[Congressional Record Volume 158, Number 129 (Friday, September 21, 2012)]
[Senate]
[Pages S6612-S6614]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      CHANGES TO THE SENATE RULES

  Mr. LEVIN. Mr. President, the institution of the Senate is unique in 
its robust protections of the rights of the minority. In establishing 
our democracy, our Founders warned of the dangers of a tyrannical 
majority, and through our history as a country the Senate has stood, 
often alone, against that threat. One of the essential aspects of the 
Senate is the ability of 41 Senators, a minority, to defeat a measure 
if they are willing to talk and there are not 60 Senators who will vote 
to end the talking. Throughout the history of the Senate, the minority 
has usually used its right to thwart the will of the majority 
judiciously and only on measures of the greatest importance. Without 
that self-restraint, we would be exchanging a tyranny of the majority 
for a tyranny of the minority, and, indeed, that could mean a tiny 
minority.
  That important quality of self-restraint is essential for the proper 
functioning of the Senate. With this quality, the Senate can debate, 
negotiate, and compromise; and without it, the result is gridlock. In a 
legislative body where extended debate is a central principle, self-
restraint is what allows the gears of government to eventually turn. 
The Senate cannot operate without it.
  It is that self-restraint that is too often missing in today's 
Senate. It is one reason for the low public approval of Congress. In 
fact, scholars of the Congress have noted an unprecedented change in 
the functioning of the Senate. In his testimony before the Senate Rules 
Committee on May 19, 2010, Norm Ornstein said:

       The sharp increase in cloture motions reflects the 
     routinization of the filibuster; it's used not as a tool of 
     last resort for a minority that feels intensely about a major 
     issue but as a weapon to delay and obstruct on nearly all 
     matters, including routine and widely supported ones. It is 
     fair to say that this has never happened before in the 
     history of the Senate.

  Wait, some might say, the Senate seems to have plenty of debate, 
perhaps too much. But the sad fact is, in today's Senate, a small 
minority of Senators routinely block the Senate from even beginning 
debate on legislation by filibustering or more accurately, perhaps, 
threaten to filibuster the motion to proceed to legislation. Without 60 
votes to end debate on the motion to proceed, the Senate is routinely 
blocked from even beginning debate on critical legislation, making 
negotiation and compromise on legislation far more difficult.
  Mr. Ornstein is right. The routine threat of a filibuster is an abuse 
of the rules. Just consider the number of filibusters of the motions to 
proceed. From the time the cloture rule was first extended to cover the 
motion to proceed in 1949 to 1990, 41 years, the Senate saw a total of 
53 filibusters on the motion to proceed. During those years, Senate 
minorities would filibuster no more than a handful of motions to 
proceed during any single Congress. In recent years, the numbers of 
filibusters have exploded. Now, it is not uncommon for the Senate to 
see dozens of filibusters of the motions to proceed during any single 
Congress, as has been the case in the last 2 years. Where is the self-
restraint?
  Why is this so important? Why should the country care if a small 
group of Senators block the Senate from doing its work? What is at 
stake? In my opinion, the stakes could not be higher.
  Over and over again, the Senate is forced to waste time just on the 
question of whether to begin debate on a bill. The process of 
threatening a filibuster and requiring cloture on every motion to 
proceed, including the mandatory postcloture debate time of 30 hours 
under the Senate rules, can consume a week of the Senate's time. That 
is a full week of the Senate's time consumed just by the question of 
whether to begin debate on a bill. Where is the self-restraint?
  Does self-restraint mean that Senators must abandon long-held 
positions or violate principle? Of course not. Throughout the history 
of the Senate, Senators have fought fiercely for their positions and 
beliefs. Still, at some point, the fighting stopped and agreements were 
struck. That is the way of every legislative body. The majority's 
ability to act is what allows other legislative bodies to function. 
Self-restraint is what separates a functioning U.S. Senate from a 
broken one. It is what separates a Senate that is capable of doing the 
Nation's business from a Senate that is prevented from even beginning a 
debate on that business. The lack of self-restraint is the root of the 
problem the Senate faces.

[[Page S6613]]

  In the Senate, a tension has always existed between the majority that 
wishes to enact legislation and the minority that wishes to amend or 
defeat it. That tension is not unique to today's Senate. The rules of 
the Senate have always provided the minority with an arsenal of 
parliamentary weapons to counter a determined majority. For instance, 
if a majority leader blocks the minority from offering amendments to a 
bill, then the minority can filibuster the legislation and deny it 
passage if it lacks 60 votes. The ability to extend debate and deny 
cloture are powerful tools that the minority can use to prevent the 
Senate from acting.
  On the other hand, short of 60 votes, Senate rules do not provide a 
tool for the majority to counter an obstructionist minority. The 
majority leader could offer a minority days, weeks, or months of debate 
and endless amendments to a bill, but nothing in the rules of this body 
would allow the majority to even begin debate if a unified minority 
filibusters the motion to proceed, which it does now routinely.
  Republicans insist that they filibuster motions to proceed because 
the majority leader fills the amendment tree and blocks consideration 
of minority amendments. That rationale could justify a filibuster of a 
bill after the Senate begins its consideration and the leader fills the 
tree. It does not justify the routine filibusters of the motion to 
proceed.
  The Senate must strike a balance between protecting the rights of the 
minority and the need of the Senate to function better. To limit the 
consideration of the motion to proceed would not stifle debate; in 
fact, it would help ensure Senators have the opportunity to have a 
debate.
  As a practical matter, we will have little chance of ending the 
filibuster on the motion to proceed unless we, at the same time, assure 
the minority opportunities to offer and vote on amendments, forcing 
them to filibuster the bill itself in order to gain that assurance.
  According to the Senate rules, any change to those rules can be 
adopted by a simple majority vote. However, rule XXII of the Standing 
Rules of the Senate requires an affirmative vote of two-thirds of the 
Senators present and voting in order to invoke cloture and end debate 
on a proposed change to the rules. This extraordinarily high threshold 
has prevented most attempts to amend the rules of the Senate.
  Some of our colleagues believe the rules of the Senate can be changed 
outside the auspices of the Senate rules. They say the U.S. 
Constitution allows a simple majority to change the Senate rules. They 
call it ``the constitutional option;'' others call it ``the nuclear 
option.'' Supporters of the constitutional option point out that the 
Constitution endows each House of Congress with the authority to 
establish its own rules of proceedings. Accordingly, at the beginning 
of every Congress, the House of Representatives adopts rules by a 
majority vote. Those rules govern proceedings of the House for only the 
term of that Congress. Supporters of the constitutional option argue 
the Constitution empowers the Senate to do the same.
  The mechanics of the constitutional option are fairly 
straightforward. One such approach to this option would occur as 
follows. At the beginning of a Congress, a Senator would offer a 
resolution adopting Senate rules. The resolution would be filibustered, 
and so cloture would be filed. Cloture would yield an affirmative vote 
of a simple majority, but not the two-thirds necessary to end debate as 
described in rule XXII. Supporters of the resolution would raise a 
constitutional point of order, which the Presiding Officer, presumably 
the Vice President, would sustain under this scenario. The chair's 
ruling would be appealed, and finally the appeal would be tabled by a 
simple majority vote. And just like that, the Senate could become a 
simple majoritarian body.
  Historically, of course, the Senate has not adopted its rules at the 
beginning of a Congress as the House does. In fact, Senate rules 
explicitly address this. According to rule V of the Standing Rules of 
the Senate, ``The rules of the Senate shall continue from one Congress 
to the next Congress unless they are changed as provided in these 
rules.'' Rule V makes clear that the Senate is a continuing body. 
Indeed, only one-third of its membership is up for election every 2 
years while the other two-thirds of its membership continue their 
service into the new Congress, which is why a quorum in the Senate is 
continuously in being from Congress to Congress.
  Both supporters and opponents of the constitutional option have 
compelling arguments, but none of them are new. This question has been 
debated for decades. Confronting the same question in 1949, Senator 
Arthur Vandenberg, one of my predecessors from Michigan, said:

       I continue to believe that the rules of the Senate are as 
     important to equity and order in the Senate as is the 
     Constitution to the life of the Republic, and that those 
     rules should never be changed except by the Senate itself, in 
     the direct fashion prescribed by the rules themselves. One of 
     the immutable truths in Washington's Farewell Address, which 
     cannot be altered even by changing events in a changing 
     world, is the following sentence: The Constitution, which at 
     any time exists, until changed by an explicit and authentic 
     act of the whole people, is sacredly obligatory upon all.' I 
     respectfully submit as a basic explanation of my attitude, 
     that I accept this admonition without reservation, and I 
     think it is equally applicable to the situation which 
     Senators here confront, though obviously the comparison 
     cannot be lit-
     eral. . . . [T]he Father of his Country said to us, by 
     analogy, The rules of the Senate, which at any time exist, 
     until changed by an explicit and authentic act of the whole 
     Senate, are sacredly obligatory upon all.'

  Senator Vandenberg continued:

       I have heard it erroneously argued in the cloakrooms that 
     since the Senate rules themselves authorize a change in the 
     rules through due legislative process by a majority vote, it 
     is within the spirit of the rules when we reach the same net 
     result by a majority vote of the Senate upholding a 
     parliamentary ruling of the Vice President which, in effect, 
     changes the rules. This would appear to be some sort of 
     doctrine of amendment by proxy. It is argued that the Senate 
     itself makes the change in both instances by majority vote; 
     and it is asked, What is the difference? Of course, this is 
     really an argument that the end justifies the means.

  Senator Vandenberg continued:

       When a substantive change is made in the rules by 
     sustaining a ruling of the Presiding Officer of the Senate--
     and that is what I contend is being undertaken here--it does 
     not mean that the rules are permanently changed. It simply 
     means that regardless of precedent or traditional practice, 
     the rules hereafter, mean whatever the Presiding Officer of 
     the Senate, plus a simple majority of Senators voting at the 
     time, want the rules to mean. We fit the rules to the 
     occasion, instead of fitting the occasion to the rules. 
     Therefore, in the final analysis, under such circumstances, 
     there are no rules except the transient, unregulated wishes 
     of a majority of whatever quorum is temporarily in control of 
     the Senate. That, Mr. President, is not my idea of the 
     greatest deliberative body in the world. . . . No matter how 
     important [the pending issue's] immediate incidence may seem 
     to many today, the integrity of the Senate's rules is our 
     paramount concern, today, tomorrow, and so long as this great 
     institution lives.

  Mr. President, the November elections are upon us. I believe it is 
important to lay out my position on the constitutional option now, 
before we know the outcome of the election and the makeup of the Senate 
next year. I believe one's position on this question is so essential to 
the nature and the future of the Senate that it should not be dependent 
upon the outcome of an election but upon the best interests of this 
institution.
  I believe the so-called constitutional option to change the rules of 
the Senate, if actually implemented, would turn the Senate into a 
legislative body where the majority can, whenever it wishes, run 
roughshod over the rights of the minority. My frustration with the 
recent abuses of the rules does not overwhelm my duty to defend the 
uniqueness and integrity of this great institution.
  With that in mind, I suggest a change to the Senate rules that would 
provide the majority leader with an additional procedural option that 
preserves his ability to control the floor while maintaining the 
necessary 60-vote threshold to end debate. This alternative procedure 
would avoid the filibuster on the motion to proceed, preserve the 
ability of the majority leader to fill the amendment tree, but at the 
same time ensure all Senators have the ability to offer and have votes 
on relevant, timely filed amendments prior to a vote on final passage 
of a measure.
  Using this procedure, the majority leader could move to proceed to 
the consideration of a measure with only

[[Page S6614]]

relevant amendments in order. When a motion to proceed is made in such 
form, the consideration of that motion would be limited to 2 hours. If 
the Senate adopted that motion, then Senators would have until 1 p.m. 
the following session day to file relevant, first-degree amendments and 
until 1 p.m. the session day after that to file relevant, second-degree 
amendments.
  This procedure would guarantee that any Senator who has a timely 
filed, relevant amendment could offer that amendment prior to final 
passage, even if the amendment tree is filled. For example, if the 
Senate is considering a bill under this procedure and the amendment 
tree is filled, following disposition of all pending amendments but 
prior to the third reading, it would be in order for any Senator with a 
relevant, timely filed amendment to call up that amendment. Once 
pending, that amendment would need to be disposed of before final 
passage.
  While this procedure would expedite the process to begin 
consideration of a bill, it would not abandon the essential principle 
that a supermajority is necessary to bring debate to a close on a bill 
in the Senate. Nothing under this procedure would deny Senators his or 
her right to extended debate on a bill, unless, of course, 60 or more 
Senators vote to invoke cloture. Aside from the filing deadlines, the 
only substantive change from the current cloture process would be the 
application of a relevancy standard rather than the conventional 
germaneness standard. Only relevant amendments would be in order only 
if the majority leader opted to use this alternative approach to moving 
to proceed.
  This procedure would not be needed or even appropriate for every bill 
that is placed on the calendar. But for some bills, the majority leader 
might view this alternative procedure as a useful tool that could help 
both the majority and the minority achieve their aims. And should this 
alternative procedure prove to be ineffective, the majority leader 
could always abandon it for regular order, and if the right to get 
votes on relevant amendments is abused by filing a dilatory number of 
relevant amendments, the majority leader would simply not utilize the 
option.
  As I said, an election season is upon us. We will soon recess, and 
only after November 6 will we know who will hold a majority in this 
body. My support for ending the current motion to proceed process will 
be there after the election, regardless which party controls the Senate 
in the next Congress. My goal is not to gain partisan advantage but to 
protect the unique role of the Senate. Increasingly, after facing years 
of excessive obstruction, some Members on my side of the aisle see the 
filibuster as an archaic procedure that prevents the Senate from 
addressing the pressing needs of the Nation. I suspect that some of my 
friends in the minority today, if in the majority sometime in the 
future, will find the filibuster equally frustrating to their own 
efforts. We face an increasing danger that, in order to end the 
gridlock that prevents either side from offering solutions to the 
challenges we face, pressure to severely reduce minority rights will 
become irresistible.
  If we are to preserve the Senate's function as a check on haste, as a 
haven for minority views, we must ensure that protection of minority 
rights is no longer a barrier to any and all action. Limiting excessive 
filibusters on the motion to proceed is one modest change we can make 
that addresses this crisis without changing the Senate's fundamental 
character. I ask my colleagues to consider carefully whether a change 
in the present might be necessary to avoid more radical change in the 
future.

                          ____________________