[Congressional Record Volume 158, Number 173 (Wednesday, January 2, 2013)]
[Senate]
[Pages S8647-S8654]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      A MOST DYSFUNCTIONAL SENATE

  Mr. SESSIONS. Mr. President, I want to say some things that are 
pretty hard right now. I say them out of affection and concern for the 
Senate of the United States and for the way we are conducting the 
people's business. I believe they ought to be heard and all of us ought 
to think about them. Some of our new Members have not been involved in 
a Senate that functioned differently than the one in which we are 
participating today. They do not know how a real Senate should operate. 
We have gradually, and at a very accelerated pace in more recent years, 
made some very unwise choices about how we do the people's business.
  This has been the most dysfunctional Senate in history. The majority 
has abused and altered the powers and duties of the Senate more than at 
any time in history, to the detriment of the institution and to the 
detriment of the public interest.
  That is a hard thing to say, but I truly believe something very 
unfortunate has been occurring and people have not talked about it. I 
would also criticize the Republicans a bit here because we are supposed 
to be the loyal opposition. The majority always has pressures on it to 
advance an agenda and the loyal opposition has the duty to advocate for 
its views and make sure the institution is handled in a way that 
protects the institution as the majority seeks to advance its agenda. 
Frankly, I do not think we have done a good enough job at that. But I 
would say the majority is using tactics--I refer to them as postmodern 
tactics--to advance an agenda. And in so doing has done damage to the 
institution.
  Our leader, Senator Reid, will not acknowledge a single error in his 
aggressive leadership and movement of legislation. He simply blames all 
the problems on Republicans who, he says, are obstructing his vision, 
his goals, and the agenda that he and his team want to advance. Not 
satisfied that these actions have brought the Senate to one of its 
lowest levels of public respect in history, if not the lowest, the 
majority party is now demanding even more power.
  The majority leader and the majority are threatening to violate the 
rules of the Senate and change the rules of the Senate so they can grab 
even more power. I would say the majority leader himself has obtained 
more power than any leader in history, and now it appears that he is 
asking for more.
  We don't like to talk about this. We are reluctant to talk about what 
is happening and be as critical as I am today, but in fact we have been 
silent too long. The bottom line is that this issue is not just about 
politics. This issue is about the historic role of the Senate and our 
constitutional order.
  This Senate is not functioning as it should, and that is for sure; we 
all may agree on that. The question is, Why? Perhaps it was due to the 
2010 election when the Democrats took a shellacking and lost six Senate 
seats. At that point there seemed to be a doubling down of the desire 
and ability of the majority leadership to dominate this institution. 
Actual Senate rules and actual codified law--and certainly the 
traditions of the Senate--were eroded. They were changed and run over.
  The Republicans who fought back were called obstructionists. I don't 
know, but maybe when someone has been in power for a long time--as the 
leadership and the Democratic side has--they begin to think they are 
entitled to get all these things done. They believe they are entitled 
to bring up bills and not have Senators offer amendments so they can 
slow down the train and pick and choose what amendments the opposition 
can offer and how long they can debate. Maybe this goes in their mind 
in a way that when they get in that cocoon of power, everybody becomes 
an obstructionist when they simply insist on the rules of the Senate.
  I always thought one of Senator Reid's charms--the old Harry Reid I 
knew--was that he could actively and aggressively talk politically and 
stick it to the opposition. He always got to the point. Sometimes I 
could admire his skills. He could do it with a smile. We all tolerate a 
little political license and a certain amount of political exaggeration 
in the world we live in, but I thought Senator Reid would not seek to 
advance powers beyond what he understood were the limits of the 
majority in the Senate because he has been in the minority, and he has 
operated there. He had to fight for his rights to have full minority 
rights. So I am a little baffled. I am not sure I understand this new 
Senator Reid, and I am not sure all of the decisions he is making are 
good.
  Now we are talking about a nuclear option that would break the rules 
of the Senate to change the rules of the Senate. That is a very 
dangerous thing, and I do not believe it is necessary.
  Let me describe what is happening. I want to make a complaint about 
how this Senate has been operating. I said it is dysfunctional. The 
majority has said the reason it is dysfunctional is because Republicans 
object too much and they are obstructionists. Let me point out some of 
the things that are actually occurring.
  First, I would dispute that. I don't believe it is accurate that 
Republicans object too much and are obstructionists. I don't believe 
Republicans are any more vigorous in their defense of their ideas than 
the Democrats were when they were in the minority when I came to the 
Senate 16 years ago. I know they were not. So it is the little 
constraints that we operate under every day, such as rules, tradition, 
actual statutory law that controls how we conduct our business that are 
being eroded, gone around, and run over. These are the things that make 
the institution what it is. A person has to be able to accept the fact 
that those who disagree with them have at least some power and a right 
to have their voices and ideas heard and their amendments brought up. 
That is one of the great traditions of the Senate.
  So I say--sort of metaphorically--I am going to tack on the walls of 
the Senate a few charges. I don't take pleasure in this, but it is time 
to tell the truth about it.
  First, to a degree unknown in the history of the Senate, the majority 
leader has used his power under rule XIV to bring bills straight to the 
floor without normal committee process. They are violating and avoiding 
the

[[Page S8648]]

process that goes on in committee where Members offer amendments, have 
debates, call expert witnesses, and consider these things. It may take 
weeks or months, but finally a bill ripens and it is then brought to 
the floor.
  The majority leader does have the power under rule XIV to bring a 
bill to the floor without having had that committee process. The 
committee process is public, the debate is transcribed, and the 
amendments in the committee are voted on and recorded. It holds the 
Senators accountable so the public and their constituents know what 
they have done, how a bill is progressing, and at the end of the day 
whether they think they like it or not.
  For example, this last-minute fiscal cliff tax legislation didn't go 
through the committee process. It was a big, important piece of 
legislation. We have a finance committee that is supposed to debate and 
decide tax issues. That did not occur with this bill. Additionally, no 
amendments were allowed to this bill--because it was brought directly 
to the floor by the majority leader. It is a very bad process. We are 
too often using midnight-hour votes to ram through big, 
historic legislation that has never been fully debated. We didn't even 
have an opportunity to fully read the legislation the night before 
last. That is not the way to run the Senate. What we know now from a 
preliminary estimate from the Congressional Research Service is that 58 
percent of the bills which came to the floor of the Senate did not come 
through committee during this Congress. Nearly 60 percent of the 
legislation was not brought through traditional Senate committee 
procedures, and that is not good.

  Second, the majority leader and the majority were quick to block 
President Bush's recess appointment attempts. Some of them were 
dubious; some of them were probably OK. They had the majority. They 
have done nothing to defend the Senate's historic and constitutional 
role when President Obama made a much more blatant recess appointment. 
The institution itself was weakened by this act. The Senate has to 
defend its legitimate confirmation powers, and there is a limit on the 
President's ability to initiate recess appointments.
  The majority leader--righteous to defend it against President Bush--
who is now the leader of this institution, has allowed President Obama 
to weaken the confirmation process. That goes beyond just the politics 
of the moment. Maybe it furthers a long-term agenda, but clearly does 
harm to the long-term interest of the Senate.
  Third, the majority has directly violated the formal role of the 
Senate and plain statutory law that requires the Senate to produce a 
budget every year. The Congressional Budget Act of 1974 sets up a 
public legislative process--a public process--by which both the House 
and Senate must openly confront the Nation's fiscal challenges every 
year and lay out a plan. For 3 years the majority in this Senate has 
refused to comply with the law simply to avoid public accountability.
  The majority leader said it would be foolish to have a budget. Those 
are his words. Senator Conrad, chairman of the Budget Committee, was 
clearly uneasy about this. Senator Conrad was determined--at least in 
his committee, which I serve on with him--to bring up a budget. We were 
going to discuss it, mark it up, and then it would be up to the 
majority leader whether he would ever bring it to the floor because he 
didn't bring it to the floor the year before.
  We have now gone 3 years without bringing a budget to the floor. 
Apparently, the majority had a caucus within a day of the Budget 
Committee markup occurring. My staff had studied it, made amendments, 
and we were going to offer ideas to the budget. But the markup was 
canceled. Only a shell of this matter went forward. There were no 
votes, no formal budget process or budget offered. That is directly 
contrary to the statute of the United States.
  The Budget Act requires an open process with committee votes, floor 
votes, and 50 hours of debate in which Senators who propose or oppose a 
budget have to do so publicly and with accountably. People should be 
able to offer amendments so we can have a vote on them.
  Senator Reid was thinking it was foolish to have his Members actually 
have to vote on concrete budget proposals. He didn't want them to do 
so. Apparently, the previous election had not gone well enough, and he 
wanted to protect his Members from those votes. That is what he meant 
by being foolish. It was foolish politically for the Democratic Party, 
but certainly we know it was not foolish for the American people that 
the Senate would actually discuss the financial future of our country 
and bring up a budget. A budget can be passed with a simple majority. 
Republicans cannot filibuster a budget. They get to offer amendments--
for a change around here--but they don't get to filibuster it. They get 
an up-or-down vote--50 votes--after 50 hours of debate.
  The leader violated plain statutory law, which requires us to have a 
budget by April 15 because he didn't want his Members to be 
accountable, but he blames Republicans for being obstructionists.
  Fourth, for the first time in history, the Senate has abdicated the 
most fundamental requirement of Congress: responsible management of the 
money that the American people send here. We violated that requirement. 
Not a single appropriations bill was brought to the floor this year--
not 1. That is the first time in history. We researched this--there has 
never been a time in history when not a single appropriations bill was 
brought up before the Senate. Frequently we don't get them all done, so 
then a continuing resolution has to be passed to keep the government 
from being shut down.
  Congress is supposed to pass the appropriations bills telling the 
President, and all his Cabinet people, how much money they have to 
spend in the next fiscal year that begins October 1 of every year. The 
President cannot spend any money Congress has not appropriated. That is 
a fundamental requirement of the Senate. That is not just an idle idea, 
it is a fundamental requirement.
  So we get to the end of the year and nothing has been done so we 
passed a continuing resolution, a CR. We stacked 13 bills--1,000-plus 
pages of spending--in one continuing resolution, and we just funded the 
government with no amendments, no debate, and no discussion for 6 
months. That is no way to run a government. Each one of those bills is 
supposed to be brought up: defense, highways, education, health care. 
People who have amendments are supposed to bring up ways to save money 
or spend more money on each one of those bills, and we are supposed to 
vote on them. For the first time in history we did not do that.
  Perhaps this was a clever political maneuver. It avoided public 
debate and public accountability because we had an election coming up 
in November and we don't want to vote before an election.
  Another example is the Defense Authorization Bill. The fiscal year 
concluded this year without us passing the Defense Bill. The Senate has 
passed the Defense Bill for 50 consecutive years. Yet, just a few weeks 
ago, well after the elections, we were finally able to pass the Defense 
bill.
  The House has sent over a budget that lays out a firm financial 
course for America. They voted on that budget in public. They were 
prepared to defend and explain their budget. It would have changed the 
debt course of America. But what did the Senate do? Nothing. Did 
Republicans filibuster the budget? Did they block a budget from being 
brought up? No. Republicans demanded that we go through the process. We 
pleaded with them to have a budget hearing in the committee. We asked 
them to bring up the budget and noted that they have the power to pass 
a budget with a simple majority. That is a burden a majority party has, 
really--to bring up a budget and pass it. It is not easy. It is a 
challenge. But it is the first time we have ever gone 3 years--or maybe 
the first time ever we have gone through the situation in which they 
refused to even bring up a budget. We have had budgets fail in the 
past, but we haven't had one, to my knowledge, where we just go for 
years and refuse to even bring one up.

  In that secret Budget Control Act deal, we set spending limits on 
most of the discretionary spending caps, but that is not a budget. 
There were no amendments. There were no public discussions, no 
committee hearings, no

[[Page S8649]]

floor debate, no 50 hours to deal with the great issues of our time.
  One more point. The majority leader has been trigger-happy in filing 
cloture motions. We have altered the way the Senate operates. We have 
to plead with somebody to be able to get an amendment in the Senate 
today. It is amazing. This goes against the history of this 
institution.
  The two great guarantees in the Senate, as Robert Byrd, the great 
majority leader and historian of the Senate, has said, are the right to 
debate and the right to amend. Those are fundamental. We are seeing an 
erosion of both.
  So what does this cloture motion do? Senator Reid said: I am going to 
bring up a certain bill, and the Republicans can have five amendments.
  Well, we have 15 amendments we want to debate--maybe more--on a bill. 
Somebody reminded me that the Panama Canal bill had 80 votes to give 
away the Panama Canal. It eventually got two-thirds votes and passed. 
It went through weeks of debate and lots of amendments. That is what 
the Senate is about. Now they say no amendments. So that begins to 
cause a problem.
  The majority leader says: You have to filibuster. You won't agree to 
my limited number of amendments. You are obstructing. I am going to 
file the bill and immediately file cloture to end debate. So 30 hours 
goes by, has the vote to end debate, and says: All this time, the 
Republicans have been filibustering. The Republicans are obstructing.
  Mr. UDALL of New Mexico. Mr. President, would the Senator yield for a 
question I will ask through the Chair?
  Mr. SESSIONS. I yield for a question.
  The PRESIDING OFFICER (Mr. Cardin). The Senator from New Mexico.
  Mr. UDALL of New Mexico. The Senator from Alabama--I think we 
overlapped as attorneys general, and we are good friends--raised this 
whole issue, and he used the phrase, which has been frequently used on 
the Republican side, that--and we are getting to this place where we 
have the opportunity to change the rules. The phrase he keeps using is 
``break the rules to change the rules.''
  This goes to my question: Is the Senator aware that under the 
Constitution, and specifically article I, section 5, it says that the 
Senate may determine the rules of its proceedings?
  As far as I know--and we have a letter we are going to have printed 
in the Record later--almost all constitutional scholars in this country 
as well as three Vice Presidents sitting up there where Senator Cardin 
is sitting, presiding, have ruled that at the beginning of a Congress, 
on the first legislative day, the Senate is allowed to change the 
rules. And the Constitution trumps the Senate rules in that respect in 
that very early period.
  So my question to the Senator from Alabama: Does not the Constitution 
trump the Senate rules?
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, the Constitution does trump the Senate 
rules. But I would ask my colleague if he is aware of any kind of 
history of the Republic where we didn't follow the existing Senate 
rules, which say we should have a two-thirds vote before we change the 
rules.
  Mr. UDALL of New Mexico. May I answer the question?
  Mr. SESSIONS. I have the floor, and I will yield for a question in 
just a second.
  But I am not aware of that ever happening. I would ask my good 
attorney general colleague, who is familiar and understands tradition 
and the power of precedent, what would keep a Republican majority next 
year--or if they were to obtain one in the Senate--from changing the 
rules again and again and again?
  The tradition in this Senate has been that to change the rules, we 
use a two-thirds vote, and we have adhered to that rule. There have 
been some threats to do the nuclear option, they call it, to use a 
simple majority to change the rules of the Senate, but it has not 
happened. I think that is a dangerous thing.
  I would also ask my colleague to consider that because he is a young 
and popular Senator, and he is going to be here a long time--longer 
than I--and he may be in the minority. That might be a dangerous 
thought and it may be unimaginable for him today, but it can happen. We 
had 55 Senators just a few years ago. In two cycles, the Republicans 
went from 55 to 40.
  So I just would say to the Senator, be careful about this. I know the 
Senator believes in debating, and he is capable at it, and he doesn't 
want to be able to put us in circumstances that would endanger that.
  The point I was making is this: The problem in the Senate is not 
fundamentally the rules of the Senate; the problem in the Senate is a 
desire by the majority to move its agenda with a minimum of objection 
and to eliminate frustrating procedures that obstruct their ability to 
do what they think is good for America.
  But I had that view too. When we had the majority, we wanted to pass 
the Bush tax cuts, 99 percent of which were extended 2 nights ago--the 
Bush tax cuts, which were passed for a limited period of time--10 
years. Why? Because it took 60 votes to pass the tax cuts and our 
Democratic colleagues didn't want those tax cuts passed. It was passed 
through the budget. We requested to only do a 10-year budget. So they 
were passed as part of the budget process with 50 votes, but they could 
only last 10 years and then they expire. So that is the rule. They got 
extended. President Obama extended them once, but we got to the end, 
and they were about to expire on January 1, and everybody's taxes were 
going to go up. We had to pass a law to keep that from happening, and a 
compromise eventually was reached where most of the taxes stayed where 
they were and the taxes on the rich went up. I guess that is democracy 
in America, the way the Senate is supposed to work.

  Mr. WHITEHOUSE. Would the Senator yield for a question?
  Mr. SESSIONS. I will yield to my former U.S. attorney colleague 
without yielding the floor. He is younger, and a fine member of the 
Judiciary Committee and a capable Member of the Senate.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I have a question for the 
distinguished Senator from Alabama, for whom I have very high regard. 
He has been my ranking member on the Judiciary Committee, and he is my 
ranking member on the Budget Committee, and we share the experience of 
having served as U.S. attorneys. I have great admiration for him.
  I heard him say something that brought me to the floor, and that is 
that it has been the practice of the majority leader to seek to pick 
and choose amendments the minority may offer. My question to the 
distinguished Senator from Alabama is, does that not overstate the 
case? Can he identify a time when the majority leader has ever said to 
the minority party: You can bring up an amendment, but it has to be 
this one.
  The reason I ask that question is because my understanding is that 
the effort to control the amendment process by the majority leader has 
been limited to two things: No. 1, the number of amendments, which 
makes a lot of sense when we consider that the very small bill to raise 
the minimum wage that Senator Kennedy offered when I first got here--I 
was sitting where Senator Cardin from Maryland is now presiding 
watching this debate take place on the floor, and they got to over 100 
amendments on a one- or two-page bill. The Senate could never get to 
the bill if Members had to spend the rest of the session going through 
all these amendments. So to limit the number of amendments seems 
reasonable.
  The other restriction that I think sometimes the majority seeks to 
impose is that the amendments be germane. I know when I was working 
with a number of colleagues of the distinguished Senator from Alabama 
on trying to form a bipartisan solution to the cyber compromise, every 
time the Republicans and the Democrats got together, we would start our 
discussion with the same back-and-forth, and that would be the 
Republicans saying----
  Mr. SESSIONS. Mr. President, reclaiming the floor.
  Mr. WHITEHOUSE. Please do. The Senator from Alabama has heard my 
questions.
  Mr. SESSIONS. This is a good question. Let me tell my colleague how 
it

[[Page S8650]]

happens in the real world of the minority party.
  Senator Reid will bring up a bill, and he will say he wants five 
amendments.
  Senator McConnell will talk to Republicans, and they will say: Well, 
we have 15 amendments. We have a lot of things we want to vote on, some 
of them germane and some of them not germane.
  Nongermane amendments are a historic and critical part of the history 
of the Senate. You two advocates would never want to give that up. I 
don't think my colleagues would if they have thought it through. And we 
are not going to give it up. We are not going to give up nongermane 
amendments, but there are limits on nongermane amendments.
  So Senator McConnell says: Well, we have more amendments than that 
that we want.
  Senator Reid says: I am filing the bill, and I am filling the tree, 
and nobody is going to get an amendment I don't approve.
  So we said: Well, we have 15.
  OK, Senator Reid says, I will take four.
  Well, I have an amendment on immigration. I have one on taxes.
  No, we are not going to vote on that one. We will take these three 
amendments, and that is it.
  So Senator McConnell and his staff are talking to the Senators, 
saying: You have five amendments; I can only get you one. He will not 
accept this amendment. I have been told explicitly that you will not 
get this amendment or that amendment.
  That is happening every day. And he will file cloture immediately and 
say the Republicans are filibustering when all we are doing is 
disputing whether or not we get 5 or 15 amendments. What are we here 
for if not to debate and offer amendments? Do my colleagues mean, in 
the great Senate of the United States, a Senator can bring up a bill--
maybe small in language, about the minimum wage, but it is a matter 
that invokes philosophical disputes--I will just say it that way.
  For the bankruptcy bill, I think there were 60 amendments on that 
bill. It was a bitterly contested piece of legislation. We had a good 
number of amendments. Finally, when the Defense bill was brought up 
after the election just a few weeks ago we were able to get amendments. 
But still it was less than one would normally expect on a bill spending 
$600 billion. Well, at least we got amendments. The bill came up--it 
came out of committee unanimously.
  They would not bring it up before the election mainly because we 
needed to fix the sequester. Senator Reid did not want to talk about 
that, so he refused, for the first time in 50 years, to bring up the 
Defense bill. But it finally got brought up. It went through a fairly 
regular process. People got their amendments, and the bill passed 
overwhelmingly and will become law.
  So that is what the Senate is all about. Talk to people who have been 
around here, and they will tell you that. I remember standing right 
there. Senator Specter was a great Senator with a fabulous legal mind. 
I wanted something. I wanted him to agree to put something in the bill, 
and he would not agree. He did not want any more amendments. He wanted 
to wrap it up and get the final vote.
  We argued a bit back and forth, and he looked at me and said, in 
effect: Well, you are a Senator. If you want your amendment, you get 
your amendment. It interrupted his day, his schedule. But if I 
insisted, I got my amendment. You are a Senator; you get your 
amendment.
  Well, Senator Paul, he files a lot of amendments. But he is a 
Senator. He got elected in Kentucky saying he was going to come to 
Congress and shake up this place. But he does not get an amendment? 
Senator Reid says: No, you do not get amendments, or you only get this 
one.
  They tried to hold him off from offering an amendment to cut foreign 
aid. Do you remember that? He would not yield. It went on. He was 
threatened: You are stopping the bill; you are going to kill the bill. 
He would not back down.
  Finally--finally--they gave him an amendment. It went down by a big 
vote. It did not pass, but he got to advocate and ask why we were 
giving aid to a country that was abusing the rights of its citizens, 
and so forth.
  So that is what the Senate is all about. That is all I am saying. 
This idea of speed is dangerous if it is denying the right of members 
to debate and offer amendments--if it is altering the nature of this 
great institution.
  Colleagues, I think as a practical matter we have had good success 
with stacking votes. So if a person wants to speak on a bill, they can 
speak at 6 or 7 or 8 o'clock at night, and the votes could be held the 
next morning. It does not take long to have votes, 15 minutes or so to 
have a vote. We could have more votes and people would be satisfied.
  With regard to nongermane amendments, I would suggest they do not 
come up again and again and again. Somebody campaigned on not giving 
foreign aid to Egypt, and they came here and they wanted to have an 
amendment. No, you cannot have it. Well, they are not going to offer 
the amendment on every bill. They are not going to offer it every year. 
They just needed to be able to have the American people see this 
Congress vote on that issue. I think we are better off allowing that to 
happen than not.
  Mr. UDALL of New Mexico. Mr. President, I ask through the Chair, will 
the Senator yield for an additional question?
  Mr. SESSIONS. I will.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. UDALL of New Mexico. The Senator from Alabama, my good friend and 
former attorney general colleague, asked the question--when he was 
answering the last question I asked--has this constitutional procedure 
for determining Senate rules at the beginning of a Senate ever been 
used? Yes, in fact, it has been used, and it has been used a number of 
times.
  I would point the Senator from Alabama to 1975. In 1975, we had the 
situation where a number of Democratic Senators were pushing for a 
change in the rules. The filibuster threshold at that point was 67 
votes, unlike 60 today. Actually, that was the time period when they 
moved that threshold from 67 to 60.
  What happened was 51 Senators took to the floor and three times voted 
down the attempt to move away from changing the rules.
  Now, I would also note that three Vice Presidents--sitting up where 
Senator Cardin, the Presiding Officer, is right now--have ruled that at 
the beginning of a Congress--at the beginning of a Congress--you are 
allowed, the Senate, 51 Senators, to step forward and say: We would 
like new rules.
  What is being advocated on this side is putting rules in place and 
following the rules for a 2-year period of time.
  Mr. SESSIONS. Mr. President, reclaiming the floor.
  Mr. UDALL of New Mexico. For a 2-year period of time. And we are 
not----
  Mr. SESSIONS. Reclaiming the floor, because I will yield the floor in 
a little bit, and the Senator can have an opportunity to talk, but I 
just want to follow up on that.
  Was the final vote by two-thirds or not?
  Mr. UDALL of New Mexico. The rule that was changed, when we lowered--
--
  Mr. SESSIONS. I know we lowered the filibuster; a different Congress 
did. My question is, Was it a two-thirds vote or not?
  Mr. UDALL of New Mexico. An accommodation was reached and----
  Mr. SESSIONS. Right.
  Mr. UDALL of New Mexico. And when the accommodation was reached, then 
the rule was changed.
  Mr. SESSIONS. I like that.
  Mr. UDALL of New Mexico. Now, the constitutional principle was made, 
and it has been acknowledged by three Vice Presidents, it has been used 
a number of times in the past. The reason we are doing this, as the 
Senator from Alabama knows, is that the amount of secret, silent 
filibusters that have occurred here has been extraordinary. LBJ had 
one. Harry Reid has had close to 400.
  Mr. SESSIONS. Mr. President, reclaiming the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I thank the Senator for his advocacy, but I do believe 
that final vote to change the rule was by a two-thirds vote. If you get 
a two-thirds vote, you can impose your will--when we do it. The 
question is, Can you change the rule by a simple majority?

[[Page S8651]]

I would say the Constitution does not say what the vote level should 
be, and it may be possible lawfully to ignore the Senate rule that says 
it takes a two-thirds vote to change the rules on the first day of 
session. It may be possible legally to do that.
  But I would urge my colleagues not to do that. Just for short-term 
political gain, we are going to change the historic rules of the 
Senate, changing the rules of debate in this kind of way? It would be a 
dangerous alteration of the nature of the Senate, as so many of our 
more seasoned colleagues have warned us. I will just urge you not to do 
that.

  I will say to both of my fine colleagues that an offer has been made, 
one I think I am not real happy with, by Senator McConnell. 
Negotiations are under way now to try to resolve some of the 
difficulties that are ongoing. But I would urge you to pull back and 
not pull the trigger on what has been called the nuclear option--to use 
a simple majority to change the rules of the Senate--which could change 
the very nature of how we do business and the qualities of the Senate 
that make it different from the House. That is my concern there.
  So the filling of the tree--one more thing I would like to say about 
that. I had a chart on it. I think Trent Lott used filling the tree 
eleven times; Bill Frist, fifteen; it was used one or two times by 
previous majority leaders. But it has grown, and Senator Reid has 
filled the tree 70 times already.
  Basically, without going into details, filling the amendment tree 
allows the majority leader to block amendments. Historically, there was 
no limit on amendments in the Senate. If a Senator had an amendment, he 
came to the floor and offered the amendment, and he would try to be 
courteous and not abuse his power, but he got a vote on the issues he 
believed were important.
  We should not limit that. We should not have the majority leader 
rejecting certain amendments because he does not like them. Really the 
reason he rejects them is they are often tough amendments, 
uncomfortable votes for the Members of his conference, and he does not 
want a vote on a tough issue. So, he blocks it from ever being voted on 
to protect the Members from that.
  I heard Senator Merkley--I see him on the floor--talk about his 
vision for a more open Senate. I have heard him talk about how he 
conducted himself as the speaker of the house in his home State and how 
it was more vigorous in debate, in open debate.
  In sum, my colleagues, this is what has happened: The biggest change 
by far, the thing that is causing the angst in the Senate and 
disrupting the Senate--other than the majority's fundamental 
determination to avoid responsibility and avoid voting on the tough 
issues of this country; and that is a big one, and I have detailed 
that--but the fundamental thing is, this majority leader is 
consistently using the device of filling the tree to block the free 
flow of amendments, to reject certain amendments he does not like, and 
control the Senate in a way that is contrary to our history, contrary 
to our tradition, and contrary to the public interest.
  We are having too much of the majority leader bringing up bills like 
this last fiscal cliff legislation. I warned months ago we were going 
to end up at the 11th hour and 59th minute. I wrote in the Wall Street 
Journal a month ago, they are waiting until the 11th hour, the 59th 
minute to bring up the bill so you have no amendments, you do not even 
get to read the thing--do not even get to read it. You get a summary of 
it--have to vote yes or no--or we go over the cliff. That is not the 
way this business ought to be done.
  So I urge my good, vigorous colleagues, who believe in debate and 
openness, not to shut off debate, not to move in that direction, to 
focus on an open process by which these matters are debated openly and 
the American people can determine whom they agree with.
  They might not like what I have to say. They might vote me out of 
office. I am sure it would make a lot of people happy.
  Mr. MERKLEY. Mr. President, will my colleague yield for a question?
  Mr. SESSIONS. I will yield briefly for a question without losing my 
right to the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. I appreciate my colleague coming to the floor and 
starting to talk about rules. As I was listening back in my office to 
the Senator's presentation, and he may have enhanced it while I was 
walking over here, but the Senator was noting, essentially, what sounds 
like a very one-sided piece of the puzzle; that is, that the majority 
leader or the floor manager is in a position of negotiating or 
restraining what amendments the minority does. However, the Senator 
might be unaware that it is actually two-sided in that it is 
traditional for the floor leader on the Senator's side or the minority 
leader, the Republican leader, to also veto the Democratic amendments. 
Of course, I have had untold dozens of my amendments vetoed from being 
presented.
  So you have this negotiation that is taking place between the leaders 
on the two sides over what they will admit. That hits both sides 
equally, basically, because your amendments may be ruled out; my 
amendments may be ruled out. Your leader may actually not like your 
amendment, and may say to you: Well, the other side will never agree to 
your amendment. Actually, it may be your own leader killing it. That 
may happen on my side too; my leader saying: Oh, no, the other side 
will never negotiate over your amendment. They will never agree to it. 
Maybe it is on my own side.
  Mr. SESSIONS. Mr. President, regaining the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. There is no constitutional power for a leader. I love 
Mitch McConnell. He does not get to pick my amendments. Where did this 
come from? You just got elected. You have ideas. You ought to be able 
to come down here and advocate for your ideas. Traditionally, it has 
always been any Senator can offer an amendment.
  As Arlen Specter said to me: Well, I do not agree, but you are a 
Senator. You want your amendment, you get your amendment.

  That is the way the Senate is supposed to work. We will have done 
something dangerous if we get to the point where now I have got to go 
to Senator McConnell and plead with him, and then he has got to go to 
Senator Reid and say, well, Senator Sessions wants this amendment, he 
is insistent on it. Senator Reid would then have to approve and then he 
comes to me and he approves? Where did this come from? I am just 
telling you--you need to think about how the Senate is supposed to 
operate. It may take a few more votes; it will take some more votes. 
But that would be better than this process of groveling around here, 
pleading with somebody to give you a minute. Amendments--we have spent 
days, I think, since both of you have been here--think about it--days--
squabbling over amendments and not a single vote occurring.
  To my colleague from Oregon, would the Senator disagree with this?
  Mr. MERKLEY. Would the Senator yield?
  Mr. SESSIONS. Would the Senator disagree?
  Without yielding the floor, I yield for a question.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. I think my colleague from Mississippi----
  Mr. SESSIONS. Alabama.
  Mr. MERKLEY. Excuse me, I am sorry, Alabama. If the Senator listened 
to my floor presentation, he would know I already agree with much of 
what he said.
  Mr. SESSIONS. I know the Senator does.
  Mr. MERKLEY. And, indeed, I feel we need to have a process where 
amendments are considered. In a situation where neither side is vetoing 
the amendments of the other, I wanted to make sure that we completed 
the picture for the public that not only is the Democratic floor 
manager vetoing Republican amendments, but the Republican floor manager 
is vetoing Democratic amendments. It is because of this that the two 
end up in negotiation.
  Mr. SESSIONS. Right. I think that is true.
  Mr. MERKLEY. So I wanted it to be clear it is bipartisan.
  Mr. SESSIONS. Reclaiming the floor, I think the Senator is correct. I 
would

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say both--it is not good. Why should they be picking your amendments? 
Why should Senator McConnell be picking your amendments? It is 
flabbergasting to me about how we came to this point. It is like a frog 
in the warming water. You have come to the process in the middle of it 
where the traditional rights of a Senator have been eroded, and you are 
trying to deal with that situation and craft a solution that is dealing 
with an alteration of our historical procedure. We should go back to 
those.
  When I asked the question about time--and how few amendments we have 
and actually get votes on--I think people should understand what I am 
saying. The Senate will not slow down. It will not slow down if we have 
amendments. Most Senators will agree to make their arguments at a time 
when something else isn't happening on the floor. They get their vote, 
maybe the next day. I don't think that is the problem. The problem is 
leaders want to control the debate. I think those of us underlings 
sitting at the kiddie table, as somebody said, need to get in the game.
  There is no constitutional power given to the majority leader or the 
minority leader. It is a matter of courtesy. As far as I am concerned, 
they work for us. They work for the Members of the Senate. We don't 
work for them, they work for us. They are supposed to facilitate our 
rights as Senators. We have acquiesced and allowed an erosion of those 
rights.
  A person is not going to offer his amendment every month, every year. 
In a 2-year term, Senator Paul stood in there and finally got his 
amendment on foreign aid to Egypt. He is not going to offer it again 
next week. He had his vote and he lost.
  I think there is just as much a hullabaloo about nothing if we would 
turn, quit filling the tree, quit attempting to control the flow of 
amendments in this body, we would shock ourselves how much better this 
body operates. I am tired of having to ask people for permission to 
file an amendment. That is where we are, and you should not have to do 
it.
  The majority leader has got 1 vote out of 100, and I have got 1 vote 
out of 100. They meet in secret; they plot this bill on taxes. It comes 
up at the 11th hour. We don't get to read it and we don't get to amend 
it. Every Senator here and their constituents has been diminished in 
power by having that happen. We have got to stand up, all of us, 
Republicans and Democrats, liberals and conservatives, and defend the 
system. It will be better if we let it run as it is supposed to run--
good debate, good amendments, stand before the American people, be 
accountable for what you did, and go back home and defend your record.
  I know there are some tough votes. It was a tough vote for me last 
night. I voted for that bill. I am not sure I did right, but I was 
confident it was the right thing to do. But I didn't like it because I 
didn't get to read it sufficiently. I didn't get to know what was in it 
sufficiently. It had things in it I didn't like. But in the long run I 
thought it was going to be best for the country to move this issue 
behind us and move on, so I would say that also.
  The majority leader's sole power and strength comes from the ability 
to be recognized first. The majority basically selects Senator Cardin 
to preside. They trust him to preside. When the majority leader hits 
the floor, Senator Cardin is going to recognize the man who selected 
him. The majority leader of the majority party and all the presiding 
officers are members of the majority party--and I used to preside in 
that fashion when we had the majority. That is the way the system 
works.
  I would conclude by telling my colleagues I have enjoyed this 
discussion and leave one bit of warning. If this were to go to the 
nuclear option and substantial changes were made to the free debate and 
the free right to amend in the Senate, this will not be accepted. It 
will be a historic and dramatic change in the nature of the Senate. 
This Senate--I have now talked to Members--will not go quietly. It will 
not be treated as a legitimate change. We will resist in every way 
possible, and we will have a most disagreeable and difficult time in 
the body. So I would urge my colleagues, keep working with this 
compromise and maybe something could come out of it. Everybody can 
accept advancing some of the ideas you would like and maybe dealing 
with some of the concerns I would like.
  One more example of how this political body should operate was the 
Democratic majority--the minority, when President Bush was elected--
decided to filibuster Federal judges for the first time, systematically 
filibuster them. They were holding up nine, I believe, judges of high 
order. It went on for weeks, over a year, as I recall. Senator Frist 
threatened that they would use this procedure, or something like it. 
The result of that was a Gang of 14 reached an agreement and said there 
wouldn't be a filibuster of judges except in extraordinary 
circumstances. So the nuclear option never took place, the rules were 
never changed, but Members of the body in a collegial fashion agreed 
that, okay, we won't eliminate filibusters entirely, but we will only 
do it in extraordinary circumstances.
  I think the best wisdom at this point is to draw back from the 
nuclear option to see if we can improve the way the Senate works and at 
that point we could perhaps improve the institution without endangering 
its fundamental character.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, let me thank the Senator from Alabama 
for his comments today. I think they are helpful in moving us forward, 
and I hope very much that we can find a way to go forward without 
having to use the constitutional doctrine that at the beginning of each 
Congress the Senate has an opportunity to adjust its rules with 51 
votes. I think that is constitutional doctrine at this point.
  I reject the notion that it is breaking the rules to take advantage 
of that constitutional moment. But the Senator makes a fair point that 
from a point of view of precedent--very different than breaking the 
rules, but from the point of view of precedent--it sets a new standard 
that we should be very cautious about going to.
  I strongly support the Senator's recommendation that there needs to 
be a more vibrant amendment process. I believe the status of the 
discussion is regarding the filibuster on the motion to proceed, that 
if the majority leader is able to move to procedure without a 
filibuster, there will be amendments under that rule. I think that is 
an important qualification as we go forward.
  Mr. SESSIONS. Mr. President, would the Senator yield briefly?
  Mr. WHITEHOUSE. I yield for a question.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I will tell the Senator my concern and ask the Senator 
if he has a thought about it. I am uneasy about giving, for the first 
time, explicit power----
  Mr. WHITEHOUSE. Mr. President, may I reclaim the floor for one 
moment? I will yield the floor, not just for a question--I will yield 
the floor to the Senator from Alabama with the understanding that I 
will be recognized at the conclusion of the point he makes, so he does 
not have to frame it in the nature of a question.
  The PRESIDING OFFICER. Without objection, the Senator from Alabama is 
recognized.
  Mr. SESSIONS. My concern, which I have expressed in my conference, is 
I don't like the idea that we codify in the rules explicit 
supersenatorial power to a chairman and a ranking member of a 
committee, and we have almost no recognition in our rules of the 
majority leader. This is a tradition; this is a way we operate.
  Each one of us is 1 of 100. We are equal in our responsibilities and 
in our ultimate voting power if we don't allow it to be eroded. As I 
understand the rule, there would be four amendments, you know, 
guaranteed up front by leaders. Think about that, as I know you will be 
active, both of you, in the discussion of how to write these 
compromises, and I am hopeful we will reach one. But I wouldn't, in a 
nonpartisan comment--I am not sure we ought to further embed in our 
rules superpowers to one Senator or another group of Senators. Has the 
Senator thought about that?
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.

[[Page S8653]]

  Mr. WHITEHOUSE. I appreciate the point the Senator from Alabama is 
commenting on, and I think it is important that we recognize that is a 
floor or a minimum number of amendments and not a ceiling. I think the 
more we can allow Senators amendments, the better institution this will 
be.
  That said, the calendar is unyielding. Days come and days go, 
Congresses end, work periods end. The majority leader and minority 
leader have the responsibility for trying to fit the work into those 
time periods. Clearly there is the prospect of vexatious amendments, 
either in nature or in number, whose purpose is to interfere with their 
ability to manage the floor in a sensible way for all of us. I think we 
do have to be prepared to defend against that, and I think number and 
germaneness are the usual touchstones.
  The story I was telling, when the Senator from Alabama reclaimed his 
time, was of the cyber negotiations. When the Republicans and Democrats 
met together, the opening moment of virtually every discussion was the 
Republicans saying, when we get this bill to the floor, there will be 
amendments, correct? We were saying, absolutely, that is our 
understanding, we will stand by you having your amendments, but let us 
have them be germane, let us have them be relevant to cyber. That was 
always kind of a mutual agreement going forward until a Senator came to 
the floor and gave notice that they would insist on a repeal ObamaCare 
amendment on any cyber bill. That threw a pretty big spanner into the 
works of what I thought was moving toward a good bipartisan solution 
there.
  I think we have real problems here in terms of the abuse of the 
filibuster. When the majority leader can say that Lyndon Johnson as 
majority leader faced 1 filibuster, and this majority leader has, I 
think he said, 291 times--391 times had to file cloture, that is a 
pretty big change.
  When you see judges who have been cleared in the Judiciary Committee 
unanimously sitting on the Executive Calendar in what has become a 
hostage pool for purposes of trading--these are judges who are ready to 
go, and there may very well be a judicial emergency in their district; 
they have Republican and Democratic support, and they are held hostage 
to be used as trading pieces on either judges or other issues--I think 
that is a very poor way to go about doing business, particularly when 
you consider where that leaves an individual who has put their life on 
hold waiting to see if they will be confirmed, and all they are is a 
pawn in a chess game, even though everybody thinks that substantively 
they are qualified and should serve as judges.
  You see situations in which we have a cloture fight and then, when we 
actually have the vote, the measure passes with 90-plus votes. Clearly, 
there was not a great dispute over that. That is cloture being used for 
obstruction and to, I believe, take those 30-hour blocks of cloture 
time and stack them up into a wall of obstruction.
  I will say one final thing and then I will yield the floor. The good 
Senator from Alabama mentioned the budget process, and he is our 
ranking member on budget, so he knows this very well, but I have to 
dispute his description of the budget not passing and of why the 
majority leader said it would be foolish to have a budget.
  The reason it would have been foolish to have a budget is because we 
had a budget. In the ordinary course, a budget is developed from the 
committee up. We start in the Budget Committee. We propose a budget. It 
then goes to the Senate floor. We have budget day, which is often 
irreverently called a vote-arama, where we vote and vote and vote on 
amendments, and we ultimately get a budget. A similar process happens 
in the House. The President then has a budget to work with and we go 
forward.
  In this case, because the question of the Nation's budget is such a 
hot political issue, the budget was negotiated at the very top, between 
the President and the Speaker and the Senate leadership, and it was 
passed into law. We didn't pass a budget; we passed a bill. We passed a 
law, and the law set the budget. So when your budget is being set by 
law, yes, it is a little foolish to go through the process as if none 
of that had happened and try to build a budget from the ground up when 
it has already been established by law and when we wouldn't change it 
with our budget procedures. It has already been established by law, by 
negotiations at the highest level.
  So I think that is why it was foolish. I think the budget process 
will continue to go forward in circumstances in which we are building a 
budget from the ground up, the way we do in the ordinary course, but I 
do think it was important to clarify that.
  With that said, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. If my colleague from Rhode Island would be willing to 
yield for a question, I do have a question for him.
  Mr. WHITEHOUSE. I believe the Senator has the floor, but I will stay 
and engage in a brief colloquy, if that is the Senator's desire.
  Mr. MERKLEY. We heard a few moments ago from our colleague from 
Alabama that the problem of the Senate being able to process bills is 
completely as a result of the inability to offer amendments. There are 
certain things that don't seem to quite square with that.
  For one, is my recollection correct that we have had quite a few 
filibusters on judges where no amendments are relevant?
  The PRESIDING OFFICER. Without objection, the Senator may proceed.
  Mr. WHITEHOUSE. Yes; that is absolutely true. It is hard to amend a 
judge.
  Mr. MERKLEY. Is the same true of efforts to get to a conference 
committee after we have already passed a bill and all the amendments 
have been previously considered?
  Mr. WHITEHOUSE. That is also true. In fact, I believe there have been 
multiple filibusters of the various steps on the way to a conference 
committee, even after all amendments have been considered. So the 
Senator, I believe, is correct.
  Mr. MERKLEY. Is the same true on both conference reports and final 
passage? Neither of those involve amendments, but have there been 
extensive filibuster efforts to keep this body from ever being able to 
complete one piece of business and move on to the next?
  Mr. WHITEHOUSE. I think that is true, and nobody is more alert to 
this than the Senator from Oregon, but it is my belief there has been a 
little transformation in the nature of the filibuster. It always used 
to be the individual right of individual Senators to get up on their 
feet and to say their piece, to hold the floor for as long as they 
needed to and to speak themselves--to read the Bible, to read the 
Constitution, to read the phonebook--into exhaustion. They did so when 
they felt deeply about an issue, when they were deeply opposed to 
something on the floor.
  Then cloture came along and it established a 30-hour block of time 
for debate. But, tellingly, it didn't require anyone to do any debating 
during those 30 hours. My belief is the minority party figured out if 
they filibustered everything, including very popular bills and 
amendments and judges that normally pass with huge majorities--up in 
the nineties--then each time the majority leader has to file cloture we 
end up with another 30-hour block of floor time that can't be used for 
anything productive. If that is done hundreds of times, that becomes 
thousands of hours of floor time, and it is very often why people who 
are watching us, expecting to see debates on the floor, see the tedious 
quorum call. They see our wonderful floor staff quietly reading the 
names of the Senators as the quorum call drones on and nothing is 
happening.
  That puts immense pressure on the majority because they now have less 
and less and less time to work with because these 30-hour bites of time 
over and over again have been taken out of the year and it makes doing 
business very difficult.
  That, I believe, has been the transformation. We have changed from 
being a Senate where an individual Senator has the right to get on his 
or her feet and oppose anything with a filibuster for as long as they 
can stand on their feet to a Senate where the minority filibusters 
everything, creating these 30-hour blocks of dead time

[[Page S8654]]

which puts great pressure on the body to try to get things done in the 
time that remains. That is my view of why we are where we are and why 
it is important to change the rules.
  I will yield after saying I do think the Senator from Oregon and the 
Senator from New Mexico have done this body a great service by their 
leadership on pressing forward on rules changes. I think it is very 
clear that however this ends up turning out, the majority leader has 51 
votes for a change to put the Senate back on a footing where it is 
behaving as a Senate again and we are not spending our time in the dead 
zone of endless quorum calls.
  I yield the floor.
  Mr. MERKLEY. I thank my colleague from Rhode Island for his very 
lucid commentary.
  We do have a responsibility to enable this body to debate and decide 
issues in order to address the big issues facing America. It certainly 
is not the case that we have been fulfilling that responsibility. This 
is why the popularity of the Senate and the House has dropped to 
incredibly low levels, because people see there are big challenges in 
America--big challenges about investment and infrastructure, big 
challenges about the management of our military policy and our military 
provisioning, big challenges in regard to the environment, in regard to 
health, and certainly big challenges in regard to education. So no 
matter how long the list gets, we just get more and more and more 
paralyzed and unable to address anything in this body.
  Tomorrow is the first day of the next legislative session and my 
colleague from New Mexico has arrived and I ask unanimous consent that 
we be allowed to engage in a colloquy.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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