[Congressional Record Volume 157, Number 12 (Thursday, January 27, 2011)]
[Senate]
[Pages S296-S304]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


AMENDING THE STANDING RULES AND PROCEDURE OF THE SENATE--S. RES. 8, S. 
            RES. 10, S. RES. 21, S. RES. 28, AND S. RES. 29

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to the en bloc consideration of the following 
resolutions, which the clerk will report.
  The legislative clerk read the titles of the resolutions as follows:

       A resolution (S. Res. 8) amending the Standing Rules of the 
     Senate to provide for cloture to be invoked with less than a 
     three-fifths majority after additional debate;
       A resolution (S. Res. 10) to improve the debate and 
     consideration of legislative matters and nominations in the 
     Senate;
       A resolution (S. Res. 21) to amend the Standing Rules of 
     the Senate to provide procedures for extended debate;
       A resolution (S. Res. 28) to establish as a standing order 
     of the Senate that a Senator publicly disclose a notice of 
     intent to objecting to any measure or matter;
       A resolution (S. Res. 29) to permit the waiving of the 
     reading of an amendment if the text and adequate notice are 
     provided.

  The ACTING PRESIDENT pro tempore. The majority leader is recognized.
  Mr. REID. Mr. President, I ask unanimous consent that the clerk begin 
calling the quorum and that the time be evenly divided for the duration 
of the consideration of the resolutions. If there are quorum calls 
during this debate, I ask unanimous consent that the time be equally 
divided on both sides during those quorum calls.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. 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the quorum call be rescinded.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.
  Mr. REID. Mr. President, it is my understanding that we have more 
reporting to be done by the clerk on matters that will come before the 
Senate.


                        Amendments Nos. 1 and 2

  The ACTING PRESIDENT pro tempore. Under the previous order, the clerk 
will report the two amendments that are in order.
  The legislative clerk read as follows:

       The Senator from New Mexico [Mr. Udall] proposes an 
     amendment numbered 1 to S. Res. 10; and the Senator from 
     Oregon [Mr. Merkley] proposes an amendment numbered 2 to S. 
     Res. 21.

  The amendments are as follows:


                            amendment no. 1

               (Purpose: In the nature of a substitute.)

       Strike all after the resolving clause and insert the 
     following:

     SECTION 1. DEBATE ON MOTIONS TO PROCEED.

       Rule VIII of the Standing Rules of the Senate is amended by 
     striking paragraph 2 and inserting the following:
       ``2. Debate on a motion to proceed to the consideration of 
     any matter, and any debatable motion or appeal in connection 
     therewith, shall be limited to not more than 2 hours, to be 
     equally divided between, and controlled by, the majority 
     leader and the minority leader or their designees except for 
     a motion to go into executive session to consider a specified 
     item of executive business and a motion to proceed to 
     consider any privileged matter, which shall not be 
     debatable.''.

     SEC. 2. ELIMINATING SECRET HOLDS.

       Rule VIII of the Standing Rules of the Senate is amended by 
     inserting at the end the following:
       ``3. No Senator may object on behalf of another Senator 
     without disclosing the name of that Senator.''.

     SEC. 3. RIGHT TO OFFER AMENDMENTS.

       Paragraph 2 of rule XXII of the Standing Rules of the 
     Senate is amended by inserting at the end the following:
       ``After the filing of a cloture motion under this paragraph 
     but prior to a vote on such motion, the Majority Leader and 
     the Minority Leader may each offer not to exceed 3 amendments 
     identified as leadership amendments if they have been timely 
     filed under this paragraph and are germane to the matter 
     being amended. Debate on a leadership amendment shall be 
     limited to 1 hour equally divided. A leadership amendment may 
     not be divided. A leadership amendment shall require the 
     approval of at least three-fifths of the Senators duly chosen 
     and sworn.''.

     SEC. 4. EXTENDED DEBATE.

       Paragraph 2 of rule XXII of the Standing Rules of the 
     Senate is amended--
       (1) by designating the first 3 undesignated paragraphs as 
     subparagraphs (a), (b), and (d), respectively;
       (2) in subparagraph (d), as designated by paragraph (1), by 
     striking ``Thereafter'' and inserting ``If the Senate agrees 
     to bring debate to a close under subparagraphs (b) or (c), 
     thereafter''; and
       (3) by inserting after subparagraph (b), as designated by 
     paragraph (1), the following:
       ``(c)(1) If the Senate has voted against closing debate on 
     a measure, motion, or other matter under subparagraph (b), 
     but a majority of senators present and voting have voted to 
     bring debate to a close, then the procedures under this 
     subparagraph shall be in order at any time, so long as that 
     measure, motion or other matter has continued as the only 
     pending business subsequent to the vote against closing 
     debate.
       ``(2) Under the circumstances described in clause (1), it 
     shall be in order for the Majority Leader or his designee to 
     move to bring debate on the pending measure, motion, or other 
     matter to a close on the grounds that no Senator seeks 
     recognition to debate the matter. Immediately after the 
     motion is made and before putting the question thereon, the 
     Presiding Officer shall immediately inquire whether any 
     Senator seeks recognition for the purpose of debating the 
     measure, motion or other matter on which the Senate had 
     previously voted against closing debate under subparagraph 
     (b). If a Senator seeks recognition for that purpose, the 
     Presiding Officer shall announce that the Senate is 
     proceeding under extended debate, and shall recognize a 
     Senator who seeks recognition for debate. After the Presiding 
     Officer's announcement under the preceding sentence the 
     Senate shall continue to proceed under extended debate 
     subject to the conditions provided in clause (3). 
     Notwithstanding rule XIX, Senators may speak more than twice 
     on a question during extended debate.
       ``(3)(A) If the Senate enters into extended debate under 
     this clause, no dilatory motions, motions to suspend any rule 
     or any part thereof, nor dilatory quorum calls shall be 
     entertained.
       ``(B) If during extended debate the proceedings described 
     in either subclause (C), (D), or (E) occur and unless the 
     Majority Leader or his designee withdraws the motion made 
     under clause (2), the Senate shall proceed immediately to 
     vote on that motion or to vote at a time designated by the 
     Majority Leader or his designee within the next 4 calendar 
     days of Senate session. When voted on, that motion shall be 
     decided by a majority of Senators chosen and sworn.
       ``(C) If, at any point during extended debate when no 
     Senator is recognized, no Senator seeks recognition, the 
     Presiding Officer shall renew the inquiry as to whether a 
     Senator seeks recognition and shall recognize a Senator who 
     seeks recognition for the purpose of debate. If no Senator 
     then seeks recognition (or if no Senator sought recognition 
     in response to the Presiding Officer's inquiry under clause 
     (2)), the Senate shall dispose of the motion of the Majority 
     Leader (or his designee) to bring debate to a close pursuant 
     to clause (2), in the manner specified in subclause (B).
       ``(D)(i) If, at any point during extended debate, a Senator 
     raises a question of the presence of a quorum, the Presiding 
     Officer shall renew the inquiry as to whether a Senator seeks 
     recognition, and shall recognize a Senator who seeks 
     recognition for debate.
       ``(ii) If no Senator then seeks recognition for debate--
       ``(I) the Presiding Officer shall direct the Clerk to call 
     the roll;
       ``(II) upon the establishment of a quorum, the Senate shall 
     dispose of the motion of the Majority Leader (or his 
     designee) to bring debate to a close pursuant to clause (2) 
     in the manner specified in subclause (B); and
       ``(III) if the Senate adjourns for lack of a quorum and 
     when the Senate next convenes and the morning hour or any 
     period for morning business is expired or is deemed to be 
     expired, the Senate shall dispose of the motion of the 
     Majority Leader (or his designee) made to bring debate to a 
     close pursuant to clause (2) in the manner specified in 
     subclause (B).
       ``(E)(i) If, at any point during extended debate, a Senator 
     having been recognized moves to adjourn, recess, postpone the 
     pending matter, or proceed to other business, then unless the 
     motion is made or seconded by the Majority Leader or his 
     designee, the Presiding Officer shall renew the inquiry as to 
     whether a Senator seeks recognition, and shall recognize a 
     Senator who seeks recognition for debate, and said motion 
     shall be considered withdrawn. If no Senator then seeks 
     recognition for debate, then the Presiding Officer shall 
     immediately put the question on the motion offered, unless 
     the vote is delayed as provided in subclause (F).
       ``(ii) If the Senate agrees to a motion to adjourn or 
     recess it shall resume consideration of the pending measure, 
     motion or other matter pending at the time of adjournment or 
     recess when it first takes up business after it next 
     reconvenes, and the Senate shall still be in a period of 
     extended debate. Upon the negative disposition of the motion 
     to adjourn, recess, postpone, or proceed to other business, 
     unless such motion was made by the majority leader or his 
     designee, the Senate shall dispose of the motion of the 
     Majority Leader (or his designee) to bring debate to a close 
     pursuant to clause (2) in the manner specified in subclause 
     (B).
       ``(F) During a period of extended debate, the Majority 
     Leader or his designee may delay any vote until a designated 
     time within the next 4 calendar days of Senate session, and 
     any votes ordered or occurring thereafter shall likewise be 
     delayed.
       ``(4) If the motion of the Majority Leader to bring debate 
     to a close pursuant to clause (3)(B) is agreed to by a 
     majority of Senators

[[Page S297]]

     chosen and sworn, the Presiding Officer shall announce that 
     extended debate is ended and that the measure, motion, or 
     other matter pending before the Senate shall be the 
     unfinished business to the exclusion of all other business 
     until disposed of and further proceedings on the measure, 
     motion or other matter shall occur in accordance with 
     subparagraph (d). If the Majority Leader withdraws the motion 
     to bring debate to a close pursuant to clause (3)(B) or that 
     motion is not agreed to by a majority of Senators chosen and 
     sworn the Presiding Officer shall announce that extended 
     debate is ended.
       ``(5) If extended debate on a measure, motion or other 
     matter is ended under this subparagraph, other than by 
     agreement to the motion made by the Majority Leader under 
     clause (4), further consideration of the measure, motion or 
     other matter shall occur as otherwise provided by the rules, 
     except that if the Senate subsequently again votes against 
     closing debate under subparagraph (b), the procedures under 
     this subparagraph shall apply.''.

     SEC. 5. POSTCLOTURE DEBATE ON NOMINATIONS.

       The second undesignated paragraph of paragraph 2 of rule 
     XXII of the Standing Rules of the Senate is amended by 
     inserting at the end the following: ``If the matter on which 
     cloture is invoked is a nomination, the period of time for 
     debate shall be 2 hours.''.


                            amendment no. 2

                (Purpose: In the nature of a substitute)

       Strike all after the resolving clause and insert the 
     following:

     SECTION 1. EXTENDED DEBATE.

       Paragraph 2 of rule XXII of the Standing Rules of the 
     Senate is amended--
       (1) designating the first 3 undesignated paragraphs as 
     subparagraphs (a), (b), and (d), respectively;
       (2) in subparagraph (d), as designated by paragraph (1), by 
     striking ``Thereafter'' and inserting ``If the Senate agrees 
     to bring debate to a close under subparagraphs (b) or (c), 
     thereafter''; and
       (3) inserting after subparagraph (b), as designated by 
     paragraph (1), the following:
       ``(c)(1) If the Senate has voted against closing debate on 
     a measure, motion, or other matter under subparagraph (b), 
     but a majority of senators present and voting have voted to 
     bring debate to a close, then the procedures under this 
     subparagraph shall be in order at any time, so long as that 
     measure, motion or other matter has continued as the only 
     pending business subsequent to the vote against closing 
     debate.
       ``(2) Under the circumstances described in clause (1), it 
     shall be in order for the Majority Leader or his designee to 
     move to bring debate on the pending measure, motion, or other 
     matter to a close on the grounds that no Senator seeks 
     recognition to debate the matter. Immediately after the 
     motion is made and before putting the question thereon, the 
     Presiding Officer shall immediately inquire whether any 
     Senator seeks recognition for the purpose of debating the 
     measure, motion or other matter on which the Senate had 
     previously voted against closing debate under subparagraph 
     (b). If a Senator seeks recognition for that purpose, the 
     Presiding Officer shall announce that the Senate is 
     proceeding under extended debate, and shall recognize a 
     Senator who seeks recognition for debate. After the Presiding 
     Officer's announcement under the preceding sentence the 
     Senate shall continue to proceed under extended debate 
     subject to the conditions provided in clause (3). 
     Notwithstanding rule XIX, Senators may speak more than twice 
     on a question during extended debate.
       ``(3)(A) If the Senate enters into extended debate under 
     this clause, no dilatory motions, motions to suspend any rule 
     or any part thereof, nor dilatory quorum calls shall be 
     entertained.
       ``(B) If during extended debate the proceedings described 
     in either subclause (C), (D), or (E) occur and unless the 
     Majority Leader or his designee withdraws the motion made 
     under clause (2), the Senate shall proceed immediately to 
     vote on that motion or to vote at a time designated by the 
     Majority Leader or his designee within the next 4 calendar 
     days of Senate session. When voted on, that motion shall be 
     decided by a majority of Senators chosen and sworn.
       ``(C) If, at any point during extended debate when no 
     Senator is recognized, no Senator seeks recognition, the 
     Presiding Officer shall renew the inquiry as to whether a 
     Senator seeks recognition and shall recognize a Senator who 
     seeks recognition for the purpose of debate. If no Senator 
     then seeks recognition (or if no Senator sought recognition 
     in response to the Presiding Officer's inquiry under clause 
     (2)), the Senate shall dispose of the motion of the Majority 
     Leader (or his designee) to bring debate to a close pursuant 
     to clause (2), in the manner specified in subclause (B).
       ``(D)(i) If, at any point during extended debate, a Senator 
     raises a question of the presence of a quorum, the Presiding 
     Officer shall renew the inquiry as to whether a Senator seeks 
     recognition, and shall recognize a Senator who seeks 
     recognition for debate.
       ``(ii) If no Senator then seeks recognition for debate--
       ``(I) the Presiding Officer shall direct the Clerk to call 
     the roll;
       ``(II) upon the establishment of a quorum, the Senate shall 
     dispose of the motion of the Majority Leader (or his 
     designee) to bring debate to a close pursuant to clause (2) 
     in the manner specified in subclause (B); and
       ``(III) if the Senate adjourns for lack of a quorum and 
     when the Senate next convenes and the morning hour or any 
     period for morning business is expired or is deemed to be 
     expired, the Senate shall dispose of the motion of the 
     Majority Leader (or his designee) made to bring debate to a 
     close pursuant to clause (2) in the manner specified in 
     subclause (B).
       ``(E)(i) If, at any point during extended debate, a Senator 
     having been recognized moves to adjourn, recess, postpone the 
     pending matter, or proceed to other business, then unless the 
     motion is made or seconded by the Majority Leader or his 
     designee, the Presiding Officer shall renew the inquiry as to 
     whether a Senator seeks recognition, and shall recognize a 
     Senator who seeks recognition for debate, and said motion 
     shall be considered withdrawn. If no Senator then seeks 
     recognition for debate, then the Presiding Officer shall 
     immediately put the question on the motion offered, unless 
     the vote is delayed as provided in subclause (F).
       ``(ii) If the Senate agrees to a motion to adjourn or 
     recess it shall resume consideration of the pending measure, 
     motion or other matter pending at the time of adjournment or 
     recess when it first takes up business after it next 
     reconvenes, and the Senate shall still be in a period of 
     extended debate. Upon the negative disposition of the motion 
     to adjourn, recess, postpone, or proceed to other business, 
     unless such motion was made by the majority leader or his 
     designee, the Senate shall dispose of the motion of the 
     Majority Leader (or his designee) to bring debate to a close 
     pursuant to clause (2) in the manner specified in subclause 
     (B).
       ``(F) During a period of extended debate, the Majority 
     Leader or his designee may delay any vote until a designated 
     time within the next 4 calendar days of Senate session, and 
     any votes ordered or occurring thereafter shall likewise be 
     delayed.
       ``(4) If the motion of the Majority Leader to bring debate 
     to a close pursuant to clause (3)(B) is agreed to by a 
     majority of Senators chosen and sworn, the Presiding Officer 
     shall announce that extended debate is ended and that the 
     measure, motion, or other matter pending before the Senate 
     shall be the unfinished business to the exclusion of all 
     other business until disposed of and further proceedings on 
     the measure, motion or other matter shall occur in accordance 
     with subparagraph (d). If the Majority Leader withdraws the 
     motion to bring debate to a close pursuant to clause (3)(B) 
     or that motion is not agreed to by a majority of Senators 
     chosen and sworn the Presiding Officer shall announce that 
     extended debate is ended.
       ``(5) If extended debate on a measure, motion or other 
     matter is ended under this subparagraph, other than by 
     agreement to the motion made by the Majority Leader under 
     clause (4), further consideration of the measure, motion or 
     other matter shall occur as otherwise provided by the rules, 
     except that if the Senate subsequently again votes against 
     closing debate under subparagraph (b), the procedures under 
     this subparagraph shall apply.''.

  The ACTING PRESIDENT pro tempore. The majority leader.
  Mr. REID. Mr. President, I ask unanimous consent that the prior order 
of the Chair be put in place again, that there be a quorum call that 
would begin now and that the time be charged equally.
  The PRESIDING OFFICER (Mr. Brown of Ohio). Is there objection?
  Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Durbin). Without objection, it is so 
ordered.
  Mr. REID. Mr. President, I ask unanimous consent, because of the time 
delay here, that the recess not start until 1 o'clock rather than 
12:30.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I appreciate very much the courtesy of my two friends, the 
distinguished Senator from New Mexico, Mr. Udall, and my dear friend 
from Oregon, Mr. Merkley, for being understanding. We had some word 
changes. We were tied up on words. Senator McConnell had to work that 
out this morning. We were able to get that done just now. I appreciate 
that very much. He is always very thoughtful and so easy to work with.
  Our ability to debate and deliberate without restraints of time 
limits is central and unique to the Senate. It is supposed to be that 
way. It is in our DNA. It is one of the many traits intentionally 
designed to distinguish this body from the House of Representatives and 
from every other legislative body in the world. It has always been 
central to the Senate, and it always should be.
  But when that arrangement is abused, we have to do something not 
merely in the name of efficiency or for the sake of a political party's 
fortunes

[[Page S298]]

in the next election, we have to act because when abuses keep us from 
doing our work, they deter us from working together, and they stop us 
from working for the American people. And within these four walls, it 
degrades the relationships that make the Senate run.

  What is special about the Senate is that this body operates by 
consensus. It runs on a fuel made of comity and trust. When abuses 
happen or when colleagues act in bad faith, it dilutes and degrades 
that fuel and the Senate stalls.
  There are nearly as many opinions on what to do about the Senate as 
there are Senators. Senators Harkin, Udall of New Mexico, and Merkley 
have listened to many ideas and have worked to find solutions. I thank 
them for their time, efforts, and energy. So have Senators Schumer and 
Alexander. No one has worked harder than they have to find a way out of 
this crisis, and I admire and appreciate their efforts.
  Leader McConnell and I have worked alongside all of them and with 
each other to find common ground.
  In the spirit of compromise that we are trying to restore to the 
Senate, this is how we have agreed: As to secret holds, we have to get 
rid of secret holds.
  Last year, a single Senator held up 70 nominations. Why? Because of 
some parochial issue in his State that had nothing to do with what we 
were trying to do in approving nominations. The standoff finally ended 
but only after it became public. What he did was within his right, but 
it was not the right thing to do, and the rule has to be changed.
  Senators will no longer be able to hide, and the light of day will 
shine harder on the Senate as a body. I thank Senators Wyden, Grassley, 
and McCaskill for their leadership on this subject.
  About nominations, we have to recognize that public servants are not 
political pawns. An appointment by the President to a Federal agency is 
a great honor. In recent years, it has become a sentence to purgatory.
  The Senate no longer efficiently performs our constitutional duty of 
confirming nominees. That leaves important offices without leaders, 
leaves important duties unfulfilled, and unfairly leaves in limbo well-
qualified nominees.
  The Senate is responsible for confirming about 300 nominees to part-
time boards and commissions. Every one of these nominees to boards and 
commissions requires the approval of the Senate. Because of that, the 
vetting process for these boards and commissions takes an inordinate 
amount of time. They spend as much time as the FBI does and other 
people who do the background checks on these part-time jobs as they do 
someone who is going to become an Assistant Secretary or a judge, and 
it just eats up time that is unnecessary. There is no reason for 
Senators to keep them from their posts. But that is exactly what 
happens. It is not always the fault of the Senators.
  We have to get rid of as many of these nominations as we can, and 
that is what the Rules Committee leadership is recommending. Senator 
Schumer, the chairman, and Senator Alexander, the ranking member, have 
come up with something I think is so very important. They are going to 
help us get rid of about one-third of these nominations, not only these 
to part-time boards and commissions but others.
  This process needs to be changed. We will work to cut by about one-
third the number of executive nominations that require the Senate's 
approval. Senators Schumer and Alexander, as I indicated, are the 
leaders of this issue as far as what we have done to this point.
  This legislation will be turned over, and they will be working with 
Senators Lieberman and Collins, who are the chairman and ranking member 
of the committee of jurisdiction at this stage, to develop legislation 
that will do what I have outlined.
  Third, we cannot afford to waste time for the sake of wasting time. 
One of the minority's favorite tactics has been to force or threaten to 
force the clerks to read amendments.
  My colleagues will note that I said ``one of the minority's favorite 
tactics has been to force or threaten to force the clerks to read 
amendments.'' I did not say ``the Republicans' favorite tactic has been 
to force or threaten to force the clerks to read amendments.'' We have 
all threatened to do it. It is wrong, and it has to stop. That is what 
we are going to do later today.
  To have these amendments read is nothing short of showmanship. In 
this day and age, it is almost always totally unnecessary. In the 18th 
and 19th centuries, when Senators' offices were their desks--that is 
all they had; they did not have offices like we have. Their offices 
were right here on the Senate floor, so hearing a clerk read aloud a 
bill was probably a more essential--and that is an understatement--part 
of the debate. Today that is no longer the case.
  During the health reform debate two Decembers ago, while snow covered 
Washington and Christmas neared, opponents of the bill worked hard to 
delay its inevitable passage.
  On a Saturday toward the end of the debate, the minority forced the 
nonpartisan Senate clerks to read the entirety of an important 
amendment to the bill. The reading started just before 8:30 a.m. and 
lasted until just before 4 p.m. That is more than 7 hours of time 
during which nobody listened to the reading of a bill everyone had 
already studied. It had been filed a long time before, and it was after 
each Senator had already decided how he or she would vote anyway.
  We do not have time for these kinds of gratuitous delays. So the 
third change we will make is this: If an amendment has already been 
filed, a Senator cannot force its reading.
  Finally, as to what we call around here inside politics, motions to 
proceed and filling the tree--let me talk a little bit about these two 
items. I have often expressed my concerns about the procedural hurdle 
of forcing a preliminary vote simply to determine whether we can have a 
second vote to determine whether we can debate a bill--the vote called 
cloture on the motion to proceed. It is another one of the most 
commonly used tactics deployed simply to frustrate progress and waste 
time.
  Last Congress, we had 26 cloture votes on motions to proceed. Most 
all of them were bills that were not controversial. We had to hold a 
vote on whether to hold a vote on whether to debate a bill to promote 
tourism coming to our country called the Travel Promotion Act. After 
wasting days of precious time, it passed 90 to 3.
  We had to jump through the same hoops before we could vote on 
extending emergency unemployment benefits, which passed with 87 votes, 
and before we could vote on letting the FDA regulate tobacco, which 
passed with 84 votes, and before we could vote on updating our food 
safety laws for the first time in a century, which passed with 75 
percent of the Senate.
  Democrats are bothered by how often Republicans have forced 
procedural votes such as those on cloture on the motion to proceed. I 
know Republicans are equally frustrated with me for filling the 
amendment tree on occasion. Their argument is--and they are right--it 
prevents amendments from being offered.
  This agreement Leader McConnell and I have reached is going to clean 
up a lot of them. Just as I will exercise restraint in using my right 
as majority leader to fill the amendment tree, he and his Republican 
conference will curtail their habit of filibustering the motion to 
proceed. Both practices should be the exception rather than the rule. 
And starting now, they will be.
  I will conclude again expressing my appreciation to those parties who 
have been so heavily involved in this effort: Senators Udall, Merkley, 
Harkin, of course my friend from Tennessee, Lamar Alexander, and Chuck 
Schumer.
  Especially, I wish to express my appreciation to the Republican 
leader. As we have said on this floor lots of times, what most all of 
the American public sees us doing is fighting. We are here arguing on 
behalf of a Senator on our side or a problem we have on our side. But 
much of the work done in this body is done by Senator McConnell and 
myself in my office or his office trying to work through some of these 
problems. They take a lot of time, and they take our patience and the 
patience of the entire Senate. That is why I started my remarks this 
morning telling everyone I appreciate their understanding as we are 
trying to work out these issues.

[[Page S299]]

  We have been working on this effort a long time. These changes are 
important. I appreciate the attitude of my friend, the Republican 
leader, in recognizing we have to make some progress.
  The changes we will agree to today are, one, secret holds; two, 
reducing by one-third the number of executive nominations that are 
subject to Senate delays; three, ending the time-consuming practice of 
reading aloud amendments that have been publicly available for 3 days; 
four, limiting the use of filibusters on motions to proceed; and, 
fifth, filling the amendment tree only when necessary.
  I know some want us to go even further. There are just as many 
arguments for not going too far. But remember this: We are making these 
changes in the name of compromise, and this agreement itself was 
constructed with the same respect for mutual concession.
  Senator McConnell and I both believe our reverence for this 
institution must always be more important than our respective political 
parties. And as part of this compromise, we have agreed I will not 
force a majority vote to fundamentally change the Senate--that is the 
so-called constitutional option--and he will not in the future.
  The five reforms we are making, however, are very significant. They 
will move us five steps closer to a healthier Senate--in the minds of 
many, not far enough; in the minds of some, too far. But that is what 
the Senate is all about. It is about compromise, consensus building.
  Yes, we want the Senate to move deliberately, but if we want it to 
move we have to find a balance that encourages us to debate but also 
enables us to legislate. We are governed by a delicate mix of rules, 
rights, and responsibilities in this body. To that mix, we need to add 
respect.
  The Senate should function as the Founders intended it to function 
and as the country needs it to function, not simply as slowly as the 
rules will allow it to function.
  The PRESIDING OFFICER (Mrs. Hagan). The Republican leader.
  Mr. McCONNELL. Madam President, the colloquy which the majority 
leader and I are working on at the moment will reflect the entirety of 
our understanding. But with regard to comments about how we got to this 
place, let me just say, first to my good friend from Nevada, on several 
occasions I heard both him and the President of the United States talk 
about how much was accomplished in the last Congress. I am often 
perplexed as to which was the case. Either an extraordinary amount of 
legislation was passed and signed or the Senate was obstructing. They 
could not both be true.
  I suspect the real view that most historians will have is that the 
last Congress passed a great deal of very significant legislation. Then 
we had a referendum on that November 2, and the American people changed 
the equation.
  Without getting back into that or a litany of complaints by the 
minority--the Senate has heard them before. The principal complaint the 
minority has had over the last 2 years is the number of times the tree 
has been filled and we have been unable to offer amendments. We are all 
aware of grievances on both sides.
  As is often the case in the Senate, we have worked together through 
Senator Alexander and Senator Schumer to come to an agreement as to how 
the Senate will go forward and the procedures that will be employed. We 
will have votes later, consistent with the precedents of the Senate, at 
the thresholds that are required under Senate rules. Then we will move 
on with the people's business.
  I am optimistic that my good friend, the majority leader, and I can 
convince our colleagues that we ought to get back to operating as the 
Senate did as recently as 3 or 4 years ago. When bills came up, they 
were open for amendments, we voted on amendments, and at some point the 
bill would be completed. I know we can do that. I think it is the right 
way for the Senate to operate.
  I thank my friend, the majority leader, for his leadership in working 
through this difficult period of rules consideration.
  I say to my colleagues in closing that the colloquy which we will 
have will reflect the entirety of our understanding as to how we go 
forward. Then we will have the votes later which will give the Senate a 
chance to go on record about some changes that have been agreed to and 
some that are being proposed that are not agreed to.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Madam President, first I thank both our leader, Harry 
Reid, and our minority leader, Mitch McConnell, for their leadership 
and guidance. They are walking out together, and that is a good 
metaphor for what has happened today. I thank my colleague, Lamar 
Alexander, as well. Under the two leaders' authorization, we talked 
and, of course, in constant touch with them, worked out this agreement.
  I rise to speak in support of the bipartisan agreement on Senate 
rules reform. It is an important step forward in changing the way we do 
business in the Senate.
  Last year, the Rules Committee held six hearings on the filibuster. 
We heard about the history of the filibuster and what happened and how 
it had gone out of control. Those hearings were requested, actually, by 
a member of the Rules Committee, Tom Udall, the Senator from New 
Mexico, and it is why we embarked on the hearings. And I very much 
appreciate his suggestion that we do that.

  At the hearings, Democrats brought up that the majority was no longer 
able to move forward to consider bills by filibusters on motions to 
proceed, and Republicans argued that they were too often blocked from 
offering amendments by the majority filling the tree. Both sides had 
legitimate complaints. What couldn't be disputed was that, in many 
ways, the Senate was broken. It had become harder and harder for the 
body to consider, debate, and decide on legislation and nominations 
that it is supposed to take care of.
  It is true what Senator McConnell said--that we had a very productive 
session. But that doesn't gainsay the fact that there were 74 
filibusters and that many issues that should have been decided weren't 
decided, and that the Senate, to many, may not be functioning in the 
way it used to, with debate being stifled by both the majority and the 
minority, and so we resolved this.
  When I first came to the Senate 12 years ago, a senior Senator pulled 
me aside and said the role of the majority is to set the agenda. They 
put bills on the floor and they are debated. And the role of the 
minority is to offer amendments to change the legislation. We are not 
doing that much anymore. What usually happens is we offer a bill, and 
the minority says, we don't want it. They may say, we don't want it 
because Democrats have refused to allow unlimited amendments; whereas 
we think they do not want it because they may just want to gum up the 
Senate. But whatever the reason, both sides have legitimate complaints 
here and we are trying to resolve some of those. So clearly, the time 
for change has come. I believe the reforms we are adopting today give 
us a very good chance to go back to the way of operating where we had 
real debate on bills and amendments and votes on bills and amendments.
  This won't happen overnight, and both sides will still use the 
procedural tools available to them on the most important issues. But we 
hope it will work well enough to get us back on track. Leaders Reid and 
McConnell in the colloquy they will put forward--which Senator 
Alexander and I participated in framing--will do two things, in 
addition to the changes that we will make. One, each will say we should 
use the motion to proceed to block bills from coming to the floor 
infrequently, and the majority will say we should use filling the tree 
to block amendments that might come forward on those bills 
infrequently.
  Obviously, we are going to have to watch to see how this works over 
the next several months. And, obviously, there will be times when each 
side decides they have to use the right that the Senate gives them to 
block things. But the presumption will be that in the usual course of 
business we will not do that; that they will be the exception, not the 
rule.
  A second thing that will be stated by both leaders is whoever is in 
the majority next Congress will not try to change the rules by simple 
majority in

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this Congress or next. Some on our side were worried if we didn't try 
to invoke the constitutional option, should the other side get the 
majority--and I don't personally think we have to worry about that or 
that it will happen anyway, but should that happen, then they might 
invoke it and do something else, so why not do it now? Well, both 
leaders have agreed they will not do that. Without leader support, it 
is virtually impossible for it to get done.
  So that is a significant change, and when the colloquy is presented 
in the Record, we will see both leaders have agreed to that. I want to 
thank them for providing strong leadership and guidance throughout this 
process.
  I became convinced, working with my good friend, the Senator from 
Tennessee, and having plenty of conversations with my friend and Leader 
Harry Reid, and a few with Senator McConnell, that everybody wanted to 
come to an agreement here. Everyone wanted to see the Senate work 
better, and that made me feel pretty good regarding what we did here.
  Second, I want to recognize the many Senators from my party who 
worked tirelessly to identify the momentum for change, and at the head 
of the list, of course, are Tom Udall, Jeff Merkley, and Tom Harkin. 
They worked very hard on these issues. Two of them are newer in the 
Senate--freshmen--and one has much more experience than I do in the 
Senate, Senator Harkin, and they all worked hard to see that we changed 
the rules.
  While the changes aren't everything they would have liked or I would 
have liked, certainly the changes we are getting, not insignificant at 
all, are because Tom Udall started pushing this idea when he got here 
to the Senate. I think his predecessor, Clinton Anderson, had done some 
of this, and Jeff Merkley and Tom Harkin joined in the cause early on 
and actually brought us to the point where the inertia of not doing 
anything would no longer govern and we would get together to get 
something done.
  There were other Senators who played a very important role: Senator 
Lautenberg, with his proposals; Michael Bennet, Mark Udall, and Al 
Franken all had proposals and all played a very significant role here 
and can feel very good about the changes we have wrought.
  I particularly want to thank Senator Klobuchar for leading the 
working group of Senators who spent hours reviewing and refining. 
Without all of them, I don't think the agreement would have been 
possible.
  I would make one other point, and this is a disappointment to me, so 
I will make it for myself. One idea championed by the reform-minded 
Senators I thought made eminent sense is the talking filibuster. It 
didn't change the balance in the Senate, it simply said that if you 
were going to filibuster, you had to stay on the floor and talk. You 
couldn't just be there and object.
  The American public understands when a Senator wants to filibuster a 
bill, that Senator should be required to stand up and talk on the 
Senate floor. I strongly support the talking filibuster. We sometimes 
call it the Jimmy Stewart talking filibuster, because everyone 
recognizes that from the movie. I believe it would pull back the 
curtain on the kind of filibusters we have now. We wouldn't change the 
rule of 60, but the filibustering Senator and his supporters right now 
don't even have to show up or talk for a vote. This talking filibuster 
is one change I hope the Senate will adopt in the future because it 
makes good sense and we should do it.
  I don't believe we should eliminate the filibuster altogether, but we 
need to make it real. The talking filibuster proposals would do that, 
and I hope someday we will make the talking filibuster part of the 
Senate rules, and I will vote for that resolution that will be on the 
floor later today. Of course, it will need two-thirds to pass.
  Finally, I wanted to thank Senator Alexander. He and I have been 
friends before this, but we worked together being here throughout the 
holidays, vacations, and recesses, and he was creative, he was 
flexible, as always, he was congenial and, as usual, he was smart. His 
concern for this institution helped bring the minority and the majority 
together, and I very much appreciate Senator Alexander's role.
  Senator Reid outlined the other parts of the bipartisan proposal--the 
end to secret holds, which will be done by rule; the end of reading of 
amendments filed for at least 72 hours, also done by rule; and the 
third proposal is to limit the number of executive nominations--there 
are so many. About 30 percent of the total we propose to eliminate. He 
and I, and Senators Lieberman and Collins, who have the jurisdiction in 
their committee, will introduce a bill that we hope to move quickly. We 
have gotten the agreement from the House that they will move the bill, 
and we should eliminate confirmation on so many of these positions that 
shouldn't require confirmation, such as members of part-time boards and 
commissions, officials who handle legislative or public affairs, and 
things such as that, and I want to thank Senators Lieberman and Collins 
for that.
  Finally, as chairman of the Rules Committee, I believe there is more 
we can do. I want to see our efforts at reform continue. I wish to 
continue working on the streamlining of confirmation of nominations, 
both executive and judicial, and our Rules Committee will continue to 
look at that.
  Change doesn't come often or easily to the Senate, but we are here 
because many Members worked hard on reform, and both parties, 
continuing the feeling of bipartisanship that began in the lameduck and 
I think has continued through the State of the Union speech, are 
continuing again today. I hope our efforts will make a difference. I 
hope the Senate will function better, and I am very hopeful that with 
these changes, both formal and informal, they will.
  We know there are still sharp differences within our body on issues, 
and those won't disappear. On certain bills, both sides will use every 
procedural tactic that makes the Senate a different body than the 
House, but hopefully, on most, we won't.
  In conclusion, while those of us who wanted reform in the Senate 
didn't get everything we wanted, the Senate will be a significantly 
better place for the changes we are enacting. As a result of this 
agreement, there should be more debate, more votes, fewer items blocked 
by a single Senator or small minority of Senators. Make no mistake 
about it, this agreement is not a panacea, but it is a very significant 
step on the road to making the Senate function in a better, fairer way.
  Again, I thank all of my colleagues who participated in this effort.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, I wish to thank the Senator from New 
York, the Senators from New Mexico and Oregon, and Senator Harkin of 
Iowa for their efforts--some over many years--to achieve two goals: to 
help make the Senate a place that is better able to deal with the 
serious business that comes before us, and second, to preserve the 
Senate as a unique forum--unique in the world, really--as a legislative 
body that protects minority rights.
  This is an important step forward--the reform of the Senate--but the 
reform the Senate needs is a change in behavior, not in its rules. 
These rules move us in the right direction, but the behavior that the 
Senator from New York spoke about and that the majority leader and the 
minority leader spoke about is what, in the end, will make the most 
difference.
  I have talked with many Senators on both sides of the aisle. We have 
done a lot of talking both on the floor here and off the floor about 
where the Senate is today, and a great many of us feel the Senate is a 
shadow of its former self in terms of its ability to function as a 
truly deliberative body.
  It is hard to see how the majority can complain after a legislative 
session where they passed health care legislation, financial reform 
legislation, and other legislation that may have even resulted in the 
diminishing of their numbers. They had a productive session, from their 
point of view. But the truth is, on both sides of the aisle--on both 
sides of the aisle--we wish to see the Senate function in a different 
way.
  The majority leader and the Republican leader have put out in a 
colloquy what that way is, and that will govern what we do. But 
basically, I believe it is this: We want the same thing--a Senate where 
most bills are considered by committee, where most bills come to the 
floor as a result of bipartisan cooperation, where most bills are then

[[Page S301]]

debated and amended and then voted upon.
  To someone who may have just tuned into the Senate, they may say: 
Well, that is a very simple solution. I thought that is what the Senate 
was supposed to be. It is what the Senate is supposed to be. It wasn't 
so long ago that it was the standard operating procedure. Senator 
McConnell said it was just a few years ago. He and Senator Reid have 
both been here a number of years.
  I remember watching the Senate--and I have mentioned this before in 
this debate--between 1977 and 1985, when Howard Baker of Tennessee and 
Robert Byrd of West Virginia were the Republican and Democratic 
leaders. I had worked for Senator Baker before that as a legislative 
assistant. I knew Senator Byrd. Here is what went on then, and here is 
what could go on today: Most pieces of legislation that came to the 
floor started in committee. That gave us a chance to see what they did 
and to improve them and to hear from voices from all over the country. 
That legislation then came to the floor.
  During Senator Baker's day, when he was the majority leader, he would 
rarely bring a bill to the floor unless both the Republican chairman 
and the Democratic ranking member supported it because he didn't want 
to waste the Senate's time. He knew that the Senate's 60-vote 
requirement forces consensus.
  People talk about the filibuster. But what we have is a requirement 
that most important bills get 60 votes. If you are sitting with 53 
Democrats and 47 Republicans, you don't have to have an advanced degree 
in mathematics to figure out if you don't have some Democrats and some 
Republicans, you don't get to 60.
  So Senator Baker was saying back in the 1980s, bring the bill to the 
floor if it has the Republican chairman and the Democratic ranking 
member's support. Then the call would go out for amendments, and 
sometimes there would be 300 amendments filed.
  The Senator from North Carolina or Tennessee might file 40. And no 
one said: Whoa, stop. You cannot do that. Instead, they said: Bring 
them on in. Sometimes there would be 300 amendments. Then Senator Baker 
or Senator Byrd would ask for unanimous consent to close off 
amendments. Well, I guess because the Senators by that time were 
exhausted from writing amendments, they all agreed to it, and then they 
started voting.
  Now, it got to be Wednesday or Thursday, and the party secretaries 
would go to the Senators and they would say: I notice you still have 30 
amendments waiting. Maybe you would only like to offer 15. It might get 
to Friday, and they would say: I notice you have five left. Maybe you 
would only like to have one. But if they had one they wanted to get, 
they almost always got the amendment. That is what the real importance 
of this agreement is today.
  The difference of opinion we have had that has caused us to 
degenerate, in some cases, to a body that has not functioned as well as 
it should has been because on that side of the aisle--the majority--
people did not want to vote. It is like joining the Grand Ole Opry and 
saying: I do not want to sing. Some Republican Senator might offer an 
amendment that side does not want to vote on, and they say, well, we do 
not want to vote or they say, well, we do not want to work on Friday. 
So they go home. And they put pressure on the majority leader to use a 
procedure called filling the tree which cuts off votes and the right to 
amend. The majority leader used that power to cut off all amendments 
and debate 44 times. That's more than the last 6 majority leaders 
combined. Then what happens over here? Well, then Republican Senators, 
now in the minority, say: Well, we are not going to get amendments; we 
are going to start objecting. So we have what is called a lot of 
filibusters. We say: You are counting filibusters when you cut off our 
right to offer amendments. They say: You guys over there are keeping us 
from doing our business. On both sides, there is some truth to what has 
been said.
  So I think most Senators are happy with this result. I think they 
will be. I hope it works. I mean, the idea would be that the leaders 
will do their best to see that most bills go to committee, come to the 
floor, and that when they do, if the Senator from North Carolina has an 
amendment the Senator from Tennessee would rather not vote on, she 
offers it anyway if she wants to, or if I have one she would rather not 
vote on, I may offer it anyway because it is important to the people of 
my State, even though we might be in a political minority at the 
moment. I believe that in most cases, if most Senators in the minority 
have that opportunity, that will help us get back to the kind of Senate 
we want to see.
  I wish to compliment Senator Udall, Senator Merkley, and Senator 
Harkin. I learned a long time ago in life that if you start out in one 
direction, you do not always get exactly where you want to go, but you 
do not get anywhere if you do not start out. I think what they have 
done with their intelligence and diligence and persistence in this has 
created a period of time here where the Senate is taking some steps 
today that will help the people of this country know that serious 
issues--and we have plenty of them--the debt, for example, where 42 
cents out of every dollar we spend is borrowed; jobs, for example, and 
in my State we have had 24 months of 9-percent unemployment or higher--
these changes will help us deal better with those issues. I will have 
more opportunity to talk about those after lunch later this afternoon. 
I want my friends on the other side to have a chance to make their 
points before we adjourn or take a recess for an hour.
  Fundamentally, the steps we are taking make a difference. The one I 
am especially glad to see is the effort to make it easier for a 
President--any President--to staff his or her government. One of the 
problems--and Senator Reid talked about it--is we confirm too many 
people. It is not necessary for us to confirm the PR officer for a 
minor department. There is no need for that. The Secretary needs to go 
ahead and be able to appoint that person. We need to be able to work on 
more important issues.
  Secondly, we have created a phenomenon in this town that I refer to 
as ``innocent until nominated.'' We have created a situation where any 
citizen who is invited by the President to serve in his government has 
to run such a gauntlet that it is almost impossible to get to the end 
of the gauntlet without being branded as a criminal. The reason is, we 
have a maze of conflicting forms in the executive branch, plus an IRS 
audit, and a maze of conflicting forms in the Senate. It not only 
delays, but it traps people and it tricks people into filling out one 
definition of ``income'' here and another one there. We all know this 
is true. We all know it needs to be fixed.
  We have tried to fix it before--not just some of us; the majority 
leader and the Republican leader tried to fix it, and they didn't get 
it done. Senator Lieberman and Senator Collins tried to fix it, and 
they could not get it done. And 2 years ago, at a bipartisan breakfast 
which Senator Lieberman and I hosted, we had a whole group of us who 
said: Let's try to get this done. We talked to President Obama's 
administration about it. They said: Sure, go ahead. We would like to 
see that happen, either for us or for the next President. But we could 
not get it done because of resistance in this body to giving up any 
sort of power.
  Right now, we have a unique confluence of support for the idea of 
making it easier for any President to staff his or her government. The 
majority leader and the Republican leader are solidly behind the 
effort. Senator Lieberman and Senator Collins are solidly behind the 
effort. Senator Schumer and I are working on a bill to do that, and we 
hope we can succeed. This opportunity, this window would not have 
happened if it had not been for the work of the Senators who have been 
arguing for reforms.
  The other step we are likely to take is abolishing the secret hold. I 
think that is a good idea. I speak from experience. When I was 
nominated by the first President Bush to be Education Secretary, a 
Senator put a hold on my name, and it took 3 months to get it off. I 
finally found out who it was. I never knew exactly why he did it or why 
he took it off, but it might have helped if I had known it a little 
earlier. So I think it is a good idea. The majority leader put a hold 
on one of my TVA nominees, but he did it publicly. So I put a hold on 
one of his nominees, and

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I did it publicly. And we worked it out. So there is nothing wrong with 
asserting our rights, but we might as well do it in public. I 
congratulate the Senators for making that effort. Senator Wyden and 
Senator Grassley have been working for more than a decade on that, as 
well as other Senators.
  The step that says that if an amendment has been filed and on the 
Internet for 72 hours, we cannot require the clerks to read it all 
night long--that is a very commonsense proposal. I know it will be 
greatly appreciated by the employees of the Senate who have the job of 
reading the amendment. If they had a chance to vote, this would 
probably be the resolution on which they would like to have a chance to 
vote yes.
  So these are important steps in the right direction which we will 
have a chance to talk about more today as the debate goes on. But I 
would like to end where I began. What we need most in the Senate is a 
change in behavior in addition to this change in rules. We need to 
preserve the Senate as a forum for minority rights. We need to preserve 
the 60-vote requirement for major votes. That will force consensus. 
That will cause us to work together. That will build support out in the 
country for the result of what we do because they can see that both 
Republicans and Democrats think, for example, that the way we have gone 
about trying to make Social Security solvent is a good way, rather than 
one side or the other just jamming through their partisan way.
  There is a reason it is a good idea for this not to be a body that 
operates by a simply majority as the House does. I mean, the House can 
repeal the health care bill overnight. Bring it over to the Senate, and 
that side says: Let's stop and think about it. The House, if it is 
Democratic, can repeal the secret ballot in union elections overnight, 
and it did with its vote in the last Congress. But when it came over 
here, the Republican side said: Let's stop and think about it. The 
American people are better served by having these two different kinds 
of bodies, and the Senate and the American people will be better served 
both by the rules changes we are likely to adopt this afternoon and 
especially by the agreement by the majority leader and the Republican 
leader, which I feel confident has the backing of almost all of us, 
that we would like to work in a Senate where most bills are considered 
by committee, where most bills come to the floor, and where Senators, 
most of the time, have an opportunity to offer their amendments and 
debate. To be sure, there will be times when, if it is repeal of health 
care, that side does everything it can to exercise its rights to stop 
it, or if it is repeal of the secret ballot in union elections, this 
side will do everything we can to exercise our rights to stop it. But 
that will not be the ordinary course of events if this works the way we 
hope it does.
  So I hope my friends on the other side feel good about what they have 
done. They have not achieved everything they sought to achieve, but we 
rarely ever do, particularly in a body of 100 that operates by consent 
of 100. What they have done, I believe, in addition to the rules 
changes we are likely to adopt, is create a window in which we have had 
a good, open discussion about the kind of place we want to work, the 
kind of Senate we hope would serve the American people the best, and we 
have come to a consensus about a change in behavior, which I believe in 
the end will be more important than the change in the rules.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. UDALL of New Mexico. Madam President, before Senator Alexander 
leaves, and I know we have our conferences, and I guess we are going to 
go to about 1:00 today, I would like to thank him for all of his 
efforts. I really look forward to Senator Alexander being the ranking 
member--I believe he is going to be the ranking member--on the Rules 
Committee now that Bob Bennett has moved on to other things. He has 
participated in many of these hearings. I look forward to continuing 
the exchange on rules that we have had. I do not think this is the end 
of the rules debate. I think that is why we have a full-time Rules 
Committee to take a look at this.
  I hope these new Senators who are listening to us today--whom you are 
going to talk to on your side, I am sure, in about 15 minutes--that 
they look at our rules and offer suggestions and that we still continue 
this discussion in the Rules Committee.
  I thank all of the leaders who came down here today and talked.
  Senator Reid and Senator McConnell have announced an agreement. We 
are moving forward with reforms.
  Senator Schumer has been a real champion on rules reform. I remember 
going to him and asking for hearings, and he said: Well, what kinds of 
hearings are we looking at? What do we want to do? And I explained to 
him, went through--we need to talk about the history of the filibuster. 
You know, the filibuster was not in the original Senate. There were 
rules for 17 years where you had what was called a motion to order the 
previous question. That is a majority motion to cut off debate. And 
then later it was changed. So I said: We have to get the history out 
there for everybody to see because some of these charges are not very 
accurate. And he was a champion. He allowed us to do six hearings. We 
brought in constitutional scholars. Both sides participated, and it was 
very productive.
  So here we are at the beginning of a Congress, and we have been 
pressing--with my good colleague and friend from Oregon--for rules 
reform through the Constitution, relying on the Constitution. In 
article I, section 5 of the Constitution, it gives us the power and the 
authority--a majority of us at the beginning of an organizing session--
to determine what rules we function under for the next 2 years. That is 
the exercise in which we have been engaged.

  Both the Senator from Oregon and I realize if we hadn't utilized our 
rights under the Constitution, if we hadn't pushed this very hard and 
said we are trying to round up 51 Senators who will stand with us and 
say they want change in this institution, we want to get back to being 
the greatest deliberative body, we want to consider all the important 
bills in a timely way--budget bills, appropriations bills--by utilizing 
our constitutional option or our rights under the Constitution, we have 
come a long way in 1 year. We have had many debates in our caucus. We 
have had many discussions.
  We are not exactly where the Senator and I think we should be at this 
particular point in time. These reforms--and let me say, these reforms 
are steps forward and in some ways significant. The fact that we are 
getting rid of secret holds, if we have that vote today and get 60 
votes, is a good thing. Nominations, letting the President get his team 
in place, that is a good thing. Reading of amendments, my cousin, 
Senator Mark Udall, is involved in that. The motion to proceed, the 
gentlemen's agreement on the motion to proceed and filling the tree, 
that is a significant step in behavior to say: Let's change our 
behavior, and then the fact that we will have votes today on S. Res. 
10, on the Merkley talking filibuster and the Harkin proposal, these 
are significant votes to be taken and significant steps forward.
  I strongly disagree with one thing announced here, the idea that the 
two leaders are taking off the table us utilizing our constitutional 
rights. That was what was announced. I think we both heard it the same 
way. Leader McConnell and Leader Reid both said they are not going to 
rely on a majority vote for rules in the future, no matter who is in 
power and what is happening.
  The beauty of the Constitution--and we all realize this--is that is a 
good agreement for them. It doesn't apply to 98 other Senators. Each 
Senator under the Constitution has his or her right to rely on those 
constitutional rights. I urge, as has been done every time in the past 
when we have had a movement for change on rules, that it be bipartisan. 
We are seeking 51 Senators who will join with us. Because if 51 
Senators join at the beginning of a Congress and say they want rules 
reform, they want this place to function better, they want to do the 
people's work better, they want to take up some House bills, the 400 
bills that died, they want to do appropriations bills in a timely way--
all these things are very important to a better functioning Senate, and 
a better functioning Senate is all about the people's work.

[[Page S303]]

  I know the Senator from Oregon has some initial comments. But I 
thought we could talk about the idea that we have moved a long way. We 
have pushed the constitutional option. I don't think there is any doubt 
that he and I are giving up on our constitutional rights. Other 
Senators can say what they want to do, but we are going to stand and 
utilize our rights as we move down the road. We are hoping we will be 
at a place where we have 51 Senators, Democrats and Republicans, who 
will continue to look at this and find a better way to make this 
institution work in terms of modern issues, modern times. I think we 
are kind of stuck back in another century with some of these rules. We 
need to bring it up to date.
  With that, the Senator from Oregon and I are going to engage in a 
colloquy, but I know he had some additional comments. I am happy to 
yield.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Madam President, I thank my colleague from New Mexico 
for his leadership on the constitutional option. Some may ponder how it 
is that we have come to have this constitutional argument at this 
moment. As he has noted, under the Constitution, this body is empowered 
to organize itself. That is not that those who spoke 100 years ago or 
50 years ago get to tell us how to operate but that we today in this 
Chamber have the power of the Constitution to organize ourselves. There 
is little question from constitutional scholars about this 
understanding of the very plain words written by our forefathers as 
they designed this institution. Indeed, they were clear, when 
supermajority requirements were set--supermajority for overriding a 
Presidential veto, supermajority for impeachment, supermajority for 
treaties--but a simple majority to pass bills, a simple majority to 
pass amendments, a simple majority to adopt the rules by which we 
function. Indeed, that is exactly what the first Congress did. They 
used a simple majority to adopt their rules, and they extended to each 
other a courtesy to hear each other out, those 26 Senators coming from 
13 States. They heard each other out so they could make better 
decisions.
  Over time that courtesy has grown to be informally entrenched in a 
Senate rule that says shutting down debate takes a supermajority. But 
when that was done, it went hand in hand with a social contract to 
understand that such power for one Senator to shut down this body--to 
require a supermajority, delay action for a week--would be a power 
rarely used, a power used in courtesy and respect to other Members, 
that it would only be used for the most important issues, the highest 
issues of concern to one's particular State or to the future of the 
Nation. That social contract is what has disappeared that went hand in 
hand with the rule, with the supermajority.
  Let me display a simple chart that shows the deterioration of that 
social contract. Here we are with the average number of cloture 
motions--that is, to shut down debate--filed. The average from 1900 to 
1970 on was one per year. In the 1970s, it went to 16. We can see how 
this grows over time until in the 1990s we were at 36, in the 2000s at 
48, and these last 2 years, 68 per year. This is the change from the 
courtesy of hearing each other out to using a supermajority as an 
instrument of legislative destruction to blockade a good debate, to 
blockade the will of the majority, to blockade and paralyze the Senate 
as a whole.
  Recognizing this damage that meant that no appropriations bills were 
adopted last year, that no budget was adopted, that 400 House bills lay 
collecting dust on the floor rather than being processed and voted on, 
that more than 100 nominations were never acted on and that we failed 
in our constitutional duty to advise and consent, it is in recognizing 
all that--it was particularly apparent as new Members of the Senate 
observing this--that something had to be done. That is why I was so 
impressed when the Senator from New Mexico stepped forward and said: We 
will use the power of the Constitution to help restore the broken 
Senate. It has been a privilege and an honor to team up with him and to 
team up with many Members in this effort.
  We come to this point today where, as my colleague mentioned, there 
are a number of steps forward coming out of this debate. They are 
modest steps forward. Some of them are ones that have been debated for 
years. I applaud Senator Wyden from my State, who worked with Senator 
Grassley and Senator McCaskill on secret holds. As Senator Wyden likes 
to note, for 15 years he has argued we should not be able to put a hold 
on legislation without taking public responsibility, literally since he 
came to the Senate. He is absolutely right. Today, I think a 
supermajority will adopt that.
  These other steps--not abusing the reading of amendments, reducing 
the number of folks subject to confirmation--are steps forward.
  But I would like Members to envision three 60-foot-high walls between 
where they are now and where they need to be to have the Senate work as 
a body that debates legislation and votes on legislation. The first 60-
foot wall is cloture on the motion to proceed. The next 60-foot wall is 
cloture on an amendment. Actually, there can be any number of those. 
The third 60-foot wall is final passage, closing down debate for final 
passage. In this agreement today, there has been a sense between the 
leaders that the motion to proceed will not be filibustered. That is 
the first wall. That is being taken down or at least a commitment not 
to use it except in extraordinary circumstances. But that means there 
are two more major walls left in place.
  I step back from that and ask: How much will it change for the 
Senate? If I go back to this chart, the first wall is one that has only 
been occasionally used. It is the second and third walls that are 
driving the paralysis of the Senate.
  I hope, indeed, that when the majority and minority leader talk about 
changing behavior, when my good friend from Tennessee, Senator 
Alexander, talks about changing behavior, I hope they are talking about 
restoring the social contract, that the filibuster would rarely be 
used. That would be a tremendous step forward. I will hold out that 
promise.

  Meanwhile, recognizing that it will only happen when a Senator comes 
forward and does a frivolous effort to continue debate on an amendment 
or a bill or a nomination that is overwhelmingly supported, that it 
will be up to leadership to say that is not acceptable. We need to 
restore the social contract. If that change in behavior happens, that 
would be a tremendous step.
  Meanwhile, I echo the comments of my colleague. I cannot surrender 
the rights under the Constitution to use a majority to continue to 
pursue rules that will make our broken Senate work better. I reserve 
that right, as does he.
  There are many who say the Senate should be different than the House, 
that it should be a cooling saucer. That was related to the debate in 
the design of the Constitution, when terms were staggered so one-third 
is elected every 2 years. The country may be way over here and the 
Senate may change accordingly, but only one-third is up for election. 
Then, maybe over here the Senate changes less. In addition, this 
courtesy, this respect of hearing each other out and pondering the 
arguments of each other. But a cooling saucer is very different than 
the routine use of the filibuster to obstruct the ability to act, very 
different than the way it has been used these last 2 years to prevent 
us from doing appropriations bills, from doing House bills, preventing 
nominations from being considered. That has to end. That has to change.
  I pledge myself to continue working, hoping that behavior will change 
on its own but working with others to say, when it doesn't change, we 
need to change, we need to change the rules to make this institution 
fulfill its constitutional responsibilities.
  We will be breaking soon. When we come back, I hope to resume a 
conversation about some of the specific items we will be voting on 
later today. The one I particularly wish to talk about is Jimmy Stewart 
or the talking filibuster. It is a compromise that takes into account 
the desire that we hear each other out, the desire that we be a cooling 
saucer but prevents an opportunity to be accountable to the public, not 
to have the silent or secret filibuster we have now but to have the 
public and talking filibuster, where we actually debate. I will say 
more about that when we come back.

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  I close by thanking all those who have been in this conversation, 
certainly Lamar Alexander from the Republican Party and Chuck Schumer, 
who have been working on rules to hold hearings to craft the structure 
for our leadership, our majority leader Harry Reid and our minority 
leader Mitch McConnell, who have been in this conversation that has 
resulted in these steps forward that we are taking today. I applaud all 
the Members who have said that as Senators sworn to uphold the 
Constitution, they have an obligation to make the Senate a great 
deliberative body, something it once was, something it is not now but 
something that is in our hands to make happen again.

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