[Congressional Record Volume 158, Number 159 (Tuesday, December 11, 2012)]
[Senate]
[Pages S7721-S7723]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TRANSACTION ACCOUNT GUARANTEE PROGRAM EXTENSION ACT--MOTION TO PROCEED
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the motion to proceed on S. 3637, which the
clerk will report.
The assistant legislative clerk read as follows:
Motion to proceed to the consideration of Calendar No. 554,
S. 3637, a bill to temporarily extend the transaction account
guarantee program, and for other purposes.
The PRESIDING OFFICER. Under the previous order, the time until 12:30
p.m. will be equally divided and controlled between the two leaders or
their designees.
The Senator from New Mexico.
Mr. UDALL of New Mexico. Mr. President, I would ask to speak as if in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Senate Rules Changes
Mr. UDALL of New Mexico. Mr. President, there has been much
discussion about the need to reform the Senate rules, and I have
listened closely to the arguments against these changes by the other
side. Today I rise to address some of their concerns. My Republican
colleagues have made impassioned statements in opposition to amending
our rules at the beginning of the next Congress. They say the rules can
only be changed with a two-thirds supermajority. They say any attempt
to amend the rules by a simple majority is breaking the rules to change
the rules. This simply is not true.
Repeating it every day on the Senate floor doesn't make it true. The
supermajority requirement to change Senate rules is in direct conflict
with the U.S. Constitution. The Constitution is very specific about
when a supermajority is required and just as clearly when it isn't
required.
Article I, section 5 of the Constitution States:
Each House may determine the Rules of its Proceedings,
punish its Members for disorderly Behavior, and, with the
Concurrence of two thirds, expel a Member.
When the Framers require a supermajority, they explicitly said so.
For example, for expelling a Member. On all other matters, such as
determining the Chamber's rules, a majority requirement is clearly
implied.
There have been three rulings by Vice Presidents sitting as President
of the Senate. Sitting up where the Presiding Officer is sitting, three
Vice Presidents have sat there. And the meaning of article I, section
5, as it applies to the Senate, this is what they were interpreting. In
1957, Vice President Nixon ruled definitively, and I quote from his
ruling:
While the rules of the Senate have been continued from one
Congress to another, the right of a current majority of the
Senate at the beginning of a new Congress to adopt its own
rules, stemming as it does from the Constitution itself,
cannot be restricted or limited by rules adopted by a
majority of a previous Congress. Any provision of Senate
rules adopted in a previous Congress, which has the expressed
or practical effect of denying the majority of the Senate in
a new Congress the right to adopt the rules under which it
desires to proceed is, in the opinion of the Chair,
unconstitutional.
That was Vice President Nixon. Vice Presidents Rockefeller and
Humphrey made similar rulings at the beginning of later Congresses.
I have heard many of my Republican colleagues quote Senator Robert
Byrd's last statement to the Senate Rules Committee. The Presiding
Officer knew Senator Byrd well. He is from his State of West Virginia.
Senator Byrd came to that Rules Committee. I was at that Rules
Committee, and I was at the hearing where he appeared--and I have great
respect for Senator Byrd. He was one of the great Senate historians. He
loved this institution, but we should also consider Senator Byrd's
other statements and the steps he took as majority leader to reform
this body.
In 1979 it was argued that the rules could only be amended in
accordance with the previous Senate rules. Majority Leader Byrd said
the following on the floor:
There is no higher law, insofar as our Government is
concerned, than the Constitution. The Senate rules are
subordinate to the Constitution of the United States. The
Constitution in Article I, Section 5, says that each House
shall determine the rules of its proceedings. Now we are at
the beginning of Congress. This Congress is not obliged to be
bound by the dead hand of the past.
That was Senator Robert Byrd. This Congress is not obliged to be
bound by the dead hand of the past.
As Senator Byrd pointed out, the Constitution is clear. There is also
a
[[Page S7722]]
longstanding common law principle upheld in the Supreme Court that one
legislature cannot bind its successors. For example, the Senate cannot
pass a bill with a requirement that it takes 75 votes to repeal it in
the future. That would violate this common law principle and be
unconstitutional. Similarly, the Senate of one Congress cannot adopt
procedural rules that a majority of the Senate in the future cannot
amend or repeal.
Many of my Republican colleagues have made the same argument. In 2003
Senator John Cornyn wrote in a Law Review article--as many of you know,
Senator Cornyn was an attorney general in Texas, was a distinguished
justice. Senator Cornyn said the following in this Law Review article:
Just as one Congress cannot enact a law that a subsequent
Congress could not amend by a majority vote, one Senate
cannot enact a rule that a subsequent Senate could not amend
by a majority vote. Such power, after all, would violate the
general common-law principle that one parliament cannot bind
another.
That was Senator John Cornyn.
Amending our rules at the beginning of a Congress is not breaking the
rules to change the rules, it is reaffirming that the U.S. Constitution
is superior to the Senate rules. And when there is a conflict between
them, we follow the Constitution.
I find some of the rhetoric about amending our rules particularly
troubling. We have heard comments that any such reforms, if done by a
majority, would ``destroy the Senate.'' Again, I can turn to my
Republican colleagues to answer this accusation.
In 2005 the Republican Policy Committee released a memo entitled
``The Constitutional Option: The Senate's Power to Make Procedural
Rules by Majority Vote.'' That memo supports the same arguments I make
today for reform by a majority, and it also refutes many of the recent
claims about how the Senate will be permanently damaged.
One section of the memo titled, ``Common Misunderstandings of the
Constitutional Option'' is especially interesting and enlightening. It
responds to the argument that ``the essential character of the Senate
will be destroyed if the constitutional option is exercised,'' and it
responds with the following words:
When Majority Leader Byrd repeatedly exercised the
constitutional option to correct abuses of Senate rules and
precedents, those illustrative exercises of the option did
little to upset the basic character of the Senate. Indeed,
many observers argue that the Senate minority is stronger
today in a body that still allows for extensive debate, full
consideration, and careful deliberation of all matters with
which it is presented.
What is more important about the Republican memo is the reason they
believed a change to the rules by a majority was justified. Because of
what Republicans saw as a break in longstanding Senate tradition. They
claimed they weren't using the constitutional option as a power grab,
they were using it as a means of restoring the Senate to its historical
norm.
This is exactly where we find ourselves today. Back then, the
Republicans argued the constitutional option should be used because 10
of President Bush's judicial nominees were threatened with a
filibuster. I believe the departure from Senate tradition now is far
worse.
Since Democrats became the majority party in the Senate in 2007, we
have faced the highest number of opposition filibusters ever recorded.
Lyndon Johnson faced one filibuster during his 6 years as Senate
majority leader. In the same span of time, Harry Reid has faced 386.
For most of our history, the filibuster was used very sparingly. But
in recent years, what was rare has become routine. The exception has
become the norm. Everything is filibustered--every procedural step of
the way, with paralyzing effect. The Senate was meant to cool the
process, not send it into a deep freeze.
Since the Democratic majority came into the upper Chamber in 2007,
the Senates of the 110th, 111th, and current 112th Congresses have
witnessed the three highest total of filibusters ever recorded. A
recent report found the current Senate has passed a record low 2.8
percent of bills introduced. That is a 66-percent decrease from the
last Republican majority in 2005 and 2006 and a 90-percent decrease
from the high in 1955 and 1956.
So the Republicans argued in 2005, ``[a]n exercise of the
constitutional option under the current circumstances would be an act
of restoration.'' An act of restoration. I cannot improve on that
statement. We must return the Senate to a time when every procedural
step was not filibustered.
I respect the concerns some of my Republican colleagues have
regarding the constitutional option, but there is an alternative. We
don't have to reform the Senate rule with a majority vote in January.
This is up to my colleagues on the other side of the aisle. Each time
the filibuster rule has been amended in the past, a bipartisan group of
Senators was prepared to use the constitutional option. But with a
majority vote on the reforms looming, enough Members agreed on a
compromise and passed the changes with two-thirds in favor. We could do
that again in January.
I know many of my Republican colleagues agree with me that the Senate
is not working. Some say we don't need to change the rules, we need to
change behavior. But we tried that--the changing of behavior--with a
gentleman's agreement at the beginning of this Congress. It failed. So
now it is time to make some real reforms.
This is not a ``power grab,'' as some have charged. We want to make
the Senate a better place--a place where real debate happens for both
parties. So I ask my friends on the other side of the aisle to bring
their own proposals to the table. Let's work together to restore the
deliberative nature of the Senate where all sides have the opportunity
to debate and be heard.
I said 2 years ago I would push for reforms at the beginning of the
next Congress regardless of which party was in the majority. I will say
again that our goal is to reform the abuse of the filibuster, not
trample the legitimate rights of the minority party. I am willing to
live with all the changes we are proposing whether I am in the majority
or the minority.
The American people, of all political persuasions, want a government
that actually gets something done, that actually works. We have to
change the way we do business. The challenges are too great, the stakes
are too high, and we do not want a government of gridlock to continue.
I thank the Chair for the time, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. NELSON of Florida. Mr. President, I ask unanimous consent that
the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Release Johnny Hammar
Mr. NELSON of Florida. Mr. President, a very disturbing thing has
happened in Mexico with one of my constituents--a U.S. marine who
served honorably.
Johnny Hammar fought in Fallujah and was honorably discharged in
2007. He and another marine, both having suffered under posttraumatic
stress disorder, were taking advantage of the fact they were surfers to
lessen their stress. They had surfed up and down the east coast. This
is a marine whose family lives in Miami, so they had gone to Cocoa
Beach, and they were going to others. They wanted to go to Costa Rica
to catch the big waves in the Pacific, and so Johnny bought a camper
and entered Mexico at Matamoros.
As they crossed the border, he checked with United States Customs
because he had a shotgun that was an antique that had been owned by his
great-grandfather. He registered the weapon with U.S. Customs so that
when he returned Customs would have a record of it. But when he went
from the American side of the U.S.-Mexico line into Mexico, and openly
showed his great-grandfather's antique shotgun, the Mexican authorities
arrested him.
His companion, another marine, after interrogation was released, but
they put Cpl Johnny Hammar, now age 27, in the general prison
population in Matamoros, Mexico.
This case came to my attention last August, and I immediately
responded. As a result of my contacting the Mexican Government, they
moved him from the general population of the jail into an individual
jail cell. But as they have
[[Page S7723]]
gone in to interrogate him, they have manacled him, shackled him, and
at one point they had him chained to the bed.
This has gone on long enough. If it is against the law to take a gun
into Mexico, even though he had already declared it at U.S. Customs,
the Mexican authorities could have, when they released his fellow
marine to go back into the United States, sent him back into the United
States and told him don't bring your great-grandfather's shotgun into
Mexico. If that is against Mexican law. But they didn't. They have put
a U.S. Marine, who has honorably served his country, in a Mexican jail,
and he has been there since last August.
Enough is enough. I called my friend Arturo, the great and well-
respected Mexican Ambassador, yesterday and I can't get a return call
from the Mexican Ambassador, so I am bringing this to the attention of
the Senate so we can further get through to the Mexican Government and
indicate to them they have made a bureaucratic mistake.
Obviously, if it is against Mexican law to take a weapon in, then
under these circumstances, this young U.S. marine does not deserve the
treatment he is getting--holding him in a Mexican jail at the border of
the United States for the past 5 months.
I hope cooler heads will prevail. If it requires me speaking on the
Senate floor day in and day out to keep this issue alive, I will do so.
Clearly, it has been in the press. It has been in the Miami Herald
several times, a much more detailed account of his background, his
service to the country, and his struggling with PTSD ever since he got
home.
Mr. President, I thank the Chair for the opportunity to bring this to
the attention of my colleagues, and once again I say to the Mexican
Government: Send this marine home. Now that you have a new President
installed in Mexico, relations with the United States are especially
important and United States citizens who are peaceful in their intent,
innocent in their observation of the Mexican laws, where no harm has
been done, should be treated respectfully. Send that U.S. marine back
to America and back to his family in Miami.
Mr. President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. JOHNSON of South Dakota. Mr. President, I ask unanimous consent
that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. JOHNSON of South Dakota. Mr. President, I want to express my
support for S. 3637, a temporary extension of the Transaction Account
Guarantee, or TAG, Program.
The program, which is administered by the FDIC for insured depository
institutions and the NCUA for credit unions, provides unlimited
insurance for non-interest-bearing accounts at banks and credit unions.
These transaction accounts are used by businesses, local governments,
hospitals, and other nonprofit organizations for payroll and other
recurring expenses, and this program provides certainty to businesses
in uncertain times.
These accounts are also important to our Nation's smallest financial
institutions. In fact, 90 percent of community banks with assets under
$10 billion have TAG deposits. This program allows these institutions
to serve the banking needs of the small businesses in their
communities, keeping deposits local. In my State of South Dakota, I
know that the TAG Program is important to banks, credit unions, and
small businesses.
Our Nation's economy is certainly in a different place than it was in
2008 at the height of the financial crisis when this program was
created, but with concerns about the fiscal cliff in the United States
and continued instability in European markets, I believe a temporary
extension is needed. Therefore, I believe that a clean 2-year extension
makes the most sense and provides the most certainty for business and
financial institutions and also provides time to prepare for the end of
the program in 2 years.
I wish to note that this legislation has a cost recovery provision
that ensures no taxpayer is on the hook for this insurance. Financial
institutions pay for the coverage. This is not and never will be a
bailout. This is simply additional insurance paid for by the banks to
ensure these accounts remain stable.
I thank Leader Reid for making this issue a priority in the lameduck
session. I also thank Senator Sherrod Brown for being a great partner
for many months on this important topic. The administration has just
issued a SAP in support of TAG, and I ask unanimous consent to have it
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Executive Office of the President, Office of Management
and Budget,
Washington, DC, December 11, 2012.
Statement of Administration Policy
S. 3637--Transaction Account Guarantee Program Temporary Extension
(Sen. Reid, D-NV)
The Administration supports Senate passage of S. 3637,
which would temporarily extend the unlimited deposit
insurance coverage for noninterest-bearing transaction
accounts. The Transaction Account Guarantee (TAG) Program
played an important role in maintaining financial stability
and banking system liquidity for consumers and businesses
during the financial crisis. While the Administration
supports a temporary extension of the program, it remains
committed to actively evaluating the use of this emergency
measure created during extraordinary times and a responsible
approach to winding down the program. The Administration
looks forward to working with the Congress to move forward
other measures that will support small businesses and
accelerate the economic recovery.
Mr. JOHNSON of South Dakota. I ask my colleagues to support the
extension of TAG.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. JOHNSON of South Dakota. Mr. President, I ask unanimous consent
that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________