Congressional Record, Volume 157 Issue 10 (Tuesday, January 25, 2011)

[Congressional Record Volume 157, Number 10 (Tuesday, January 25, 2011)]
[Senate]
[Pages S85-S98]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

UNANIMOUS CONSENT REQUEST--S. RES. 21

=========================== NOTE ===========================

On page S85, January 25, 2011, the Record reads: UNANIMOUS
CONSENT REQUEST--S. RES. 10

The online Record has been corrected to read: UNANIMOUS CONSENT
REQUEST--S. RES. 21

========================= END NOTE =========================

=========================== NOTE ===========================

On page S85, January 25, 2011, the Record reads: . . . XIX and
rule II . . .

The online Record has been corrected to read: . . . XIX and rule
XXII . . .

========================= END NOTE =========================

Mr. MERKLEY. Mr. President, I submit a resolution on behalf of myself
and Senator Tom Udall to amend rule XIX and rule XXII of the Standing
Rules of the Senate, and I ask unanimous consent that the Senate
proceed to the immediate consideration of the resolution.
The PRESIDING OFFICER. Is there objection?
Mr. MERKLEY. Mr. President, for purposes of having the resolution go
over, under the rule, I object.
The PRESIDING OFFICER. Objection is heard. The measure will go over,
under the rule.
Mr. MERKLEY. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. MERKLEY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

[[Page S86]]

Mr. MERKLEY. Madam President, I ask unanimous consent to speak on the
issue of Senate rules. I will be joined by a few colleagues in a few
minutes.
The ACTING PRESIDENT pro tempore. The Senator is recognized.
Mr. MERKLEY. Thank you, Madam President.
The reason I am rising to talk about rules is because we are at the
start of a new 2-year period for Congress. This is the appropriate time
to be considering how well the Senate is working and whether we should
amend the rules by which the Senate functions.
The last major debate over many of the rules was in 1975. The reason
there was a debate that particular year is that in 1973 and 1974, the
Congress preceding, there were 44 filibusters, each eating up about a
week of the Senate's time. There was a tremendous amount of frustration
over the dysfunction of the Senate. So at the start of the Congress
that began in 1975, there was an enormous amount of debate, debate that
went on for weeks, with all kinds of motions. The spreadsheet tracking
them fills pages. In the end, what this body, the Senate, decided to do
was to change the rule that requires 67 Senators to terminate debate
and have a final vote on a bill and replace it with the decision to
have 60 Senators required to end debate and have a final vote on a
bill. This is for the so-called cloture motion.
Now we are in a period immediately preceded by the 2009-2010
Congress. In 2009 and in 2010, we didn't have 44 filibusters, we had
135 filibusters. In other words, the Senate has been three times as
dysfunctional as it was preceding the last major debate in this Chamber
over rules. Since each filibuster delays the work of the Senate for
approximately a week under the rules, if you have 135 objections in a
2-year period, that would be 135 weeks of delay in a 104-week period.
Obviously, many things are not going to get done with that type of
obstruction. Indeed, during 2010 this Chamber was unable to pass a
single appropriations bill of the 13 appropriations bills traditionally
taken under consideration, debated on this floor, and sent forward. Why
is that important? Because in the appropriations bills, we make
decisions about what the most pressing problems in America are and how
we are going to allocate resources to address those pressing problems.
We didn't fail to do this in one or two areas; we failed to do it in
all 13. Furthermore, this body did not pass a budget during the last
year, 2010. This body did not proceed to advise and consent on all of
the nominations that came before it. In fact, we left over 100
nominations pending.
This merits a little bit further discussion because under the
Constitution, it is the Senate, this esteemed Chamber, that weighs in
on the President's nominations to fill key executive branch positions.
It is this Chamber that weighs in on the President's recommendations to
fill judicial positions, to assign judges.

If we never get to the debate on the floor of the Senate, then we
have not fulfilled our constitutional responsibility to advise and
consent. In fact, we have wounded the executive branch, and we have
damaged the judicial branch. Certainly, under our theory of balance of
powers, it was never envisioned that the advise-and-consent function of
the Senate would be used to damage other branches of government. We
have failed in our responsibility.
Furthermore, we have left over 400 House bills lying on the floor,
collecting dust, unprocessed, unconsidered. The saying in the House of
Representatives is the Senate is where good House bills go to die.
It is appropriate that as we start a new 2-year period, we ask
ourselves how we should address this dysfunction. There was a time in
which the Senate was called the greatest deliberative body in the
world. Unfortunately, today there is very little deliberation in the
Senate. No appropriations bills, nominations unprocessed, hundreds of
House bills untouched, an incomplete budget. The main culprit in this
is the filibuster. A filibuster is kind of street language, if you
will, for an objection to the regular order of holding a majority vote
and triggering about a week's delay in the Senate's process, and it
also triggers a supermajority of 60.
It has gotten to the point that in this constitutional function as a
majority body, a body in which we need 51 votes, it is functionally
becoming a supermajority body.
The Framers of the Constitution were very clear and they laid out a
supermajority required for certain purposes. A supermajority is
required to approve treaties or a supermajority is required to impeach
but not to pass legislation. That was not the vision.
Today, I rise to say we can do better in the Senate and that we owe
it under our constitutional responsibilities to do better.
There are a series of proposals that have been filed. One of my
colleagues has arrived, Senator Udall, who has been a key leader,
enormously instrumental in this effort to reform the Senate. In a few
minutes, I am going to ask unanimous consent for one of these rule
changes to be considered on the floor. I will do that when my
colleagues across the aisle have arrived. I will go further in
discussing how we need to change the Senate.
Before I go further, Senator Udall already asked for a colloquy. I
thought I would stop at this moment and see if he wants to jump in and
share some general thoughts before we get into the specifics of the
various resolutions which we might ask unanimous consent to have
considered.
The ACTING PRESIDENT pro tempore. The Senator from New Mexico.
Mr. UDALL of New Mexico. Madam President, first of all at the
beginning, let me thank two of my colleagues who have worked incredibly
hard with me on the issue of Senate rules reform--Senator Merkley from
Oregon and Senator Tom Harkin from Iowa. Senator Harkin will be joining
us at some point.
I also wish to thank the Chair. One of the very early leaders on the
constitutional option on Senate reform of the rules was Senator Jeanne
Shaheen from New Hampshire. She is in the chair today. I know she cares
about this a lot. I know she wants to see this move forward.
What we are trying to do is follow what has been the history in the
Senate. At various points in the Senate, there has been respect for
each other, the ability to get legislation on the floor, to have
debate. With the rules, it is pretty extraordinary when we look at the
history.
When we look at the history of the Senate rules, one of the things
that is very clear in the movements in the fifties, sixties, and
seventies to consider rules reform, both leaders would allow proposals
onto the floor, allow these proposals onto the floor to be voted upon.
We have the extraordinary situation today--extraordinary, and we will
see when our colleagues show up--where our friends on the other side of
the aisle are basically saying: We don't want your rules reform on the
floor today. We are not going to allow that to happen.
As everybody in the Senate knows, we have to have unanimous consent
to do this. We are not going to get consent today, but we want to lay
out for people what it is that could happen if we were able to get
something on the floor.
It is my belief, I say to Senator Merkley, that the proposals we
make--the proposal Senator Merkley and I are on and the Presiding
Officer, Senator Shaheen, and 26 other Senators are on, S. Res. 10,
that we filed on January 10, is a reasonable proposal; it is a
commonsense proposal. The five proposals that are contained in the
resolution have had substantial bipartisan support in the past.
I am going to be asking unanimous consent to put S. Res. 10 onto the
floor so we can have a debate on it, so we can move forward. What is,
as I said, extraordinary is we are not going to get that consent. Our
research indicates--and I know Senator Merkley and his staff worked
very hard. They had a chart that was three pages long. In the fifties,
sixties, and seventies, these proposals were on the floor. They were
debated on the floor. Sometimes there was a motion to table, sometimes
there was an up-or-down vote. But we are having great difficulty
getting this reasonable, commonsense proposal on the floor.
Let me talk a little bit about S. Res. 10, which 26 other Senators
cosponsored on the first day. First of all, it deals with a serious
problem. There are five parts to this issue. The first one is debate on
motions to proceed. It may

[[Page S87]]

sound a little crazy to people out there, but when we try to get
something onto the floor, it does not happen automatically. Actually,
what has to happen is if both sides do not agree, the majority leader
files what is called a motion to proceed. We can end up on the motion
to proceed, going along for 1 week, have to file cloture, which means
to cut off debate on the motion to proceed, and then with all the
ripening time it takes about 1 week to get through that. We can get to
the end of the week, and if we do not get the 60 votes to cut off
debate on the motion to proceed, we are back to square one and have
wasted a week. That is what we believe is a dilatory tactic. It does
not let us get to the point, the people's business.
Mr. MERKLEY. If I may interrupt for a moment, I wish to clarify what
the Senator from New Mexico just said, which is, a supermajority of the
Senate, after 1 week of debate, is required just to get to the point
where we might start debate on the bill, and the Senate wastes weeks
and weeks debating whether to debate rather than doing the people's
business. That is a problem.
Mr. UDALL of New Mexico. Senator Merkley hit it on the head. That is
a problem, and we have had that consistently in the 2 years that he and
I have been here. My understanding is, it happened in many of the years
before that time. In fact, Senator Byrd was very upset about the way
the motion to proceed was being used. In 1979, he came down to the
floor--he was the majority leader--and he did everything he could to
change the motion to proceed and try to make sure it was used more
rationally and more reasonably.
What our proposal is, I say to Senator Merkley, and other Senators on
this resolution know, we are talking 2 hours of debate on the motion to
proceed. Rather than wasting a week, if Majority Leader Reid comes down
and says we are going to proceed to legislation about jobs and he puts
it on the floor, the side over there gets an hour and our side gets an
hour and then we are on the legislation, ready to have amendments
filed, ready for debate to take place.

We have saved us what we believe would be 1 week of time. That is
dealing with the first proposal on the motion to proceed.
The second proposal is very simple, but it is going to move the
Senate along in a dramatic way; that is, section 2, eliminating secret
holds. I know we have several Senators who have worked for years and
years on secret holds. When I talk about the bipartisanship on secret
holds, Senator Grassley, Senator Wyden, from Senator Merkley's great
State of Oregon, Senator Claire McCaskill of Missouri more recently,
have all been working on the issue of secret holds.
We very simply do this in one little section. We say:

No Senator may object on behalf of another Senator without
disclosing the name of that Senator.

That gets right to the heart of secret holds.
Mr. MERKLEY. Madam President, the Senator from New Mexico is telling
me it has become a common practice on the floor of the Senate for an
individual Senator who wants to oppose something to not have the
courage to stand here and tell the world their position but instead to
secretly object to a particular issue being raised. I cannot imagine
the American public can believe that Senators do not have the courage
of their convictions to come here and say: I am going to hold up this
legislation because I disagree with it, and I am going to fight it any
way I can. So the public can weigh in if they agree with them or not.
They will be accountable to the U.S. citizens.
Mr. UDALL of New Mexico. One of the things that happens--and we have
seen a lot of this--we know some Senator is objecting, for example, to
a nomination, a high nomination in an executive department and does it
secretly so we do not know on the Senate floor, the press who covers
this does not have an idea, and the people do not know. Then, the same
Senator goes to the department and negotiates policy, national policy
about a particular issue that concerns the whole Nation, all our
States, and tries to get an agreement, a backroom deal and an
agreement. That is not the way we should be doing business, and that is
why this very simple proposal: ``No Senator may object on behalf of
another Senator without disclosing the name of the Senator.''
You own the hold.
Mr. MERKLEY. I wish to note, as Senator Udall observed, Senator
Wyden, Senator Grassley, and Senator McCaskill have worked hard on a
much more detailed version than we have in S. Res. 10, but the basic
notion is the same. If a colleague is going to place a hold, they are
going to do so in a public and accountable fashion and that would
greatly improve the quality of ballot.
I have been in the position of trying to get help for the Klamath
Basin in Oregon because they have had little rainfall. I eventually did
find out, but it took me quite a while, asking a lot of questions about
who had the hold so I could ask them to release the hold so we would
have a chance of moving that assistance for this drought-impacted
portion of my State.
With this change, those holding up assistance to Klamath or any other
area would have to come to the floor and make clear where they stand.
Mr. UDALL of New Mexico. Then it is transparent, then if you as a
Senator on the Klamath Basin want to do something, you can go to that
Senator--whoever it is--and say: I have an issue with my State. Can we
work together to try to work it out?
Right now the problem we have is that some Senator is putting on a
secret hold and we do not know who it is and we do not have the ability
to clear that away. This is a good, solid proposal.
Mr. MERKLEY. It is not only secret to the public, it is often secret
to fellow Senators, greatly complicating our effort to dialog with
fellow Senators as to why we are pursuing something and get their
partnership in it.
Mr. UDALL of New Mexico. I am going to move on to the third section
of S. Res. 10, which is the right to offer amendments. As Senator
Merkley knows very well and our Presiding Officer, one of the big
issues around here--and this is getting into a little bit of the weeds,
but one of the big issues that can help us function better is if we
just agree, whether we are in the majority or in the minority, that we
want both sides to have the opportunity to debate and to offer
amendments. And so we are trying to protect that right. Many of us are
thinking in terms of these rulings, and we are saying we want them to
be fair to both sides. So the provision on the right to offer
amendments is in the legislation. It talks about them being majority
and minority amendments. It doesn't talk about parties because a lot of
the pundits are saying we are going to be in the minority in 2 years,
and I think it is only fair in the Senate that we have that kind of
relationship.

Senator Merkley.
Mr. MERKLEY. I want to note this is important to both the majority
and the minority. For example, we recently had a bill on the floor of
the Senate which was a major bill regarding the compromise struck by
President Obama with our Republican colleagues to spend almost $1
trillion. I had an amendment I wanted to present that would have taken
some of the money in that bill that was being spent in a fashion which
created very few jobs and to spend it in a fashion which would create a
lot of jobs. I had another proposal to take money that wasn't being put
to good use and to proceed to fill in and support the solvency of
Social Security and Medicare.
Now, people can argue about whether these were good ideas, but if I
had been able to offer one or both of those amendments, I think it
would have improved the debate and dialogue and perhaps have resulted
in a better piece of legislation.
Mr. UDALL of New Mexico. The fourth provision--and I think the
Senator is very right on section 3, but section 4 is the issue of
extended debate, and I would like to have the Senator talk about that
issue because that is the issue on which you worked the most closely.
The Senator from Oregon has raised the issue of what we have going on
right now is what we call a silent debate. It is a silent filibuster.
We have people who say they want to filibuster and object, but then
they go home or they go on vacation or something like that. So my
colleague has drafted a

[[Page S88]]

provision--he is the architect of this provision in S. Res. 10, if he
could just go through that and talk about that section on extended
debate, what it does and why it is important to what we are dealing
with today.
Mr. MERKLEY. Certainly. This provision about a talking filibuster
says rather than having a situation where a Senator objects to a
majority vote and then we delay the work of the Senate for a week,
though nobody is here explaining their position to the American public,
instead we would switch to a provision that says if 41 Senators want
continued debate on a bill, we will get continued debate on a bill. We
will have debate on a bill, not silence.
Currently, we have the hidden or the silent filibuster. With this, we
would create the public or the talking filibuster. To give a sense of
the numbers on this, these blue bars represent filibusters during the
last 2-year period. During the first 6 months 33, 34 in the second 6
months, 36 in the third 6 months, and then 33. I think that is 136
total filibusters in a 2-year period.
This is why we didn't have any appropriations bills. This is why we
didn't have a budget. This is why we didn't deal with hundreds of House
bills. And this is why we didn't get nominations done and advice and
consent on them.
Is this the way the Senate has always operated? Absolutely not. In
the last few decades there has been a huge change in how the Senate has
functioned. So let's take a look at the average per year.
In the 1900-1970 period, the average was one filibuster per year. In
the 1970s, the average was 16 filibusters per year. In the 1980s, 21
filibusters per year, average; in the 1990s, 36 filibusters per year,
average; in the 2000s, 2000-2010, 48 filibusters per year; and from
2009 to 2010, this last session, an average of 68. There were 136
total.
So you can see from this chart the growing dysfunction. There was
always a social contract that existed in which an individual Senator
didn't exercise his or her power to object to a simple majority vote
unless they thought it was an issue of huge consequence. Maybe that
would occur once or twice in a career, but not routinely week after
week. But that social contract has been eliminated. The filibuster was
honoring the right of every Senator to be heard; that we were not going
to hold a vote until every Senator had his or her say so we could be
fully informed and have a full dialogue. It is that reciprocal respect
that is being routinely disregarded and abused on the floor of the
Senate.
Many of us have an image of the filibuster that comes from the movie,
``Mr. Smith Goes to Washington.'' Here is Jimmy Stewart playing the
character of Jefferson Smith, and he comes to defend a corrupt action
and to stop it regarding a camp for children. He talks through the
night, and there are many forces assaulting him, but Jimmy Stewart is
going to stay on the Senate floor and he is going to tell the American
people what he is fighting for and why. This is the talking filibuster,
where you don't object and go away and leave the Senate suspended. You
don't vote for additional debate and then not have that debate. You
come to this floor and you hold the floor and you join with other
partners to hold the floor in order to explain why you are holding up
the Senate and to carry on the debate, to have that additional debate
you have voted for.
So the talking filibuster is almost that simple--it replaces the
silent filibuster with the talking filibuster. The result is two
critical things: First of all, transparency and accountability with the
American public. The public can see what you are saying on the floor of
the Senate and can say you are a hero or you are a bum. They can agree
with you or they can disagree, but it is visible, not hidden.
The second thing is each Senator has to expend time and energy to
carry out a filibuster, so this will strip away all these frivolous
filibusters that are done for no other reason than to prevent the
Senate from being able to carry on with its responsibilities.
Mr. UDALL of New Mexico. Let me also say one thing about the talking
filibuster that hit me, and that is bipartisanship. As we know, both of
us, I think, were on the Senate floor when Senator Arlen Specter gave
his farewell address. I believe the Presiding Officer was also here.
Senator Specter served in the minority for 2 years and then was in the
majority for almost 2 years and both times he came forward with a
proposal where he was calling for the same thing--a talking filibuster,
whether he was on the minority side or the majority side.
So I think, once again, that just demonstrates that each of these
provisions has bipartisan support in it.
We don't think this debate is about partisanship. We don't think it
is about a power grab. We don't think it is about those kinds of
things. It is about, as the Senator has elucidated, making the Senate
work better. When we say ``make the Senate work better,'' we are
talking about it working better for the American people.
I think if we did the oversight of government when it comes to
appropriations bills, a budget, getting the budget out on time, getting
appropriations bills done on time, that does a lot to make sure the
public's money is well spent, and that is something I hear a lot about
back home.
I will ask unanimous consent to have printed in the Record a
Republican Policy Committee paper titled ``The Constitutional Option:
The Senate's Power To Make Procedural Rules by Majority Vote,'' dated
April 25, 2005.
We keep hearing that any use of the constitutional option is simply a
power grab by Democrats. That is simply not true--and a 2005 Republican
Policy Committee memo provides some excellent points to rebut the power
grab argument.
Let me read part of the 2005 Republican memo and I will ask that the
entire memo be printed in the Record:

This constitutional option is well grounded in the U.S.
Constitution and in Senate history.
The Senate has always had, and repeatedly has exercised,
the constitutional power to change the Senate's procedures
through a majority vote. Majority Leader Robert C. Byrd used
the constitutional option in 1977, 1979, 1980, and 1987 to
establish precedents changing Senate procedures during the
middle of a Congress. And the Senate several times has
changed its Standing Rules after the constitutional option
had been threatened, beginning with the adoption of the first
cloture rule in 1917. Simply put, the constitutional option
itself is a longstanding feature of Senate practice.
The Senate, therefore, has long accepted the legitimacy of
the constitutional option. Through precedent, the option has
been exercised and Senate procedures have been changed. At
other times it has been merely threatened, and Senators
negotiated textual rules changes through the regular order.
But regardless of the outcome, the constitutional option has
played an ongoing and important role.

The memo goes on to address some ``Common Misunderstandings of the
Constitutional Option.'' Let me read some of those.
Again, this is a direct quote:

The next misunderstanding addressed in the memo is that ``Exercising
the constitutional option will destroy the filibuster for
legislation.''
The Republican rebuttal is:

The history of the use of the constitutional option
suggests that this concern is grossly overstated. Senators
will only exercise the constitutional option when they are
willing to live with the rule that is created, regardless of
which party controls the body.

And a final misunderstanding in the memo, and one which the
Republicans are happy to use now, is that ``the essential character of
the Senate will be destroyed if the constitutional option is
exercised.''
The memo rebuts this by stating:

When Majority Leader Byrd repeatedly exercised the
constitutional option to correct abuses of Senate rules and
precedents, those illustrative exercises of the option did
little to upset the basic character of the Senate. Indeed,
many observers argue that the Senate minority is stronger
today in a body that still allows for extensive debate, full
consideration, and careful deliberation of all matters with
which it is presented.

I ask unanimous consent that the memo be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[[Page S89]]

[From the Republican Policy Committee, Apr. 25, 2005]

The Senate's Power To Make Procedural Rules by Majority Vote

Executive Summary

The filibusters of judicial nominations that arose during
the 108th Congress have created an institutional crisis for
the Senate.
Until 2003, Democrats and Republicans had worked together
to guarantee that nominations considered on the Senate floor
received up-or-down votes.
The filibustering Senators are trying to create a new
Senate precedent--a 60-vote requirement for the confirmation
of judges--contrary to the simple-majority standard presumed
in the Constitution.
If the Senate allows these filibusters to continue, it will
be acquiescing in Democrats' unilateral change to Senate
practices and procedures.
The Senate has the power to remedy this situation through
the ``constitutional option''--the exercise of a Senate
majority's constitutional power to define Senate practices
and procedures.
The Senate has always had, and repeatedly has exercised,
this constitutional option. The majority's authority is
grounded in the Constitution, Supreme Court case law, and the
Senate's past practices.
For example, Majority Leader Robert C. Byrd used the
constitutional option in 1977, 1979, 1980, and 1987 to
establish precedents that changed Senate procedures during
the middle of a Congress.
An exercise of the constitutional option under the current
circumstances would be an act of restoration--a return to the
historic and constitutional confirmation standard of simple-
majority support for all judicial nominations.
Employing the constitutional option here would not affect
the legislative filibuster because virtually every Senator
supports its preservation. In contrast, only a minority of
Senators believes in blocking judicial nominations by
filibuster.
The Senate would, therefore, be well within its rights to
exercise the constitutional option in order to restore up-or-
down votes for judicial nominations on the Senate floor.

Introduction

In recent months, there has been growing public interest in
the Senate's ability to change its internal procedures by
majority vote. The impetus for this discussion is a Senate
minority's use of the filibuster to block votes on 10
judicial nominations during the 108th Congress. Until then, a
bipartisan majority of Senators had worked together to
guarantee that filibusters were not to be used to permanently
block up-or-down votes on judicial nominations. For example,
as recently as March 2000, Majority Leader Trent Lott and
Minority Leader Tom Daschle worked together to ensure that
judicial nominees Richard Paez and Marsha Berzon received up-
or-down votes, even though Majority Leader Lott and most of
the Republican caucus ultimately voted against those
nominations. But that shared understanding of Senate norms
and practices--that judicial nominations shall not be blocked
by filibuster--broke down in the 108th Congress.
This breakdown in Senate norms is profound. There is now a
risk that the Senate is creating a new, 60-vote confirmation
standard. The Constitution plainly requires no more than a
majority vote to confirm any executive nomination, but some
Senators have shown that they are determined to override this
constitutional standard. Thus, if the Senate not act during
the 109th Congress to restore the Constitution's simple-
majority standard, it could be plausibly argued that a
precedent has been set by the Senate's acquiescence in a 60-
vote threshold for nominations.
One way that Senators can restore the Senate's traditional
understanding of its advice and consent responsibility is to
employ the ``constitutional option''--an exercise of a Senate
majority's power under the Constitution to define Senate
practices and procedures. The constitutional option can be
exercised in different ways, such as amending Senate Standing
Rules or by creating precedents, but regardless of the
variant, the purpose would be the same--to restore previous
Senate practices in the face of unforeseen abuses. Exercising
the constitutional option in response to judicial nomination
filibusters would restore the Senate to its longstanding
norms and practices governing judicial nominations, and
guarantee that a minority does not transform the fundamental
nature of the Senate's advice and consent responsibility. The
approach, therefore, would be both reactive and restorative.
This constitutional option is well grounded in the U.S.
Constitution and in Senate history. The Senate has always
had, and repeatedly has exercised, the constitutional power
to change the Senate's procedures through a majority vote.
Majority Leader Robert C. Byrd used the constitutional option
in 1977, 1979, 1980, and 1987 to establish precedents
changing Senate procedures during the middle of a Congress.
And the Senate several times has changed its Standing Rules
after the constitutional option had been threatened,
beginning with the adoption of the first cloture rule in
1917. Simply put, the constitutional option itself is a
longstanding feature of Senate practice.
This paper proceeds in four parts: (1) a discussion of the
constitutional basis of the Senate's right to set rules for
its proceedings; (2) an examination of past instances when
Senate majorities acted to define Senate practices--even
where the written rules and binding precedents of the Senate
dictated otherwise; (3) an evaluation of how this history
relates to the present impasse regarding judicial nomination
filibusters; and (4) a clarification of common
misunderstandings of, the constitutional option. The purpose
of this paper is not to resolve the political question of
whether the Senate should exercise the constitutional option,
but merely to demonstrate the constitutional and historical
legitimacy of such an approach.

The Constitution: the Senate's Right to Set Procedural Rules

``Each House may determine the Rules of its Proceedings.''
--U.S. Constitution, art. I, sec. 5., cl. 2.
The Senate's constitutional power to make rules is
straightforward, but two issues do warrant brief
elaboration--the number of Senators that are constitutionally
necessary to establish procedures and whether there are any
time limitations as to when the rulemaking power can be
exercised.
The Supreme Court addressed both of these questions in
United States v. Ballin, an 1892 case interpreting Congress's
rulemaking powers.\1\ First, the Court held that the powers
delegated to each body are held by a simple majority of the
quorum, unless the Constitution expressly creates a
supermajority requirement.\2\ The Constitution itself sets
the quorum for doing business--a majority of the Senate.\3\
Second, the Supreme Court held that the ``power to make rules
is not one which once exercised is exhausted. It is a
continuous power, always subject to be exercised by the
house.'' \4\ Thus, the Supreme Court has held that the power
of a majority of Senators to define the Senate's procedures
exists at all times--whether at the beginning, middle, or end
of a Congress.
The Senate majority exercises this constitutional
rulemaking power in several ways:
First, it has adopted Standing Rules to govern some Senate
practices and procedures. Those rules formally can be changed
by a majority vote. Any motion to formally amend the Standing
Rules is subject to debate, and Senate Rule XXII creates a
special two-thirds cloture threshold to end that debate.
Second, the Senate operates according to Senate precedents,
i.e., rulings by the Chair or the Senate itself regarding
questions of Senate procedure. A precedent is created
whenever the Chair rules on a point of order, when the Senate
sustains or rejects an appeal of the Chair's ruling on a
point of order, or when the Senate itself rules on a question
that has been submitted to it by the Chair.\5\ As former
parliamentarian and Senate procedural expert Floyd M. Riddick
has said, ``The precedents of the Senate are just as
significant as the rules of the Senate.'' \6\
Third, the Senate binds itself through rule-making statutes
that constrain and channel the consideration of particular
matters and guarantee that the Senate can take action on
certain matters by majority vote. At least 26 such rule-
making statutes govern Senate procedure and limit the right
to debate, dating back to the 1939 Reorganization Act and
including, most prominently, the 1974 Budget Act.\7\
Finally, the Senate can modify the above procedures through
Standing Orders, which can be entered via formal legislation,
Senate resolutions, and unanimous consent agreements.
It is important to emphasize, however, that these rules are
the mere background for day-to-day Senate procedure. As any
Senate observer knows, the institution functions primarily
through cooperation and tacit or express agreements about
appropriate behavior. Most business is conducted by unanimous
consent, and collective norms have emerged that assist in the
protection of minority rights without unduly hindering the
Senate's business.
Consider, for example, the Senate's contrasting norms
regarding the exercise of individual Senators' procedural
rights. Under the rules and precedents of the Senate, each
Senator has the right to object to consent requests and, with
a sufficient second, to demand roll call votes on customarily
routine motions. If Senators routinely exercised those
rights, however, the Senate would come to a standstill. Such
wholesale obstruction is rare, but not because the Senate's
standing rules, precedents, and rulemaking statutes prohibit
a Senator from engaging in that kind of delay. Rather,
Senators rarely employ such dilatory tactics because of the
potential reaction of other Senators or the possibility of
retaliation. As a result, informed self enforcement of
reasonable behavior is the norm.
At the same time, some ``obstructionist'' tactics have long
been accepted by the Senate as features of a body that
respects minority rights. Most prominent is the broadly
accepted right of a single Senator to speak for as long as he
or she wants on pending legislation, subject only to the
right of the majority to invoke cloture and shut off debate.
Indeed, an overwhelming and bipartisan consensus in support
of the current legislative filibuster system has existed for
30 years.\8\ Thus, the norms of the Senate tolerate some, but
not all, kinds or degrees of obstruction.
Thus, while written rules, precedents, and orders are
important, common understandings of self-restraint,
discretion, and

[[Page S90]]

institutional propriety have primarily governed acceptable
Senatorial conduct. It is the departures from these norms of
conduct that have precipitated institutional crises that
require the Senate to respond.

The History: the Senate's Repeated Use of the Constitutional Option

The Senate is a relatively stable institution, but its
norms of conduct have sometimes been violated. In some
instances, a minority of Senators has rejected past practices
and bipartisan understandings and exploited heretofore ``off
limits'' opportunities to obstruct the Senate's business. At
other times, a minority of Senators has abused the rules and
precedents in a manner that violates Senators' reasonable
expectations of proper procedural parameters. These are
efforts to change Senate norms and practices, but they do not
necessarily have the support of a majority.
Such situations create institutional conundrums: what
should be done when a mere minority of Senators changes
accepted institutional norms? One option is to acquiesce and
allow ``rule by the minority'' so that the minority's norm
becomes the Senate's new norm. But another option has been
for the majority of Senators to deny the legitimacy of the
minority Senators' effort to shift the norms of the entire
body. And to do that, it has been necessary for the majority
to act independently to restore the previous Senate norms of
conduct.
This section examines those illustrative instances--
examples of when the Senate refused to permit a minority of
Senators to change norms of conduct or to otherwise exploit
the rules in ways destructive to the Senate, and, instead,
exercised the constitutional option.
Then-Majority Leader Byrd's Repeated Exercise of the
Constitutional Option
When Senator Robert C. Byrd was Majority Leader, he faced
several circumstances in which a minority of Senators (from
both parties) began to exploit Senate rules and precedents in
generally unprecedented ways. The result was obstruction of
Senate business that was wholly unrelated to the
institution's great respect for the right to debate and
amend. Majority Leader Byrd's response was to implement
procedural changes through majoritarian votes in order to
restore Senate practices to the previously accepted norms of
the body.
1977--Majority Leader Byrd Exercised the Constitutional
Option to Alter Operation of Rule XXII and Prevent Post-
Cloture Filibusters
In 1977, two Senators attempted to block a natural gas
deregulation bill after cloture had already been invoked.\9\
A ``post-cloture filibuster'' should seem counterintuitive
for anyone with a casual acquaintance with Senate rules, but
these obstructing Senators had found a loophole. Although
further debate was foreclosed by Rule XXII once post-cloture
debate was exhausted, the Senators were able to delay a final
vote by offering a series of amendments and then forcing
quorum calls and roll call votes for each one. Even if the
amendments were ``dilatory'' or ``not germane'' (which Rule
XXII expressly prohibits), Senate procedure provided no
mechanism to get an automatic ruling from the Chair that the
amendments were defective. A Senator could raise a point of
order, but any favorable ruling could be appealed, and a roll
call vote could be demanded on the appeal. Moreover, in 1975,
before a point of order could even be made, an amendment
first must have been read by the clerk. While the reading of
amendments is commonly waived by unanimous consent, anyone
could object and require a reading that could further tie up
Senate business. Thus, the finality that cloture is supposed
to produce could be frustrated.
These practices were proper under Senate rules and
precedents, but Majority Leader Byrd concluded in this
context that these tactics were an abuse of Senate Rule XXII.
His response was to make a point of order that ``when the
Senate is operating under cloture the Chair is required to
take the initiative under rule XXII to rule out of order all
amendments which are dilatory or which on their face are out
of order.'' \10\ The Presiding Officer, Vice President Walter
Mondale, sustained the point of order, another Senator
appealed, and Majority Leader Byrd immediately moved to
table. The Senate then voted to sustain the motion to table
the appeal. In so doing, the Senate set a new precedent that
ran directly contrary to the Senate's longstanding procedures
which required Senators to raise points of order to enforce
Senate rules. Now, under this precedent, the Chair would be
empowered to take the initiative to rule on questions of
order in a post-cloture environment.
The reason for Majority Leader Byrd's tactic immediately
became clear. He began to call up each of the dilatory
amendments that had been filed post-cloture, and the Chair
instantly ruled them out of order. There was no reading of
the amendments (which would have been dilatory in itself) and
there were no roll call votes. The Majority Leader then
exercised his right of preferential recognition to call up
numerous remaining amendments, and similarly disposed of
them. No appeals could be taken because any appeal was mooted
when Majority Leader Byrd secured his preferential
recognition to call up additional amendments.'' \11\
This was the constitutional option in action. Majority
Leader Byrd did not follow the regular order and attempt to
amend the Senate Rules in order to block these tactics.
Instead, he used a simple point of order that cut off the
ability of a minority of Senators to add a new layer of
obstruction to the legislative process. His method was
consistent with the Senate's constitutional authority to
establish procedure.
1979--Majority Leader Byrd Exercised the Constitutional
Option to Change Operation of Rule XVI (Limiting
Amendments to Appropriations Bills)
Majority Leader Byrd used the constitutional option again
in 1979 in order to block legislation on appropriations
bills.\12\ Standing Rule XVI barred Senate legislative
amendments to appropriations bills. By precedent, however,
such amendments were permissible when offered as germane
modifications of House legislative provisions. Thus, when the
House acted first and added legislative language to an
appropriations measure, Senators could respond by offering
legislative amendments to the House's legislative language.
While another Senator might make a point of order, the
Senator offering the authorizing language could respond with
a defense of germaneness. And, by the express language of
Rule XVI, that question of germaneness must be submitted to
the Senate and decided without debate. By enabling the full
Senate to vote on the germaneness defense without getting a
ruling from the Presiding Officer first, the legislative
amendment's sponsor avoided having to overturn the ruling of
the Chair and create any formal precedents in doing so. The
result was a breakdown in the appropriations process due to
legislative amendments, and it was happening pursuant to
Senate rules that plainly permitted these tactics.
Majority Leader Byrd resolved to override the plain text of
Rule XVI and strip the Senate of its ability to decide
questions of germaneness in this context. Senator Byrd's
mechanism was similar to the motion he employed in 1977: he
made a point of order that ``this is a misuse of precedents
of the Senate, since there is no House language to which this
amendment could be germane, and that, therefore, the Chair is
required to rule on the point of order as to its being
legislation on an appropriation bill and cannot submit the
question of germaneness to the Senate.'' \13\ The Chair
sustained the point of order, and the Senate rejected the
ensuing appeal, 44-40.
The result of Majority Leader Byrd's exercise of the
constitutional option was a binding precedent that caused the
Senate to operate in a manner directly contrary to the plain
language of Rule XVI.\14\ Moreover, the method was contrary
to past Senate practices regarding germaneness. But the
process employed, as in 1977, was nonetheless constitutional
because nothing in the Senate's rules, precedents, or
practices can deny the Senate the constitutional power to set
its procedural rules.
1980--Majority Leader Byrd Changed Procedures Governing
Executive Session and the Treatment of Judicial
Nominations
The Senate's Executive Calendar has two sections--treaties
and nominations. Prior to March 1980, a motion to enter
Executive Session, if carried, would move the Senate
automatically to the first item on the Calendar, often a
treaty. Rule XXII provides (then and now) that such a motion
to enter Executive Session is not debatable. However, unlike
the non-debatable motion to enter Executive Session, any
motion to proceed to a particular item on the Executive
Calendar was then subject to debate. In practice, then, the
Senate could not proceed to consider any business other than
the first Executive Calendar item without a Senator offering
a debatable motion, which then would be subject to a possible
filibuster.\15\
Majority Leader Byrd announced his objection to this
potential ``double filibuster'' (once on the motion to
proceed to a particular Executive Calendar item, and again on
the Executive Calendar item itself), and exercised another
version of the constitutional option. This time he moved to
proceed directly to a particular nomination on the Executive
Calendar and sought to do so without debate. Senator Jesse
Helms made the point of order that Majority Leader Byrd could
only move by a non-debatable motion into Executive Session,
not to a particular treaty or nomination.\16\ The Presiding
Officer upheld the point of order given that it was grounded
in Rule XXII and longstanding understandings of Senate
practices and procedures. But Majority Leader Byrd simply
appealed the ruling of the Chair and prevailed, 38-54. Thus,
even though there was no basis in the Senate Rules, and even
though Senate practices had long preserved the right to
debate any motion to proceed to a particular Executive
Calendar item, the Senate exercised its constitutional power
to ``make rules for its proceedings'' and created the
procedure that the Senate continues to use today.
As an historical sidenote, Majority Leader Byrd used this
new precedent to great effect in December 1980 when he
bypassed several items (including several nominations) on the
Executive Calendar to take up a single judicial nomination--
that of Stephen Breyer, then Chief Counsel to the Senate
Judiciary Committee, to be a judge on the U.S. Court of
Appeals for the First Circuit. Judge Breyer was later
nominated and confirmed to the U.S. Supreme Court in 1994.
Without Majority Leader Byrd's exercise of the constitutional
option earlier that year, it is almost certain that Justice
Breyer would not be on the Supreme Court today.

[[Page S91]]

1987--Majority Leader Byrd Forced Change to Rule XII's Voting
Procedures through Execution of the Constitutional Option
A fourth exercise of the constitutional option came in 1987
when Senator Byrd was once again Majority Leader. The
controversy in question involved an effort by Majority Leader
Byrd to proceed to consider a particular bill, an effort that
had been frustrated because a minority of Senators objected
each time he moved to proceed. To thwart his opponents,
Majority Leader Byrd sought to use a special feature of the
Senate Rules--the Morning Hour (the first two hours of the
Legislative Day).
Under Rule VIII, a motion to proceed to an item on the
Legislative Calendar that is made during the Morning Hour is
non-debatable. This feature of the rules gives the Majority
Leader significant power to set the Senate agenda due to his
right to preferential recognition (which is, itself, a
creature of mere custom and precedent). Such a motion cannot
be made, however, until the Senate Journal is approved and
Morning Business is thereafter concluded (or the first of the
two hours has passed). Meanwhile, the clock runs on the
Morning Hour while that preliminary business takes place.
When the Morning Hour expires, a motion to proceed once again
becomes debatable and subject to filibuster.\17\ It was this
feature of the Morning Hour that Senator Byrd believed would
enable him to proceed to the bill in question.
Majority Leader Byrd's plan was complicated, however, when
objecting Senators forced a roll call vote on the approval of
the Journal, as was their right under the procedures and
practices of the Senate. Rule XII provides that during a roll
call vote, if a Senator declines to vote, he or she must
state a reason for being excused. The Presiding Officer then
must put a non-debatable question to the Senate as to whether
the Senator should be excused from voting. When Majority
Leader Byrd moved to approve the Journal, one Senator
declined to vote and sought to be excused. Following Rule
XII, the Presiding Officer put the question directly to the
Senate--should the Senator be excused?--but during the roll
call on whether the first Senator should be excused, another
Senator announced that he wished to be excused from voting on
whether the first Senator should be excused. The Chair was
likewise obliged to put the question to the Senate. At that
point, yet another Senator announced he wished to be excused
from that vote. There were four roll call votes then
underway--the original motion to approve the Journal and
three votes on whether Senators could be excused. If Senators
persisted in this tactic, the time it took for roll call
votes would cause the Morning Hour to expire, and the
Majority Leader would lose his ability to move to proceed to
his bill without debate. All this maneuvering was wholly
consistent with the Standing Rules of the Senate.
Majority Leader Byrd countered with a point of order,
arguing that the requests to be excused were, in fact, little
more than efforts to delay the actual vote on the approval of
the Journal. His solution was to exercise the constitutional
option: to use majority-supported Senate precedents to change
Senate procedures, outside the operation of the Senate rules.
In three subsequent party-line votes, three new precedents
were established: first, that a point of order could be made
declaring repeated requests to be excused from voting on a
motion to approve the Journal (or a vote subsumed by it) to
be ``dilatory;'' second, that repeated requests to be excused
from voting on a motion to approve the Journal (or a vote
subsumed by it) ``when they are obviously done for
the purpose of delaying the announcement of the vote on
the motion to approve the Journal, are out of order;'' and
third, that a Senator has a ``limited time'' to explain
his reason for not voting, i.e., he cannot filibuster by
speaking indefinitely when recognized to state his reason
for not voting.\18\ Majority Leader Byrd had crafted these
new procedures completely independently of the Senate
Rules, and they were adopted by a partisan majority
without following the procedures for rule changes provided
in Rule XXII. Yet the tactics were wholly within the
Senate's constitutional power to devise its own
procedures.
This 1987 circumstance offers a very important precedent
for the present difficulties. Majority Leader Byrd
established that a majority could restrict the rights of
individual Senators outside the cloture process if the
majority concluded that the Senators were acting in a purely
``dilatory'' fashion. Previous to that day, dilatory tactics
were only out of order after cloture had been invoked.
Additional Senate Endorsements of the Constitutional Option
The Senate also has endorsed (or acted in response to) some
version of the constitutional option several other times over
the past 90 years--in 1917, 1959, 1975, and 1979.
The original cloture rule, adopted in 1917, itself appears
to be the result of a threat to exercise the constitutional
option. Until 1917, the Senate had no cloture rule at all,
although one had been discussed since the days of Henry Clay
and Daniel Webster. The ability of Senators to filibuster any
effort to create a cloture rule put the body in a quandary:
debate on a possible cloture rule could not be foreclosed
without some form of cloture device.
The logjam was broken when first term Senator Thomas Walsh
announced his intention to exercise a version of the
constitutional option so that the Senate could create a
cloture rule. His method was to propose a cloture rule and
forestall a filibuster by asserting that the Senate could
operate under general parliamentary law while considering the
proposed rule. Doing so would permit the Senate to avail
itself of a motion for the previous question to terminate
debate--a standard feature of general parliamentary law.\19\
In this climate, Senate leaders quickly entered into
negotiations to craft a cloture rule.\20\ Negotiators
produced a rule that was adopted, 76-3, with the opposing
Senators choosing not to filibuster.\21\ But it was only
after Senator Walsh made clear that he intended to press the
constitutional option that those negotiations bore fruit. As
Senator Clinton Anderson would remark in 1953, ``Senator
Walsh won without firing a shot.'' \22\
The same pattern repeated in 1959, 1975, and 1979. In each
case, the Senate faced a concerted effort by an apparent
majority of Senators to exercise the constitutional option to
make changes to Senate rules. In 1959, some Senators
threatened to exercise the constitutional option in order to
change the cloture requirements of Rule XXII. Then-Majority
Leader Lyndon Johnson preempted its use by offering a
modification to Rule XXII that was adopted through the
regular order.\23\ In 1975, the Senate three times formally
endorsed the constitutional option by creating precedents
aimed at facilitating rule changes by majority vote, although
the ultimate rule change (also to Rule XXII) was implemented
through the regular order after off-the-Floor
negotiations.\24\ And in 1979, Majority Leader Byrd
threatened to use the constitutional option unless the Senate
consented to a time frame for consideration of changes to
post-cloture procedures. The Senate acquiesced, and the
Majority Leader did not need to use the constitutional option
as he had in the other cases discussed above.\25\
The Senate, therefore, has long accepted the legitimacy of
the constitutional option. Through precedent, the option has
been exercised and Senate procedures have been changed. At
other times it has been merely threatened, and Senators
negotiated textual rules changes through the regular order.
But regardless of the outcome, the constitutional option has
played an ongoing and important role.
The Judicial Filibuster and the Constitutional Option
The filibusters of judicial nominations during the 108th
Congress were unprecedented in Senate history.\26\ While
cloture votes had been necessary for a few nominees in
previous years, leaders from both parties consistently worked
together to ensure that nominees who reached the Senate floor
received up-or-down votes. The result of this bipartisan
cooperation was that, until 2003, no judicial nominee with
clear majority support had ever been defeated due to a
refusal by a Senate minority to permit an up-or-down floor
vote, i.e., a filibuster.\27\
The best illustration of this traditional norm is the March
2000 treatment of President Bill Clinton's nominations of
Richard Paez and Marsha Berzon to the U.S. Court of Appeals
for the Ninth Circuit. When those nominations reached the
Senate floor, Majority Leader Trent Lott, working with
Democrat Leader Tom Daschle, filed cloture before any
filibuster could materialize. Republican Judiciary Chairman
Orrin Hatch likewise fought to preserve Senate norms and
traditions, arguing that it would be ``a travesty if we
establish a routine of filibustering judges.'' \28\ Moreover,
as a further testament to the bipartisan opposition to
filibusters for judicial nominations, more than 20
Republicans who opposed the nominations and who would vote
against them nonetheless supported cloture for Mr. Paez and
Ms. Berzon, and cloture was easily reached.\29\ Had every
Senator who voted against Mr. Paez's nomination likewise
voted against cloture, cloture would not have been invoked.
Thus, as recently as March 2000, more than 80 Senators were
on record opposing the filibuster of judicial
nominations.\30\ If the new judicial nomination
filibusters are accepted as a norm, then the Senate will
be rejecting this history and charting a new course.
It is not only the Senate norm regarding not filibustering
judicial nominations that risks being transformed, but the
effective constitutional standard for the confirmation of
judicial nominations. There can be no serious dispute that
the Constitution requires only a Senate majority for
confirmation. Indeed, many judicial nominees have been
confirmed by fewer than 60 votes in the past--including three
Clinton nominees and two Carter nominees.\31\ Never has the
Senate claimed that a supermajority is necessary for
confirmation.
Recently, however, some filibustering Senators have
suggested that a failed cloture vote is tantamount to an up-
or-down vote on a judicial nomination. The new Senate
Minority Leader, Harry Reid, has stated that the 10
filibustered judges have been ``turned down.'' \32\ Senator
Charles Schumer has repeatedly stated that a failed cloture
vote is evidence that the Senate has ``rejected'' a
nomination.\33\ Senator Russell Feingold described the
filibustered nominees from the 108th Congress as having
``been duly considered by the Senate and rejected.'' \34\
Judiciary Committee Ranking Member Patrick Leahy has referred
to the filibustered nominees as having been ``effectively
rejected.'' \35\ And in April 2005, Senator Joseph Lieberman

[[Page S92]]

claimed that 60 votes should be the ``minimum'' for
confirmation.\36\ These characterizations illustrate the
extent to which the Senate has lost its moorings.
Without restoration of the majority-vote standard, judicial
nominations will require an extra-constitutional
supermajority to be confirmed, without any constitutional
amendment--or even a Senate consensus--supporting that
change. Any exercise of the constitutional option would,
therefore, be aimed at restoring the Senate's procedures to
conform to its traditional norms and practices in dealing
with judicial nominations. It would return the Senate to the
Constitution's majority-vote confirmation standard. And it
would prevent the Senate from abusing procedural rules to
create supermajority requirements. Instead, it would be
restorative, and Democrats and Republicans alike would
operate in the system that served the nation until the 108th
Congress.

Common Misunderstandings of the Constitutional Option

Senate procedures are sacrosanct and cannot be changed by the
constitutional option.
This misunderstanding does not square with history. As
discussed, the constitutional option has been used multiple
times to change the Senate's practices through the creation
of new precedents. Also, the Senate has changed its Standing
Rules several times under the threat of the constitutional
option.
Exercising the constitutional option will destroy the
filibuster for legislation.
The history of the use of the constitutional option
suggests that this concern is grossly overstated. Senators
will only exercise the constitutional option when they are
willing to live with the rule that is created, regardless of
which party controls the body. For the very few Senators (if
any) who today want to eliminate the legislative filibuster
by majority vote, the roadmap has existed since as early as
1917. Moreover, an exercise of the constitutional option to
restore the norms for judicial confirmations would be just
that--an act of restoration. To eliminate the legislative
filibuster would not be restorative of Senate norms and
traditions; it would destroy the Senate's longstanding
respect for the legislative filibuster as a vehicle to
protect Senators' rights to amend and debate. It is also
worth noting that the Senate is now entering its 30th year of
bipartisan consensus as to the cloture threshold (three-
fifths of those duly chosen and sworn) for legislative
filibusters.\37\
All procedural changes must be made at the beginning of a
Congress.
Again, this claim, does not square with history. In fact,
there is nothing special about the beginning of a Congress
vis-a-vis the Senate's right to establish its own practices
and procedures, or even its formal Standing Rules. As
discussed above, Majority Leader Byrd used the constitutional
option to create a precedent that overrode Rule XVI's plain
text--and not at the beginning of a Congress. Moreover, as
the Supreme Court held in Ballin, each House of Congress's
constitutional power to make procedural rules is of equal
value at all times.\38\
The essential character of the Senate will be destroyed if
the constitutional option is exercised.
When Majority Leader Byrd repeatedly exercised the
constitutional option to correct abuses of Senate rules and
precedents, those illustrative exercises of the option did
little to upset the basic character of the Senate. Indeed,
many observers argue that the Senate minority is stronger
today in a body that still allows for extensive debate, full
consideration, and careful deliberation of all matters with
which it is presented.
Exercising the constitutional option would turn the Senate
into a ``rubber stamp.''
Again, history proves otherwise. The Senate has repeatedly
exercised its constitutional power to reject judicial
nominations through straightforward denials of ``consent'' by
up-or-down votes. For example, the Senate defeated the
Supreme Court nominations of Robert Bork (1987), G. Harold
Carswell (1970), and Clement Haynsworth (1969) on up-or-down
votes.\39\ Even in the 108th Congress, when the Senate voted
on the nomination of J. Leon Holmes to a federal district
court in Arkansas, five Republicans voted against
President Bush's nominee. Had several Democrats not voted
for Mr. Holmes, he would not have been confirmed.\40\ In
other words, the Senate still has the ability to work its
will in a nonpartisan fashion as long as the minority
permits the body to come to up-or-down votes. Members from
both parties will ensure that the Senate does its
constitutional duty by carefully evaluating all nominees.

Conclusion

Can the Senate restore order when a minority of its members
chooses to upset tradition? Does the Constitution empower the
Senate to act so that it need not acquiesce whenever a
minority decides that the practices, procedures, and rules
should be changed? Can the Senate majority--not necessarily a
partisan majority, but simply a majority of Senators--act to
return the Senate to its previously agreed-upon norms and
practices? The answer to all these questions is a clear yes.
The Senate would be acting well within its traditions if it
were to restore the longstanding procedural norms so that the
majority standard for confirmation is preserved and nominees
who reach the Senate floor do not fall victim to filibusters.

endnotes

\1\ 144 U.S. 1 (1892).
\2\ Ballin, 144 U.S. at 6. There is no serious disagreement
with the Supreme Court's conclusion in Ballin. Indeed,
Senator Edward Kennedy has said that only a majority is
necessary to change Senate procedures. Congressional Record,
Feb. 20, 1975, S3848. Senator Charles Schumer conceded during
a Judiciary subcommittee hearing on the constitutionality of
the filibuster that Senate rules ``could be changed by a
majority vote.'' S. Hrg. 108-227 (May 6, 2003), at 60.
\3\ U.S. Const., art. I, Sec. 5, cl. 1.
\4\ Ballin, 144 U.S. at 5.
\5\ Floyd M. Riddick, Senate Parliamentarian, Oral History
Interviews (November 21, 1978), Senate Historical Office,
Washington, D.C., at 429.
\6\ Riddick interview at 426.
\7\ Martin B. Gold, Senate Procedure and Practice (2004),
at 5. For a complete list of the 26 statutes that limit
Senate debate, see John Cornyn, Our Broken Judicial
Confirmation Process and the Need for Filibuster Reform, 27
Harv. J. L. Pub. Pol'y 181, 213-214 (2003).
\8\ Standing Rule XXII's standard for cloture--three-fifths
of Senators ``duly chosen and sworn''--has been in effect
since 1975.
\9\ See Martin B. Gold & Dimple Gupta, The Constitutional
Option to Change Senate Rules and Procedures: a Majoritarian
Means to Overcome the Filibuster, 28 Harv. J. L. Pub. Pol'y
206, 262-264 (2004).
\10\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 263.
\11\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 263-264.
\12\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 264-265.
\13\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 265
(emphasis added).
\14\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 265.
\15\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 265-267.
\16\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 266.
\17\ Gold, Senate Procedure and Practice, at 68-69.
\18\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 267-269.
\19\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 220-226.
\20\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 226.
\21\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 226.
\22\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 227.
\23\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 240-247.
\24\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 252-260.
\25\ Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 260;
Congressional Record, Jan. 15, 1979.
\26\ This historical observation has been conceded by
leading Senate Democrats. For example, the Democratic
Senatorial Campaign Committee solicited campaign
contributions in November 2003 with the claim that the
filibusters were an ``unprecedented'' effort to ``save our
courts.'' See Senator John Cornyn, Congressional Record, Nov.
12, 2003, S14601, S14605. No Senator has disputed that until
Miguel Estrada asked the President to withdraw his nomination
in September 2003, no circuit court nominee had ever been
withdrawn or defeated for confirmation due to the refusal of
a minority to permit an up-or-down vote on the Senate floor.
\27\ For a review of all past cloture votes on judicial
nominations prior to the 108th Congress, see Senate
Republican Policy Committee, ``Denying Mr. Estrada an Up-or-
Down Vote Would Set a Dangerous Precedent'' (Feb. 10, 2003),
available at http://rpc.senate.gov/_files/
JUDICIARYsd021003.pdf. See also Cornyn, 27 Harv. J. L. Pub.
Pol'y at 218-227.
\28\ Congressional Record, Mar. 8, 2000, S1297.
\29\ For Berzon, compare Record Vote #36 (cloture invoked,
86-13) with #38 (confirmed, 64-34); for Paez, compare Record
Vote #37 (cloture invoked, 85-14) with #40 (confirmed, 59-
39). All votes on Mar. 8-9, 2000.
\30\ For a more detailed list of Senators' historic
opposition to filibusters for judicial nominations, see
Senate Republican Policy Committee, ``Denying Mr. Estrada an
Up-or-Down Vote Would Set a Dangerous Precedent'' (Feb. 10,
2003), available at http://rpc.senate.gov/_files/
JUDICIARYsd021003.pdf. For an extended examination of
filibustering Senators' previous opposition to judicial
filibusters, see Cornyn, 27 Harv. J. L. Pub. Pol'y at 207-
211.
\31\ Examples of judicial nominations made prior to the
108th Congress that were confirmed with fewer than 60 votes
include Abner Mikva (D.C. Cir., 1979); L.T. Senter (N.D.
Miss., 1979); J. Harvie Wilkinson III (4th Cir., 1984); Alex
Kozinski (9th Cir., 1985); Sidney Fitzwater (N.D. Tex.,
1986); Daniel Manion (7th Cir., 1986); Clarence Thomas
(Supreme Court, 1991); Susan Mollway (D. Haw., 1998); William
Fletcher (9th Cir., 1998); Richard Paez (9th Cir., 2000); and
Dennis Shedd (4th Cir., 2002).
\32\ William C. Mann, Senate leaders draw line on
filibuster of judicial nominees, Boston Globe, Jan. 17, 2005.
\33\ Senator Charles Schumer, Congressional Record, July
22, 2004, S8585 (``I remind the American people that now 200
judges have been approved and 6 have been rejected''); see
also Jeffrey McMurray, Pryor Supporters Debate Timing of
Vote, Tuscaloosa News, Jan. 10, 2005 (``To nominate judges
previously rejected by the Senate is wrong''); Anne

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Kornblut, Bush Set to Try Again on Blocked Judicial Nominees,
Boston Globe, Dec. 24, 2004 (quoting official statement by
Sen. Schumer).
\34\ Keith Perine, Fiercest Fight in Partisan War May Be
Over Supreme Court, CQ Weekly, Jan. 10, 2005, at 59.
\35\ Congressional Record, Feb. 27, 2004, S1887.
\36\ Senator Joseph Lieberman, Transcript of Press
Conference, Apr. 21, 2005, on file with Senate Republican
Policy Committee.
\37\ In 1995, Senators Tom Harkin and Joe Lieberman
proposed a major revision to the Senate filibuster rules for
legislation, but the proposal failed 76-19, attracting the
support of no Republicans and but a fraction of Democrats
(who were in the minority). The only current Senators who
sought to change the Senate's consensus position on
legislative filibusters were Senators Jeff Bingaman, Barbara
Boxer, Russell Feingold, Tom Harkin, Edward Kennedy, John
Kerry, Frank Lautenberg, Joe Lieberman, and Paul Sarbanes.
See Record Vote #1 (Jan. 5, 1995).
\38\ Ballin, 144 U.S. at 5.
\39\ See Record Vote #348 (Oct. 23, 1987) (defeated 42-58);
Record Vote #112 (Apr. 8, 1970) (defeated 45-51); Record Vote
#135 (Nov. 21, 1969) (defeated 45-55).
\40\ Record Vote #53 (July 6, 2004) (confirmed 51-46).

Mr. UDALL of New Mexico. I think this shows this isn't about a power
grab; this is about trying to work to make sure the Senate is going to
work better for the American people.
The fifth provision of S. Res. 10--and as Senator Merkley knows, we
are down here today to try to get S. Res. 10, rules changes, onto the
Senate floor, and so we are going to be asking unanimous consent for
that. But the fifth provision is called postcloture debate on
nominations.
Now, what are we talking about? Well, when we have a nomination that
comes to the floor--a judicial nomination, an executive nomination--in
the rule nominations have 30 hours of postcloture debate. So when you
decide to cut off debate, when you get to the point that you say we are
going to cut off debate, that 30 hours is normally used for amendments
and to work through the amendment process.
Well, when you have a nomination, you are not amending a nomination.
You are trying to either move forward with an up-or-down vote on the
nomination--the person is either voted up or down. It makes no sense to
have 30 hours. So the other commonsense proposal we have is to shorten
that postcloture time to 2 hours, from 30 hours, because there is no
reason to amend in that phase.
I know Senator Merkley is also familiar with this provision.
Mr. MERKLEY. I think what the Senator from New Mexico has set forward
is that we would save 28 hours on each nomination. If the Senate goes
around the clock, that is a bit more than a day. If we are doing 10-
hour days, that is almost 3 days. We save 3 days of Senate time that is
put to no purpose right now since by the time you have a 60-vote
cloture you already have 60 Members saying they are ready to vote and
want to go forward.
So letting people wrap up over a couple of hours, restating their key
points for other Members, makes sense. That is why the 2 hours are
there. But rather 2 hours than 3 days.
Mr. UDALL of New Mexico. That is correct. So what we are doing
today--and I know Senator Merkley has introduced a freestanding
proposal on the talking filibuster, and we have joined together; I have
also signed on to that--we have S. Res. 10, filed on January 5, which
has the five solid provisions for reforming the rules. I think if you
look at these in history, they have had broad bipartisan support.
I would at this point recognize our colleague in this rules debate,
our partner and hard worker and more senior in experience on these
rules matters, who has joined us--Senator Tom Harkin from Iowa. We are
in a colloquy situation, so I will yield.
Mr. HARKIN. If the Senator will yield for an observation.
Mr. UDALL of New Mexico. You bet.
The ACTING PRESIDENT pro tempore. The Senator from Iowa.
Mr. HARKIN. Madam President, I wish to thank my colleagues, Senator
Udall of New Mexico and Senator Merkley of Oregon, because they are
great leaders on this issue. I think they have brought a breath of
fresh air to the Senate in exposing what has become gridlock that has
made the Senate almost dysfunctional.
I say to my friend, Senator Udall, especially in focusing on what the
Constitution says and doesn't say, I believe--and I am only speaking
for myself--that we are not living up to the oath we took as we stood
by the well when we were sworn into the Senate. We took an oath that we
would uphold and defend the Constitution and that we would bear true
faith and allegiance to the same.
Well, quite frankly, the Constitution, I believe, is quite clear in
the way it is written, in the verbiage that is used. If you look to
what the Founders wanted in the Constitution, they were very clear that
but for a few instances, which they clearly spelled out in the
Constitution requiring a supermajority of votes--such as treaties, for
example, and impeachments, or expelling a Member--everything else is a
majority vote.
But the Senate has adopted rules in the past that I believe are,
quite frankly, bordering on unconstitutional by requiring that in order
to change the rules, it requires a two-thirds vote--67 votes. Well,
that might be OK for one Congress, if they wanted to adopt that kind of
rule, but how can one Congress bind another? I think it is quite clear
from Parliaments of old and other legislative bodies, court rulings in
this country, that one legislative body cannot burden a subsequent
legislative body. Yet in the Senate, because of a change in the rules
that happened some years ago, they say it binds every Senate
thereafter.
I believe that is unconstitutional. My friend from New Mexico,
Senator Udall, has pointed this out time and time again, that really we
have not only a constitutional right but a constitutional obligation
that, on the first convening day of the Senate of any Congress, we
adopt rules, and we can adopt those rules by majority vote. If the
majority wants to adopt a rule that says that for this Congress we have
to abide by a certain number, that is OK, but it cannot bind another
Congress.
Senator Udall has been quite eloquent on this issue. He has been very
forthright and has fought very hard for what is known as the
constitutional option. That is just a fancy word for saying ``live up
to the Constitution.'' We took an oath to bear true faith and
allegiance to the same--the Constitution. Senator Udall is constantly
reminding us of what that Constitution says and does not say. As the
Senator has pointed out many times, the Constitution says each body
shall adopt its rules. So the Senate can adopt its rules. It does not
say in the Constitution that each body shall adopt its rules but it
requires a two-thirds vote to change those rules. It doesn't say that.
It says each body shall adopt the rules, and it does not specify that
we have to have a supermajority to do so. I think it only specifies a
supermajority, if I am not mistaken, in five cases. Obviously, the
Framers of the Constitution were quite clear that each Congress could
adopt its rules and it could adopt them by a majority vote. Now we have
a situation in the Senate whereby we are throttled by rules that do not
permit us to change those rules except by a two-thirds vote.
As I said many times, what if the voters of this country decided to
elect 90 Senators from the same party, say, the Republican Party. Could
they come in and say: We are going to adopt new rules, and from
henceforth it is going to take 90 votes to change those rules, knowing
that may never happen again in the history of this country that we
would ever have 90 Senators from one party. Could they do that? If you
accept the logic of what we are working with right now, the answer is
yes, we could do that and bind every Senate from then on in perpetuity
that the only way they could change the rules would be with 90 votes.
We say that wouldn't happen. Well, what about 67 votes or 75 votes or
78 votes? What is so magic about 67? Where does that magic number come
from? It was plucked out of thin air.
That is why I address myself to the issue Senator Udall has worked so
hard on; that is, focusing on the constitutional issue.
Senator Merkley, from Oregon, has focused on rule XXII--it is called
the filibuster rule--which provides basically that we do not even have
to filibuster. In a filibuster, people think they come on the Senate
floor, like ``Mr. Smith Goes to Washington,'' and they speak and they
hold the floor and they can hold the floor until they drop or, if
somebody else wants to speak, they can speak. That is what people

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imagine a filibuster to be, and that is what a filibuster used to be.
What a filibuster has become is a means whereby the minority can stop
us from debating anything. So what has happened to the Senate,
supposedly the greatest deliberative body in the world, is we have now
become the greatest nondeliberative body because we do not debate
because now a minority can decide what we take up and what we do not
take up.
Think about it this way. Under rule XXII, as it is now being used, 41
Senators can decide what this body does. They have the veto right--the
veto right over anything we bring up, that the majority wants to bring
up. Again, when I say ``majority,'' I am not saying Democrats or
Republicans; I am saying any majority. That is why I first brought up
my proposal in 1995, when we were in the minority, because I wanted to
make it clear that this was not a means whereby we were trying to grab
power or anything. I said, no, this is for the smooth functioning of
this place. I predicted at that time, in 1995, and the record is
clear--it is in the Record--I predicted that unless we do something,
the number of filibusters would escalate, it would be an arms race, and
that is exactly what has happened--135 last year.
So the Senator from Oregon has said that if we are going to have a
filibuster, at least people ought to come on the floor and talk. At
least, if you are going to filibuster, if you are so opposed to a bill
and you have a group who is opposed to it, at least stand out here and
speak. They don't have to do that now. They put in quorum calls and
walk off the floor, and a minority--41 Senators--decides what we take
up. They can stop anything.
Think about it this way. For a bill to become law in this country, it
requires that it pass the House and the Senate in the same form, and
the President has to sign it. Right now, the way we are constituted and
the way we operate in the Senate, 41, a minority in the Senate--
regardless of what the House wants to do, regardless of what the
President wants to do, and regardless of what the voters may want--can
stop it. That turns the whole concept of democracy on its head. I
thought the majority rules, with rights to protect the minority. So the
minority can offer amendments. I don't even mind if the minority wants
to slow things down. That should be their right, to be able to do that
as a minority. They should have the right to offer amendments, to
change a bill as they see fit. But I do not believe a minority ought to
have the right to absolutely stop and veto a bill or an amendment from
coming to the Senate floor. We have a situation where the power resides
with the minority.
I heard the distinguished Senator from Kentucky, Mr. McConnell, said
the other day that this is a power grab by the Democrats. No, no; the
power grab is by the minority, whatever minority. The power grab is by
the minority to insist that they have the right to veto anything here.
That is the power grab. So now the power lies with the minority, but
the responsibility lies with the majority. So the majority in the
Senate has the responsibility to act, but we do not have the authority.
The minority has the authority, the right to veto things, but they
don't have the responsibility. That is why we have such a dysfunctional
system. This is what the people of America are opposed to.
I will have more to say about this tomorrow as I think we will get
into a longer debate on this issue. I think the people have the right
to understand that if a majority of the House and a majority of the
Senate pass something and the President agrees, it ought to become law.
That is not the way it is. We used to have a system on the Senate floor
where, if you offered an amendment and you got 51 votes, you agreed to
the amendment. You can't do that anymore. You cannot get an amendment
offered on the Senate floor unless you have 60 votes. That is what
happened over the last 4 or 5 years. I know I myself tried to get an
amendment offered on the financial regulation bill. I thought I had
over 51 votes on it. I don't know if I did or not, but I was not able
to offer it because there was a 60-vote threshold. I might have had 52
or 53 or 54 or 55, but I did not have 60. Now in the Senate we require
a supermajority to do anything because 41 Senators--a minority--have
the right to veto anything the majority wants to bring up.
As I said, I will have more to say about this, but it seems to me
this stands democracy on its head and the idea of majority rule on its
head. I think the majority ought to have the right. Elections ought to
have consequences. If people vote for a certain party to be in power,
that party, regardless of what it is, ought to have the authority to
act. There ought to be rights for the minority to amend, discuss,
debate, slow things down--fine. But the minority should not have the
absolute power of a veto, and that is what the minority has in the
Senate today.
That is the issue Senator Merkley has been going after. At least if
you are going to have a filibuster, there ought to be some consequences
to it, and the consequences are that you ought to have to be here and
talk and not hide behind quorum calls where we sit here for days on end
doing nothing because someone has objected to bringing up a bill but
they do not have to be here to discuss it.
I thank my two colleagues for their great leadership on this issue.
As I said, they brought a breath of fresh air here. The average person
out there watching probably thinks: Bring it up for a vote. Things are
not quite that simple in the Senate, as we are about to find out. So we
are going to do whatever we can to bring this to the forefront, but I
daresay that the way the rules are set up right now--requiring a
supermajority to change those rules--makes it nearly impossible for a
majority of the Senate to act.
Again, I thank my colleagues, Senators Merkley and Udall, for their
leadership. I look forward to being in league with them to do whatever
we can to make this place function a little bit better and a little bit
more in accordance with the principles of democracy, of majority rule,
and respecting the rights and wishes of the voters of this country.
I thank my colleague from Oregon for his leadership--I see he is
standing there--and I thank my colleague, Senator Udall, for yielding
to me.
I yield the floor.
The PRESIDING OFFICER (Mr. Casey). The Senator from Oregon.
Mr. MERKLEY. I would certainly like to thank Senator Harkin for the
many years he has pursued reforming the rules of the Senate, especially
from the perspective of being in the minority and then maintaining that
same effort in the majority. I believe it is important to recognize
that the issues we are presenting and bringing to the floor are to make
the Senate work better as a deliberative body for both the minority and
majority.
If we were to turn the clock back several decades, we would not be
here right now carrying on this colloquy. Instead, there would have
been a unanimous consent to put a rule proposal on the floor of the
Senate, and we would be debating that proposal. That is the way the
Senate worked for most of its first two centuries.
In 1953, Senator Anderson put forward a resolution to adopt new rules
at the start of Congress. There was a debate on it. Then, eventually,
it was tabled. It was tabled by 51. That is what the rule said--51
could table, they could set it aside. He did not win his debate, but he
got it on the floor of the Senate, and it was debated.
The same thing in 1957, and in 1959, he again did this.
In 1961, he did this again, and in that case it was debated on the
floor of the Senate. Everyone said: Let's get the rule out there, let's
hold a debate. Eventually, they referred it to the Rules Committee.
Finally, near the end of the cycle, it was moved out of the Rules
Committee, back to the floor, and they held another debate on Senator
Anderson's proposal. The result of that debate was that it was tabled,
the resolution was tabled. It did not pass. To have the debate is not
going to guarantee you are going to win the debate but it is to engage
in the deliberation, the exchange of ideas that enables us to capture
the challenges we see, the challenges in our country and in this case
the challenges with making the Senate function and making things work
better.
This goes on. Here we have five times in the course of 12 years that
a rule proposal was put on the floor and was debated. It was defeated,
but it was put

[[Page S95]]

on the floor under the framework that 51 Members could adopt rules
under the Constitution, the constitutional power you have been speaking
to so eloquently for Congress to organize itself--for the House of
Representatives to organize itself and for the Senate to organize
itself.
I wanted to go over a little bit of that history to say the very fact
that we are not at this moment debating a rule proposal is a reflection
of the dysfunction of the Senate. A debate on the rule to fix the
Senate itself reflects the dysfunction of the Senate.
I want to thank you for having engaged in so many years of effort to
bring these issues forward. The challenge of fixing the Senate has been
engaged in by so many names that I was familiar with growing up, folks
such as Senator McGovern, Senator Mondale, Senator Church, Senator
Pearson. They all brought their effort to make this body work better.
We did have a major reform in 1975.
But as a chart I put up earlier showed, the congestion and the
paralysis from the abuse of the privilege of having yourself heard,
making yourself heard before your colleagues, has now compromised the
ability for us to fulfill our constitutional responsibilities and we
need to fight hard to try to fix the broken Senate.
Mr. HARKIN. Mr. President, would the Senator yield for a question on
that point?
Mr. MERKLEY. I would be delighted to do so.
Mr. HARKIN. The Senator is a student of the Constitution. We have all
looked at it. We know what it says. I mentioned earlier about the fact
that when we come in here, we take an oath of office to uphold and
defend the Constitution against all enemies, foreign and domestic, to
bear true faith and allegiance to the same. That is our oath of office,
to bear true faith and allegiance to the Constitution.
Is it the Senator's view that perhaps the way the Senate is
constructed right now may in some way--I just throw this out--take away
my constitutional right to adequately represent my constituents? If it
takes a supermajority or if we cannot even change the rules, as the
Senator has pointed out, does not this kind of take away some of the
constitutional rights and obligations, obligations of a Senator, I ask
the Senator?
Mr. MERKLEY. Well, certainly I will tell you that Senator Byrd stood
on this floor and said the Senate cannot be bound by the dead hand of
the past. You can imagine that any particularly bizarre rule that might
have been passed by our predecessors that damaged our ability to
fulfill our constitutional responsibilities would be inappropriate, and
we would need to change it. The Constitution empowers us to change it
with a simple majority.
So when the point comes that the Senate is not functioning in the
fashion it was constitutionally intended to function--that is, a simple
majority to pass legislation--then we certainly have to wrestle with
whether we are doing our responsibility if we do not fight to make the
Senate work better. We have an obligation to this Chamber, and we have
an obligation to our responsibilities under the Constitution.
Mr. HARKIN. I thank the Senator for his response on that.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. UDALL of New Mexico. Mr. President, I know the Presiding Officer
has also been a part of this rules reform effort. We very much
appreciate that.
It was mentioned here about Senator Byrd. I think one of the most
interesting stories about Senator Byrd, I say to Senator Harkin and
Senator Merkley, in 1979 when he came to the floor, he was talking
about--and we have used this quote many times--the dead hand of the
past, not being ruled by the dead hand of the past.
What was he talking about? He was talking about the idea that one
Senate could establish a set of rules and bind future Senates. He gave
a passionate speech. We are in the situation that he talked about right
now. He said, now we are at the beginning of Congress. This Congress is
not obliged to be bound by the dead hand of the past.
Take rule XXXII, which is a different numbered rule today. But, for
example, the second paragraph thereof says that: The rules of this
Senate shall continue from Congress to Congress until changed in
accordance with these rules.
That rule was written in 1959, by the 86th Congress. The 96th
Congress is not bound by the dead hand of the 86th Congress. The first
Senate--now he talks a little bit about history here, which is very
important. The first Senate, which met in 1789, approved 19 rules by a
majority vote. First Senate.
Those rules have been changed from time to time, and that portion of
the Senate rule XXXII I quoted was instituted in 1959. The members of
the Senate who met in 1789 and approved that first body of rules did
not for one moment think or believe or pretend that all succeeding
Senates would be bound by that Senate. The Senate of the 86th Congress
could not pretend to believe that all future Senates would be bound by
the rules it had written. It would be just as reasonable to say that
one Congress can pass a law providing that all future laws have to be
passed by a two-thirds vote.
Any member of this body knows that the next--any member of the body
knows that the next Congress would not heed that law and would proceed
to change it and would vote to repeal it by a majority vote, no doubt
about it.
So he says: I am not going to argue the case any further today except
to say that it is my belief, which has been supported by rulings of
three Vice Presidents of both parties and by votes of the Senate, in
essence upholding this power and the right of a majority of the Senate
to change the rules of the Senate at the beginning of a new Congress.
That is the essence of where we are right today--that we are able, if
we have a majority, to move forward with adopting our rules that are
going to function for this session of Congress. That is why we are in
such a battle here to try to get those proposals onto the floor. We
want to get S. Res. 10. We want to get the talking filibuster proposal.
We want to get those put onto the floor so we can have debate, we can
have votes. And our understanding is there is going to be objection
from the other side.
As Senator Harkin said earlier, we function here by unanimous
consent, and they apparently are not going to give us that consent. I
know that Senator Harkin--changing the subject a little bit here--but
both Senators Harkin and Merkley mentioned earlier the whole issue of
why we want the Senate to function better, that we have pressing
national problems and challenges.
I think one of the Senators who said it best made a comment back in
1971. This is Senator Hart, Senator Phil Hart of Michigan. It still
resonates decades later.

The apparent inability of the Senate to take action on our
domestic ills, when the needs are so painfully clear, is a
basic cause of unrest and disaffection among the citizenry.
The imperative of change is obligatory if institutions such
as the Senate are to have the capacity to respond well to the
complex array of overlapping domestic and international
issues.

Long ago Thomas Jefferson said: As new discoveries are made and new
truths discovered and manner and opinions change with the change of
circumstances, institutions must advance also and keep pace with the
times. Institutions must advance also and keep pace with the times.
That is why we are here. We have rules that were adopted long ago
that are not working today. You and I have talked several times about,
if you want your government to spend money wisely, you want it to be
efficient, why do we not give them a budget until half way through the
fiscal year? It makes absolutely no sense.
That is the situation we are in right now. We hold hearings, we bring
the agency in, we think we are going to have an appropriations bill on
the floor--by the way, this year we did not have--but last year we did
not have a single appropriations bill on the floor. So they think they
are going to get one budget. Then when we pass the fiscal year, last
October 1, we start the fiscal year, we start into it, we have done a
couple of continuing resolutions. A continuing resolution just gives
them month-by-month funding. The next continuing resolution does not
expire until March. So who would tell any agency, nonprofit government
agency, that we are going to give you a budget but we are not going to
quite tell you what it is, and maybe go month to

[[Page S96]]

month, and then about halfway through the year we are going to give you
the rest of the budget.

That is not the way to take care of the people's money. It is not the
way to be efficient. It is not the way to make sure the people's money
is very well spent. I think it is important that we do that work, the
work of appropriations bills.
Of the Senators who are on the floor right now, Senator Harkin is an
appropriator. When you bring an appropriations bill to the floor and
have all 100 Senators take a look at the appropriations bill, take a
look at what is working in that department and what is not, and how we
move down the road with that particular set of policy initiatives and
programs, that is something the agency pays tremendous attention to,
those amendments that are put in, the arguments that are made. And we
are neglecting all of that now.
Last year we did not do a single appropriations bill. In my
understanding, the House--and I know we were very frustrated when I was
over in the House. We would say: Well, why are we even passing the
appropriations bills? The Senate does not do them. We are going to end
up, at the end of the year, doing one of these continuing resolutions
or an omnibus bill.
For the first time in I do not know how long, last year the House
gave up doing appropriations bills. So here, one of our core functions
as a legislative body, what we all call the power of the purse,
tremendously important, that power of the purse has been emasculated,
it has been warped beyond recognition to the point where I think we are
dysfunctional, the agencies are dysfunctional, and we have got to get
it all back.
I know the chairman of the Judiciary Committee has outlined a number
of times--and I find it appalling that we do not have the judicial
people in place to do the job for the country. Right now the Federal
courts are looking at fraud on Wall Street. They are looking at all
sorts of major cases that have to do with financial reform and insider
trading and all of those kinds of things.
Guess what. If you do not have judges to hear those cases, then all
of that justice is going to be delayed. There is an old saying in the
law: Justice delayed is justice denied. Today we have 94 judicial
vacancies. The Judicial Conference of the United States has weighed in
with the Senate and the House and said: These are judicial emergencies.
Of 94 vacancies, 44 of them they consider emergencies. They need
somebody in there immediately. Yet, still, because of this constant
filibuster we are in--it is a filibuster without real debate--it wastes
a lot of time, it prevents our ability to put those judicial
nominations on the floor and to get an up-or-down vote.
The same thing is true of the executive branch.
I know Senator Merkley saw the article in the Washington Post which
was at the end of the first year of the Obama Presidency. He only had
55 percent of his team in place of the top people in the agencies to
run the government. And it is not all our fault. I think they were slow
in sending some things up, but it is a pretty appalling number when you
think of the job of a President to put his people in place in the
agencies so his policies can be carried out. What has happened is that
has been delayed and slowed down.
I harken back when I was a youngster here in Washington growing up. I
was about 12 years old when my father became Secretary of the Interior.
Here you have only half of the people in place in the Federal
Government. I remember my dad, as Secretary of the Interior, telling me
when I would travel home: Tom, I have my whole team in place, virtually
whole team in place in 2 weeks.
So he had his top people. He was ready to carry out policy, ready to
move forward with the President's policies at the Department of
Interior. I remember, we had holes, we had a variety of things going in
the Department of Interior.
We had a very talented woman from New Mexico who was going to become
the Solicitor, who had moved her young family to Washington. They had a
3-month hold on her nomination. Nobody could ever figure out why. But
she was finally allowed to become the Solicitor of the Interior
Department.
With all of these kinds of things, from holds to the constant
filibuster without any real debate, have slowed down the government in
a significant way and prevented us from doing the important oversight
job we need to do.
I know the Senator from Oregon has other comments he would like to
make.
Mr. MERKLEY. Mr. President, it is quite a contrast that the Senator
is drawing between an era in which in a 2-week period the bulk of the
team was in place, ready to do the work they were elected by the people
to do--the executive branch, headed by the President, had his
Secretaries, and the Secretaries had their teams in place, and they
were ready to go forward to make sure they were working hard on the
agenda they had laid out during the election cycle.
As my colleague said, elections have consequences. The vision of our
Republic is one in which we elect a President, and the President says:
Here is my agenda. Then he puts together a team to get it done. It is
not in the spirit of our Constitution, it is certainly not in the
spirit of our democratic souls, after the people have elected a
President, to try to damage and inflict pain and obstruction upon that
President. That is essentially saying one does not accept the judgment
of U.S. citizens about electing the President.
This process has to change. We have to find a way that folks can be
brought to the floor. It is not that this Chamber will approve every
single nomination. It is that it will hold a debate and have a vote. If
there is no controversy surrounding someone, then that will probably be
reduced to a unanimous consent request. Some will be waived through to
not take up the time on the floor of the Chamber.
There is more than 1,000 executive branch positions that have to be
confirmed under statute. That, too, should be changed. There is far too
many positions that are basically set up so that they have to come to
this Chamber. That is certainly a subject of conversation. But for
those that under the law need to come for advice and consent, then we
need to exercise that responsibility in a manner that is consistent
with advise and consent but not with attempting to damage the President
and his team.
I was looking at a speech by one of my colleagues from Tennessee, Mr.
Alexander. He titles it, ``The Filibuster, Democracy's Finest Show, the
Right to Talk Your Head Off.'' That quote at the top of his paper is
from a speech before the Heritage Foundation and is taken directly from
the film ``Mr. Smith Goes to Washington.'' In other words, the premise
that my colleague put in his paper is that there needs to be the right
of the people elected by the citizens to have their voices heard on the
floor of the Senate. That is what the talking filibuster is about. It
is about the people being able to see their Senators, when they are
saying there needs to be additional debate, to actually debate.
There is a tremendous amount of bipartisan support for this notion
that Senators should not hide from the American people, that they
should not be engaging in secret holds, but instead, if they are going
to place a hold on a piece of legislation, to do it publicly and have
accountability. There is tremendous support for the notion that when we
proceed to vote that we want additional debate, we are actually going
to debate so we utilize the time of the Senate to weigh the pros and
cons, to hear all colleagues. Not that folks say: We want additional
debate and then go off to dinner. Not that Senators say: We want
additional debate and then go off on vacation.
If they ask for additional debate, then we should have additional
debate, laying out the pros and cons, arguing the merits, considering
amendments--in short, the talking filibuster.
I have a unanimous consent request that I gave notice of half an hour
ago. We are standing by waiting for one of our colleagues from the
other side to come, extending the courtesy for them to come and object
to this request. I am saying this out loud and looking across the aisle
and saying we have been waiting half an hour. I think it is time for
one of our colleagues who wishes to object to get here on the floor
and, just as we have been talking about, make their case visibly in
front of the citizens of the United States as to why they wish to
object to having a

[[Page S97]]

full debate on the talking filibuster. I know my colleague is waiting
to offer a unanimous consent request to have resolution No. 10
considered before this Chamber. I think we have pretty well laid out
the reasons we think this debate is important. But we can't get to that
debate without putting forward a unanimous consent request and having
it concurred in or blocked by objection.
I will see if my colleague from New Mexico wishes to make any more
comments. If not, I will offer my unanimous consent request and await
our colleagues to come and either endorse or object.
Mr. UDALL of New Mexico. Mr. President, I am also waiting. Senator
Merkley is waiting to put in his unanimous consent request on the
talking filibuster proposal which goes to the heart of the problem we
have today. One of the things I have learned the last 2 years in the
Senate is that when 41 Senators vote for more debate, that is basically
what is happening. When Senators vote for more debate, 41 of them, then
we don't get more debate. A lot of times we are in quorum calls. A lot
of times if we have a live quorum, we pull 51 Senators over to the
floor to try to get through that, there are a series of dilatory
motions, and it is very difficult in the modern Senate to keep 51
Senators here surrounding the floor. In the old days, they used to pull
out cots and stay through the night so that Senators would be able to
sleep someplace to keep that live quorum going. But in the modern
Senate, with everything going on, it is a tremendously unfair advantage
for one side to have one Senator and the other side have to have 51 in
order to try to conduct any business. That is the situation we are in
today. That is what the talking filibuster goes to. It goes to dealing
with that situation.
How does it deal with it? If 41 Senators request more debate, if they
say to the other 59 Senators they want more debate, we very simply say,
just as Senator Alexander said, quoting Jimmy Stewart in ``The Right to
Talk Your Head Off'' from ``Mr. Smith Goes To Washington,'' then come
down and debate. We are going to have a debate period where nothing
else is brought up but debate. The job of the Chair, as the Presiding
Officer knows, will be in that period to ask the question: Are there
any other Senators on the floor who wish to debate?
At that particular point, the American people could look down and be
able to make an observation: Is this debate educating the public? Is it
moving things forward, or is it just a filibuster to waste time?
One of the old-time Senators from California made a comment about the
filibuster wasting time. This is from Senate Republican whip Tom Kuchel
of California. He asked the question on the floor: What is a
filibuster? My definition would be that it is irrelevant speech making
in the Senate designed solely and simply to consume time and thus to
prevent a vote from being taken on pending legislation.
He is pretty condemning of that kind of filibuster. But that is a
judgment. We don't want to take people's right to debate away. We just
want to make sure there is an honest, fair debate on the floor. That is
what I compliment Senator Merkley on. He has drafted a proposal, worked
long and hard on it. What it ends up doing is, at the end of the
debate, when 41 Senators call for debate, we go into a period of
extended debate. They talk and they talk. At some point, when the Chair
asks: Are any other Senators on the floor who wish to debate, and there
is silence, they are then rolled over into what is called postcloture
30 hours.
Mr. MERKLEY. So if I might explain, if there is something critical to
my State, the talking filibuster enables me to find a couple of other
Senators who share my views. Perhaps they have similar issues in their
States.
For example, the citizens of Oregon don't want oil companies drilling
off our coast. We have a tremendous business in salmon, in ground fish,
rock fish. We have a river economy that depends on the migration of
salmon upstream. We have a crab industry. We have a tourist industry,
the most spectacular coastline anywhere in the world, the coast of
Oregon. The last thing we want is an accident that puts oil all over
our beaches and destroys multiple aspects of our economy.
So if there was a bill on the floor that said we are going to drill
for oil off the coast of Oregon, and if I believed that was a huge
mistake, then I could organize with other Senators and be here day and
night to block that misguided legislation. In that sense we are not
changing the number. It still takes 60 Members to close debate.
We protect the voice of the minority. We say two Members could
continue a debate day and night. For that matter, one could, but
eventually one is going to collapse on the floor like Jimmy Stewart
did. This is important to note because the talking filibuster is about
taking away frivolous obstructions that paralyze the Senate and prevent
it from doing its responsibilities on advise and consent and
considering regular bills from the House and certainly to be able to
get the appropriations bills done, to get the authorization bills done,
and so on and so forth.
There may be those who say we oppose the talking filibuster because
it takes away the power of the minority to block legislation. Actually,
the talking filibuster doesn't do anything of the kind. It just says
that when you block legislation, you have to do it in front of the
American people. You have to stand on the floor and make your case.
Mr. UDALL of New Mexico. Mr. President, that is the essence of it.
What we have now is Senators leaving. We actually had the case where a
Senator wanted the cloture vote to take place but then left and went
home. That is a pretty disgraceful situation. I have heard that our
good friend, Senator Alexander, is going to join us in a little bit. I
know the Senator from Oregon was quoting from a speech he recently gave
at the Heritage Foundation on January 4, 2011.
One of the things Senator Alexander said in there that I think we,
all three of us, have echoed--Senator Harkin, Senator Merkley, and
myself--is:

Now there is no doubt the Senate has been reduced to a
shadow of itself as the world's greatest deliberative body, a
place which, as Sen. Arlen Specter said in his farewell
address, has been distinctive because of ``the ability of any
Senator to offer virtually any amendment at any time.

I say to Senator Harkin, I know he has spoken passionately about the
idea of offering amendments, how our democracy has deteriorated in the
Senate because it takes now 60 votes--every amendment. I say to the
Senator, it did not always used to be like that, did it? I would ask
the Senator, did it? The Senator has been here a while. What was the
Senate like 10, 15 years ago? Could you get an amendment through with a
majority vote?
Mr. HARKIN. Well, if my friend will yield for a response.
Mr. UDALL of New Mexico. Of course.
Mr. HARKIN. Yes, literally up until 4 or 5 years ago you could offer
an amendment on the floor, and if you got 51 votes, you won. That
happened for--well, I have been here, what, 25, 26 years I guess now,
and that is the way it has always been. Sometimes there were tough
amendments. Sometimes there were tough amendments by Democrats;
sometimes there were tough amendments by Republicans. It did not make
any difference who was in the majority or the minority.
I do not think people elected us just to have an easy time of it here
and not to ever cast tough votes. Sometimes these are tough votes. But
I think the Senator from New Mexico is right. We always operated under
the fact that a Senator could offer an amendment. Usually you would
enter a time agreement. You would say: How much time do you want? Well,
you would have an hour or an hour and a half or 2 hours, something like
that. You would have a reasonable time agreement, and you would have
debate and then a vote. Sometimes people would move to table it, and
that was fine, but at least 51 votes decided that.
Now, as the Senator pointed out, you have to have 60 votes for any
amendment, a supermajority. For any single amendment you want to bring
up on the Senate floor, you now have to have 60 votes. I say to my
friend, it was not always like that.
Mr. UDALL of New Mexico. I say to Senator Harkin, one of the things
that happened to us right at the end of the Congress was when we had a
vote on a piece of legislation called the DREAM Act. I believe the
majority had 55 votes for the DREAM Act.

[[Page S98]]

Mr. HARKIN. That is right.
Mr. UDALL of New Mexico. Here is a piece of legislation where we were
talking about inmigrant children--through no fault of their own; they
were probably brought in as tiny babies--who have grown up in the
United States and have reached the age of adulthood and they have a
ceiling on them. They cannot go to college. They do not have Social
Security numbers. So we were basically trying to give them a dream they
could go out and be Americans. They could join the military, and after
they did their military service get in line for citizenship. They could
go to college, and if they did well, get in line for citizenship.
In any other country, if you had the two legislative bodies--the
House passed it by a majority; we passed it by a big majority, 55
votes--you would have a law. The President would be signing it, and it
would be law today.
That is what has happened to this filibuster rule. A lot of the steps
we are taking do not necessarily get right to the heart of that, but I
think the people understand that part of it. When I have gone home,
people say: What happened? What is going on? Fifty-five Senators voted
for the DREAM Act and it did not become law.
Senator Harkin.
Mr. HARKIN. If the Senator will yield, the Senator is absolutely
right. I will give another example. As the Senator knows, the Supreme
Court decided a case last year that allows certain entities to
contribute money to political campaigns, and they do not even have to
disclose who they are or how much they give. It is a Supreme Court
decision.
Well, the House passed a bill, and public opinion polls show that 80
percent of the American people were in favor of what we called the
DISCLOSE Act. We did not say they could not give the money. We just
said they ought to file: Who are you, and how much money are you
giving, and where are you getting that money from?
It passed the House. It came to the Senate. I believe we had 57 votes
for that, if I am not mistaken. I could be corrected, but I think it
was over 55 votes for that. But it did not pass.
The average American out there would say: Wait a minute. I thought if
you got 51 votes, you won. No, no, no. Again, we had to have 60 votes
in order to pass the DISCLOSE Act. The President would have signed it
into law. The House passed it. Eighty percent of the American people
were for it. But because there was this 60-vote threshold, we did not
get it passed.
I see the Senator from Oregon.
Mr. MERKLEY. Well, I say to Senator Harkin, I think that is a
tremendous example. I believe we actually had 59 votes twice----
Mr. HARKIN. I stand corrected.
Mr. MERKLEY. I believe, one vote short needed to close debate on the
motion to proceed to get to the DISCLOSE Act. So we could not even get
onto the bill.
So here is a Supreme Court decision that allows unlimited--
unlimited--secret foreign donations. I will tell you, as a red-blooded
American, the idea of foreign companies secretly influencing American
elections is outrageous, and we should have had a debate on that bill.
But, instead, we had 41 Senators who said they wanted further debate,
and then they were not willing to stand up on the floor to make their
case before the American people. And why did they want to hide from the
American people? Because the American people do not support secret
foreign donations influencing American elections. That is why.
Under the talking filibuster, folks could not have filed an objection
and left this Chamber and hid. They would have had to make their case,
and the American people could have weighed in and said: You are a hero
or you are a bum. In this case certainly most Americans, I believe,
would have weighed in and said: Get to that bill. Get to a debate on it
and get it done because it is the American tradition for Americans to
make their decisions about who they elect, not foreign corporations to
secretly spend money on American campaigns.
Mr. HARKIN. I thank the Senator. The Senator pointed out correctly--I
was mistaken; I thought it was 57--it was 59 votes. You would think
normally that bill would pass and it would go to the President for his
signature. It was supported overwhelmingly by the American people, yet
thwarted because we have the right--as I said earlier, the minority in
the Senate has a right of veto. They can veto whatever they want to
bring up. What sense does that make in a democracy?
I thank the Senator and yield the floor.
Mr. UDALL of New Mexico. I thank the Senator.
We see our good friend, Senator Alexander from Tennessee, has
arrived, and we very much appreciate that.
I say to Senator Alexander, one of the things we have been
discussing--and Senator Merkley had a chart and had the history of what
had happened as far as rules debates. There have been a lot of rules
debates--in the 1950s, 1960s, 1970s, and always--always--the two
leaders would allow a rules proposal to be on the Senate floor and be
debated and be disposed of.
We now have a situation today where we cannot get our rules proposals
onto the floor. Senator Merkley is here with a talking filibuster
proposal. I say to the Senator, I believe he has been talking with you.
I say to Senator Alexander, you have been very open with us in saying:
Let's have discussions. And your theme has really been, like you say in
your speech at the Heritage Foundation:

[T]he Senate needs to change its behavior, not to change
its rules.

That has been the Senator's function. But the Senator is also working
on rules changes with Senator Schumer, and we very much appreciate
that.
But I know Senator Harkin has a proposal. Senator Merkley has a
proposal. I have S. Res. 10. I say to the Senator, he was here on the
first day of the Senate session on January 5 when we put in, with my
two friends, S. Res. 10. We are just trying to get it to the floor, and
that is what I am going to ask right now, with my unanimous consent
request. We very much appreciate the Senator being here.
Mr. President, I ask unanimous consent that the Senate proceed to the
immediate consideration of S. Res. 10, a resolution to improve the
debate and consideration of legislative matters and nominations in the
Senate; that there be 6 hours for debate equally divided and controlled
between the two leaders or their designees, with no amendments in
order; and that upon the use or yielding back of time, the Senate
proceed to vote on adoption of the resolution.
The PRESIDING OFFICER. Is there objection?
The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, reserving the right to object, I want
to congratulate the Senator from New Mexico. He has been persistent and
diligent and enormously well intentioned in this effort throughout the
Rules Committee hearings and throughout the floor debate in seeking a
way to help make the Senate function better, at the same time
preserving the Senate as a forum for deliberation and protection of
minority rights.
We have a difference of opinion about whether that is best done by
allowing changes of rules by 51 votes or by 67, which is the way the
Senate rules currently prescribe. His proposal to change the rules
certainly can be considered on the Senate floor in the regular order,
and we would be happy to work with him to do that as long as it was by
67 votes.
So because of that difference of opinion, I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Iowa.

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