[Congressional Record Volume 158, Number 155 (Wednesday, December 5, 2012)]
[Senate]
[Pages S7411-S7414]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RULES OF THE SENATE

  Mr. GRASSLEY. Madam President, there has been a lot of discussion 
lately about how the Senate is not working properly. This is evident to 
even a casual observer. On the other hand, to understand how the Senate 
was intended to work and what has gone wrong requires some knowledge of 
the history and the rules of the Senate. I would put more emphasis upon 
the history than the present rules of the Senate, particularly the 
history and purpose of the Senate expressed in the Federalist Papers by 
the people who were advising the States at that point, the colonies, to 
approve the Constitution.
  To many people, this subject, no doubt, seems arcane and confusing. 
The simplistic explanation we get from the other side of the aisle--and 
it is a steady drumbeat--is that Republicans are filibustering 
everything just willy-nilly; thereby, grinding the Senate to a halt.
  Various vague and nefarious motivations are suggested as to why 
Republicans would do such a thing, but the point they want Americans to 
take away is that Republicans are abusing the filibuster. This message 
has been repeated ad nauseam by Democrats in the hope it will sink into 
the public's consciousness by rote. In fact, the story goes that 
Republicans have so abused the filibuster, the Democrats have no choice 
but to take it away, even if it means violating the Senate rules in 
order to change the rules. Can you imagine a political party saying it 
is OK to ignore the rules or to change the rules?
  In order to discuss this topic, it is very important to establish 
what we mean by the word ``filibuster'' and how it fits into how the 
Senate operates today and has operated historically. I hope everyone 
will bear with me as we try to understand this because I ultimately 
want to get down to how the proposed changes to the Senate rules 
threaten the very principle underlying our system of government, 
particularly the checks and balances within our system of government.
  First, I have a legitimate question: What is a filibuster? We talk 
about it so much that we would think it referred to a very specific 
activity that is easily understood by everyone. It can actually refer 
to different types of activities. Of course, this leads to confusion, 
and that confusion is reflected in some of the speeches from colleagues 
on the other side of the aisle, intentionally or not.
  When most Americans think of a filibuster, they probably think of 
Jimmy Stewart in the classic film ``Mr. Smith Goes to Washington,'' 
standing and talking without stopping for an extended period of time to 
delay proceedings and to take a lot of theater just to make a point. 
This is the classic understanding of a filibuster. Unless all Senators 
have agreed to waive Senate rules, it is a fact that a Senator who has 
been recognized to speak may retain the floor as long as he continues 
to speak. This is the basis in the Senate rules for a classic 
filibuster, but this is not the rule some Democrats want to change.
  When the Members of the majority party complain about how many 
filibusters the Republicans have engaged in, they actually mean how 
many times the Senate has voted on a motion to bring debate to a close, 
and that motion is called the cloture motion. When debate comes to an 
end, it also means no more opportunities for amendments. If Republicans 
don't agree to end debate and force a final vote when the majority 
leader decides we should end debate and vote, he calls that a 
filibuster. In fact, even when every single Republican votes in favor 
of ending debate, he still calls it a filibuster. It ends up in those 
statistics that add up to numbers that are not very intellectually 
honest. Think of Republicans voting in favor of ending debate and it is 
still called a filibuster.
  We just voted a day or two ago, 93 to 0, to end debate on the Defense 
authorization bill. Is he still going to call that a filibuster as 
well? How can he accuse Republicans of filibustering when he is the one 
who made the cloture motion? This is a key point. When the Democrats 
talk about Republicans launching a filibuster, it is important to note 
it is the Senate majority leader who almost exclusively makes the 
motion to invoke cloture. I understand it takes a petition of 16, but 
not very many Senators I know ever initiate such a petition unless the 
Republican leader, when we are in the majority, or the Democratic 
leader, when they are in the majority, provoked that. This means the 
number the majority leader is so fond of quoting as a number of so-
called Republican filibusters is the number of times he has attempted 
to shut down debate and block further amendments from being considered. 
Again, we are talking about a process launched by the majority leader 
intended to shut off debate and amendments, not some process initiated 
by Republicans.
  If every time the majority leader made the motion to close debate we 
had been considering a bill for days or weeks with dozens of amendments 
and no end in sight, then there is a legitimacy to such a decision by 
the majority leader in the petition for cloture. He might then have a 
point. However, the recent history of the Senate cloture votes tells an 
entirely different story.

  The majority leader has filed a motion to cut off debate in the same 
day a bill has been taken up over 220 times since he became majority 
leader. How can this be justified, considering the history of the 
Senate and given that it is a deliberative body? He certainly cannot 
claim Republicans are delaying action with excessive debate when he 
moves to cut off debate before that debate has ever begun. As I said, 
by forcing a final vote, a cloture motion also ultimately cuts off the 
amendments.
  The right of a Senator to offer an amendment for consideration has 
been enshrined in the Senate rules from the very beginning. It is true 
that about half the cloture votes I cited were on the motion to proceed 
to consider a bill which is before the stage where amendments can be 
offered. I will say more on that point later. However, the majority 
leader has moved to cut off debate on amendments on a measure other 
than the motion to proceed over 100 times. In my judgment, he can 
hardly claim Republicans forced his hand by offering too many 
amendments when few, if any, amendments have even been considered when 
he attempts to cut off amendments.
  What is more, the majority leader has consistently used the tactic 
called filling the tree, where he offers blocker amendments that block 
any other Senator from offering their own amendments unless the 
majority leader or somebody speaking for him agrees to set aside a 
blocker amendment so the other Senator can offer an amendment. This way 
he is able to get in line first to put his blocker amendments in place

[[Page S7412]]

because of a tradition that the majority leader has priority to be 
recognized by the Presiding Officer. This doesn't happen to appear 
anyplace in the rules. In fact, the rules make very clear that whatever 
Senator seeks recognition first should be recognized and that any 
Senator has a right to offer an amendment. This so-called filling the 
tree tactic was relatively rare before Senator Reid became majority 
leader, but he has made it routine.
  Technically, some germane amendments can be considered during a short 
window after cloture has been invoked and before final vote. But by 
using the blocker amendment tactic, along with a motion to invoke 
cloture, the majority leader can block any Senator from offering any 
amendment while shutting off debate. That means the Senate would take a 
final vote on a bill without a single amendment having been offered.
  The abuse of this tactic is at the heart of the Senate's current 
gridlock. This is confirmed by a chart--and I don't have a copy of this 
chart with me--published with a recent New York Times article. Here is 
what the caption said:

       The use of filibusters has risen since the 1970s, 
     especially when Republicans have been in the Senate minority.

  That would tend to blame Republicans, but listen to the rest of this 
quote.

       But the most recent spike of Republican filibusters has 
     coincided with the Democrats' unprecedented moves to limit 
     amendments on the Senate floor.

  This doesn't even tell the whole story because much of the time the 
Senate majority leader doesn't have to actually use his amendment-
blocking tactics. He simply informs Republicans he will block 
amendments or refuses to commit to allow Republican amendments before 
making the motion to consider a bill. In this all-too-common scenario, 
the majority leader tells the Republicans he intends to move to 
consider a bill and will immediately move to cut off debate on that 
motion. By the way, if we do vote to take up this bill, we will not be 
allowed to offer any amendments. So that kind of puts everybody on this 
side of the aisle in a take-it-or-leave-it situation. Why on Earth 
would Republicans take that deal and vote for cloture on proceeding to 
a bill on which we are told we will be allowed no input, contrary to 
the deliberative tradition of the Senate?

  Just to be clear, some Democrats have proposed eliminating the 
filibuster entirely. Others have proposals to limit it in various ways. 
Majority Leader Reid wants to start by eliminating it on the motion to 
proceed. But as we have seen, the real problem is the way Republicans 
have been blocked from participating in the process. If we are looking 
to reform how the Senate operates, maybe we ought to start by 
considering doing away with the tradition that the majority leader can 
block amendments. That is something which is already contrary to the 
letter of the Senate rules.
  Again, there is no doubt that the Senate is not functioning properly. 
However, the complaints I hear from Iowans are not that the Senate is 
considering too many amendments and working too hard to make sure the 
legislation we pass is worded properly. In fact, I hear quite the 
opposite. A great many Iowans have told me they are not happy with 
legislation being rammed through the Congress without their elected 
representatives even having an opportunity to read it. If Members of 
Congress don't have a chance to read a bill, we can bet the American 
public doesn't have a chance to understand it. I suppose that is fine 
if we believe we should pass a bill first and let the American people 
find out what is in it later, as Speaker Pelosi once famously suggested 
about the health care reform bill. We have to pass it, she said, and 
then we will find out what is in it. And then there is a rude awakening 
that now in this 2,700-page health care reform bill, we are finding out 
there are a lot of bad things in it, a lot of bad things that we warned 
the public about and warned the Democrats about as well. However, if 
one thinks, as I do, that we should be listening to those who elect us, 
one would have to conclude that a more deliberative process is needed, 
not less.
  The rules of the House allow for quick consideration of legislation, 
but the Senate is supposed to be different and historically has been 
different. When the majority leader says the Senate is not operating 
efficiently, he means we are not approving the legislation he wants on 
the timetable he demands. The simple historical fact is the Senate is 
not designed for that kind of efficiency. However, for a period after 
the 2008 elections, the Democrats had 60 Members in the Senate. That is 
enough votes to shut off debate and amendments without a single 
Republican cooperating. Naturally, the majority party couldn't resist 
the temptation and shut Republican voices out of every aspect of the 
legislative process because they had the votes to do it. Not only did 
they use their supermajority to prevent Republican amendments on the 
floor of the Senate, but since they didn't need Republican votes to 
pass a bill, they cut us out of the process of developing the 
legislation.
  In my experience as a former chairman and now ranking member, some of 
the best examples of bipartisanship happen at the committee level. The 
Senate committees are where Senators of both parties often work in a 
bipartisan way to delve into the details of the legislation and iron 
out imperfections. This is how most bills are supposed to be handled.
  I often tell people who are cynical about all the partisanship they 
see on TV that there is a lot of bipartisan work that goes on that they 
never see because only controversial things get on television. When a 
committee process is working and the Democrats and Republicans are 
working together to get a bill and everything is going smoothly, no 
journalist is going to pay any attention to that. But that goes on in 
the committee process, and that process can be dry and it can be 
technical. Senators of both parties sitting around a table discussing 
where to place a comma doesn't make the breaking-news alerts. 
Nevertheless, the committees are where much of the hard bipartisan work 
of the Senate is done.
  In recent years the Democratic leaders prefer to write bills behind 
closed doors without Republican input. I suppose the health care reform 
bill is the best example of that, but there are others as well. They 
have then used a parliamentary trick to bring them right to the Senate 
floor. I suppose I shouldn't use the words ``parliamentary trick'' 
because there is a rule XIV, but that bypasses the usual committee 
process where we build consensus between the political parties. If 
Republicans are shut out of having any significant input on the front 
end and are blocked from having any amendments on the back end, is it 
any wonder we don't vote for the majority leader's motion to cut off 
debate?
  Despite the bad blood caused by the tactics I have described, I had 
hoped and believed that after the 2010 elections, things would be 
different. When Americans elected Republicans to a sizeable majority in 
the House of Representatives--larger than any election since 1938--and 
at the same time enlarged our representation in the Senate to 47 
Members, I thought the majority party would recognize that they had to 
work with Republicans. With 47 Members, it was no longer possible under 
the Senate rules for the majority party to shut Republicans out of the 
legislative process and still expect to ram their agenda through. So I 
naturally assumed the Senate would resume its usual tradition of 
bipartisan cooperation involving open debate and amendments from both 
sides--in other words, the way the Senate had historically functioned.
  The majority leader didn't see it that way and continued to shut 
Republicans out of the process. In fact, if he had allowed an open 
debate and amendment process on many of the bills he sought to bring 
up, we could have gotten a lot more accomplished than we have. One week 
in June last year, we passed four controversial pieces of legislation 
because that process worked. It involved Republicans seeking things. 
But most of the time that doesn't happen. Sure, it would have taken 
more time under that amendment process and the deliberative process to 
consider each bill than the majority leader might have preferred to be 
given to it. He and his caucus might also have had to vote on 
Republican proposals instead of only legislation of his choosing. But 
is there anything wrong with a Republican offering an amendment now and 
then,

[[Page S7413]]

even if that amendment loses? Some Republican amendments might have 
embarrassed Democrats by forcing them to vote on issues they would 
rather avoid. Is there anything wrong with voting on some tough issues 
from time to time? Some Republican amendments might have attracted 
enough Democratic votes to actually pass. Perhaps that is exactly what 
the majority leader might want to avoid. He seems to want total control 
over the agenda. Majority Leader Reid has said as much in private. He 
told Senator McCain flatout that ``the amendment days are over.'' How 
can he say that?

  There is a longstanding tradition here in the Senate that all voices 
be heard and that amendments get full hearing regardless of the party 
of the sponsor. For example, tax and trade policies aren't exactly 
areas of natural agreement between the two parties. Despite that fact, 
when I was chairman of the Senate Finance Committee, I helped put 
together several bipartisan bills. I, a Republican, worked in 
partnership with Senator Baucus, a Democrat, to produce bipartisan 
bills that we could both live with. Even when we were starting with a 
bipartisan bill, Senator Baucus wanted to make sure his fellow 
Democrats had a chance to offer amendments, and I respected that, and 
if he were chairman, he would have respected that for us Republicans. 
It took a lot of time and effort, but that is what we have to do in the 
Senate if we actually want to get something done rather than simply 
blame the other side if we fail.
  The Senate has been called the greatest deliberative body in the 
world because it was specifically designed to proceed at a measured 
pace and guarantee that the rights of the minority party are protected 
from what political philosophers called the ``tyranny of the 
majority.''
  In 1788, the father of the Constitution, James Madison, wrote in 
Federalist Paper No. 10:

       Complaints are everywhere heard from our most considerate 
     and virtuous citizens, equally the friends of public and 
     private faith and of public and personal liberty, that our 
     governments are too unstable, that the public good is 
     disregarded in the conflicts of rival parties, and that 
     measures are too often decided not according to the rules of 
     justice and the rights of the minor party, but by the 
     superior force of an interested and overbearing majority.

  In 1788 James Madison was warning us about the superior force of an 
overbearing majority, the reason the Senate was set up to make sure the 
overbearing majority of the other body, where the majority rules, 
didn't do stupid things.
  Those arguing for abolishing the filibuster sometimes talk about 
majority rule as though this is some fundamental principle. On the 
contrary, the aim of our Constitution is to protect the individual 
rights of all Americans, not the right of the majority to impose its 
will on an unwilling minority. In fact, James Madison was very 
concerned about what he called factions gathering together to impose 
their will on others. So I wish to quote again from Federalist No. 10. 
Before I start that quote, let me say for the benefit of people that I 
think when he used the word ``faction,'' for the most part he was 
speaking about political parties.

       If a faction consists of less than a majority, relief is 
     supplied by the Republican principle, which enables the 
     majority to defeat its sinister views by regular vote. It may 
     clog the administration, it may convulse the society; but it 
     will be unable to execute and mask its violence under the 
     forms of the Constitution.
       When a majority is included in a faction, the form of 
     popular government, on the other hand, enables it to 
     sacrifice to its ruling passion or interest both the public 
     good and the rights of other citizens.
       To secure the public good and private rights against the 
     dangers of such a faction, and at the same time preserve the 
     spirit and the form of popular government, is then the great 
     object to which our inquiries are directed.

  That was a long quote, so let me say that in other words, Madison is 
saying that an important goal of the U.S. Constitution is to protect 
``the public good and the private rights'' from a temporary majority 
trying to impose its will on the minority. This is evidenced throughout 
the Constitution. We call it checks and balances. We see it in the 
separation of powers between the three branches of government, and we 
see it in our system of federalism dividing power between States and 
the Federal Government. It also helps explain our bicameral legislative 
branch, and, of course, what I am talking about here is the unique 
structure of the Senate.
  In Federalist No. 62, also usually attributed to the father of the 
Constitution, James Madison, he explains:

       The necessity of a Senate is not less indicated by the 
     propensity of all single and numerous assemblies to yield to 
     the impulse of sudden and violent passions, and to be seduced 
     by factious leaders into intemperate and pernicious 
     resolutions.
       Examples of this subject might be cited without number; and 
     from proceedings within the United States, as well as from 
     the history of other nations.

  Madison wrote that in 1788, but it is still applicable in 2012.
  So kind of repeating, the purpose of the Senate is to save us from 
``the impulse of sudden and violent passions, and to be seduced by 
factious leaders into intemperate and pernicious resolutions.''
  There is a place for the passions of the moment in any republican 
form of government or any democratic society, and that place for the 
passions of the moment to be reflected is in our House of 
Representatives. But imagine if our only legislative body were the 
House of Representatives. Right now, that would mean Speaker Boehner 
would control the entire legislative agenda, and the priorities of the 
House Republicans would be the only legislation that would have a 
chance of passing.
  Then, once the Democrats gained control in some future election, 
Republicans would have virtually no ability to have their views 
considered.
  This is a teeter-totter approach to governing. This teeter-totter 
would not lead to thoughtful legislation that protects individual 
rights and balances the views of all Americans.
  You will also note that Madison references examples from proceedings 
within the United States at that particular time. Many State 
legislatures in the early days of our Republic were unicameral, with 
frequent elections and also with weak executives. This led to many 
instances where a temporary majority faction would gain control and 
quickly pass legislation that advantaged the majority at the expense of 
the minority.
  It is also the case that the Congress, under the Articles of 
Confederation, was unicameral, which caused a lot of instability as 
described, again, by Madison in Federalist 62:

       Every new election in the States is found to change one-
     half of the representatives.
       From this change of men must proceed a change of opinions; 
     and from a change of opinions, a change of measures.
       But a continual change even of good measures is 
     inconsistent with every rule of prudence and every prospect 
     of success.
       The remark is verified in private life, and becomes more 
     just, as well as more important, in national transactions.

  The staggering of the terms of Senators was partly done to provide 
stability, preventing temporary majorities from acting hastily and 
trampling on the rights of the minority.
  Only one-third of the Senators are up for reelection every 2 years, 
unlike the House of Representatives, where all Members are up for 
reelection every 2 years. Because only one-third of the Senators are up 
for reelection at once, it is less likely that one party can sweep the 
election and gain control of the entire legislative branch of 
government in one election. Here we see how the Senate was specifically 
designed to prevent the tyranny of the majority.
  In Federalist Paper 66, Madison, the father of the Constitution, 
continues his explanation of the unique role of the Senate--the unique 
role of the Senate--

     . . . there are particular moments in public affairs when the 
     people, stimulated by some irregular passion, or some illicit 
     advantage, or misled by the artful misrepresentations of 
     interested men, may call for measures which they themselves 
     will afterwards be the most ready to lament and condemn.
       In these critical moments, how salutary will be the 
     interference of some temperate and respectable body of 
     citizens, in order to check the misguided career, and to 
     suspend the blow meditated by the people against themselves, 
     until reason, justice, and truth can regain their authority 
     over the public mind?

  Now, I want you to contrast--with these quotes from Madison--the role 
the father of our Constitution says the Senate is intended to play to 
the present debate going on in the Senate that the rules ought to be 
changed and the majority leader's vision for how a newly altered Senate 
would operate.

[[Page S7414]]

  One faction, the Democratic Party, would be able to ram through 
massive pieces of legislation with little or no input from duly elected 
Senators who happen to be from another political party. And what if 
Republicans are not happy with being shut out of the legislative 
process at every stage? Well, the majority leader explained to one 
freshman Republican Senator: ``You can always vote against the bill.''
  Not only does this take-it-or-leave-it approach effectively 
disenfranchise all those Americans who elected Senators from the 
minority party to represent their views, it also leads to poorly 
thought out legislation. Since the proposed changes to the Senate rules 
would make the body more like the House of Representatives, let's take 
another look at how that Chamber operates.
  Although the House is designed to reflect the will of the current 
majority, the trend toward the majority party shutting out the minority 
party in that body has increased over time. Some people trace this 
trend to the last decade of the 19th century when the Speaker of the 
House was a man named Thomas Brackett Reed.
  Then-Speaker Reed strengthened the power of the Speaker of the House 
of Representatives and sought to diminish the rights of the minority 
party. He once used his position to unilaterally change the 
interpretation of the quorum rule to prevent Members of the minority 
party from blocking a measure by refusing to vote in a quorum call. 
This incident was called the ``Battle of the Reed Rules.''
  Then-Speaker Reed famously said: ``The best system is to have one 
party govern and the other party watch.'' This attitude earned that 
Speaker of the House, whose name was Reed--they called him Czar Reed.
  Do we really want another ``Battle of the Reed Rules'' like we had 
over a century ago in the House of Representatives? Wouldn't that be 
going backwards?
  Ironically, the House of Representatives under Speaker Boehner has 
actually allowed more opportunity for the minority party to affect 
legislation than the current Senate majority leader. Senate Minority 
Leader McConnell has cited data from the Congressional Research Service 
showing that the Democrat minority party in the House has had 214 
occasions to affect legislation this year compared to only 67 for the 
Republican minority in the Senate.
  When the House of Representatives allows for more input from the 
minority party than the Senate, which is supposed to be the 
deliberative body, it seems to me something is very wrong.
  It is true that the cloture rule and the various different procedures 
that are called filibusters are not found in the Constitution. But 
changes to the Senate rules that some in the Democratic caucus are 
proposing would fundamentally transform the character of the Senate in 
a way that the Founders never intended and best expressed by James 
Madison.
  The proposed gutting of the Senate's historic rules and traditions 
threatens to replace the principle of the rights of the minority, so 
important to James Madison and our other Founders, with a new principle 
that the might of the majority makes right. The fact that the majority 
leader is contemplating doing so on a partisan basis by ignoring 
existing Senate rules is outrageous. Can you imagine ignoring the rules 
to change the rules?
  I know this unprecedented power grab makes even Democratic Senators 
uneasy. Other Democrats who find this proposal tempting and who have 
not yet served in the minority will find they have a rude awakening 
once they have to live under the new regime they might help create.
  To all my colleagues who might be inclined to support this 
fundamental transformation of the Senate, I will repeat once more 
Madison's warning about temporary majorities in the heat of passion 
enacting legislation: `` . . . measures which they themselves will 
afterwards be the most ready to lament and condemn.''
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota.

                          ____________________