[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.
____________________