[Congressional Record Volume 158, Number 165 (Thursday, December 20, 2012)]
[Senate]
[Pages S8269-S8274]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             RULES CHANGES

  Mr. MERKLEY. Mr. President, I rise to talk about the challenge of 
this Chamber being a Chamber that can deliberate and decide issues, the 
big issues facing America.
  I don't think it will come as a surprise to anyone that the Senate, 
once famed as the world's greatest deliberative body, has become 
paralyzed. At the heart of that paralysis is a change in the use of the 
filibuster. ``Filibuster'' is a term I believe comes from the Dutch, 
and it refers to piracy. In this context, it is about someone taking 
over this Chamber--taking over the normal process by which we debate 
issues and decide issues by majority vote.
  In the past, when everyone understood the very heart of what we do is 
to make decisions by majority vote, the filibuster--the takeover of 
this Chamber, the objection to a simple majority vote--was very rare. 
People did this only once or twice in a career for some issue of 
profound personal values or of extreme concern to an issue in their 
State, and it was most often small factions who would do this.
  In 1916, there was a debate--a debate that went on about whether to 
put weaponry on our commercial shipping. This was pre-World War I. In 
the course of that debate, there was a small faction who said: We are 
going to interrupt and we are going to object to the simple majority 
because we strongly oppose the United States putting any defenses on 
its merchant vessels, even though those vessels were being sunk by the 
Germans as they went over to Europe.
  This was enormously frustrating to President Woodrow Wilson, and it 
was enormously frustrating to the Members of this Chamber who said: We 
must complete debate and make a decision and only a small number want 
to block us from making that decision.
  The following year, in 1917, they adopted a rule that we could close 
debate if we had two-thirds of this Chamber voting to close debate. 
That is called cloture. Cloture continued to be an instrument that in 
situations where there was an individual or a small group who stretched 
the limits of the courtesy of full debate, then the Chamber as a whole 
could say: Enough is enough. We need to bring this debate to an end and 
make a decision.
  Over time, things have changed. This objection to a simple majority--
which makes it impossible for the Chamber to end debate--has grown from 
its occasional use to a routine instrument of legislative destruction. 
It is used on virtually every debatable motion.
  A single bill can have as many as seven or so steps where you have a 
debatable motion. In that situation, then an objection to a simple 
majority can be done multiple times. Each one of those objections 
wastes a week of the Senate's time on this floor, which means the 
Senate not only cannot decide the issue at hand, it runs out of

[[Page S8270]]

the time to debate and deliberate on the other issues that we should be 
doing on the floor.

  As I will show in a chart later, we can measure this in part by the 
action on appropriations bills. We have an expectation of--it used to 
be 13 appropriations bills; now it is 12. In the last 2 years we have 
done exactly 1, 1 out of 24--totally unacceptable in terms of this 
Chamber fulfilling its responsibility just in that one area of 
appropriations, decisions about how to spend moneys in different parts 
of the government.
  I know when people hear the word ``filibuster'' they do not think of 
simply a silent objection. Yet that is what is in the rules, a silent 
objection to a simple majority. They think of someone taking the floor 
and making their case on an issue of deep principle or deep concern to 
their State. They might be thinking a little bit about a picture that 
looks a little like this.
  This is that famous scene from ``Mr. Smith Goes to Washington.'' 
Jimmy Stewart is on the floor. He talks through the night, making his 
case. He is fighting for fairness and justice in the face of 
corruption. That is what people think of when they think of a 
filibuster.
  But the way it works today, it is a simple objection. We ask for a 
unanimous consent request, meaning do all 100 Senators agree to go to 
final vote, and someone says: I object. That is all that is required. 
That is all it ever meant. But in the past, that objection to the heart 
of democracy, to the simple majority, meant you felt honor bound to 
come to the floor of the Senate and make your case while you stood in 
the way of the decisionmaking of this august Chamber. But that sense of 
honor-bound responsibility to make your case before your colleagues, 
make your case before the American people, has disappeared. Indeed, 
instead of the filibuster being something done by an individual or a 
small group, it is now used as an instrument of party warfare.
  The minority party, be it the Democrats or be it the Republicans, 
say: You know, we can slow down the majority by eating up their time. 
We can do it by filing an objection on every debatable motion, and we 
will simply eat up the calendar and prevent them from getting their 
work done. Then we will say how incompetent they are, that they can't 
get their work done--after we have caused them to be unable to do it.
  I thought I would go through the enormous expansion of this tool of 
legislative destruction in many different categories in the years since 
1970. Before we do that, by the way, every now and then someone says: 
You know, the Senate was designed as a supermajority body. Indeed, that 
could not be further from the truth. There are specific cases where our 
forefathers said a supermajority makes sense; for example, in the case 
of overriding a Presidential veto, in the case of approving a treaty, 
in the case of having a constitutional amendment. But they viewed that 
these legislative Chambers, like every legislative chamber in the 
world, would make decisions by simple majority.
  In fact, they addressed this in the Federalist Papers. Here we have 
Alexander Hamilton and his commentary on supermajority decisionmaking 
that was fierce. He said--and this is just a small part of his diatribe 
about how destructive it would be to have this Chamber tied up in a 
supermajority. He referred to it as driving ``tedious delays; continual 
negotiation and intrigue; contemptible compromises of the public 
good.''
  We have seen some of those tedious delays, we have seen some of those 
contemptible compromises, and certainly he was looking into a crystal 
ball and accurately summarizing the situation.
  He was not alone. Here we have compatriot James Madison, also in the 
Federalist Papers. He noted ``the fundamental principle of free 
government would be reversed.''
  By ``fundamental principle,'' he is talking about the fact that when 
you make a decision by simple majority, you make the decision that most 
people think is the right direction in which to go. But when you make a 
decision by supermajority, and a minority can block it, you are making 
the decision the smaller number thinks is the right decision. In that 
sense, you have a series of worst decisions rather than a series of 
best decisions. So the wisdom of the group tapping into the expertise 
of colleagues who came from many directions, many walks of life, is not 
realized.
  Let's take a look at what has happened in this use of the objection 
to a simple majority, otherwise known as a filibuster. Here we are 
evaluating it in terms of the cloture motions that are filed. These are 
motions that are designed to drive a vote on whether to close debate. 
It is one way of measuring the number of filibusters. How about 
nominations? We can see that basically the first filibusters on 
nominations were in about 1970. I was about 14 years old. I was 
starting high school. That is when this started to be done. We can see 
that as time passed, we have an enormous increase in the number of 
filibusters on nominations. Over here, in 2012-24. It is a situation 
where these are only cloture motions. So many other nominations were 
blocked because of threatened filibusters.
  We have this vast number of positions in the executive branch, this 
vast number of judge positions that are unfilled. The advice and 
consent clause in the Constitution that gives this Chamber, the Senate, 
the chance to weigh in has been turned, through the expanded use of the 
filibuster, into a tool that damages the other branches of government. 
It prevents the President from having his team that he would like to 
have, and that blocks us from getting the judges onto the courts so we 
can have the sort of speedy criminal justice system we envision and 
promise.
  That was just nominations. Let's take a look at some other areas. The 
motion to proceed is the very first step for a bill. It is just a 
motion to get the bill on the floor to debate. That was virtually never 
filibustered. We have one time down here in 1932, until we are in the 
1960s, and then early 1970s. It takes off. We see this massive 
expansion that makes no sense unless you are just trying to paralyze 
the system because these filibusters are not in any way construed to 
enhance debate.
  These are to prevent debate, prevent us from getting to a bill to 
debate it, prevent an agenda from ever being considered by this body. 
Here we have over 30, and over 20--in recent years just a huge number 
of efforts to prevent these bills from ever coming to the floor to be 
debated. How can we weigh in and address the big issues facing 
our Nation if we cannot get the bill on the floor to begin with? Again, 
in recent times, and enormous change in strategy used by the minority 
to prevent debate.

  Here we have amendments. The first time, about 1962, the filibuster 
was used on an amendment because people envisioned the filibuster as 
something to be used at the end of the process on a bill when all the 
different pieces have been put in place, and you say: Is their a core 
principle compromise after I have fought and won or fought and lost? 
But then folks got the clever idea: We can do this on any debatable 
motion, including an amendment. So the number of filibusters on 
amendments also grew enormously from the early 1970s forward.
  Final passage? This is where we see the traditional role of the 
filibuster, one or two or three a year over these many years from the 
1920s on through the 1960s. Stop the chart right here in the middle. 
That is what the filibuster was, very occasional battles over core 
principles. Then we have 1970 and look what happened. We had this 
explosion of 25--that was 1974. What happened as a result?
  In 1975 there was a big battle on this floor about changing the rules 
because this abuse was preventing the Senate from doing its business. 
So in 1975 we have this enormous battle. There are three votes in which 
a simple majority says, yes; we can change the rules by simple 
majority, and we intend to do so. The majority leader who opposed this 
finally said: OK, I get the message. A simple majority is prepared to 
change the rules if we do not address the paralysis of the Senate, and 
they changed the rules.
  The compromise was to change it from 67 required to close debate down 
to 60, from two-thirds down to three-fifths. You can see the number of 
filibusters then dropped off, and they were resolved more easily.
  But what do we have? Again, this enormous explosion until 2012, 35 
filibusters. We are deeply afflicted. This is

[[Page S8271]]

why we are having this conversation over how to save the Senate from 
itself, from this instrument of the objection to a simple majority that 
is being used to thwart the ability of the people's elected leaders 
from addressing the issues our Nation faces.
  After a bill has gone through passage, it goes over to the House or 
the House bill comes to the Senate. When both Chambers have passed the 
same bill in different forms, then you need to get it to negotiation. 
That is done through a conference committee. It used to be nobody 
filibustered a conference committee. Here we have in 1972 the first 
filibuster on a conference committee.
  Why would you object to getting the three motions done that are 
required to get a bill into negotiation with the House? That doesn't 
facilitate debate in any conceivable way. But it was an instrument to 
eat up the time of this Chamber so they could not address other issues. 
It is like walking knee deep in molasses. You just cannot get very far 
very quickly.
  Then we see this huge explosion in using this filibuster, the 
objection to a simple majority, in the latter part of this last decade. 
The result has been this: We have basically given up on conference 
committees. It is too hard to get to conference. So we have informal 
negotiation, or we have kind of a process called ``pinging,'' where we 
change the House bill after we pass our own version, we change it, send 
it back over, they change it, send it back over to us--not a very 
effective way to negotiate a compromise that can pass in the same form. 
And until and unless it passes both Chambers in the same form, it 
cannot get to the President. So this was a huge change as well.
  Then we have, after conference committee, reports coming back from 
conference. Now you have the same version; it normally has not changed 
very much. Again, we see this explosion--once, basically, in about 
1945, and then about 1970 an explosion, and then we see the dropoff in 
part because we just started giving up on conference committees.
  In each one of these debatable motions we have a problem, a problem 
that has grown enormously from 1970 forward, the last 40 years. This is 
something I have witnessed within my own lifetime. I came here in 1976 
as an intern for Senator Hatfield. I was assigned to the Tax Reform Act 
of 1976. In those days there was no camera on this floor and there was 
no e-mail, so essentially the only way the Senator had to monitor a 
bill was that he or she would meet with a staff member outside these 
doors where the elevators are.
  I would sit up in the staff gallery and monitor the debate on the Tax 
Reform Act, and I would rush down with each vote, meet Senator Hatfield 
coming out of the elevators, and brief him on the details of the 
amendment. There were sometimes a couple of layers of motions, and I 
would proceed to say: Here is what the folks are thinking about back 
home; here is what folks back home are thinking about this issue.
  He would come back to vote, and I would rush back upstairs and see 
how he voted, how everyone else voted, how it came out.
  I would rush back and start making notes on the next debate. Well, 
this Chamber deliberated on amendment after amendment. When one 
amendment was done, then a series of folks near the Chamber would raise 
their hand and call on the Presiding Officer. Whoever the Presiding 
Officer called on--and according to the rules, the Presiding Officer is 
supposed to call on the first person he or she hears--and that person 
would present the next amendment and then the debate would begin. They 
would debate for an hour, hour and a half, and then they would vote.
  These amendments were germane and relevant to the issue. They had to 
do with different aspects of the Tax Code: Was it Employee Stock 
Ownership Plan, ESOPs. That was something Senator Hatfield cared a 
great deal about. Was it the change in a provision regarding teachers' 
home offices? It seemed that was something every teacher in Oregon was 
writing us about. We debated these issues, we decided these issues, and 
it was a simple majority. That is the way the Senate deliberated and 
decided on issues over our history until the last 40 years when this 
massive expansion of the use of the objection to the simple majority 
has paralyzed this body.
  I thought it was interesting to see this cartoon. It says: I will 
tell you all the reasons we shouldn't reform the filibuster. I assume 
it is depicting a Senator on the floor of the Senate. And it says, No. 
1, it will restrict my ability to frivolously stymie everything. And 
then the Senator says, No. 2--well, the Senator thinks about it, 
grimaces, frowns, and cannot think of any other reason that we should 
not reform the filibuster other than the ability to frivolously stymie 
everything. Finally the Senator says: How long do I have to keep 
talking? A little farther down here it says: You can read recipes for 
paralysis.
  Well, that is what we have in the Senate right now. Due to the 
extraordinary abuse of the filibuster, we have a recipe for paralysis.
  It is time to do something about that. The first thing we should do 
is eliminate the filibuster on the motion to proceed. That was the 
first step in the process I showed in the earlier chart. It doesn't 
make sense to debate whether to debate. We should be able to vote on 
whether the bill comes to the floor. Let's have a couple of hours to 
debate that. Then we have a simple majority vote. Either we decide we 
are taking up that bill or nomination or we are not taking up that bill 
or nomination, and we go on to the next order of business. We should 
not waste a week of Senate time trying to decide whether we are going 
to have a debate on a bill or nomination.
  Those listening may wonder why there is a week of wasted time. Well, 
it works like this: First of all, we have the motion and then we have 
debate that takes place and we think we will wrap it up, but we don't. 
Then we think we have a motion to close debate, but to do that there 
has to be a petition signed by 16 Senators. So on day three we get the 
petition. Then the petition has to ripen, which means it has to sit 
over on intervening days. So we start the debate on Monday, sign the 
petition on Tuesday, and now we cannot vote on whether to close debate 
until Thursday. Then if we are able to vote and get 60 votes, we have 
to have 30 hours of postcloture debate. Now the week is gone. The 30 
hours wipes out Friday.
  If that is done multiple times on a bill, it means multiple weeks are 
wiped out with nothing productive. There is no productive conversation 
on this floor, no point and counterpoint, no insights with people's 
life experience, no questions asked or questions answered. Nothing 
productive gets accomplished.
  If we want to sum up all of the filibusters on all of these different 
motions, here is one way to compare it. Lyndon Johnson was the majority 
leader for 6 years. During those 6 years, he had to file one petition. 
Technically it is called a motion, but actually 16 people have to sign 
a petition. He had one motion to end debate in 6 years.
  Now we have Harry Reid who has been the majority leader for 6 years. 
As this poster says, ``387 and counting.'' I think the number today is 
391. There have been 391 1-week delays in 6 years. How many weeks are 
there in 6 years? Well, that would be about 312 weeks. Is that right? 
Yes, 312. So that is 312 weeks, and as it says here, ``387 and 
counting''--390 weeks wasted.
  No wonder we don't get things done, such as our nominations for the 
executive branch or the judiciary, our appropriations bills, our 
authorizing bills, or the policy changes that are going to make a big 
impact on the challenges we face in America. As we can see here it is 1 
versus 387. This is now a couple of days old, so it is 391 and 
counting. We cannot allow this to continue. We have a responsibility to 
the people who elected us to be a seasoned, deliberative body.
  Some say: Well, this is what the Senate is all about. There is a 
story recited by historians that says that is apocryphal. It is a story 
about President Washington and Thomas Jefferson. They are having a 
discussion. Washington says the Senate is meant to be the cooling 
saucer. Just as we poured our hot tea out of our cup and into our 
saucer to let it cool so we can drink it, the Senate is meant to be a 
cooling saucer. Well, perhaps the Senate was meant to be a cooling 
saucer, but it was not meant to be a deep

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freeze. The cooling saucer concept is that the Senate is a little more 
detached from the immediate fashion of the moment. It is a little more 
detached because we are elected for 6-year terms, not 2-year terms. It 
is a little more detached because we are staggered so some have been 
here 2 years, some 4 years, and some 6 years. After their first term, 
then they will be here many years thereafter. It is supposed to have a 
little more distance on the immediate trends because in the beginning 
we were indirectly elected by State legislators. Of course, we changed 
that. We changed that in the early 1900s because of the abuses that 
occurred and went to directly electing Senators.
  The idea was longer terms, a little bit more deliberation, a smaller 
body of folks in the Senate, two per State. That was so we could 
deliberate thoughtfully, not so we could not deliberate. There is a big 
difference. This is unacceptable. If this majority leader were a 
Republican and the Democrats were doing this, it would be unacceptable. 
It is unacceptable for either minority party to devise and execute a 
strategy that prevents this body from doing its work.
  The thing that is diabolical about the filibuster is that in the 
procedural sense it is invisible. So we have this unanimous consent 
request--this courtesy--is everyone ready? Should we vote? When the 
Senate was a small Senate, and prior to 1970, virtually the answer 
was always yes, except for those rare moments on issues of deep values. 
But now it is done as a minority party strategy to obstruct, and it is 
done on virtually every motion. And because it is an objection to a 
vote, it has never required people to talk on the floor. Of course, we 
all believed someone would talk on the floor because that is the way it 
was done. If someone violated the majority principle, that person had 
the courage and principle to come to this floor and explain that to 
colleagues and the American people. That is no longer true. Now there 
is no courage. It is in hiding.

  I will give an example. We had a bill on the floor in 2010. It was 
called the DISCLOSE Act. The DISCLOSE Act said that for every donation, 
the public should know where it comes from. If it comes from ranchers, 
people should know about it; if it comes from Oklahoma, people should 
know about it; if it comes from the tobacco industry, people should 
know it. The people have a right to understand who is financing the ads 
they are seeing or who is financing the literature they are seeing. 
That is part of a transparent and accountable democracy.
  We had 59 folks on the floor of the Senate say: Yes, we have debated 
enough, let's close debate, and we could not get the 60th vote. Not 
because there was more to be said, but no one among those who were 
voting for additional debate would want to be seen debating. They 
didn't want to be seen defending secrecy. They didn't want to be seen 
defending the creation of vast pools of cash that flowed freely between 
super PACs and dumped into campaigns at the last second with nobody 
knowing where it came from. They didn't want anyone to know where vast 
pools of money were going under deliberately misleading names. Maybe it 
was a group that wanted to keep some polluting factory open, but they 
called themselves the Blue River Coalition or the Blue Skies Coalition 
because the money could not be traced. No one wanted to come here and 
debate that, but they voted for a debate. That is the silent secret 
filibuster that has wiped out accountability to colleagues and 
accountability to the American public. We need to end that.
  Right now the minority leader has come down and said several times he 
doesn't like this idea. He doesn't like it at all. He has called those 
of us who promoted transparency and accountability sophomoric. Well, I 
didn't think that was particularly a polite thing to say, but let's say 
we have a difference of opinion. I am out here advocating for this 
Chamber to be able to do its responsibility before the American public. 
I am out here advocating that if someone votes for more debate, they 
have to have the courage of their convictions to make their case before 
their colleagues and come to the floor. If they don't have the courage, 
then we go ahead with the simple majority vote. It is that 
straightforward.
  There are some folks who say: We can already have a talking 
filibuster under current rules. We don't need to change the rules. I 
found this interesting because the fact is that all of the writing 
about the theory and historical efforts--I will say one thing, and that 
is that over any length of time it is impossible for the majority to 
keep a filibustering minority talking. Why is that? It is because it 
takes the majority of 51 Senators to create a quorum and force 1 
filibustering Senator on the floor. That has been a myth that some of 
my colleagues have been perpetrating. I thought I would go over it a 
little bit more. There was a recent book by two very well-steeped 
scholars. Richard Arenberg was one of those scholars. Richard Arenberg 
was an aide to Senator Carl Levin as well as to Senator Tsongas and 
majority leader George Mitchell, so he has had a long career of 
experience here on the floor of the Senate. The other scholar is Robert 
Dove. Who is Robert Dove? He was a Parliamentarian in this Chamber. He 
spent his time working here from 1966 until 2001. In the chapter of 
their book entitled ``Bring in the Cots,'' they explained how this 
works. Here are a couple of passages between pages 146 and 152 that I 
thought summed it up:
  Those who call for forcing the filibusterers to talk either ignore or 
are unaware of the fact that for a sizable organized minority, and 
certainly for a minority of forty-one senators or more, lengthy 
sessions are a little more than exercises in scheduling.
  The filibusterers are able to take turns holding the floor, and since 
they can demand the presence of a quorum at virtually any moment, it is 
the majority that carries the heavier burden because they need to keep 
fifty-one senators nearby. If the filibusterers call for a quorum and 
it is not produced, under the rules the Senate must adjourn.
  So they lay out the theory, and they go on for several pages doing 
this. They also quote some other experts. One of those they quote is 
Franklin Burdette. He was a scholar who wrote ``Filibustering in the 
Senate.'' It is referred to as the classic text on the 
filibuster. Franklin Burdette said this:

       Any experienced maneuverer in the Senate knows that a 
     determined group of filibusterers, before they are themselves 
     exhausted, can usually manage to wear out the patience and 
     endurance of the majority.

  Dove and Arenberg go on to quote commentator Elizabeth Drew and she 
says this:

       Many people now insist that those who use filibusters 
     should actually be made to stand up and talk through the 
     night, but there's a reason that doesn't happen anymore. In 
     the 1970s, Majority Leader Mike Mansfield realized that the 
     real punishment was not to the small band of all-night 
     speakers, but to the majority party, which had to keep a 
     quorum on hand, sleeping on the famous cots near the Senate 
     floor, lest the person conducting the filibuster suddenly 
     make a motion to adjourn the Senate, thus defeating the 
     purpose of keeping them talking.

  Then Elizabeth Drew quotes Historian Ritchie who says:

       The all night filibuster wore down the majority much faster 
     than it did the minority, and majority leaders haven't used 
     the tactic since.

  But then Dove and Arenberg go on to cite the historical record, go 
through the different filibusters that have been on this floor, and one 
of the examples they cite is majority leader Lyndon Johnson's 1960 
effort to defeat a civil rights filibuster:

       Senator Johnson's effort did not work. . . . Civil rights 
     supporter Senator William Proxmire, Democrat from Wisconsin, 
     described the scene.

  Now we are quoting Proxmire. He said:

       We slept on cots in the old Supreme Court chamber and came 
     out to answer quorum calls. It was an absolutely exhausting 
     experience. The southerners who were doing the talking were 
     in great shape, because they would talk for two hours and 
     leave the floor for a couple of days.

  Then Arenberg and Dove proceed to take a look at other cases, 
including majority leader Robert Byrd's 1988 effort to break a 
filibuster against campaign finance reform:

       Senator Alan Simpson frustrated this effort for much of the 
     time, simply by repeatedly requesting quorum calls. . . . The 
     bottom line is the bill never passed. The minority that was 
     blocking the bill was able to sustain their filibuster 
     through a record eight cloture votes. In the end, Majority 
     Leader Byrd had to back down.


[[Page S8273]]


  In most theory and practice, we can't sustain a process of having 
those who are filibustering actually debate what they voted to debate. 
So what many of us are proposing is that we change the rule and say 
that if a Senator votes to debate, then that takes a minimum of 41 
saying, yes, we want more debate, and of those 41, at least 1 has to be 
on the floor talking. This is only fair to the American people. They 
turn on C-SPAN and they see quorum calls. They see silence, and they 
wonder why the Senate isn't working on that jobs bill they had on the 
floor a few days before. They don't know it is still on the floor, but 
the silent secret filibuster is being used to prevent the Senate from 
proceeding and nobody is even willing to talk because they don't want 
to be seen in public defending their position. That needs to end. This 
process in which Senators do not have the courage to come down and make 
their case before the American people has to end because only if folks 
make their case on the floor can the public weigh in, can colleagues 
weigh in and say: Yes; you are a hero. Thank you for your filibuster 
because you are defending some core principle I too share or you are 
defending some key interest for my State that I too care about or they 
can weigh in and say: You know what. You are a bum. You aren't making 
any points. You haven't described any position. You are simply 
paralyzing the Senate or, worse yet, I disagree with you. You are 
defending big, vast pools of secret funds used to corrupt the American 
political system. Why would you do that? Why don't you, my Senator, 
join the next cloture vote to close debate and get on with solving this 
problem of vast pools of secret funds or some other key issue.
  The Presiding Officer and I have been here just 4 years. Had I not 
been here as a young man and seen this Chamber as one that deliberates 
and decides, I wouldn't feel so passionately because I wouldn't 
understand what we had lost. What we have lost is something that 
started with a constitutional vision of the design of this Senate, 
including the courtesy of hearing everyone out before making decisions, 
and what we lost in losing the deliberative, decisionmaking body was 
everything--everything in terms of this body upholding its 
responsibility to address the big problems facing America.
  When we come into session on January 3, we are going to have a debate 
over rules. There are some who say let's get rid of the debate on the 
motion to proceed, the filibuster on the motion to proceed. We know 
what happens then. We get a double down in the paralysis at the later 
stage at which a bill goes through. At a minimum, we must change this 
dynamic of the secret silent filibuster and say if a Senator votes for 
more debate, a Senator must make their case on this floor.
  I encourage citizens around this country--citizens who have watched 
this Chamber decline and be broken and fail to address the issues we 
should address--to weigh in with their Senators and their home States 
and let all the Senators know it is irresponsible and unacceptable for 
us to continue the current procedures in which we are so paralyzed and 
incapable of fulfilling the work that needs to be done.
  Thank you. I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Manchin). Without objection, it is so 
ordered.


 Unanimous Consent Agreement--Executive Calendar Nos. 834, 835, and 877

  Mr. REID. Mr. President, I ask unanimous consent that at a time to be 
determined by the majority leader, after consultation with the 
Republican leader, the Senate proceed to executive session to consider 
the following nominations: Calendar Nos. 834, 835, and 877; that there 
be 30 minutes for debate equally divided in the usual form; that 
following the use or yielding back of time, the Senate proceed to vote 
without intervening action or debate on Calendar Nos. 834, 835, and 
877, in that order; that the motions to reconsider be considered made 
and laid upon the table, with no intervening action or debate; that no 
further motions be in order; that any related statements be printed in 
the Record; that President Obama be immediately notified of the 
Senate's action and the Senate then resume legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Unanimous Consent Agreement--H.R. 4310

  Mr. REID. Mr. President, I ask unanimous consent that at a time to be 
determined by the majority leader, after consultation with the 
Republican leader, the Senate proceed to the consideration of the 
conference report to accompany H.R. 4310, the Department of Defense 
Authorization Act for Fiscal Year 2013; and that there be up to 1 hour 
of debate equally divided between the two leaders or their designees 
prior to a vote on adoption of the conference report.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                         Critical Job Programs

  Mrs. GILLIBRAND. Mr. President, I would like to engage my colleague, 
the Senator from Iowa, in a colloquy.
  I would first like to take this opportunity to commend Senator 
Harkin, Senators Inouye and Cochran and the rest of the Members of the 
Senate Appropriations Committee for crafting a responsible, commonsense 
and critical supplemental appropriations bill to allow New York, New 
Jersey, Connecticut, and other impacted areas recover from the 
devastation left by Superstorm Sandy.
  I would like to highlight an important aspect of the recovery effort, 
and that is addressing the employment and workforce crisis following 
the storm that has exacerbated the already chronically high 
unemployment rates in many of the impacted areas in New York and 
beyond.
  The human, infrastructure, and economic devastation that Superstorm 
Sandy inflicted upon New York has been crippling and only comparable 
most recently to the tragedy of the September 11 terrorist attacks. 
While it will be months before the economic impact of Sandy can be 
fully assessed, particularly as it relates to the dislocation of 
workers, initial figures clearly indicate a long economic recovery for 
businesses and employees, particularly given that the most densely 
populated region of the United States was at the center of the storm. 
In fact, the U.S. Bureau of Labor Statistics reports that four of the 
five counties with the highest number of labor force participants per 
square mile were among those hardest hit by Sandy. In addition, all 26 
of the counties designated as major disaster areas are among the top 10 
percent of U.S. counties in terms of labor force density, highlighting 
the sheer number of workers impacted by Sandy.
  Preliminary estimates are that Sandy destroyed 265,000 businesses in 
New York State and 189,000 businesses in New Jersey, the two hardest 
hit States. To put these figures in perspective, it is estimated that 
18,700 businesses were impacted by the devastation of Hurricane Katrina 
in 2005. The estimated 265,000 New York businesses impacted employed 
approximately 3.8 million workers with over $264 billion in annual 
wages. It is also worth noting that preliminary estimates point to the 
fact that 90 percent of the impacted firms are small businesses. Worth 
noting is also the surge in applications for jobless benefits 
increasing by 78,000 to 439,000 in the week of November 10, the highest 
since April 2011, mostly because a large number of applications were 
filed in States damaged by the storm. Given these staggering numbers, 
we can only assume that the recovery efforts of our impacted businesses 
and displaced workers will be long and difficult, demanding investment 
in government programs that can effectively help get businesses back on 
their feet and put people back to work.
  While all levels of government have been very responsive in 
addressing the immediate emergency needs, it is essential to understand 
the lessons of previous catastrophic events when designing and 
implementing appropriate, long-term strategies for the impacted 
region's recovery. In particular, business closures and layoffs 
resulting from the storm's devastation could prolong the economic 
distress Sandy has caused without a dynamic, immediate, and 
comprehensive workforce initiative to head off these impacts.

[[Page S8274]]

  It is well recognized that small- and medium-sized business are the 
backbone of our economy, employing half of private sector workers and 
accounting for the creation of two out of three new jobs in the United 
States. Immediate support and stabilization is critical to full 
recovery of small businesses, which, as noted, make up about 90 percent 
of the 265,000 estimated New York firms impacted by Sandy. Business 
continuation, including keeping the doors open while loans, insurance 
payments and other incentives are realized, is essential. One Federal 
investment worthy of consideration is temporary employment support, 
which will help maintain both business operations and help prevent the 
loss of jobs through the recovery, reducing the need for unemployment 
and other Federal benefits.
  In addition to Federal investment in workforce retention programs, 
rapid response in identifying and servicing impacted businesses and 
unemployed workers is required. As recovery efforts move forward, 
Federal, State, and local authorities should look for ways to invest in 
and partner with the extensive networks of community-based 
organizations, economic development groups, as well as organized labor 
and affiliated management to deliver workforce development services, 
including outreach for job opportunities, job training, and placement 
for in-demand occupations and other related reemployment activities.
  For example, the Consortium for Worker Education, CWE, a nonprofit 
agency specializing in workforce preparation, industry specific 
training, and employment services has partnered in the past with all 
levels of government and other community based organizations to deliver 
job placement services and temporary employment support programs to 
ensure worker retention in the aftermath of disasters. Their efforts 
alone have helped train and put back to work thousands of people during 
similar workforce crisis situations as New York finds itself in now 
following Sandy.
  By investing in innovative programs like CWE's, workforce recovery 
efforts will more effectively take into account the unique needs of 
each impacted area and deliver tailored services to impacted businesses 
and displaced workers alike.
  Mr HARKIN. Mr. President, let me commend the Senator from New York 
for highlighting the critical employment and workforce needs in the 
areas impacted by Superstorm Sandy. Now more than ever, Congress must 
give our States and localities that have been hard hit by Sandy the 
tools and resources that help dislocated workers return to their jobs 
or, if necessary, find new, good-paying employment. The supplemental 
appropriations for disaster assistance bill's funding for dislocated 
workers is just one step in the recovery process, but an important one 
to help workers get back on their feet.
  As New York, New Jersey, and the other impacted areas move forward 
with their recovery, I will continue to work with Senator Gillibrand so 
that the short- and long-term needs of impacted workers are addressed.
  Ms. COLLINS. Mr. President, I rise today to engage my colleague, 
Senator Tester, in a colloquy regarding language he authored in this 
bill that would amend the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act. This language would authorize chief 
executives of federally recognized tribes to submit a request for a 
major disaster or emergency declaration directly to the President of 
the United States.
  The principal effect of this language would be to eliminate the 
current requirement that tribal chief executives submit such requests 
to the Governor of the State in which the tribal reservation is 
located; tribal chief executives would be permitted to submit such 
requests to the President without first obtaining the Governor's 
approval.
  The tribes of Maine--the Penobscot, the Passamaquoddy, the Houlton 
Band of Maliseet Indians, and the Aroostook Band of Micmacs--have a 
jurisdictional relationships with the State of Maine which is unique 
among the 50 States. Although, based on my analysis, this language 
would not in any way affect the relationship between the State of Maine 
and the tribes of Maine, to make this clear, I would like to pose some 
questions to the Senator regarding the intent of the language.
  The jurisdictional relationship between the tribes of Maine and the 
State of Maine is set forth in the Maine Indian Claims Settlement Act 
and the Maine Implementing Act, the latter having been enacted by the 
Maine State Legislature and ratified and approved by Congress when it 
enacted the Maine Indian Claims Settlement Act.
  If the language the Senator authored was to be enacted into law, 
would this in any way change the relationship of the State of Maine and 
the tribes of Maine?
  Mr. TESTER. No. I understand that the Maine Indian Claims Settlement 
Act not only recognized the uniqueness and significance of that 
jurisdictional arrangement but specifically provided that, following 
the enactment of the Settlement Act, no future congressional 
legislation would in any way alter or affect that arrangement unless 
Congress specifically so provided. This requirement is set forth in 
Title 25, Section 1735, of the United States Code.
  Ms. COLLINS. Did the Senator take Section 1735 into account in his 
drafting of this legislation?
  Mr. TESTER. Yes. I understood that, given the requirement that 
Section 1735 imposed on Congress, this provision would not and should 
not apply within or to the State of Maine unless Congress specifically 
so provided. Knowing that Section 1735 operated to that effect, I did 
not include specific language making this legislation inapplicable to 
Maine, as such language was unnecessary. Our Senate colleagues should 
understand that this legislation in no way supersedes Section 1735.
  Ms. COLLINS. Did my colleague also consider the unique foundation for 
the Maine Indian Claims Settlement Act and the Maine Implementing Act, 
as well as the subsequent acts for the Houlton Band and the Aroostook 
Band?
  Mr. TESTER. Yes, I understood that the Maine Indian Claims Settlement 
Act and the Maine Implementing Act constitute statutory settlement 
documents. Therefore, our colleagues should understand that the current 
legislation respects the intent of the parties to Maine's historic and 
complex settlement and does not in any way disturb the settlement 
agreement or the statutory construct on which that settlement rests.
  The intent of this legislation is to improve communication, response 
times, and recovery of disasters in Indian Country while better 
respecting tribal sovereignty. I understand that tribes in Maine have a 
unique relationship with the State of Maine and nothing in this Act 
should be interpreted to change or degrade that relationship.
  This legislation, if enacted into law, would in no way change the 
relationship between the State of Maine and the tribes of Maine. That 
means that, even after the enactment of this legislation, if any of the 
tribes of Maine wished to obtain a declaration from the President that 
a major disaster existed, they would have to bring their request to the 
Governor of Maine, who would have to consider the request in accordance 
with existing standards and procedures but who would retain the 
discretion to deny that request.
  Ms. COLLINS. I appreciate the time and attention of my colleague from 
Montana, Senator Tester, regarding the intent of this language, as well 
as the care that he took in crafting this legislation.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so 
ordered.

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