[Congressional Record Volume 158, Number 149 (Tuesday, November 27, 2012)]
[Senate]
[Pages S6909-S6914]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012--MOTION TO 
                            PROCEED--Resumed

  Mr. REID. Mr. President, I now move to proceed to Calendar No. 419, 
S. 3254, the Defense authorization bill.
  The ACTING PRESIDENT pro tempore. The clerk will report.
  The legislative clerk read as follows:

       Motion to proceed to the bill (S. 3254) to authorize 
     appropriations for fiscal year 2013 for military activities 
     of the Department of Defense, for military construction, and 
     for defense activities of the Department of Energy, to 
     prescribe military personnel strengths for such fiscal year, 
     and for other purposes.


                                Schedule

  Mr. REID. Mr. President, we are going to recess, as we normally do on 
Tuesdays, from 12:30 to 2:15 to allow for our weekly caucus meetings.
  We are going to begin consideration of the disabilities treaty this 
afternoon whether with a vote or with permission. It is a simple 
majority vote to move to this most important piece of legislation.


                Measure Placed on the Calendar--S. 3637

  Mr. REID. Mr. President, I am told that S. 3637 is due for its second 
reading and is at the desk.
  The ACTING PRESIDENT pro tempore. The clerk will read the bill by 
title for the second time.
  The legislative clerk read as follows:

       A bill (S. 3637) to temporarily extend the transaction 
     account guarantee program, and for other purposes.

  Mr. REID. Mr. President, I would object to any further proceedings 
with respect to this bill at this time.
  The ACTING PRESIDENT pro tempore. Objection is heard. The bill will 
be placed on the calendar.
  Mr. REID. Mr. President, this is one of the must-do pieces of 
legislation we have to do before this calendar year ends.


                         Finding Common Ground

  Mr. REID. Mr. President, too often it is a challenge to find common 
ground here in Washington. But as we negotiate a path back from the 
fiscal cliff, we should also recognize when Democrats and Republicans 
agree. We agree taxes should not go up for anyone making less than 
$250,000 a year. Now, 97 percent of small businesses and 98 percent of 
middle-class families would benefit from that.
  With common ground in sight, we should be able to act today to avert 
the fiscal cliff for millions of families and businesses. Even if we 
disagree on whether to extend tax breaks for the wealthiest 2 percent 
of Americans, we should agree to hold the middle class harmless and do 
it today, do it now. A single vote in the House of Representatives 
would get the job done now. Unfortunately, there is one obstacle 
standing between Congress and compromise: Grover Norquist. For years 
Norquist has bullied lawmakers willing to put their oath of office or 
their promise to serve constituents ahead of their pledge to this 
antitax zealot. His brand of ideological extremism has been bad for 
Congress and even worse for the country. So I was pleased to see 
Republicans in Congress distance themselves from Norquist this week. I 
appreciate that very much. So do the American people. I am sure their 
constituents do. Several Republican lawmakers have said revenue should 
be on

[[Page S6910]]

the table during the fiscal cliff negotiations. How common sense is 
that? Absolutely. It is so clear to everyone except Grover Norquist. It 
is time now for the Republicans to turn this happy talk into action.
  President Obama and Senate Democrats ran on a promise to end the Bush 
tax breaks for the wealthy. President Obama did not hide that in the 
last year of his campaign. Every place he went, that is what he talked 
about. Americans, when they voted, raised their voices and supported 
our pledge. Congress must act in accordance with the will of the 
American people.

  An agreement to avoid the fiscal cliff must give economic certainty 
to middle-class families and must protect important tax deductions for 
families and businesses still struggling to recover from this great 
recession. It must take a balanced approach to reduce spending. But it 
must also ask the richest of the rich to pay a little bit extra to 
reduce the huge deficit we have.
  Any balanced agreement will require difficult concessions from both 
sides--I said both sides. Clinging to the kind of ideological purity 
Grover Norquist peddles, saying he will never bend or compromise, is 
easy. Cooperating with those with whom you disagree is hard. Doing what 
is right for the country despite personal cost is hard. Legislating is 
hard. As we approach the fiscal cliff, Democrats are ready to make 
those tough choices. I hope my Republican friends, especially those who 
claim they put no pledge before their pledge to serve their 
constituents, can say the same.


                   Recognition of the Minority Leader

  The ACTING PRESIDENT pro tempore. The minority leader is recognized.


                              Fiscal Cliff

  Mr. McCONNELL. Mr. President, yesterday I came to the floor to 
discuss what is known as the fiscal cliff, a mix of automatic tax hikes 
and defense cuts that are set to hit at the end of the year, 
jeopardizing our security as well as our economy. My message was pretty 
simple: A solution is possible.
  Republicans have been reasonable, and the President needs to lead. He 
is the only one who can get us to a solution. If that is what he wants, 
we will succeed. So it was with some concern that I read this morning 
that the President plans to hit the road next week to drum up support 
for his own personal approach to the short- and long-term fiscal 
challenges we face. In other words, rather than sitting down with 
lawmakers of both parties and working out an agreement, he is back on 
the campaign trail, presumably with the same old talking points with 
which we are all quite familiar.
  Look, we already know the President is a very good campaigner. We 
congratulate him on his reelection. What we do not know is whether he 
has the leadership qualities necessary to lead his party to a 
bipartisan agreement on big issues such as we currently face. So let me 
suggest that if the President wants a solution to the challenges of the 
moment, the people he needs to be talking to are the members of his own 
party so he can convince them of the need to act. We are not going to 
solve this problem by creating villains and drumming up outrage. We 
will solve the problem by doing the hard work of sitting down and 
figuring out a solution that involves tough choices on all sides.
  That gets at another point I made yesterday. In the past, Democrats 
have demanded tax hikes now for spending cuts that never actually 
happen. Not this time. A balanced approach means real spending 
reductions now. And I am not saying this because it is the Republicans' 
position, although it is. I am not saying this because I have anything 
against the government, which I do not. I am saying this because it is 
the only approach that has any chance of working. No credible deficit 
reduction plan we have seen over the past few years excludes real cuts. 
If we want to prevent this crisis, Democrats need to be as serious 
about cutting spending as they are about spending. It is that simple.
  By the way, this is an approach Americans overwhelmingly support. 
According to a recent AP poll, voters prefer spending cuts to tax hikes 
62 percent to 29 percent--a more than 2-to-1 margin. Now, there is a 
reason for this. The American people are not stupid. They know the 
problem with Washington is not that it taxes too little but that it 
spends too much. They also know the only reason we are even talking 
about a looming fiscal crisis right now is because the Democrats have 
spent the last 4 years creating it.
  That is what I would like to focus on this morning--how we got into 
this mess in the first place--because amidst all of the talk about 
plans and proposals, it is easy to forget that we did not get here by 
accident; we got here because Washington Democrats, from the President 
on down, have done two things exceedingly well over the past 4 years: 
spent other people's money and kicked the can down the road--spend 
other people's money and kick the can down the road. For 4 years, 
Democrats spent money we did not have in the misguided hope that it 
would help the economy. They have borrowed trillions of dollars to keep 
unemployment pretty much right where it was when they started. And here 
is what we have 4 years later: a mountain of debt and a looming 
national budgetary crisis.
  Republicans are happy to talk about how to solve this mess, but make 
no mistake, we will also talk about how we got here. The reason we are 
having these negotiations is because Washington Democrats have spent 
money without any care for the cost or the future and refuse to do 
anything to protect long-term spending programs, such as Medicare, a 
failure that is among the biggest single drivers of our debt.
  All this reflects a very clear philosophy: For Washington Democrats, 
every dollar that has ever been secured for anything is sacred--every 
dollar that has ever been secured for anything is sacred--and they will 
defend it to the death regardless of what it means for jobs or the 
economy. But those days are over because you do not eliminate trillion-
dollar deficits by taxing the rich--not even close. It may be an 
effective talking point, but as a matter of policy it is a minor deal, 
and the Democrats know it. So, as we move into the final stretch, it is 
time, as I have said, to put the talking points away and get serious 
about striking a deal.
  The first step to recovery is to admit you have a problem. If 
borrowing more than 40 cents for every dollar you spend does not 
convince you you have a spending problem, frankly, I do not know what 
will. If Democrats cannot admit we have a spending problem, they need 
to talk to their constituents more. They need to get real. That means 
changing the way things have been done around here for the past few 
years.
  Independent budget experts have been telling us for ages that our 
long-term budget deficits are driven by the unsustainable health care 
entitlements. What was the administration's response to that? Their 
response was to add trillions more by creating an entirely new health 
care entitlement program. We were promised that the President's health 
care law would reduce health care costs. What did it do? We are now 
told health care costs will rise as a share of our economy and the 
taxpayer's liability. By one estimate, those costs will go up by more 
than $\1/2\ trillion over the next 10 years.
  We know the number of Americans 65 or older will increase by one-
third over the next 10 years. According to the Census Bureau, there 
were 40 million older Americans in 2010. There will be 54 million of 
them a decade after that, and more than 72 million older Americans a 
decade after that. What are the Democrats doing to ensure the programs 
they rely upon will actually be there? We cannot ignore the facts. We 
need to prepare for the demographic changes we know are coming. 
Medicare is simply too important for millions of seniors to let it 
continue down the road to insolvency. We must preserve it for today's 
seniors and strengthen it for those who will retire in the years ahead.
  As Congress looks for savings, we need to look at the new health care 
entitlements too. While Democrats and Republicans may disagree on 
ObamaCare, it is ridiculous to suggest that we make changes to Medicare 
and Medicaid while leaving $1.6 trillion in new ObamaCare spending 
untouched.
  For 4 years Democrats have been completely unbalanced in the way they 
have spent paper dollars. Yet now that the crisis is upon us, they 
solemnly advise us that we need to be balanced in

[[Page S6911]]

our solution. This is how you ensure the expansion of government. This 
is how you end up with $16 trillion of debt, but it is not how you get 
out of it. It is not how you solve the problem. You solve the problem 
by taking tough medicine and tough votes. You solve it by doing 
something different than what you have been doing all along. You solve 
it with the help of a President who is willing to lead his party. You 
don't just change your rhetoric and your talking points while telling 
your base behind closed doors you aren't going to give any ground. You 
change your behavior. For Democrats in Washington, as I have said, that 
means getting serious for a change about cuts. The time for campaigning 
is over. It is time to act.


                             Nuclear Option

  Mr. President, yesterday the majority leader and I had a rather 
spirited discussion about his intention to change the Senate rules 
outside the process provided in those rules.
  When he was in the minority, my friend from Nevada objected 
strenuously to the very procedure he now wants to employ. He called 
using a simple majority maneuver to change Senate procedure the 
``nuclear option'' and described it as breaking the rules to change the 
rules. Now that he is in the majority, he says the ends justify the 
means. He says we have to make the Senate more efficient and we have to 
violate the Senate rules to do that so he and his colleagues in the 
majority can implement more easily their vision for America. According 
to him, these minor changes won't affect anyone who has the thought of 
making America better.
  Let me say that again. The majority leader said these minor changes 
won't affect anyone who has the thought of making America better. Of 
course, in the majority leader's world, it will be just he and his 
colleagues who determine what makes America better.
  In short, according to my friend from Nevada, the means by which he 
wants to achieve his ends don't matter, only his ends matter. That is 
pretty convenient if you happen to be in the majority at the moment. I 
say again, at the moment. But convenience or efficiency, as my friend 
has described it, is not what the Senate has been about.
  My friend the majority leader may have put it best in 2006 when he 
made the first of his commitments to respect the rights of the 
minority. This is what the majority leader said:

       As majority leader, I intend to run the Senate with respect 
     for the rules and for the minority rights the rules protect. 
     The Senate was not established to be efficient. Sometimes the 
     rules get in the way of efficiency. The Senate was 
     established to make sure that minorities are protected. 
     Majorities can always protect themselves, but minorities 
     cannot. That is what the Senate is all about.

  My friend from Nevada then committed that he was going to ``treat my 
Republican colleagues the way I expect to be treated'' and that he 
would do everything he could to ``preserve the rules and traditions of 
the institution that I love.''
  Inaccurately describing the essence and wise purpose of the Senate, 
the majority leader sounded a lot like our former colleague Robert C. 
Byrd. So I was quite surprised to hear our friend from Nevada assert 
that Senator Byrd would actually support the heavy-handed tactic he 
intends to employ.
  I am not going to correct all the inaccuracies my friend made 
yesterday, such as saying four times that it takes 10 days to get out a 
bill. I don't know what version of Riddick's my friend has been 
reading, but if it actually took 10 days to get on a bill I might 
actually support some rule changes myself.
  But I must disabuse my friend from Nevada about how Senator Byrd 
would view the heavy-handed tactic he intends to employ. Unlike the 
majority leader, I recall when our late colleague spoke on this topic 
at a Rules Committee hearing the last time the majority leader 
entertained ``breaking the rules to change the rules.'' Senator Byrd 
was unequivocally against violating Senate rules to change the rules 
the way the current majority leader is proposing.
  Senator Byrd began by noting that ``Our Founding Fathers intended the 
Senate to be a continuing body that allows for open and unlimited 
debate and the protection of minority rights. Senators have understood 
that,'' he stated, ``since the Senate first convened.'' That is Senator 
Byrd on the history of the Senate.
  Senator Byrd also noted that at the Constitutional Convention, James 
Madison reported that the Senate was to be ``a necessary fence'' in 
order to ``protect the people against their rulers,'' and ``to protect 
the people against the transient impressions into which they themselves 
might be led.''
  How did Senator Byrd view the filibuster in the role of the Senate? 
How did it relate to the Senate as a ``necessary fence''? Senator Byrd 
said, ``The right to filibuster anchors this necessary fence.''
  Senator Byrd acknowledged that this right should not be abused, and 
that ``there are many suggestions as to what we should do'' if it is 
abused. He recounted procedures that currently exist under the rules--I 
say again, procedures that currently exist under the rules--to address 
it if it is.
  As I suggested yesterday, Senator Byrd also indicated that simply 
working a full week such as most people do--I mean, most people in 
America have a 5-day work week--by simply working a full week we could 
address some of these concerns. Senator Byrd bemoaned the fact that 
``the Senate often works 3-day weeks.'' In other words, if you want the 
Senate to be more productive, start working more. It is not rocket 
science here. That is what Senator Byrd was saying.
  But Senator Byrd was clear about what we should never do. He said, 
``We must never, ever tear down the only wall--the necessary fence--
this Nation has against the excesses of the executive branch and the 
result of haste and tyranny of the majority.''
  Senator Byrd, as we know, was a historian. He was a skillful majority 
leader who understood the unique importance of the Senate and the need 
of a majority leader to keep his commitment. But he was also a 
political realist who had been around enough to understand that 
political majorities are fleeting, and if you break the rules to suit 
your political purposes of the moment, you may regret having done so 
when you find yourself in the minority. Senator Byrd specifically said:

       I strongly caution my colleagues as some propose to alter 
     the rules to severely limit the ability of a minority to 
     conduct a filibuster. I know what it is to be majority 
     leader, and wake up on a Wednesday morning in November and 
     find yourself a minority leader.

  To make sure there was no doubt as to his views on the subject, 
Senator Byrd concluded by unequivocally objecting to the use of the 
nuclear option that the Senator from Nevada is now proposing. He said:

       The Rules Committee must, however, jealously guard against 
     efforts to change or reinterpret the Senate rules by a simple 
     majority, circumventing rule XXII where a two-thirds majority 
     is required.

  My friend the majority leader is no more correct about Senator Byrd's 
views on the nuclear option, on the idea of breaking the rules to 
change the rules, than he is about taking 10 days to get on a bill.
  I will conclude by reading what are likely the last words Senator 
Byrd spoke on the subject of the nuclear option, and I encourage my 
colleagues to reflect on his wise counsel. This is what he said:

       As I have said before, the Senate has been the last 
     fortress of minority rights and freedom of speech in the 
     Republic for more than two centuries. I pray that Senators 
     will pause and reflect before ignoring that history and 
     tradition in favor of the political party of the moment.

  The ACTING PRESIDENT pro tempore. The majority leader is recognized.


                             Rules Changes

  Mr. REID. To paraphrase Shakespeare, which I don't do too often, I 
think the Republican leader protests far too much. Now he has gone back 
to quoting Senator Byrd.
  The situation we had when the Republicans were trying to change the 
rules regarding judges was totally different than what has happened on 
the floor the last few years. You see, what Democrats were proposing to 
do, help repair the Senate, is pretty much what Senator McConnell said 
was necessary in 2005.
  For example, Senator McConnell has said that the Senate has 
repeatedly adjusted its rules as circumstances dictate. Let me quote. 
In remarks on the

[[Page S6912]]

Senate floor in May of 2005, Senator McConnell said:

       Despite the incredulous protestations of our Democratic 
     colleagues, the Senate has repeatedly adjusted its rules as 
     circumstances dictate. The first Senate adopted its rules by 
     majority vote, rules, I might add, which specifically 
     provided a means to end debate instantly by simple majority 
     vote. That was the first Senate way back at the beginning of 
     our country. That was Senate Rule 8, the ability to move the 
     previous question and end debate.

  Let me repeat some of the things he said:

       Despite the incredulous protestations of our Democratic 
     colleagues, the Senate has repeatedly adjusted its rules as 
     circumstances dictate.

  The same day, Senator McConnell also reported that the Senate has 
``often reformed Senate procedure by a simple majority vote.''
  When Republicans were in the majority, Senator McConnell said this:

       This is not the first time a minority of senators has upset 
     a Senate tradition or practice, and the current Senate 
     majority intends to do what the majority in the Senate has 
     often done--use its constitutional authority under article I, 
     section 5, to reform Senate procedure by a simple majority 
     vote.

  On March 27, 2005, Senator McConnell told Fox News that the Senate 
can change the rules with 51 votes. McConnell said:

       Well, obviously you would need 51 votes to do it. I'm 
     confident that we would have 51 votes if the majority leader 
     decides to do it. I believe it should be done if we cannot 
     get accommodations from the Democrats.

  So what has changed in the last few years since those statements were 
made? Well, for one thing under Leader McConnell Republican Senators 
have mounted filibusters so much more on a regular basis.
  We talked here yesterday about the motions to proceed. I had a 
meeting this morning with one Senator who has been in the Senate for 30 
years. He said, Why are you only changing the rules this much?
  Look how simple the rule changes are that we are making, motions to 
proceed. Let us talk about that. I have a piece of legislation on the 
floor, as we have on a number of occasions. That has to sit for a 
couple of days. Once that happens and they won't let us on the bill, 
they won't let us on anything, I have to file cloture. Let us say I may 
do that on a Wednesday after a bill lays there for a couple of days, so 
we can have a Friday cloture vote.
  But, Mr. President, having been here not very long, you know that is 
not the end of it. We have got cloture when we really haven't because 
there is 30 hours of idle time to do zero, nothing. Then after the 30 
hours, you are on the bill, and to get off the bill you have to go 
through the same process again.
  I talked to three Republican Senators yesterday and they said, 
Explain that to me. I said, Well, for the approximately 9 or 10 days 
that we waste on getting on a bill, we could, if you guys let us on a 
bill, we could be offering amendments for 4 or 5 days instead of 
waiting for 30 hours to expire and all of that.
  Also, we have this crazy idea that if you are going to have a 
filibuster, you have to stand and say something, not hide in your 
office someplace or go to a wedding that you are having in your State. 
Then we also are doing the incredulous thing of saying if we want to go 
to conference on a bill, rather than having three filibusters necessary 
to overcome with cloture, we would do it once.
  Those are the simple changes we are making, and Senator McConnell was 
right when he said that despite the incredulous protestations of our 
Democratic colleagues, the Senate has repeatedly adjusted its rules as 
circumstances dictated. We are making simple changes. We are not 
changing the Constitution, we are not getting rid of the filibuster. We 
are making three simple rules changes. As my friend the Democratic 
Senator from New Mexico, who is retiring, my friend who has been here 
30 years, said Why is that all you are doing?
  Under Leader McConnell, Republicans have mounted filibusters on 
things that don't matter. The motion to proceed, he said, well, that 
allows us to get--I am paraphrasing--that allows us to get set and have 
an idea what will happen on the bill itself.
  That is nonsense. It is only as the leader indicated at the beginning 
of this Congress, his No. 1 goal is to defeat President Obama. We have 
been able to get nothing done because of that. The American people are 
sick of it.
  In the 109th Congress, from 2005 to 2006, when the Republicans were 
in the majority, there were very few filibusters. In the next Congress, 
when the roles were reversed, Republicans, they have done--I give this 
example, which is so understandable to everybody. Lyndon Johnson, 
majority leader for 6 years--I will have 6 years at the end of this 
year--had one cloture motion. Me? I think we are up to about 386 now. 
In this Congress we have had 110 filibusters and we have weeks to go. 
It is even in the New York Times. They say: Oh, he has filled the 
legislative tree. The New York Times reported I did that 19 times--out 
of 110 filibusters. Had they let us get on a bill, there wouldn't be 
any need to fill the tree. We could have spent that time having 
amendments.

  Republicans have increased the number of filibusters so out of 
proportion to any changes that have been in the Senate it is hard to 
comprehend. The Senate is not working as it should. Everyone in 
America--and that is kind of an exaggeration, I acknowledge that--maybe 
not everyone, but as I travel around the country trying to help my 
candidates get elected and raise money, people say: What are you going 
to do to change the filibuster? This is awful. What is going on?
  That is what they say. They expect Washington, the Senate, to work 
like ``Mr. Smith Goes to Washington,'' not idle time with quorum calls 
and waiting for 30 hours to expire on meaningless 30-hour postcloture 
time. We are not getting rid of that with regular filibusters, but we 
are getting rid of it on a motion to proceed.
  The Senate isn't working. Apart from Senator McConnell and his 
troops, basically everybody in America agrees the Senate is not 
working.
  In the Senate, as in any human institution, there will always be 
plenty of blame to go around, but let's call it like it is. Two long-
time Senate watchers, Thomas Mann and Norm Ornstein--one representing a 
progressive think tank, the other a conservative think tank--wrote 
this:

       We have been studying Washington politics and Congress for 
     more than 40 years, and never have we seen them this 
     dysfunctional. In our past writings, we have criticized both 
     parties when we believed it was warranted. Today, however, we 
     have no choice but to acknowledge that the core of the 
     problem lies with the Republican Party.

  I didn't make that up. They wrote it; two of the foremost Congress 
watchers this country has ever had. That is what they wrote. Objective 
outside observers are calling it like it is. The current Republican 
minority is abusing the Senate rules. So, in response, to quote Senator 
McConnell:

       The current Senate majority intends to do what the majority 
     in the Senate has often done--use its constitutional 
     authority under article I, Section 5, to reform Senate 
     procedure.

  We plan to do so to help repair the Senate. I am sorry there are 
those who are criticizing me that we are not doing more, but we are 
doing this. We get rid of the motion to proceed and have people come 
and present their faces--as Senator Durbin said in a more explicit way, 
put their rear ends here in the Senate--rather than someplace outside 
Capitol Hill.
  This is the right thing to do. We need to repair the Senate. It is 
not working, and at the start of the next Congress we intend to do our 
utmost to take some modest steps to make it work better.
  The ACTING PRESIDENT pro tempore. The Republican leader.
  Mr. McCONNELL. Mr. President, I certainly agree the Senate isn't 
working. We get a few days in between recesses, rarely work at night, 
and almost never do anything on Thursday. That is entirely within the 
purview of the majority leader.
  It is true that a few years back, when my party was in the majority, 
we contemplated changing the rules, but cooler heads prevailed and we 
didn't. The fundamental issue, as my friend lays out, is that he wants 
to break the rules to change the rules. In other words, he and I are 
not negotiating on these issues. He is deciding what will be the rule 
in the Senate. He will break the rules in order to change the rules. 
That is all anybody listening to this debate needs to understand. What 
the majority leader is going to do is he is going

[[Page S6913]]

to break the rules to change the rules--one party only.
  We ought to be negotiating rule changes. Rule changes ought to be 
proposed by the majority leader and the minority leader together that 
would surpass the 67-vote threshold, if it is designed to protect the 
Senate from the whims of new majorities. There is always a temptation 
when a party is in the majority to want to change the rules to benefit 
themselves at the expense of others. It is particularly absurd to do it 
right now because anything Senate Democrats would gain out of that 
would go nowhere in the House. So there is no practical purpose served 
by this. All it does is put on record that Senate Democrats are willing 
to break the rules to change the rules. That is the fundamental issue. 
Rules changes ought to be negotiated by the two leaders, as they have 
been down through the years, and then proposed together.
  As I have indicated on several occasions--and I will say again--I 
think the frustrations the majority leader has had could have been 
easily solved by putting some of his young Members in the Chair and 
breaking down some--one person--trying to make it difficult to get on 
to a bill. All this could have been fixed. Rather than complaining 
about it, just do something about it. That is what I would have done, 
if I had been in his shoes. He has chosen not to do that.
  Rather than point fingers and continue to campaign--look, the 
campaign is over. You guys had a pretty good day. You are in the 
majority. But you can't seem to turn the campaign off. You just keep 
running it forever. So here we are with this explosive nuclear option 
being thrown into the Chamber at a time when we ought to be turning the 
election off and trying to come together to solve the biggest problem, 
which I talked about first, which is the fiscal cliff and the Nation's 
seemingly hopeless debt and deficit situation. That is what we ought to 
be doing. Instead, my friends on the other side just can't keep from 
continuing to celebrate the election. You won. Now, why don't we 
govern. The way to govern is to try to bring this body together.
  The Senate has been built over the years on collegiality. We have 
always had some personalities on both sides who made it a challenge for 
whoever the majority leader was. I can remember back when we were in 
the majority and Howard Metzenbaum from Ohio would sit out here on the 
floor and read every bill. He was a royal pain in the you know what to 
whoever the majority leader was at the time. The Senate survived all 
that. We didn't engage in a rules change dictated by whoever was in the 
majority at the moment.

  This is exactly the wrong way to start off on a new year and to end 
an old year with a ton of problems that we have to deal with. Here we 
are, as a result of this suggestion that we employ the nuclear option, 
arguing about arcane rules changes when we ought to be sitting down 
together and trying to solve the Nation's huge deficit and debt 
problems.
  But the fundamental issue is this: Is the majority going to break the 
rules to change the rules? That is the issue before the Senate. Are we 
going to break the rules to change the rules--employ the nuclear 
option, fundamentally change the body, not have a negotiation between 
the two leaders about what adjustments might be appropriate to make the 
Senate work better. Oh, no, we are going to do it on our own.
  I think it is a huge mistake not only for the Senate, but it will 
impact obviously our short-term ability to come together and to work on 
the big problems the country sent us to solve.
  The ACTING PRESIDENT pro tempore. The majority leader.
  Mr. REID. Mr. President, the Republican leader is entitled to his own 
opinion but not his own facts, and we seem to have a revision of facts 
that simply are not accurate. I served with Senator Metzenbaum. He 
understood the rules. We always worked through them. There was not a 
big deal with that. He slowed things down a little bit, but that is 
what Senators do.
  Also, remember who said that a simple majority would do it? Mitch 
McConnell. I am not breaking the rules to change the rules. Here again 
is what Senator McConnell said:

       The first Senate adopted its rules by majority vote, rules, 
     I might add, which specifically provided a means to end 
     debate instantly by simple majority vote. That was the first 
     Senate way back at the beginning of our country.

  That is true. I would also say----
  Mr. McCONNELL. Would the majority leader yield on that point?
  Mr. REID. Sure.
  Mr. McCONNELL. Did the Senate majority at that time, made up of 
Republicans, choose to go forward and do that? We did not do it. We did 
not use the nuclear option. There was a lot of discussion about it 
which related to judicial appointments, but in the end the majority 
chose not to do it.
  Mr. REID. I respond to my friend, the point is that rules have been 
changed by simple majority for a long time. That is what Senator 
McConnell said in 2005 and that is accurate.
  I would also say this, and I say this as respectfully as I can about 
the deceased Senator Byrd. I think people will recall, those who served 
in the Senate when Senator Byrd was around, that I was referred to as 
his pet. OK. He took very good care of me. We had a relationship that 
was very unique. I cared a great deal about this man. But don't 
misquote him.
  Leader Byrd made clear he was willing to force a majority vote if he 
needed to. Here is what Senator Robert Byrd said:

       The time has come to changes the rules. I want to change 
     them in an orderly fashion. I want a time agreement. But 
     barring that, if I have to be forced into a corner to try for 
     a majority vote, I will do it because I am going to do my 
     duty as I see my duty, whether I win or lose.

  I can see that man with his white hair, standing straight and tall, 
saying that. That is a direct quote from Robert Byrd. I am in the same 
position he was. The Republicans have made the Senate dysfunctional, 
and I have asked my caucus to support me for some simple changes--
simple changes. I went over them. The vexatious motion to proceed that 
was never abused until this Congress by these Republicans we are going 
to change, and that is the way it should be.
  Talk about all the time we are wasting not talking about the fiscal 
cliff is poppycock. The Republican leader is the one who is coming to 
the floor engaging in these conversations, not me. There are going to 
be no rules changes until the next Congress. This isn't taking away 
from the fiscal cliff arguments at all that either side might have.
  I would also say this. Before coming here, I was a trial lawyer, and 
I am proud of the fact that I was. I tried lots of cases. I had many 
jury trials--over 100. But I also settled hundreds and hundreds of 
cases. One never felt comfortable going to trial because what we always 
wanted to do was to settle the case before that. Even in the cases we 
were forced to go to trial, with rare exception, the other side--either 
plaintiff or defendant, whichever side you weren't on--would come to 
say, why don't we try to work something out, and here is my idea.
  But here we have a unique deal. I have a Republican leader saying why 
doesn't he negotiate with us. Our proposal is there, which is to simply 
change the motion to proceed, have a talking filibuster, and do 
something about the way we go to conference. If the Republican leader 
doesn't like that and has some other suggestion about how rules should 
be changed, I will be happy to talk to him. If he thinks things are 
hunky-dory right now, he is in a distinct minority, as are the 
Republicans in the Senate.
  Mr. McCONNELL. We keep quoting Senator Byrd back and forth, but I 
think it is appropriate to look at what he said in 2010. He said:

       I believe that efforts to change or reinterpret the rules 
     in order to facilitate expeditious action by a simple 
     majority are grossly misguided. The Senate is the only place 
     in government where the rights of the numerical minority are 
     so protected.

  I said in my prepared statement earlier what Senator Byrd said before 
the Rules Committee:

       The [Rules] Committee must, however, jealously guard 
     against efforts to change or reinterpret the Senate rules by 
     a simple majority, circumventing rule XXII where a two-thirds 
     majority is required.

  I keep coming back to this because it has to do with the way any rule 
change is implemented. That is the point. The majority leader has 
suggested, and I think it is appropriate, that we talk

[[Page S6914]]

about rule changes together. But that is not what he is suggesting he 
is going to do. He says he is going to break the rules to change the 
rules and employ the nuclear option.
  That is not a negotiation with the minority over rules changes. What 
we ought to be doing is talking to each other about what adjustments in 
the rules we could advocate together, and not one party with a majority 
today--that might be in the minority 2 years from now--breaking the 
rules to change the rules for some kind of misguided short-term 
advantage. That is the problem.
  So I would be happy to talk to the majority leader about these 
issues, but I vigorously oppose--and I know Senator Byrd would 
vigorously oppose--breaking the rules to change the rules. He was very 
clear about that in 2010. I know he would object to it.
  I hope somehow this nuclear option can be avoided. It seems to me to 
be an absolutely unnecessary distraction away from much larger issues 
confronting the future of our Nation.
  Mr. REID. Mr. President, Senator Byrd served in the House of 
Representatives and the Senate for almost 60 years. He gave lots of 
speeches. I have quoted what he said. I will quote again part of what 
he said.

       The Constitution in Article I, Section 5 says that, Each 
     House may determine the Rules of its Proceedings.
       Now we are at the beginning of the Congress. This Congress 
     is not obliged to be bound by the dead hand of the past.

  So this debate is not going to be solved by the deceased. It is going 
to be solved by us. We are in the Senate today and the Senate has not 
been working. No matter how many times the Republican leader says he 
likes how things are today, it doesn't make it so that the majority of 
the Senate likes how it is today. The facts are the facts. We can't 
make them up. The Senate is not working, and we need to do something to 
fix it.
  I close, then, as I began. I would be happy to work with Leader 
McConnell about rules changes. I have made clear what we seek. I await 
his suggestions. As I repeat again what I said earlier, a man who has 
served with distinction in the Senate, Jeff Bingaman--quite a legal 
scholar, having been attorney general before he came here--asked: Why 
are we asking for such modest changes? So if the Republican leader has 
some ideas as to what he thinks should be done, I will come to his 
office. We can do it privately or publicly. I am happy to work with 
him. As I indicated, that is how I used to do things when I tried 
cases. This is the same, just that we have a bigger jury.
  Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KYL. 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.

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