are two simple repairs to the cloture rule that will make it
less of a prize for the minority, that will prevent us from spending
all these 30-hour increments droning away in 30-hour filibuster quorum
calls, and put the Senate back to where it should be--the great chamber
of debate where people actually have to come to the floor, say their
piece, and when they are done, we go on to the next piece of work.
I commend everybody who has worked on this. I think it is a very
valuable step we are taking. I don't think it is a change away from the
traditions of the Senate; I see it as returning to the real traditions
of the Senate, of real debate, not just wasting time for wasting time's
sake but allowing the Senate to be productive while also allowing
Members who have opposition to a bill to state it as forthrightly as
they wish, to engage in, as the reporter said in ``Mr. Smith Goes to
Washington,'' democracy's finest show, the right to talk your head off,
the American privilege of free speech in its most dramatic form.
[[Page S50]]
I thank all Senators present for entertaining my thoughts.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. LAUTENBERG. First, I wish to say I am so pleased to be with
colleagues who are standing up for activity on behalf of the citizens,
the constituents we represent, to get things done.
I doubt many of us would be happy with a report card we got in either
high school or college or whatever education we got beyond that--I
doubt we would be proud of any report card that resembles that which we
have obtained in this facility, in this great house of debate, in this
distinguished body of legislators, one of the most prominent--the most
prominent--let me qualify that--legislative body across the world and
the envy of so many who think the United States is still one great
country.
We want to do the right thing. But here what has happened, we find
ourselves in a morass of dilatory activities, things that do nothing
but stop progress, and that is the mission we see. I congratulate my
colleagues who have taken hold here to make sure we do whatever we can
to change the facility.
I have here my picture of Jimmy Stewart, ``Mr. Smith.'' While I am
not anxious to admit it, I do, I remember seeing the picture. We need
not discuss the precise date, but it was some time ago when I saw this,
and it left a vivid impression in my mind. But I cannot tell you what
it was about, except that he was one trouper, that he stood on his
feet, so many hours it is hard to understand how the body responded to
the opportunity, trying to clean things up.
The date of the film was somewhere around the end of the 1930s, 1939,
most likely. That was not the exact date, but in that vicinity. Even
then, they were discussing what could be done to move things along and
how the kind of effort he gave as Mr. Smith was required to honor the
people, the responsibility he had to the people.
So we know what kind of report card the legislators here and in the
House have gotten from the American people because they are sick and
tired of seeing all this empty space, listening to words I could
describe more in the vernacular as gobbledygook-gook, not understanding
what is going on but knowing very well that nothing is happening that
is benefiting them.
So when we see this low public opinion from Americans all across the
country, it is because they do not believe we are getting things done
that they sent us here for. Each one of us who has been elected, I do
not care how popular or how remote, the fact is, you had to work hard
to get elected and so proud--and I look today, as I saw person after
person hold up their hand to take the oath. I have done it five times
here and each time was a thrill. Even as I watched colleagues walk up
there and heard their names called and saw them raise their hand, and
to feel the pride they felt, I do not care Republican or Democrat, to
feel the pride they felt, to be able to take this job on their hands,
to get the support of the public in their States, enough to win an
election, and then we show the public a lack of activity.
We have been through discussions, speeches made earlier, good ones,
describing the number of times the filibuster has been used. If I might
ask the majority whip, is it the record number of filibusters ever in
the history of the Senate? The Senator from Illinois confirms that.
Here we are, and the need has never been greater to get something done
to let the American people know their government is there to help them
through a crisis, to help them regain their jobs and regain their pride
in themselves.
Make no mistake about it; the absence of progress in the Senate
promotes bitterness and anger among the American people. Make no
mistake; an empty Senate Chamber is no way to respond to the public's
needs. All too often this is what happened because the minority now has
simply been abusing Senate rules. They can do it. But it is an abuse of
the process.
Last year we were locked in a constant struggle to help jobless
Americans. Several times we attempted to bring legislation to the floor
to extend unemployment benefits for millions of people who had no other
source of income, who were in jeopardy of losing their homes and losing
their opportunity to care for their families and being personally
humiliated and disgraced about that and we could not get an agreement
to pass an unemployment benefits bill until it was included with other
legislation that had to pass.
Back in June, 59 Senators wanted to restore aid for those workers who
had gone without income for weeks. Our colleagues on the other side of
the aisle objected and delayed the vote, then left town for a week-long
break. By the way, I keep on reminding those hearing me that this is
under the disguise of a filibuster, a legal process that is permitted
by the Senate rules to be engaged in when there is a disagreement about
a piece of legislation or a process that has to take place.
We left more than 1 million Americans in limbo for several agonizing
weeks. Our opponents said they were simply filibustering the bill. In
other words, they wanted to talk more about the substance. But they did
not want to talk about the substance. They did not want the public to
hear the truth about their views. But they did not even want to talk on
the floor. They just left the Senate empty and silent.
That is why I reintroduced my ``Mr. Smith'' bill. I brought this up
initially last March. It is almost a year now since I brought Mr. Smith
back to this Chamber. As we know, the legislation is named for Jimmy
Stewart's character in the classic movie, ``Mr. Smith Goes to
Washington.'' Frankly, we now look, the names are different, the
mission is the same. There are those who want to make progress and
those who want to do nothing more than delay progress.
As I said earlier, Mr. Smith wanted to make a point, spoke for 23
hours. These days, Senators simply object to the proceeding, walk away,
and leave an empty Chamber behind. How are we supposed to create jobs
in an empty Chamber? How are we supposed to increase educational
opportunities in an empty Chamber? How are we supposed to help keep
people in their homes in an empty Chamber?
The ``Mr. Smith'' Act will bring deliberations back to purportedly
the world's greatest deliberative body. It will make lawmaking more
transparent and Senators more accountable. Members of this body will no
longer be able, if we pass this rule change, to be able to launch a
filibuster and then skip town, leaving the Senate in a stalemate.
If you have the courage, stand and explain to the American people why
you are objecting to things that can help the average family. This is
still a recession. Yes, there are a lot of people at the top making
lots and lots of money. We have seen it in the newspapers. We have seen
the list of billionaires who make that much money in a single year. But
we do not see the same pictures of people who are forlorn because they
cannot help themselves, and they look to the government to be there
with them.
I know from personal experience that my life changed radically when I
got out of the Army and was afforded the GI bill. My father died after
I enlisted. My mother was a 37-year-old widow. My father was sick for
13 months with cancer. At the time, there were not the products that
make pain less acute or that provide more help for recovery. It was not
there.
So we had not only the loss of a father--I had joined the Army. When
I was 18 years old, I enlisted--we had bills and bankruptcy and life
was miserable. The GI bill made the difference in my life. I was able
to join two other people in my home city, friends of mine, in creating
a company, three of us.
Now it employes 45,000 people. The company is called Automatic Data
Processing, better known as ADP, because I got help when we desperately
needed it, when my family and I could never think about my going to
college. I wound up going to Columbia University, something so far out
of sight I never dreamed it was possible. But it was there. There are
times when people across the country say to our leadership: Please,
give us a chance. Give us a chance to stay in our home. Give us a
chance to educate my son and my daughter. They can learn. We do not
have the money.
[[Page S51]]
Make sure health care is available, that no matter what your
condition of being is, you cannot be precluded from getting insurance.
That is what is proposed in the health care bill that right now is in
danger of being repealed, if the House takes the action as purported.
So what we are talking about, to summarize, is that we have to get
busy and show the people across the country that this is not just a
ring for showing how clever a speech can be or cute an idea might be,
when all that is being done is stopping progress. Progress. They object
to bills being even moved along so they can be considered--anything
they can do to obstruct movement.
So we may be unable to bring Mr. Smith back, but we can write real
accountability for filibusters and for the sake of a functioning
democracy--more than a functioning democracy, a degree of dignity and
hope for people who have been hurt by an unemployment record never
before seen in the country, with the number of people out of work in
the multiple millions, and they say: Mr. Senator, help us. Be there to
help us now. We are not looking for charity. We are looking for a hand
that will get us started, get this economy going. We owe it to them.
I say to those who want to obstruct it, be brave enough to stand and
tell the people here or the people on television or those who read
about what we are doing, tell them why it is you are objecting, and
then we will restore a degree of confidence in those who serve here,
those who work so hard to be elected, and those who can represent the
people well.
But we cannot sit in silence, just wasting time. I hope we will come
to our senses, make the changes in the rules that will stop the
filibuster from being a disguise for inaction.
I yield the floor.
The PRESIDING OFFICER (Mr. Merkley.) The Senator from Illinois.
Mr. DURBIN. Mr. President, I rise to speak to the issue which has
been considered on the floor today by my colleagues. I thank,
especially, the Senators from Utah, Oregon, and Colorado, as well as
many others, for their leadership in discussing the procedures of the
Senate.
When I went home over the break, I spent my time back in Illinois
with my wife in my hometown of Springfield and a lot of time around the
house and a lot of things had to be considered. I left the decisions of
war and peace behind in Washington, DC, and went home to face the real
decisions: Are we going to change our cable TV service? Are we paying
too much for the Internet? Things that my wife finally put in front of
me and said: We need some decisions here.
As I considered those weighty decisions, particularly when it came to
cable television and what we would receive in Springfield, I could not
help but reflect on the fact that, similar to many Americans, we like
to have C-SPAN so we can follow the House and Senate.
You may know in West Virginia, as I know in Illinois, there are
people who are obviously suffering from insomnia who watch C-SPAN all
the time and find it very restful and sleep inducing.
If they watch the Senate, it is something else. It is not only sleep
inducing because of so little activity on the floor of the Senate, it
is, in fact, an unfair economic situation that someone is paying a
cable TV bill for C-SPAN covering the Senate when we do so little. They
ought to get a refund. Families across America are entitled to a refund
if they tune in to C-SPAN, Senate version, and watch us day after weary
day, with our delightful and talented staff people slowly reading the
quorum call and names of the Senators. That is it. If you have watched
C-SPAN in the Senate for the last several years, you will see that more
often than not, a lot of people say to me: Senator, why is not anything
going on in the Senate? When you talk in the Senate, why isn't anybody
there? Basic questions an average person might ask. They reflect on
what has happened to the Senate, and that is why we are here with this
discussion this evening. I thank the Senators who have been involved,
including Senator Lautenberg.
One of the things that surprised me when I first came to the Senate,
I heard this was the world's most deliberative body. This was the place
to come to debate the big issues. Today when there was a swearing in of
the Senator from North Carolina, one of his predecessors was here,
Senator Lauch Faircloth. He was the first Senator I faced off with on
the floor over an issue when I was elected 14 years ago. It was an
issue involving tobacco which I had been following pretty closely in my
congressional career, and he was from the State of North Carolina where
tobacco is a big issue. He didn't like my amendment, and he came to the
floor. I was offering my first amendment. There was a lady who worked
in the Senate named Lula Davis. I had served in the House for 14 years,
but I didn't quite know the Senate procedures as well.
I said to her: How much time do I have?
She said: You have 1 hour.
I said: Is that equally divided?
She said: No, Senator, you have 1 hour.
House Members don't get an hour for anything. Five minutes is the
usual course, 15 minutes if it is a great deal or if they want to stick
around until midnight, they might get a special order for an hour.
Here I was with an hour on the Senate floor to debate my amendment.
Senator Faircloth sat on the other side. I stumbled through it. I asked
unanimous consent to allow the time to be equally divided between
myself and Senator Faircloth so we could debate the amendment. I
thought that was fairly reasonable. Senator Faircloth said: I object.
I was stunned. Clearly, here I am with my amendment being as fair as
can be, and he is not interested in the debate.
I am not going to pick on him because he reflected the feelings of
many Senators here: that they are here on the floor to give speeches,
many of them written by very talented staff people, and then leave the
floor and go off and do something else. There is very little debate on
the floor of the Senate, real debate. I could count on one hand the
times I have in 14 years engaged another colleague in an actual debate
that went back and forth over the merits of an issue.
One of the things we are discussing tonight is what to do with the
rules of the Senate so we engage in more debate--we need it--so that we
have less time that is being wasted in the Senate, fewer hours that are
being ticked off a clock to reach 30 hours or whatever it happens to be
on a cloture motion, and more actual debate so Senators with differing
points of view can state their points of view and debate them back and
forth and other Senators can then listen, certainly the public can
listen and those in the gallery and can decide who has the merits of
the debate.
Debate isn't something we should shy away from. It is an important
part of the Senate that we should value and that we should honor to
make sure the rules create that opportunity.
The Presiding Officer from the State of Oregon has suggested, along
with others, that we have more debate and more votes. I think we
should. For a time there was this feeling that we had to protect
Members of the Senate from controversial votes. That is behind a lot of
the decisionmaking that has taken place and brought us to this moment
in the history of the Senate.
Perhaps I have a different view of it. But having been on Capitol
Hill for a long time in the House and the Senate, I have stacked up
many controversial votes, tens of thousands of them. It will be fair
game. For any political opponent ever running against me in the future,
there is plenty to work with. I don't need to give them something new
to beat me over the head with. I have plenty of votes in my past. I
think I can defend them for the most part, and I am prepared to do so.
I am not afraid of tomorrow's controversial vote. In fact, I think it
is part of why we are here.
There was a man who served here many years ago from Oklahoma, Mike
Synar of Muskogee. He was one of my closest friends. Synar was an
unusual character in the House. He was one who, faced with the choice
between taking an easy, noncontroversial way out or a controversial,
confrontational approach, would always choose the confrontational
approach. He would walk right into the wall of fire and welcome it
because he thought it was part
[[Page S52]]
of what he was elected to the House to do. He used to stand up in the
caucuses of House Democrats when they would be whining and crying over
the thought of facing a controversial vote and say to them: What is
wrong with you people? If you don't want to fight fires, don't become a
firefighter. If you don't want to cast controversial votes, don't run
for the House of Representatives or, in this case, the Senate.
I think the same is true today. Although some of my colleagues face
tough election campaigns in tougher States than my home State of
Illinois, the fact is, coming here and casting tough and even
controversial votes is part of why we were elected and why the people
expect us to come and face the music on difficult issues.
Bringing debate back to the floor, bringing more votes to the floor
certainly is a move in the right direction.
I say to the Senators from New Mexico, Oregon, and others that their
proposal that would allow germane amendments as part of the regular
order of the Senate is a move in the right direction. That way the
minority and majority get an opportunity to amend a bill. Can it be
abused? It can. But making these germane and relevant amendments makes
a difference. I can recall one colleague on the other side of the aisle
who kept coming to the floor repeatedly, day after day and week after
week, to offer the same amendment over and over, even when he was
passing the amendment. Sometimes he would pass it; sometimes he
wouldn't. But he couldn't help himself. He just had to keep offering it
over and over. As he offered this amendment, it didn't enhance the
bill. It didn't enhance the debate. It gave him a chance to put out a
press release.
One can abuse that process. So making sure the amendments are limited
to those that are relevant certainly is a reasonable thing to do.
Let me say a word about the 60-vote margin. The 60-vote margin, as
former Vice President Mondale wrote in his guest column recently--I
believe, in the Washington Post--was a compromise. In days gone by it
took 67 votes to end a filibuster, to bring cloture. Then in the 1970s,
Vice President Mondale, then a Senator, joined with others on a
bipartisan basis and lowered that to 60 votes. But it was still a rare
and unusual thing to do, to filibuster and need a cloture vote of 60
votes. Unfortunately, that 60-vote standard has been corrupted into a
new standard for passage of legislation.
Allow me to give two examples. We considered a Wall Street reform
bill. There were dozens of amendments offered. The Senator from Oregon
had a controversial amendment and waited for days, maybe weeks, for a
chance for his day on the floor of the Senate. After about 25
amendments had been offered and considered to the Wall Street reform
bill with a standard of a majority vote, I had an amendment relative to
interchange fees on debit cards, a controversial amendment. Credit card
companies and big banks hated it.
At that point the announcement was made unilaterally, incidentally,
the Durbin amendment will require 60 votes. Everything else had been a
majority vote to that point. There was no way for me to challenge that.
If I wanted my amendment to come to the floor, I had to accept a higher
margin to pass it than all the other amendments that had preceded it.
Why? Because the threat of a filibuster was there, a filibuster
against my amendment. That threat alone raised the margin and standard
for that vote to 60. From the other side's point of view, many of whom
opposed my amendment, it is a pretty easy thing to start a filibuster
if you don't have to engage personally or make a personal commitment to
it. They tossed it out as a standard. Sixty votes became the
requirement. Fortunately for me, I had 64 votes and passed it.
The same is not true of another provision which means an awful lot to
me, the DREAM Act. The DREAM Act is a reform of our immigration laws
that is long overdue for children brought to the United States who are
asking for a chance to become legal. They can do it through military
service or by education, achieving at least 2 years of college. I have
tried for 10 years to pass this measure and repeatedly have had
majority support on the floor of the Senate. It has been ruled not
enough. You need 60 if you are going to pass the DREAM Act. Just in the
last 3 weeks, we had it considered again. It failed by not reaching 60
votes but had 55 votes. So the fact is, establishing this new 60-vote
margin has become too commonplace for anything that anyone wants to
brand as controversial that might require a filibuster. That has to
change. Sixty-vote requirements should be rare in this body. They
should be used sparingly, and they should not be applied on a daily
basis to any amendment or bill that I or any other Senator at any given
moment objects to.
Let me also say when it came to unemployment insurance, I had a
little debate with the former Senator from Kentucky, Jim Bunning, now
retired, and insisted that he stay on the floor as I repeatedly asked
for unanimous consent to extend unemployment benefits. Some Republicans
came to the floor and charged that was unfair to ask the Senator from
Kentucky to stay on the floor so that he could object to my unanimous
consent requests. I am sorry. There were millions of Americans who were
not receiving unemployment benefits, and I think it is not unfair to
say to the Senator who is objecting to those benefits: Stick around,
miss that basketball game you want to see tonight, which he had
announced on the floor. Stick around and suffer a little bit because
you happen to believe that is the right thing to do.
Eventually, after a matter of days, unemployment benefits were
extended. But the point I am getting to is that we have reached a point
here that is way beyond the protection of the minority. It is the
protection of what I consider to be an indolent approach to the Senate
where we want the easiest way around things. We don't want to debate
them. We don't want to vote on them. We don't want to face a majority
vote that we might lose. So we have contrived a new set of standards,
procedures, and rules that we are addressing today as part of this
reform conversation.
Many times when Senators file a cloture motion or an objection that
is noted by their side of the aisle and then the clock starts to run,
the 30 hours, before there is a vote, many times those Senators leave.
Before the Senator from Oregon arrived in this body there was one
Senator who objected to our moving to a measure, forcing the Senate to
stay in session until Saturday, when in the afternoon the time expired
and a vote was called. The Senator who objected didn't show up. He
wasn't there. We asked where he was. He had to go to a wedding. Really?
The rest of us stayed here and waited for the vote that he demanded
while he went off to a family social obligation. That is not right.
The good part of the rules changes that are being discussed now would
require Senators like that Senator, if they believe the business of the
Senate should stop or be delayed, to invest themselves personally in
the conversation--to be here. Is that too much to ask? As the Senator
from Pennsylvania once said: Earn it and own it. If you believe the
business of the Senate should come to a halt for 30 hours, then for
goodness' sake have at least the decency and the personal commitment to
park yourself at your desk and argue your point of view. If you are too
tired to do it or too distracted or can think of something better to do
with your time, be my guest and walk through the doors and let the
Senate proceed with its business. But if it is important enough for you
to stop the business of the Senate, I happen to agree with those who
are calling for rules reforms; we should have that change.
We should make those who are invested in it stay and invest their
time, their personal commitment to that undertaking.
Finally, the nomination process has been corrupted to a point I don't
even recognize. When Chief Justice Roberts chastises the Senate for all
of the judicial vacancies in America, I know what he is talking about.
In my home district of Illinois, the central district, in normal times
there are four district court judges. Currently, we have three
vacancies. One judge, Mike McCuskey, is running all over downstate
Illinois from courthouse to courthouse to try to keep the criminal
calendar going. I am afraid he has little or no time for the civil
calendar because of three vacancies.
Two of those vacancies the President nominated judges to fill. The
judges
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were considered by the Senate Judiciary Committee, reported unanimously
by the Senate Judiciary Committee to the Executive Calendar, and I
literally begged the Republican side of the aisle and leadership to
allow these two to come up for a voice vote since there was no
controversy attached with them and a judicial emergency existed in that
central Illinois district. They refused. They refused, despite repeated
efforts.
I then went to the other side and said: All right, you must have
Republican Senators facing the same thing in their States. I found
Senator Cornyn of Texas, with exactly the same circumstance. I said:
John, you have a noncontroversial nominee. Let's team up together, make
it bipartisan so there is no question that we are trying to do anything
for a partisan advantage. He said: I am with you. It was not enough.
The Republican leadership still objected to filling these vacancies
when a judicial emergency existed, though I asked for it repeatedly.
That to me is an abuse of the process. If either of those nominees had
been controversial, if this was a situation where it was a new, extra
judge, some question of whether it was needed, that is another story
completely. But we need a nomination process where those who are not
controversial are brought up and considered in a timely fashion.
I commend my colleagues because I think each and every one of them
has added to this conversation--Senators Wyden, Grassley, and
McCaskill, on a bipartisan basis, to do away with Senate holds. Senator
Udall of New Mexico, Senator Harkin of Iowa, and Senator Merkley of
Oregon, who is now presiding, I think have had an excellent proposal
here of five different changes that would make this a more effective
Senate. Senator Lautenberg, who spoke just moments ago, had his own
proposal. Senator Udall of Colorado and Senator Harkin each have a
proposal.
It is time for us to sit down on a bipartisan basis to protect the
rights of the minority within the Senate, but to bring the Senate
procedure into a more efficient and more effective way, not just so C-
SPAN viewers are not shortchanged when they sign up for C-SPAN Senate
and all they get is an occasional ``Akaka'' or some other name being
listed in the quorum call, but actually hear the Senate working for its
money.
We can do better. I know what is going to happen now. We are likely
to recess for some period of time, and an opportunity presents itself
for the leaders on both sides to come together. There is room for us to
reach agreement. We can say to the minority: You are going to get your
chance for amendments. You always want that. You are going to get it.
And we can say to our side: You are going to face some votes on
amendments, like it or not. That is part of why we are here. We can
have some real debate. We can have an investment in the cloture process
that means it is real and personal, and that those who believe in it
are taking the time to make sure the Senate continues to function as a
responsible part of our government.
Mr. President, at this point I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. UDALL of New Mexico. Mr. President, let me first say to our
majority whip, Mr. Durbin of Illinois, that I very much appreciate his
long-term effort in looking at rules. I know he signed on to several
proposals today. I know he is on the one Senator Merkley and I are on,
and he is also on the Harkin proposal.
The Senator was here back in those days, and he has seen how much the
Senate has changed. So we really appreciate the Senator's contribution
to this effort and the remarkable job he has done trying to lead us in
these difficult times we are in. It must be tough for somebody like
him, who came to a Senate and saw it change over time, and change in
the wrong way and get hyperpartisan. I want to say that to the Senator.
I also want to say several of our speakers mentioned things, and I
think it is very appropriate to put them in the Record because I think
when people read the Congressional Record, and things are mentioned, it
is important they be able to find them quickly.
So the first one is from George Packer, who is a writer with the New
Yorker magazine. He wrote a piece called ``The Empty Chamber'' dated
August 9, 2010. I commend to my colleagues that article. It was
mentioned in the course of the debate and it is an excellent article.
He is a very good writer.
Secondly, one of the big scholars on Congress--there are a couple of
people out there who study Congress over and over and write books and
articles and monitor what we are doing, and one of them is a gentleman
by the name of Norm Ornstein. Norm wrote--this was also mentioned in
the course of the debate by one of the Senators--and Norm wrote a piece
in the New York Times called ``A Filibuster Fix.'' That was on August
27, 2010. I ask unanimous consent that article be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Aug. 27, 2010]
A Filibuster Fix
(By Norman Ornstein)
Washington.--After months of debate, Senate Democrats this
summer broke a Republican filibuster against a bill to extend
unemployment benefits. But the Republicans insisted on
applying a technicality in the Senate rules that allowed for
30 more hours of floor time after a successful vote to end
debate. As a result, the bill--with its desperately needed
and overdue benefits for more than 2 million unemployed
Americans--was pointlessly delayed a few days more.
The Senate, once the place for slow and careful
deliberation, has been overtaken by a culture of
obstructionism. The filibuster, once rare, is now so common
that it has inverted majority rule, allowing the minority
party to block, or at least delay, whatever legislation it
wants to oppose. Without reform, the filibuster threatens to
bring the Senate to a halt.
It is easy to forget that the widespread use of the
filibuster is a recent development. From the 1920s to the
1950s, the average was about one vote to end debate, also
known as a cloture motion, a year; even in the 1960s, at the
height of the civil rights debates, there were only about
three a year.
The number of cloture motions jumped to three a month
during the partisan battles of the 1990s. But it is the last
decade that has seen the filibuster become a regular part of
Senate life: there was about one cloture motion a week
between 2000 and 2008, and in the current Congress there have
been 117--more than two a week.
Even though there might be several motions for cloture for
each filibuster, there clearly has been a remarkable increase
in the use of what is meant to be the Congressional
equivalent of a nuclear weapon.
Filibusters aren't just more numerous; they're more
mundane, too. Consider an earlier bill to extend unemployment
benefits, passed in late 2009. It faced two filibusters--
despite bipartisan backing and its eventual passage by a 98-0
margin. A bill that should have zipped through in a few days
took four weeks, including seven days of floor debate. Or
take the nomination of Judge Barbara Milano Keenan to the
United States Court of Appeals for the Fourth Circuit: she,
too, faced a filibuster, even though she was later confirmed
99 to 0.
Part of the problem lies with today's partisan culture, in
which blocking the other party takes priority over passing
legislation or confirming candidates to key positions. And
part of the problem lies with changes in Senate practices
during the 1970s, which allowed the minority to filibuster a
piece of legislation without holding up other items of
business.
But the biggest factor is the nature of the filibuster
itself. Senate rules put the onus on the majority for ending
a debate, regardless of how frivolous the filibuster might
be.
If the majority leader wants to end a debate, he or she
firsi calls for unanimous consent for cloture, basically a
voice vote from all the senators present in the chamber. But
if even one member of the filibustering minority is present
to object to the motion, the majority leader has to hold a
roll call vote. If the majority leader can't round up the
necessary 60 votes, the debate continues.
Getting at least 60 senators on the floor several times a
week is no mean feat given travel schedules, illnesses and
campaign obligations. The most recent debate over extending
unemployment benefits, for example, took so long in part
because the death of Senator Robert Byrd, a Democrat from
West Virginia, left the majority with only 59 votes for
cloture. The filibuster was brought to an end only after West
Virginia's governor appointed a replacement.
True, the filibuster has its benefits: it gives the
minority party the power to block hasty legislation and force
a debate on what it considers matters of national
significance. So how can the Senate reform the filibuster to
preserve its usefulness but prevent its abuse?
For starters, the Senate could replace the majority's
responsibility to end debate with the minority's
responsibility to keep it going. It would work like this: for
the first four weeks of debate, the Senate would operate
under the old rules, in which the majority has to find enough
senators to vote for
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cloture. Once that time has elapsed, the debate would
automatically end unless the minority could assemble 40
senators to continue it.
An even better step would be to return to the old ``Mr.
Smith Goes to Washington'' model--in which a filibuster means
that the Senate has to stop everything and debate around the
clock--by allowing a motion requiring 40 votes to continue
debate every three hours while the chamber is in continuous
session. That way it is the minority that has to grab cots
and mattresses and be prepared to take to the floor night and
day to keep their filibuster alive.
Under such a rule, a sufficiently passionate minority could
still preserve the Senate's traditions and force an extended
debate on legislation. But frivolous and obstructionist
misuse of the filibuster would be a thing of the past.
Mr. UDALL of New Mexico. Let me finally say to the Senator from
Oregon, the Presiding Officer, that I very much appreciate his support
both in working with me on the constitutional option and sorting out
the details and making sure we have things right and also for his
incredible work in terms of pulling together the talking filibuster
part of this. I was here today when he showed his charts, and he took
our five ideas and, in the most simple form so the American people
could understand it, capsulized those in those five charts.
I have been telling my staff--and you need to do this by the end of
the debate--we need to find a way to shrink those and put those in the
Record also because here we are sitting on the floor and we have these
charts and we need to somehow have those be a representation also.
So with that, I yield the floor.
____________________