[Congressional Record Volume 158, Number 149 (Tuesday, November 27, 2012)]
[Senate]
[Pages S6914-S6921]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           ORDER OF PROCEDURE

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
following hour is equally divided and controlled between the two 
leaders or their designees, with the Republicans controlling the first 
half.
  The Senator from Arizona is recognized.


                             Rules Changes

  Mr. KYL. Mr. President, I would like to continue the conversation 
that our two leaders were engaged in earlier and also on yesterday. 
This is going to be a very important issue for the Senate.
  To put it into perspective for the American people, let me just say 
that a rules change in the Senate is not a small or an inconsequential 
matter. It is even more important if it is attempted to be done without 
going through the normal process of changing the rules, which requires 
a two-thirds majority. This is important because the Senate has always 
considered itself a continuing body. It does not end and then begin 
again as the House of Representatives does because the House has an 
election every 2 years. In this body, Members are elected for 6-year 
terms. As a result, every 2 years we have some turnover in the body, 
but two-thirds of the body has already been here and continues forward.
  So the rules of the Senate have always been continuing rules of the 
continuing body, amendable by a two-thirds majority of the body. To 
suggest a nuclear option by which a mere majority of the body can amend 
the rules is itself a violation of the rules. It is an assertion of 
power. But as the old saying goes: Might does not make right. And the 
fact that the majority may have the power to overrule a ruling of the 
Chair, thus establishing a new precedent and a new rule of the Senate, 
does not make it right. That is why it hasn't been done.
  In point of fact, there was a time a few years ago, as has been 
discussed, when some members of the Senate Republican majority were 
considering the use of the same parliamentary tactic to ensure a vote 
on nominees for the U.S. Supreme Court and also for the Court of 
Appeals. The feeling was that the Democratic minority had filibustered 
over and over and over and had prevented votes, I think, on Miguel 
Estrada, who was being nominated for the DC Circuit Court of Appeals. I 
think he was filibustered seven separate times.

  The Republican leadership was investigating the possibility of 
ensuring that we could get a vote. The only way that seemed possible 
was to assert this power of overruling the Parliamentarian's ruling 
through the Chair and thus establishing by 51 votes--or a mere 
majority--a new rule of the Senate.
  That was deemed to be such a change that it was called the nuclear 
option because it hadn't been done, and we could say that it was 
comparable to the use of a nuclear weapon in a war. It was such a game-
changing proposition, to say the least, that Members on both sides of 
the aisle got together in what they called the Gang of 14. I think 
almost everyone in this body is glad that cooler heads prevailed; that 
those 14 Members decided they would reach an agreement amongst 
themselves that would make it impossible for either the Democratic 
Party to automatically filibuster nominees or for the Republican Party 
to have this right to change the rules just because they had 51 votes. 
Therefore, they reached the compromise which, for judicial nominees, 
was that there would be no filibuster except in extraordinary 
circumstances.
  Both sides deemed that a sufficient way of resolving the issue that 
came before us at that time. Everybody stood down. The war did not 
occur. The nuclear weapon was not used, and that was for the best of 
the country and certainly for the best of the Senate. We avoided a 
crisis and, certainly, there would have been a crisis. I can't imagine 
that my friends on the Democratic side of the aisle would not have 
reacted very badly to the use of that nuclear option had it been done 
by the Republican majority.
  Well, today the shoe is on the other foot. The Democratic majority 
now has reason to believe that it would like to move forward with more 
alacrity on legislation. Therefore, it believes that by this same 
nuclear option procedure it should change the rules so that the ability 
to filibuster at the beginning of the consideration of the bill is 
eliminated.
  The Republican minority naturally has said: Wait a minute. That is 
wrong for two reasons. First of all, just as you accused us of doing, 
you are changing the rules without going through the rules process 
change. This is your own version of the nuclear option. If it was wrong 
then, it is still wrong now. And most of us agreed after the fact that 
it was wrong then. But, secondly, what you would do, if you eliminate 
the requirement for cloture and a cloture vote if there is an objection 
to a unanimous consent request to take up the bill or motion to proceed 
to a bill, what you are doing is putting all of the power into the 
hands of the majority leader--in this case, the Democratic leader--to 
decide whether there will be any amendments at all from the Republican 
side or even from the Democratic side. The only leverage that the 
minority has to ensure that it will be able to offer amendments is to 
negotiate with the majority leader and ensure that right exists. And 
the only leverage it has is to deny cloture on the

[[Page S6915]]

motion to proceed in order to instigate that negotiation. It is 
political leverage. Let's call it by its true name. But without that 
political leverage, that check and balance, the majority leader in the 
Senate takes a very giant step toward becoming exactly what the Speaker 
of the House is, in effect, a dictator.
  Now, I use that term in a very kind sense because the Speakers of the 
House under whom I served as a Member of the House of Representatives, 
and certainly the current Speaker of the House, are fine people who 
care a lot about the institution of the House of Representatives and, 
in some cases, care for some degree of minority rights. But they all 
have one thing in common: They run the House. If they decide, through 
the Rules Committee, there aren't going to be any amendments offered by 
the other side, there aren't any amendments offered. Frequently the 
minority is in the position of complaining about the fact that the 
Speaker, through the Rules Committee, denies them the right to offer 
amendments or controls which amendments they can offer, controls the 
time.
  So if you are a Member of the House of Representatives and you want 
to offer an amendment, you can't automatically do that, as has been the 
case in the Senate. You have to go to the Rules Committee--which is 
hand-picked by the Speaker--and you have to ask them for permission to 
offer an amendment and how long you will have to talk about that 
amendment and the wording of the amendment and all of the other 
conditions that the Rules Committee establishes for debate of the 
matter on the floor of the House of Representatives.
  When the Constitution was originally written, the Founders' idea was 
that we would have two different legislative bodies that would provide 
a check and a balance on each other. One would represent the immediate 
passions of the people, the House of Representatives, the people's 
body. If the people were emotionally invested in a particular issue, 
the House was elected, and they would hurry up and pass that 
legislation. They could do it with a majority because the power of the 
Speaker was able to run over any minority rights. The minority wouldn't 
be able to get in the way.
  But when it came to the Senate the idea was, slow it down, think it 
over. Let's make sure we want to do this. That is why we have the 6-
year terms, the continuing body, and the minority rights to offer 
amendments.
  That right to offer amendments is perhaps the most important way in 
which the Senate is distinguished from other legislative bodies around 
the world and from the House of Representatives because it does 
guarantee minority rights. And not just party minority.
  If you are a member of the majority party from a State that has a 
very distinct and serious interest in a bill, the majority leader can 
simply say: I don't want to consider your amendment. You are out of 
luck under this proposal, whether you are a member of the minority or 
the majority.
  It is not just minority rights in the sense of political minority, 
but also, let's say, you are from a small State rather than a big 
State, and there is a bill on the floor that helps the big States, and 
you want to offer amendments from a little State. It will be up to the 
majority leader to decide whether you can even offer that amendment if 
this rule change is adopted. So there are two very important reasons 
the Senate should be very careful about proceeding down this path. That 
is what the Republican leader has been talking about the last couple of 
days here on the floor.

  It is important for the Senate to reflect in a longer view not only 
the views of the majority--political or otherwise--but also those who 
might have some disagreement with the majority, the theory being that 
the majority isn't always 100 percent right. In any event, people 
around the country have a right to be represented through their Senator 
to get their points of view argued and discussed and perhaps considered 
for a vote here in the Senate. That has always been the way it is. It 
is a tradition that has served this country well. To eliminate that 
with this so-called rules change would do great disservice to the 
American people, to the legislative process, to our Constitution, and 
to the great ability of this body to perform its function in the way 
that has been deemed so important for over 200 years now.
  There is a reason this is called the greatest deliberative body in 
the history of mankind--because we deliberate. We think about things. 
We debate them. We have all kinds of points of view offered or 
potentially offered through the amendment process, and if that is 
denied, this will no longer be the body it has always been.
  People before us have cautioned both Democratic and Republican 
majorities not to take advantage of their sheer majority, Democratic 
and Republican leaders. In fact, there is a very interesting new book 
out by I believe the former chief of staff of the great Democratic 
leader George Mitchell--I think joined in by a Parliamentarian at a 
time when Republicans were in control, so it is a bipartisan-written 
book--that talks about the necessity of maintaining the rules the way 
they are and not using this nuclear option to change the rule, denying 
minority rights. It is a book worth reading, and it is a book I commend 
to my colleagues before we embark on what might be a very fateful step 
in this body.
  Let me make a couple of other points. Under Senate rule V--not to be 
too in the weeds on this, but I think it is important for us to 
actually know what we are talking about here. Here is the Senate rule 
speaking to the amendment process. I am quoting now:

       The rules of the Senate shall continue from one Congress to 
     the next Congress unless they are changed as provided in 
     these rules.

  And then Senate rule XXII says that to end debate on a motion to 
amend or change the Senate rules:

       . . . the necessary affirmative vote shall be two-thirds of 
     the Senators present and voting.

  What I said earlier, that it takes a two-thirds vote to change the 
rules of the Senate, is very clear in our rules. They are continuing 
rules. So the notion that somehow this can be done with just a 51-vote 
majority is explicitly rejected by the rules themselves. As I said, 
when this issue has previously been raised, we have been very careful 
not to use the mere power of the majority to change the rules but have 
abided by the requirement of our own rules to do it according to those 
rules with a two-thirds majority.
  I spoke before about the rights of the political minority. I think it 
is worth noting again that each Senator represents a lot of people in a 
separate State, two of us per State. Our constituents deserve the right 
to be heard in this body. It is one of the great opportunities that as 
a matter of comity we have always accorded to each other. We are 
courteous to each other on the floor because we understand it is the 
best way for all of us to be heard. If a colleague wishes to raise a 
matter while I am speaking and says, ``Will you just give me 2 minutes 
so that I can raise this matter on the floor, and then I will be 
done,'' of course we grant that request because we understand how 
important it is for our constituents to be represented, to have a 
voice. If another Senator needs to raise a point on behalf of the 
voters in his State, we acknowledge that as necessary and important.
  That is why we think it is virtually sacred that all Senators should 
have the right to represent their people, their State. No State should 
be disenfranchised, whether it voted Democratic or it voted Republican. 
There are a lot of Democrats and Republicans in every State and a lot 
of folks who do not belong to either party. They need a voice in the 
Senate, and each of us represents those people. It is not right that 
the voice of some Senators, and therefore their constituents, be 
silenced because of, in effect, a power grab here through what has been 
referred to as the nuclear option.
  As my leader Senator McConnell noted yesterday, what is potentially 
being proposed here would undermine the very purpose of the Senate as 
the one place in our system where minority views, whether they are a 
political minority or any other kind of minority, and opinions have 
always been respected and in most cases incorporated into law. That 
would be lost to the U.S. Senate.
  Here is what the late Senator Robert Byrd, who all acknowledge was an 
expert on the Constitution and the Senate rules, once said:


[[Page S6916]]


       The Senate is the only place in government where the rights 
     of a numerical minority are so protected. The Senate is a 
     forum of the states where, regardless of size or population, 
     all states have an equal voice. . . .

  The Presiding Officer and I can appreciate that because we don't come 
from one of the bigger States.
  Senator Byrd goes on:

       Without the protection of unlimited debate, small States 
     like West Virginia might be trampled. Extended deliberation 
     and debate--when employed judiciously--protect every Senator, 
     and the interests of their constituency, and are essential to 
     the protection of the liberties of a free people.

  He was specifically speaking to the point I made there: to ``the 
interests of their constituency.'' It is not a Senator's right that we 
are arguing about here; we are the voice of the people we represent. It 
is our constituents' rights that would be denied by this process. They 
deserve a voice. They have been guaranteed a voice through us, the 
temporary stewards of their voice. To deny that voice, especially 
through the procedure that has been suggested here, as the late Senator 
Byrd said, would be a denial of something essential to the protection 
of the liberties of a free people.
  The current Democratic leader was one of the staunchest defenders of 
the Senate's protection of minority rights for all of the reasons I 
mentioned. He spoke eloquently about this on earlier occasions. He 
believes and he has said that he is frustrated by the process that he 
sees not working as quickly as he would like to see it work and, as a 
result, has apparently changed his mind as to the process for changing 
the rules as well as the rules themselves. But I think the whole 
question of the filibuster needs to be properly understood here as 
really meaning different things to different people. It is essentially 
a tool that brings the Senate to the center because it requires 
compromise. It requires people to get together and talk.

  As I said, the right the minority has to filibuster the motion to 
proceed is to say: Mr. Leader, unless you are willing to guarantee us 
that we can have some amendments on this bill and that we get to pick 
our own amendments, then we are going to force you to get 60 votes 
lined up in order to proceed to the bill. That is the only leverage we 
have. So you are not really filibustering. You are not trying to talk 
the bill to death. You don't have any intention of taking a lot of 
time. You just want to be heard. You want to have your amendment up. A 
lot of times we say it will take just 10 minutes a side to debate it 
and have a vote, but if the majority leader can say, ``Nope, you are 
not going to be able to do that,'' then he can say Republicans have 
engaged in a filibuster when all it is is an objection to his motion to 
proceed without having the right to offer any amendments. So it is an 
important tool but not the way most people think of it--to delay and to 
talk things to death. That is not what has happened here. In most 
cases, the majority leader has filed a cloture motion on a Friday and 
we voted on it on Monday, so no time of the Senate has been taken in 
the intermediate time period.
  I know there is a narrative that the Senate has not been able to get 
anything done during the past couple of years, but it is not because of 
some unprecedented use of the filibuster. As I said, have you seen 
Members down here talking hours on end about a particular issue or all 
through the night or whatever? No, you have not seen that. That was 
kind of done in a bygone era, when Strom Thurmond was here and some 
others, but it has not been done.
  We have not done a budget in 3 years. That has been a sore point 
among a lot of people. You cannot filibuster the budget. So is the 
reason we have not done a budget because there has been a filibuster? 
Absolutely not, because the rules don't permit a filibuster of the 
budget.
  There are a lot of misconceptions here. I hope my colleagues will 
take a deep breath, step back. Those who came from the House of 
Representatives, as I did, remember what it was like when you were in 
the minority in the House. Essentially you had no rights. Is that the 
way you want it to be here? Because someday you are going to be a 
minority in the Senate. This body will change majorities.
  In any event, whether we are talking political majorities or not, as 
I mentioned with respect to the Presiding Officer from the same State 
as the late Robert Byrd, his State did not always have the power to be 
heard because it is a small State, as is mine. So it doesn't matter 
whether you are Republican or Democratic, your constituents have a 
right to be heard. Our current Senate rules protect that right on 
behalf of our constituents, and I believe it would be a grave error for 
the current Members of this body or those who take office next year to 
conclude that because they have been frustrated sometimes in what they 
wanted to accomplish, it is worth it to just brush the minority aside 
and say: Because I couldn't get everything I wanted, I was frustrated 
with your desire to offer amendments, I am going to take that right 
away from you by changing this rule in this way.
  I think it would be regretted later in time. I think the reaction 
would be the same as occurred with regard to the so-called Gang of 14 
when this nuclear option was considered several years ago. I think most 
people in this body now say they were wise people who brought us back 
from the brink of this precipice. Had we gone over that, this body 
would not be the same as it is today and we probably would be 
regretting that decision greatly.
  I urge my colleagues, who I know in good faith are frustrated at 
their inability to do exactly what they want to do because they are in 
the majority, to just stop and reflect on the damage this would do to 
this institution, how they would feel if they were in the minority. 
Members of my party are going to be pretty hard to convince we should 
go back to the rule the way it is today if the rule is changed to our 
disadvantage. That is really starting a nuclear war--from a 
parliamentary point of view, I mean. It is not a good idea for anybody, 
least of all for the American people.
  I urge my colleagues who are considering this to be open to 
alternatives, have an open mind, be willing to think this through, talk 
it through, to have a congenial debate on the floor about the 
possibilities, and eventually, I suspect, as has happened so many times 
in this great body, reasonable positions have prevailed--maybe after a 
lot of unreasonable ones were proposed, but generally we have come to 
the right conclusions. We have done so because we respect each other's 
rights. That has produced the best legislation in the 230 years of our 
country's history.

  The PRESIDING OFFICER (Mr. Manchin). The Senator from New York.
  Mr. SCHUMER. Mr. President, first I wish to thank my colleague from 
Arizona for not just his remarks during the last few minutes but for 
his service here. I think everyone on our side knows the Senator from 
Arizona has strongly felt views, many times different than many of 
ours, but that they are sincere, they are heartfelt, they are 
honorable, and that they are not ``political,'' and I very much 
appreciate that.
  Let me say a few things, though, about these rules changes. The 
overwhelming fact that hovers over this Chamber is that it is broken. 
Nobody disagrees with that. The Senate is broken. This great, wonderful 
institution that has had such a legendary history--perhaps the greatest 
legislative body the world has ever seen--is dysfunctional. None of us 
disputes that. We have to start from there. How do we change it so it 
is no longer dysfunctional?
  My colleague the Republican leader says, Well, it is personalities or 
it is character or whatever. That explanation doesn't wash. The amount 
of good character in this body is probably no different--no more, no 
less--than the amount of good character in previous Senates that were 
far more functional. I would argue that good character is pretty high. 
By and large, we respect our colleagues as individuals and as Senators 
on both sides of the aisle and across the aisle. So it is an easy way 
out to say, Change character. I guess when one says ``change 
character,'' they mean change their character. The bottom line is that 
the Senate is broken and we cannot maintain the status quo.
  I wish to quote my great colleague from Michigan Senator Stabenow--I 
hope she won't mind--from a meeting we had this morning. She talked 
about a constituent she had who said, When are you going to change the 
rules? The constituent said, You sound like somebody who has suffered 
from spousal

[[Page S6917]]

abuse and keeps suffering from it and suffering from it and suffering 
from it and says they can't change it. Of course that person can change 
it and of course we can change things.
  What we are trying to do on this side is come up with some changes 
that will make the Senate flow better but, at the same time, preserve 
the essential character of the Senate. If we were to propose a rules 
change that would say we need 51 votes for everything, we would be no 
more, no less, than the House of Representatives. There are some on our 
side, frankly--I think my colleague from Iowa at one point--who have 
argued, Let's move the number down to 55. We are not doing that. The 
rules changes we are entertaining are done with preserving the 
character of the Senate and making sure an individual Senator's rights 
are protected and that the rights of the minority are protected and the 
place is not stampeded by majority votes. In the House, they can have a 
majority of one and still pretty much get their way. In the Senate that 
wouldn't happen, even if we had 55 or 58 or even 60 Senators with the 
changes we have proposed.
  So let's look at them. There have been attempts to not change the 
rules but, rather, to sort of come to some degree of comity between the 
parties. I know because under Leader Reid's direction, I was involved, 
and under Senator McConnell's direction, Senator Alexander was 
involved. Two years ago, when there was an attempt to do rules changes, 
it was particularly Senator Alexander, for whom I have enormous respect 
in the same way I have respect for Senator Kyl, who proposed that 
instead of changing the rules we try to work things out better. There 
is a basic rule here in the Senate which is that the majority gets to 
propose the agenda. That is an enormous privilege and an enormous 
advantage. We get to set the agenda in the committees and on the floor. 
But the minority has the right to offer amendments which either poke 
holes in what we have proposed or even talk about other subjects 
because we don't have a rule, as they do in the House, where just about 
everything has to be germane. So Senator Alexander and I attempted to 
do that. We said, on the one hand Republicans will not block motions to 
proceed, and let us go forward and debate bills, and on the other hand 
we would allow a reasonable amount of amendments--germane and some not 
germane--to the bills that came up.
  Well, obviously, it failed early on in the Senate. The basic 
gentleman's agreement didn't work. It is our view the agreement fell 
apart when our colleagues on the other side of the aisle said they will 
not allow the President's nominee for the CFPB, the Consumer Financial 
Protection Board, to move forward. She will now join us in the Senate 
and discuss rules changes, in one of the ways that history works in 
strange ways now. So we said we would allow some amendments. They said, 
No, we are not letting her come up, period. That was against the 
spirit, at least, of the agreement. I am sure if my colleague from 
Tennessee were here, he might have a different interpretation, but at 
least that is ours. But the overall point is the so-called gentleman's 
agreement fell apart early in the Senate, never to be resurrected.
  It is our belief on our side that we should allow amendments from the 
other side, but they should not be abused. There should not be 50 of 
them. They should not talk about everything under the Sun. Yes, there 
can be some nongermane amendments--we understand what those are all 
about--but it shouldn't be a piling on. It is our view, frankly, that 
the goal of many of the other side was simply to obstruct whatever 
happened here, to show that the government didn't work, in hopes that 
there would be an electoral advantage to that argument and people would 
change the Senate majority. Well, it didn't happen. So now there is a 
new opportunity.
  Our colleagues on the other side say the only reason we filibuster is 
because you guys fill the tree. Well, let's look at the numbers. In the 
last Senate--in this Senate up until now--there have been 19 tree 
fillings by Leader Reid. There have been 110 cloture motions. That is 6 
to 1, a little less than 6 to 1, more than 5 to 1, less than 6 to 1. 
So, clearly, the filibuster--the use of the motion to proceed to 
prevent us from getting on a bill unless it has 60 votes--has far 
exceeded the number of times the leader has filled the tree. It has 
been done on things that aren't even amendable, including judges, 
appointments. There couldn't be objections that we wouldn't allow 
amendments on those things. You can't amend: Let's have half the judge 
be nominated to the sixth circuit or let's have the Assistant Secretary 
of State only have these powers. That doesn't happen. So even on those 
things, there have been filibusters. We asked right now--I think there 
are about 20 judges pending--to move them. No, we are going to 
filibuster. Yesterday, a sportsmen's bill, which has a lot of 
dissension on our side and probably has more agreement on the other 
side than this side, was filibustered. This goes on and on and on.

  So the rules changes we are proposing will not prevent the minority 
from exercising its rights, from being able to offer amendments, and, 
in fact, from filibustering. The goal here is simple: Use the 
filibuster sparingly, not 110 times in a session of Congress. Even in 
the days of the great southern barons and the civil rights debates 
where the people from the South regarded filibuster as their only 
weapon to stop something they strongly--in my opinion very wrongly--
disagreed with, it was used a handful of times only on the major 
debates of the time. Now the filibuster is used for everything, 
including district court judges, offering small, minor amendments.
  What we basically want to do, as some have proposed, led by the 
Senator from Oregon, Mr. Merkley, and the Senator from New Mexico, Mr. 
Udall, is say, If a Member wants to have a filibuster, they have to 
talk; they can't just have one person get up and say ``I object'' and 
then we need 60 votes or the bill doesn't come up. What will that do? 
In my opinion, that restores the proper balance to the Senate. If a 
Member has to talk--not just one person but everybody who is against 
it--a Member is only going to be able to sustain that filibuster on 
major issues. No doubt the other side would have had the ability to 
sustain--even if we went 24 hours, 7 days a week--they would have 
enough passion and enough enthusiasm and enough bodies that they would 
filibuster the health care bill. Probably they would do the same on 
Supreme Court Justices, as would we if we were in the minority, if we 
vehemently disagreed with a proposal. But if a Member has to be on the 
floor and actually filibuster as opposed to just invoking the rules, 
they will use it sparingly because they cannot sustain it for every 
amendment or every minor bill or, frankly, for bills that have a large 
amount of support. We know there is a small number of our colleagues 
who are much more focused on offering their own amendments or stopping 
the whole Senate. We can name them from the other side of the aisle. 
But under this rule, they would have to get more support than just four 
or five people to do it over and over, and it wouldn't happen. So then 
the filibuster would be used as it should be. We are not saying no to 
filibustering. We are not suggesting going back to 51 and simple 
majority rule. It would be used on major issues where there is a real 
division and a lot of passion and strong feeling and conviction as 
opposed to simply trying to block everything and tie this place in a 
knot.
  When filibusters would decline and there would be no motions to 
proceed that would be debatable, what would happen? I guarantee my 
colleagues on the other side of the aisle that more amendments would be 
allowed to be offered because we wouldn't be in this tit-for-tat 
situation. Would we have unlimited amendments? No. Would it be that 
every time we have a bill we have to debate a passion of a single 
Senator from a single State over and over and over? No. But would there 
be plenty of amendments and would the minority not being able to 
filibuster most bills have sort of high ground, whomever that minority 
is, that amendments should be offered? Absolutely.
  The bottom line: We cannot do nothing. There is too much at stake in 
our Nation to have the Senate paralyzed once again. The House is a 
partisan body. It passes a lot of things in a very partisan way. The 
Senate must still be the cooling saucer envisioned by the Founding 
Fathers, by George Washington and James Madison. There must

[[Page S6918]]

be the ability where the ``passions of the people'' cool in this 
government, and it resides in the Senate. The changes we have proposed 
continue that tradition but prevent--mitigate strongly against, if not 
totally prevent--paralysis, which is where we are right now.
  Remember: 110 cloture motions. And that will happen again in the next 
session, the next Congress, in the Senate, if we don't do something to 
change it. The idea, once again, of just blaming this person or that 
person is not seeing the larger problem that needs change and 
correction. The proposals that I believe this side will make--and we 
haven't yet discussed them in our caucus--will return the Senate to the 
way it was envisioned by the Founding Fathers: a body where minority 
rights have much greater strength than the majority, but a body where 
bipartisan compromise is encouraged, not discouraged.
  So to my colleague from Arizona I say: We are open to suggestions, 
but suggestions that say ``you just change your ways'' we would say 
back aren't going to reduce the gridlock. I believe Senator Alexander 
and I and Senator McConnell and Senator Reid, when we proposed this 
gentlemen's compromise 2 years ago and didn't change the rules, all had 
the best of intentions, but it failed. We have our reason for why it 
failed and they may have another, but it is indisputable that it 
failed. We have to look at something new. I hope my colleagues on the 
other side of the aisle, if they don't agree with the proposals we are 
likely to make, will have their own suggestions but suggestions that go 
beyond just change the personalities, change the individuals, whatever.
  In conclusion, this is a wonderful body. I have served in it for 14 
years. I respect it, I revere it, and I still love, with all the 
dysfunction, coming to work Monday morning, which is a test for me in 
life. But our country has so many issues and so many problems and needs 
the Senate to lead and needs a Senate that is not paralyzed in 
gridlock. Without changing the rules, I fear we will have a repeat of 
the last 2 years, where each side blames the other and nothing gets 
done.
  With that, I yield the floor. I know we have several colleagues on 
the Senate floor who want to speak.
  The PRESIDING OFFICER (Mr. Tester). The Senator from Colorado.
  Mr. UDALL of Colorado. Mr. President, I want to associate myself with 
the remarks of my colleague from the great State of New York, and I 
look forward to working with him and the entire Senate to find ways in 
which the Senate can continue to do the important work the public has 
asked us to do.


                         Wind Energy Tax Credit

  Mr. President, I rise this morning again to speak to the importance 
of extending the production tax credit, otherwise known as the PTC, for 
wind energy. I wish to mention that the production tax credit has been 
used on many occasions to promote other kinds of energy development, 
including natural gas. The production tax credit for wind, 
particularly, is set to expire at the end of December and, as a result, 
thousands of hard-working middle-class families in Colorado and across 
our country who currently work in this important energy industry are at 
extreme risk of losing their jobs.
  In fact, many of these workers have already been laid off as 
companies brace themselves for the expiration of the PTC. To put it in 
stark terms, the potentially bright future of a quintessentially 
American industry is uncertain unless we act as soon as possible.
  I have come to the floor now some 22 times to discuss the wind energy 
industry, and when I do so I highlight the positive effects the PTC has 
had on one individual State. I have had the great opportunity and 
privilege of speaking about the wind energy industry in the Presiding 
Officer's State, the State of Montana, and today I want to take the 
opportunity to talk about the Wolverine State. Michigan is another 
remarkable illustration of how the PTC has revitalized manufacturing 
and created good-paying jobs while providing the State with clean 
energy.
  We have seen improvement in the Nation's economy, but many families 
and businesses across our country are still struggling to make ends 
meet. This has been especially true in Michigan, a State that has one 
of the Nation's highest unemployment rates and a sluggish manufacturing 
base. This is all as a result of the tough economic times we have 
experienced over the last 4 years.
  But if we look at Michigan, the wind industry saw an opportunity in 
Michigan. Michigan is known for its highly skilled workforce, and so 
the wind industry took root in Michigan, took advantage of this 
workforce, and now we see that in Michigan there is significant 
manufacturing of wind turbines occurring there. That has reinvigorated 
Michigan's industrial base, and it has aided in the recovery of the 
State's economy.
  If we think about it, thousands of parts go into each car 
manufactured in Michigan, and wind turbines--from the towers to the 
cells to the blades--are no different. Someone told me recently that 
something in the order of 8,000 parts go into a wind turbine. So if we 
think about that, the skills of these hard-working Michigan workers 
translate into the development, the engineering, the construction, and 
the manufacturing required for wind turbines, which then in turn 
provides the State of Michigan and the local communities with thousands 
of new jobs and billions of dollars in investment.
  We can see all the green circles on the map of Michigan I have in the 
Chamber that identify the places in which this manufacturing is 
occurring. This is in large part as a result of targeted Federal 
incentives, such as the production tax credit.
  I would like to highlight further some of the many benefits of the 
wind energy industry in Michigan. There are at least 40 facilities that 
develop and produce various components for the wind energy industry, 
and that supports about 5,000 jobs. Furthermore, wind projects have 
contributed over $7 million in property tax payments to local 
governments; and that is money that helps fund schools, infrastructure, 
and other vital community services.
  So the State is building the towers and the blades and the cells so 
that we can harvest the wind. Michigan is taking advantage of that 
opportunity as well. They are ramping up their deployment of this 
technology to harvest the wind because the wind energy manufacturing 
sector is located there. So it is a virtuous cycle, if you will.
  In 2011, Michigan more than doubled its power production from wind 
energy, and it is on pace to increase its capacity by another 50 
percent this year. That would include the completion of the State's 
largest wind farm, the Gratiot County Wind Project, which is located in 
the middle of the lower peninsula. This project itself not only created 
over 250 construction jobs and 15 permanent maintenance and operations 
jobs, it also doubled the tax base of the local schools. This has 
created a positive ripple effect on all these communities that has been 
noticeable and powerful.
  Moreover, there are currently enough wind projects under construction 
in Michigan to nearly double the current wind power production in the 
State, with even more potential developments in the works. The point I 
am making is that the key is the production tax credit when it comes to 
these projects and, most importantly, the jobs they create.
  There remains a vast untapped potential when it comes to wind energy 
in the State. In fact, the National Renewable Energy Lab estimates that 
Michigan has enough wind power potential to meet 160 percent of the 
State's current electricity needs. The extension, therefore, of the PTC 
is essential to the continued development of Michigan's wind resources, 
which will create good-paying American jobs, aid local communities, and 
build a clean energy economy.
  So it is pretty simple. The production tax credit, the PTC, equals 
jobs, and we need to pass it and extend it as soon as possible.
  How do we do that? Well, if we want that bright future to be 
realized, we need to work together and extend the wind PTC now. It is 
common sense. It has bipartisan support. It has bicameral support. We 
need to extend it now, as soon as possible. The PTC has not only aided 
in the growth and expansion of our manufacturing economies in States 
such as Michigan, but it has also shown us that America can

[[Page S6919]]

and, frankly, must outcompete China and the other countries that are 
trying to develop their own wind energy industry.
  So let's come together. Let's find a path forward. Let's pass an 
extension of the wind PTC as soon as possible. The longer we wait, the 
longer we do not act, it puts the significant economic strides we have 
seen in States such as Michigan and all around the country at risk, and 
it substantially inhibits future job growth. We simply cannot afford to 
cede this promising new energy technology and energy future to 
countries such as China.
  Mr. President, with that, I yield the floor.
  Mr. LEVIN. Mr. President, I want to thank Senator Udall for his work 
bringing attention to this important issue.
  To me, this issue is simple: Alternative energy, including wind 
power, is not only a vital component of our environmental protection 
efforts, but to growing our economy and creating jobs for the middle 
class.
  Michigan is the State that put the world on wheels. Through 
innovation and dedication, entrepreneurs, engineers, and Michigan 
workers combined their efforts not just to revolutionize 
transportation, but to create an explosion of manufacturing employment 
that helped create and sustain the American middle class.
  Today, a new generation of Michigan innovators is harnessing the 
power of wind, the promise of biofuels, the power of advanced 
batteries. Earlier this year, I visited a wind farm in Breckenridge, 
MI, that is a marvel of technology, as far removed from the farmstead 
windmills of days past as a jet fighter is from the Wright Brothers' 
plane. That wind farm is a textbook example of how the advance of 
technology is helping Michigan's economy, enabling us not just to 
recover from the setbacks of the past, but to lead us into a brighter 
economic future.
  Wind power is an important part of that advance. It is a rapidly 
growing sector of our State's electrical generating system. Wind-
generating capacity more than doubled in 2011, and projects under 
construction or in the development pipeline could increase capacity 
tenfold or more. The more power we generate from wind, the more 
affordable, clean energy is available to our State and Nation.
  Michigan also has an important role in building advanced wind-
generation equipment, not just for our State, but for the United States 
and the world. Roughly 40 Michigan facilities are engaged in this 
business, many of them businesses that have turned expertise developed 
in the automotive industry to this new and growing field. Already wind 
is responsible for hundreds of good manufacturing jobs, and the 
potential is nearly as limitless as the wind itself.
  That is why renewal of the production tax credit is so important. The 
PTC has been an important factor in helping this new industry grow. If 
it is allowed to expire at the end of the year, it would not only 
hamper efforts to generate more clean energy for Michigan homes and 
businesses, but also dampen the potential for new manufacturing jobs 
tied to wind power. That is not a good outcome for our environment, for 
Michigan families or for the American economy.
  So again I thank Senator Udall for his focus on this issue. I hope as 
we work to address the many pressing issues we must resolve before the 
end of the year, we can resolve this one as well, and maintain the 
momentum of clean energy to help our environment and our economy.
  Ms. STABENOW. Mr. President, I thank my friend from Colorado, Senator 
Udall, for speaking on this important issue, and for his constant 
advocacy of the wind production tax credit.
  We have entrepreneurs right now in Michigan and all across the 
country who are working hard to invent our clean energy future.
  I am thinking of companies like Ventower in Monroe, that just opened 
their 115,000-square-foot wind turbine tower manufacturing facility 
last year.
  They have hired 150 people to build those huge wind towers that you 
see along the highway. These are good-paying jobs of the future.
  Energetx Composites is another company in Michigan that used to 
manufacture luxury yachts. They took their experience with light-weight 
materials and now they are producing the blades for the wind turbines, 
and they have also hired workers in Michigan.
  Astraeus Wind and Dowding Industries are doing the casting work and 
manufacturing the hubs that allow those blades to turn and produce 
energy. These are huge items--some as big as a house--and they need 
people to build them, and ship them, and that means jobs of the future 
in Michigan.
  It also means a future that we can hand down with pride to our 
children and our grandchildren. It is a future with a strong middle 
class. It is a future where the American dream is alive and well.
  We have been through tough times in Michigan, but wind power has been 
a bright spot. This year, we more than doubled our wind capacity in 
Michigan.
  We now have more than 200 turbines running in places such as Gratiot, 
Huron, Misaukee, and Sanilac Counties.
  We have another nearly 300 turbines coming online in the Thumb area--
one of the areas of strongest growth in the State. And all of that 
development means thousands of jobs in Michigan that depend on wind 
energy technology.
  But if Congress doesn't act by December 31, those businesses will see 
their taxes go up. To raise taxes on the innovative companies creating 
the jobs of the future? That doesn't make sense. That is why it is so 
critical that we extend the wind production tax credit.
  At a time when our companies are competing with other countries over 
this technology, we cannot turn our backs on them.
  China is spending millions of dollars every single day to beat us on 
clean energy. They are investing in companies, building plants, and 
making every effort to lead the world in this technology.
  We are in a race, and we cannot afford to lose.
  I urge my colleagues to pass an extension of the wind production tax 
credit.
  The PRESIDING OFFICER. The senior Senator from Pennsylvania.


                            The Fiscal Cliff

  Mr. CASEY. Mr. President, I rise this morning to spend a couple 
moments talking about the work we have to do between now and the end of 
the year. There are various ways to describe this, but it is usually 
described under the broad umbrella terminology called the fiscal cliff. 
Some debate the use of those words, but there is no question that we 
have very difficult decisions to make in the next couple of weeks.
  My primary concern--and I think this is a concern that is widely 
shared in the Senate and across the country--is, What will all this 
mean for middle-income families? What will their tax rates be? What 
will their near-term economic security be? And what can they expect for 
their families and for the communities within which they live, 
especially at this time of year? A lot of families are not just 
preparing for the new year and what will happen, they are also trying 
to make decisions about spending, about holiday shopping, about 
investments, about priorities in which they have to invest in their own 
lives.
  We know from some of the data, when it comes to debating what will 
happen to middle-income families and their tax rates, the positive side 
of extending those tax rates for middle-income families. We also know 
the downside of not getting that work done, not extending them.
  Just to give two examples, the Congressional Budget Office says 
extending the tax rates for the middle-class would boost gross domestic 
product by 1.3 percent and would increase jobs by 1.6 million. So those 
are two very positive impacts if we can get the agreement, which I 
think we can arrive at working with Democrats and Republicans to do 
this, to extend the tax rates for middle-income families. So GDP up by 
1.3 percent if we get the work done to extend those middle-class tax 
cuts, and increasing the number of jobs by 1.6 million.
  Another way to look at this is from the negative side of it as well, 
the consequences of not getting this work done to extend middle-income 
tax rates.
  Mark Zandi, an economist who is widely quoted across the country and

[[Page S6920]]

by many of my colleagues in the Senate--I am not quoting, but this is a 
summary--says that the economic impact of ending these tax cuts, not 
getting an agreement, would reduce gross domestic product by $174 
billion.
  We do not want to do that. That would be a very bad result for 
everyone. So whether we read the CBO numbers or we talk to economists 
or read about their assessments or we talk to CEOs, they all agree we 
have to deal with both the tax rate question for middle-income families 
as well as making sure we are avoiding the across-the-board cuts, which 
I will get to in a moment.
  So there is much to do to solve our year-end challenge, and we 
certainly have more challenges in 2013. But it is basically about 
getting our fiscal house in order. Part of that is spending cuts, part 
of that is getting more revenue, and, as well, even as we are getting 
our fiscal house in order, dealing with various tax challenges along 
the way.
  We should point out that there has been a lot of progress made. I 
will just give two examples of that. We know when the national job 
numbers were announced in October, part of the reporting that was done 
by the Bureau of Labor Statistics was that we had an October number, 
but then we had a September and an August number that was revised 
upward, thank goodness. When we combine the August, September, and 
October job growth numbers, it means in those 3 months we created more 
than 500,000 jobs across the country. I should say the economy created 
500,000 jobs. The exact number is about 511,000 jobs. So that is a 
measure of progress.
  I was just looking at some housing assessments. We are releasing a 
report or a summary of some data this week in the Joint Economic 
Committee.
  Just to give you two examples on housing progress: The number of 
privately owned housing units that were started last month increased by 
31,000 units to 894,000 units at an annual rate. What that means is it 
is up about 3.6 percent. That is good news, maybe even better news 
because we want to get the assessment of people in the trenches. One 
bit of good news on housing is that confidence among homebuilders rose 
again in November. That will also be part of that report.
  So it is an increase in jobs the last couple months, more economic 
growth, more progress, more momentum and good information or good news 
on housing. The problem is it is not good enough. We are not creating 
jobs fast enough. The pace of the recovery needs to accelerate. It is 
not moving fast enough for us to fully recover. I like to say and many 
have used this analogy: We have been in a ditch. We have been down in a 
pretty deep hole. We have been climbing out the last couple years, but 
we are not out yet fully. We will be out and have a full recovery when 
we see those job numbers increase.
  So these decisions we make on tax policy, on the end-of-the-year 
agreements we have to reach, are vitally important to continue that 
progress, and, in fact, to move or accelerate the job growth numbers 
even faster.
  As I mentioned before, part of this is not just about tax rates, it 
is also about reducing spending. Fortunately, there is a track record. 
Despite all the rancor and partisanship in Washington, there is also 
another story of bipartisan progress that was made over the last couple 
years by agreeing to spending cuts.
  We agreed to a little less than $1 trillion of spending cuts over the 
next 10 years. So it shows we can come together. The main point I 
started with is on middle-income families. We need to give middle-class 
Americans certainty by the end of the year. Frankly, we should do it 
even before the end of the year. We should do it in the next couple 
days or weeks. We can do that by saying to our friends in the other 
body, the House of Representatives: Pass the bill we passed in the 
Senate which gives tax certainty, a continuation of tax breaks to 98 
percent of taxpayers.
  We should do that because it will provide some certainty for the end 
of the year and for going into next year. I have an additional point to 
make about that as it relates to the payroll tax cut. We came together 
last year, late 2011 into 2012, as we had done a year earlier, to cut 
the payroll tax, to reduce that tax so most workers, most families in 
this country would have about $1,000 extra to put in their pockets, 
more take-home pay that they could spend on their priorities and invest 
in the priorities of their own families, whether it is making a 
purchase for that family, whether it is paying for education, whether 
it is just getting from point A to point B, putting gas in the car. 
Whatever it is that family decides to use those extra dollars for, it 
has had an enormously positive impact--122 million households were 
positively impacted by that payroll tax cut.
  What it means in terms of jobs--about 400,000 jobs created. So one of 
the reasons we can say we are making progress in developing some 
momentum behind the job creation numbers is because of the payroll tax 
cut that was put in place in 2012. We know the kind of progress we are 
making, the kind of certainty we want for middle-income families can be 
badly undermined if we do not get an agreement not only on tax rates 
but also on this across-the-board indiscriminate cut that would take 
place if we do not have a bipartisan agreement.
  This is known by that fancy term ``sequester'' or the other term 
``sequestration.'' What that means, and I am not sure many people heard 
that terminology before a year or two ago--but what that means is 
across-the-board cutting. Some people say: That sometimes makes sense. 
In my family, in my business or when we have to make a decision, 
sometimes we have to cut spending across the board.
  Unfortunately, if we do not make cuts that help our economy grow, we 
will badly injure our ability to grow the economy in the near term and 
in the future. So we all agree cuts have to be made. The question is, 
How do we do that? Do we make cuts that are smart and that help us grow 
or do we make cuts that are indiscriminate, without any kind of a 
strategy behind them?
  Fortunately, I think there is agreement that across-the-board cuts, 
whether they are defense cuts which will impact jobs or whether they 
are nondefense cuts which will also impact the economy, do not make a 
lot of sense. It does not make sense to say all cuts are equal; 
therefore, medical research should be cut in the same way an 
inefficient program should be cut. That does not make sense. I think 
most Americans understand that.
  We have to get an agreement to avoid those automatic cuts. I think we 
can. I think Democrats and Republicans agree it would be the wrong 
approach to allow that to happen. I think we can get agreement on that. 
What we need is a balance. Just as when any family has to make a 
decision about their own budget or about their own spending priorities, 
they need a balance. Obviously, the balance is two parts; one is 
revenue and one is spending. So we need to get that balance in place. 
We also need, in order to achieve that kind of balance, Democrats and 
Republicans to be willing to work together--compromising, not getting 
everything you want but getting enough of an agreement that we can move 
the country forward.
  Despite all the problems, I have a high degree of confidence we can 
get an agreement. Folks will come together and compromise. Part of that 
starts with putting in place an agreement, which is already one element 
to the compromise. That is not just voting on but having the agreement 
that says: Let's have certainty right now for middle-income families.
  Everyone agrees, with very limited exception, that we should extend 
tax rates--keep the tax rates the same for about 98 percent of the 
American people. There is broad agreement on that. Some on the other 
side do not want to have a conclusion to that because they want to have 
a debate about what happens to the wealthiest among us, the very top 
income earners, roughly about 2 percent of income earners.
  But look, we have agreement on the other 98 percent. So what I would 
say is whatever it takes to give meaning or integrity to the vote we 
had in the Senate to get an agreement here but also encourage the House 
to vote to say: Let's give middle-income families the certainty 
they deserve, let's just say we are going to agree, Democrats and 
Republicans, that 98 percent of taxpayers across the country are going 
to have their tax rates continue.

  Then we can have a big debate after that about what happens to the

[[Page S6921]]

wealthiest among us. I think it makes sense, at a time of high deficits 
and a debt problem that will confront us for years, that we have some 
part of that revenue come from the wealthiest among us. People across 
the aisle might disagree with that. We can have a big debate about 
that. But let's put in place, in law, the kind of certainty middle-
income families should have. I think we can do that. So let's get in 
place an agreement for the 98 percent, and then we will have a big 
debate about the wealthiest 2 percent. Let's get in place tax rates 
that will allow us to do that.
  I think a little history is instructive. We know that in the 1990s 
and the 2000s, we know there is, according to the data, no relationship 
between lower marginal rates for the wealthiest among us and faster 
accelerated economic growth. I emphasize no relationship because I 
think some have made the case.
  Two examples. During the Clinton administration, to address the 
growing budget deficit at the time, which was not as severe as today, 
but it was a pretty substantial deficit, the top marginal tax rate was 
raised. It went up on the wealthiest individuals. The economy grew at 
the fastest rate in a generation and more than 22,000 jobs were added.
  So that is what happened during President Clinton's two terms in 
office. During the following 8 years, the top marginal rate was 
lowered--not raised but lowered--for the wealthiest individuals. The 
economy never regained the strength of the previous decade, the 1990s. 
Job growth slowed and wages stagnated, leaving middle-income families 
especially vulnerable when the great recession began toward the end of 
2007.
  That is some of the history. That is part of the foundation or 
undergirding for the debate we are going to have on tax rates. This is 
not a lot of theory or a lot of maybes. We have data and information 
and kind of a track record trying it two different ways, the way we 
tried this under President Clinton and the way we tried it under the 
next administration. I think that is instructive.
  Finally, I would say that for all the challenges we have, for all the 
disagreements we have, I think most people in the Senate, no matter who 
they are--Democrats, Republicans, Independents--whether they were 
running for office this year or not, all heard the same message. They 
all heard maybe two basic messages from people. At least that is what I 
heard in Pennsylvania, all across the State, for longer than 2012 but 
certainly most fervently with a sense of urgency this year.
  Here is what I heard, a two-part message: Do something to create jobs 
or do more to create jobs, move the economy faster. No question, I 
heard that over and over. Soon thereafter, within seconds of saying 
that, families or taxpayers whom I ran into across the State would say 
to me: You have to work together with people in the other party to get 
this done.
  You know why they say that. That is not some unreal expectation that 
the American people have of us. It makes a lot of sense. Because in 
every family out there, whether it is in Pennsylvania or across the 
country, in every business, small business or larger business, in every 
one of those circumstances, in a family or in a business, those 
individuals have had to sit down over the last couple years especially, 
work out differences, set priorities, set goals, reduce spending 
sometimes, make investments they knew they needed to make to grow their 
business or to create more economic certainty for their family.
  They have had to do that. All they are saying to us is just take a 
lesson from the life of a lot of families in America. Sit down, set 
priorities, work on coming together, and get an agreement. I think we 
can do that. Despite all the differences, I think both parties 
understand the urgency of those questions, whether it is the tax rates, 
whether it is across-the-board spending cuts, which would be 
indiscriminate and harmful, whether it is what we do about individual 
programs, what we do in the near term to reduce deficit and debt.
  We have to come together, as families have to come together, and make 
agreements with people whom we are sometimes disagreeing with or not 
getting along with every day of the week and make decisions that 
businesses have to make almost every day of the week or at least every 
month on their spending, on their priorities and on their investments.
  I think we can do that. I know we have to do that.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________