Congressional Record, Volume 158 Issue 173 (Wednesday, January 2, 2013)

[Congressional Record Volume 158, Number 173 (Wednesday, January 2, 2013)]
[Senate]
[Pages S8654-S8660]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXTENSION OF MORNING BUSINESS

Mr. MERKLEY. Mr. President, I ask unanimous consent that morning
business be extended until 4 p.m., with all other provisions remaining
in effect.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MERKLEY. So my colleague from New Mexico has made this powerful
case about our responsibility and about the opportunity provided under
the Constitution, and I have been immersed in trying to wrestle with
the components of how we actually seize that opportunity in terms of
the substance, the material we put together to make this body work
better. But the important thing is that tomorrow this begins.
In that regard, I yield to my colleague from New Mexico, who has
been, again, at the forefront of calling for us not to bypass this
opportunity to have this body engage in the debate and figure out how
we can change the way we work so we can do the people's work as is
expected.
Mr. UDALL of New Mexico. I thank my colleague very much, and let me
say to my colleague from Oregon, who has been a real leader on this, he
has been diligent, he has studied this, he cares about it, and he has
been a great partner. The packages that were voted on the last time we
helped put those together--and there were two very significant votes,
as Senator Merkley realizes. We came very close. We had 44 votes for a
package that would make 4 or 5 changes and then his package on the
talking filibuster, which was included in both packages, received 46
votes. That showed that if we had the opportunity at the beginning of a
Congress to change the rules under the Constitution, we were very close
to the 51 votes.
I just want to comment on what my colleague from Rhode Island said
earlier--Senator Whitehouse--and repeat that because we have been
counting the votes over the last couple months. We have been trying to
determine if the votes are there in order to be able to change the
rules, and we know at the beginning of a Congress that we need 51
votes.
I also want to respond to several things that were going on here
earlier on the floor. Several Senators made statements, and several of
those statements were from the other side. I believe they should be
responded to because we are in this crucial phase in terms of adopting
the rules.
The first issue that comes up is this issue of breaking the rules to
change the rules. This has been what has been repeated numerous times
in the last couple months with our Republican friends and colleagues
coming to the floor. They use the phrase ``break the rules to change
the rules.''
In fact, when we use the Constitution, there is no conflict with the
Senate rules because three Vice Presidents have ruled from the chair,
where Senator Cardin is now sitting, that at the beginning of a
Congress, on that first legislative day, we can change the rules, and
we do it pursuant to the Constitution.
The Constitution, at article I, section 5, says the Senate can
determine the rules of its proceedings. Every constitutional scholar I
know of who has looked at this realizes that is the window--that first
legislative day--in order to deal with the rules. So when, in fact, we
legislate on that day in a rules context, we are not breaking the
rules; we are creating the rules for the coming Congress--in this case,
the 113th Congress. We are creating the rules that will govern.
Do I think we should use the Constitution to change the rules every
couple weeks after we put rules in place? Of course not. That is not
fair to do. We would never be advocating for adopting rules and then
changing them every couple weeks or every couple months. In that
situation, there is a high threshold to change the rules, as it says in
the Senate rules.
But I want to engage in this colloquy with my colleague from Oregon,
first of all, on this issue of the constitutional option and in terms
of utilizing the constitutional option at the beginning of a Congress;
putting the rules in place and then following the rules throughout the
Congress. I ask my colleague: Isn't that the way we are intending to
move?
Then, secondly, the heart of the matter--and this is where Mr.
Merkley, the distinguished Senator from Oregon, has been instrumental
in terms of helping us deal with the dysfunctional filibuster system we
have right now--we have a secret filibuster. We have a silent
filibuster--in fact, we have way too many filibusters. Just to give a
little comparison, when LBJ--Lyndon Baines Johnson--was majority leader
for 6 years in the 1950s, he had one cloture motion filed--one
filibuster. Harry Reid, whose office is just a few feet from here, as
the President pro tempore knows, comes to the floor and he has had
close to 400 filibusters in his 6 short years. So they have gotten
completely out of hand.
One of the things I want to talk to my good colleague, the Senator
from Oregon, about, in addition to this constitutional option--the
small window we have tomorrow on the first legislative day--is also how
do we remedy this situation in the Senate? Everyone acknowledges the
Senate has become dysfunctional; that we are not doing the work of the
American people. We hear our Republican colleagues say they do not like
the way it is working. So I ask: What is the best way to get to the
heart of that? Is it the talking filibuster? Is it trying to change the
rules on the motion to proceed? How do we get at the heart of what the
problem is?
I yield for my colleague.
The PRESIDING OFFICER. Without objection, the colloquy is extended.
Mr. MERKLEY. I thank my colleague from New Mexico. I am going to be
very brief, because in 2 minutes I am taking the chair so my colleague
from Maryland can continue with his schedule.
Indeed, the silent secret filibuster that is occurring in the Senate
today is deadly. What it means is that after there has been a vote of
41 who say we want more debate, there is no more debate because no one
is required to debate. Instead, they don't want to appear in front of
the American people and make their case, and that is outrageous. If you
are voting for more debate and you are going to take up the time of
this institution, time it could be using to address many of the
challenges that face America, then you should have the courage of your
convictions to make your case on this floor before your colleagues,
before your constituents, before the American public, and engage in
that dialogue. If you don't feel you want to spend the time and energy
to do that, then you

[[Page S8655]]

should stand aside and we should proceed with a simple majority vote
and address the issue at hand.
I do think we need to address that silent filibuster, that secret
filibuster. The American people deserve to know why it is we are not
getting their work done. And if they can see that it is being blocked
by a group that is publicly making their case, they can either agree
with them and say, That person is a hero, they are standing up to some
core principle and we salute their efforts, or they can say they are a
bum, because all they are trying to do is paralyze the Senate, they are
not making any valuable points. And that feedback I think will help us
resolve some of those filibusters.
In some cases folks have said, Well, isn't that going to eat up more
of the Senate's time? And I respond, No, it is not. Because we are
talking about what is now silent and hidden but paralyzing us being
done in public, where there is actually a dialogue about the issue at
hand and the public can participate. It is not the only thing that
should be done, but it certainly is a key part of the formulation.
With that, in an hour or so I would be happy to rejoin the
conversation.
I yield the floor for my colleague from New Mexico.
The PRESIDING OFFICER. The Senator from New Mexico is recognized.
Mr. UDALL of New Mexico. Mr. President, I thank the Senator from
Oregon, because he has elucidated here the real issue that we face as a
Senate.
The Senator from Maryland, who is presiding, knows well. He has
worked on the rules, and I hope he will join me here for a minute to
talk about the rules situation we are in and where we are headed.
There are several issues that are before us: How do we move into a
more deliberative body? How do we move to the point where we get on to
legislation, that we have amendments, we let everyone be heard, we let
the minority be heard, and also at the end of the day be able to get to
a majority vote? That is the way the Senate used to proceed, and now we
have one Senator holding up the whole show.
Frequently you will have a Senator who will block hundreds of bills
with these secret, silent filibusters. We shouldn't be allowed to have
that kind of situation with any Senator, and we need to give up that
little bit of power to make the institution itself a better
institution. This institution is a great institution. It has a lot of
very capable people in it. But it is not responding to what the
American people want us to do. That is why we address the rules at the
beginning of every Congress and why we should address the rules at the
beginning of every Congress.
I ask unanimous consent to allow my friend, the Senator from
Maryland, and I to engage in a colloquy.
The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so
ordered.
Mr. UDALL of Colorado. I yield for the Senator from Maryland.
Mr. CARDIN. Mr. President, I thank Senator Udall for taking the time
and for his commitment to this institution so that it operates
correctly. I thank Senator Merkley for his leadership.
I agree with both Senators. If you are going to engage in
extraordinary action such as a filibuster, you should be on the floor
talking about it. That makes sense, that when the Senate is in session,
we should be conducting business. We shouldn't have to go through
extensive quorum calls because a single Senator is objecting to us
proceeding. We want to get back to the traditions of the Senate where
this becomes the greatest deliberative body in the world, where we
debate issues and we resolve issues and we act on issues.
I was listening to the distinguished Senator from Alabama, and he was
pointing out how he believes that the Senate is not working the way it
should and that we should be debating more amendments. I think we
should be debating more amendments. I think the key we need is that we
need to change the way the Senate has acted and operated in recent
times, and that means we need to get more legislation more quickly and
actually debate bills. We have to have committees able to report out
legislation that could be acted on on the floor of the Senate. We have
got to bring issues to conclusion.
There are two problems here, as I see it: One, we have had individual
Senators who have used their right to object to a unanimous consent,
delaying almost indefinitely--in some cases killing--legislation from
being able to move forward by a single objection, and a lot of times
they are not even on the floor of the Senate to make that objection.
They just through their leader say, We don't want this bill to move
forward; and maybe, yes, we will let it move forward if you will let us
have 50 amendments. That is the same as killing the bill.
So we have seen individual Senators exercising their right to object
who have brought legislation to a standstill on the floor of the
Senate. That is wrong. And as my distinguished colleague, the Senator
from New Mexico, pointed out, the majority leader has had to file
record numbers of clotures to end debate because the minority party,
for whatever reason, has not allowed us to proceed with legislation for
debate.
Normally the majority party has the right to determine the agenda of
the Senate. They don't have the right to pass bills; that is up to a
majority of the Senate. But the majority leader should have the right
to bring a bill to the floor of the Senate. That has been denied over
and over by the minority party. That is wrong.

I agree with my friend from Alabama that there should be the right to
offer amendments. I think we should debate issues. I agree with that.
But that hasn't been the problem. The problem has been that a certain
number of Members have used their right to object, working through the
Republican leader, blocking us from considering a lot of bills on the
floor of the Senate.
So what do we need to do? We need to be able to first move
legislation forward. We need to be able to bring bills out of our
committees and have them on the floor for debate, get on the amendment
process.
We just took up the National Defense Authorization Act. We used that
process. It worked. That bill passed the Senate by an overwhelming
number. We considered many amendments. By the way, every amendment was
considered by a majority vote. That is how this should work. Majority
rules should rule on the floor of the Senate. I agree with all of that.
The first order is to be able to bring bills to the floor in a more
efficient way. The second problem we have, quite frankly, is that the
Republicans have blocked the ability to orderly consider the
nominations of the President, whether they are his Cabinet or
subcabinet positions or whether they are the article III judges. In
many cases, once we get to the nomination it passes by an overwhelming
majority. I can't tell you how many nominations have been approved
basically by voice vote in the Judiciary Committee that have had to
wait months for consideration on the floor of the Senate. In my State
of Maryland we had several nominees, not controversial at all, who had
to wait month after month for confirmation before they could sit as a
district court judge.
First of all, it is unconscionable to make people wait when we need
to have judicial positions filled. Secondly, it is affecting us getting
the very best people to step forward to serve, because do they really
want to go through that type of uncertainty, not even clear whether the
Senate will act on their nomination before it adjourns? So the second
issue is we have to act on nominations in a more efficient way.
The third--and I agree with my colleagues here. Ultimately, the
majority of this body should be able to move legislation. And at a
minimum, I agree, if you are using an extraordinary measure as a
minority to block legislation, you should be on the floor of the Senate
speaking on that issue. Your responsibility should be to talk. If you
are using a filibuster, you should be there engaged in that filibuster.
I think these are reasonable reforms that we should try to move
forward. This body operates on a lot of unanimous consents; we move a
lot of legislation. We have what is known as the hot line, where at the
end of the day we try to clear bills and then the leader brings them to
the floor for consent or voice vote. At times there are Members who put
a hold on a bill, and we have had Members who put holds on hundreds of
bills. They should come to the floor to object. In many cases these are

[[Page S8656]]

not broad bills. These are bills that affect perhaps land in New Mexico
or establishing a national park in Maryland that have gone through the
whole committee process and we have worked out all the cost issues so
there is no cost involved. They have passed the committee by
overwhelming majority votes--in most cases unanimous votes. But now you
need to move them forward so we put them on the hot line, and we don't
even in some cases know who is objecting. The Senator who objects
should come to the floor of the Senate and object and give a reason. I
know we got rid of the so-called secret holds, but they still exist
today. We should operate with Members being here on the floor
conducting business, not in their office either in the Capitol or in
their home States. They should be here on the floor of the Senate if
they intend to exercise their right to object, and then give us an
opportunity to work that out so we could move legislation more
efficiently.
The bottom line, what we need to do, is make this system work more
efficiently. This is the greatest deliberative body in the world. We
should be debating issues. That means bringing bills to the floor in a
more timely way, getting on amendments in a faster way, voting and
debating issues for the American people.
I applaud the Senators from New Mexico and Oregon. They have taken
the leadership on bringing this to the attention of the American
people. I think for too long a period of time Americans didn't focus on
this issue.
Well, they are focused on it today. They understand that a lot of the
bills they wanted to see passed in the 112th Congress didn't get passed
and they want to know why we didn't even debate those issues.
Let us reform our rules and procedures on the floor of the Senate to
reflect the best traditions of the Senate. That is what the Senator
from Oregon, the Senator from New Mexico, and others are trying to do.
The Senator from Alabama talked about restoring the traditions of the
Senate. I hope we can do it in a bipartisan manner. That is the way it
should be done. We should come together to preserve the institution. It
should work whether the Democrats are in the majority or the
Republicans are in the majority. The same rules should work. Whether we
are in the majority or minority, we should believe that we should come
to the floor of the Senate to debate the issues that are important to
our constituents.
I thank again my friend from New Mexico for allowing me to engage in
this colloquy with him. I applaud him again for standing up on this
issue. I know it has been difficult at times when many people come over
and say, Why are you trying to change the traditions of the Senate? The
truth is we are not trying to change the traditions of the Senate. We
are trying to restore the Senate to the type of body it should be. I
don't think there is a single Member of the Senate who believes that we
conducted business in the best traditions of the Senate during these
past 2 years, and that has been because we have seen the abuses of
individual Senators holding up bills and not being able to debate
issues. We have to overcome that. I think we have a chance to do that
at the beginning of the 113th Congress, which will start in less than
24 hours from now. I am pleased that the three of us will all be in the
Senate in the 113th Congress, and I hope we will have a chance to
resolve these issues because I think it is critically important for the
people we represent in our respective States and in the country.
Mr. UDALL of New Mexico. The Senator from Maryland hit on a couple of
incredibly important points here, and I hope he has a minute or two to
further engage in a colloquy.
First of all, we shouldn't be saying all the credit goes to me or to
the Senator from Oregon. Senator Cardin, the Senator from Maryland,
participated very actively 2 years ago in the key group of Senators who
were trying to understand what the rules were all about, why the Senate
wasn't functioning, and how do we get to the point of drafting a
package and working out a package to make it happen. I congratulate him
for that.
I want to also congratulate the Senators who have worked on this from
about 2006 on. Those Senators have come in and they have seen the
Senate not be the way it should, not maintaining those traditions of
debate and discussion, and then finally, at the end of the day, acting
on those important problems.
The Senator from Maryland knows that history. I appreciate exactly
what he said. It should be bipartisan. As he knows, what frequently
happens around here is that when you get close to having 51 votes--
which we have today, we have 51 votes, and the majority leader has 51
votes to be able to walk down here and say: These are the rules we
want, and to do it. When the reality sets in on the Senate that we have
51 votes, then people start thinking, how do we want to put this
together?
A bipartisan tradition is important. We have--the Senators from
Oregon, Maryland, myself--we have all invited our Republican friends
and colleagues forward, saying: Engage with us to get back to the point
where this Senate can operate in a bipartisan way with respect to the
rules and with respect to the substantive legislation.
What I want to ask the Senator from Maryland has to do with the
President's team. We only have one President at a time. We have Barack
Obama in as President. He was reelected. He still has people from this
Congress--a large number of judges, of nominees--who are held up for
months and months. Does the Senator from Maryland believe that the
nomination process is broken, that we need to move forward, to find a
way so we can get up-or-down votes on some of these nominations,
whether they be judicial, whether they be people who are going to serve
in these Cabinet agencies?
Mr. CARDIN. I thank the Senator for raising the issue. Let me tell
people what happens all too frequently in this body. The President will
nominate a person to be at a Cabinet-level or sub-Cabinet-level
position that requires confirmation of the Senate. Individual Senators
say: I have a problem. Maybe it is the person in the health department.
I have some problems in the health department that I would like to see
paid attention to. It has nothing at all to do with the nominee. In
fact, getting a confirmed person in that position would be very
important to getting those issues resolved. The Senator uses what is
known as the courtesy of a hold to hold up that position in order to
try to get changes made in that agency. That may take a week. That may
take a month. That may never be resolved. In the meantime, we are not
acting on many of the positions that require confirmation from the
Senate.
I think we are down to about 500 positions now that require Senate
confirmation. We streamlined that in the last Congress. We eliminated
some that required the confirmation of the Senate. That was a good
change we made 2 years ago. That worked. We now have somewhere around I
think 500 or 600 positions that require Senate confirmation.
Let me give a little arithmetic here. If the majority leader has to
bring a cloture motion in order to break an individual hold of a
Senator on those 500 nominees, the Senate will do nothing but
nominations. We will not be able to do any other business because, as
you know, it could take up to 30 hours of postcloture time to consider
just one nominee. So under the current rules of the Senate, if one
Senator wants to stop the confirmation process, that Senator can
basically stop it and bring it to a halt. That has happened. We have
seen that happen too frequently.
One of the suggestions that has been made is that when we have these
confirmations that have been approved by the committee, allow us to
bring them to the floor and certainly eliminate or restrict the
postcloture time because it is not used other than for a delay purpose.
In that way, we can bring forward nominations more efficiently. If
there is a serious problem, let a Senator register the problem. Let a
Senator come to the floor and speak about the person. But we have not
had discussions on the floor.
It is interesting--when we finally break that hold and the nomination
comes forward, we finally get a cloture motion passed, the debate time
is virtually zero. There is no debate time needed for these. It is not
as though Senators are delaying it because they need debate time. These
are strictly dilatory actions.

[[Page S8657]]

For the sake of any administration, whether it is a Republican
administration or Democratic administration, whether it is the first
term or second term, that President should be able to get his or her
team in place. Yes, we should take seriously the advice and consent of
the Senate. That means we should vote on those nominees. If there is a
serious concern, let's vote on it, and if we want to filibuster it, be
on the floor debating why.
We think the minority has a responsibility--or in some cases it could
be a minority within the majority--to argue why we believe it is
important to bring this matter to the attention of the American people.
But don't continue the practice that has been used in recent times
where nominations are delayed months and sometimes indefinitely because
of basically unrelated issues or the will of the minority or a number
of Senators--in some cases, just a handful. That should not happen. We
should be able to do these more efficiently.
We have a recommendation for this, and it is very simple: Let's
eliminate the postcloture time. That way, we would be able to bring the
nominations to the floor and act on them in a much more timely way if
there is really an issue about getting a vote on a nominee. There are
ways we could do that, but it should be part of the reforms of the
113th Congress.
I thank Senator Udall for bringing up that issue. That is a very
important issue for any administration, whether it is a Republican or
Democratic administration. It is hard to hold an administration
accountable if they do not have the confirmed top leaders of their
team.
Mr. UDALL of New Mexico. The Senator from Maryland has really hit it
on the head. You do not have to go any further than today's Executive
Calendar. We all have them on our desks. You pick up the Executive
Calendar and, talking about approving these nominees and judicial
nominees, executive nominees, here I see on page 4 that we have people
who have come out--this is for the judiciary--have come out of
committee March 29, and they have not gotten a vote. Here is another
one from April, reported by the committee--April 26, May 17, May 17,
June 7, June 21. These are nominations where people have stepped
forward. They want to be public servants. The President has nominated
them. They have been through the committee process, and they are just
waiting.
As the Senator from Maryland said, what ends up happening is that
good people are discouraged from taking these jobs. My grandfather used
to say that if you do not have good people in government, the
scoundrels will take over. We are discouraging good people from getting
into government. You need good people in public service, and we are
discouraging them by setting up a process where, as the Senator from
Ohio told me--he had a judge recently, and he told the gentleman: This
is a long process, it is laborious, it is tedious, and it will probably
take you a year if you are willing to go through this. When the judge
finally agreed, it took 2 years from the time the President put him
forward until he was actually on the bench.

I ask the Senator from Maryland, does he think people are going to
put themselves out there, and doesn't this discourage good people from
getting into public service? Don't we want the very best and the
brightest on our benches and in the executive branch working for the
American people?
Mr. CARDIN. I can tell my friend from New Mexico, that is happening
today. I have talked to people in Maryland who are very reluctant to
put their names forward because they do not want to put their families
and themselves through the uncertainty.
Let me tell you what happens. Let's say you are a distinguished
attorney in a law firm and we would love to get you as an article III
judge, so we convince you. You are the most distinguished person for
this job, the person everybody wants, not partisan at all, no
controversy. The Bar Association will give you the highest ratings. You
have already been vetted through the FBI process. There is nothing in
your background that would raise a concern with anyone. But you look at
the calendar here and say: If I go through this, I am going to be on
this calendar for at least 6 months, it looks like. What does that do
to my law firm? Can I try cases? What do I do for the next 6 months? It
is not fair to me, it is not fair to my law firm, and it is not fair to
my family. So you are not going to put yourself forward.
Let me tell my colleagues about another problem. In many of these
circuits where these judges are sitting--these nominees are waiting
month after month, and we have judicial emergencies. We have a chronic
problem of moving cases in these circuits, where the administrators of
the courts--these are independent branches of government--tell us they
cannot do their job because they do not have the manpower to do it. And
we are holding up confirmations not because of any substantive reason
but because of the process or because of one person in the Senate who,
for reasons unrelated to that individual, is holding up all of these
nominations. That is not right. We are denying our country the very
best, who cannot step forward under this type of circumstance, and in
many cases we are denying justice in our circuits because we do not
have people in place to be able to timely resolve rule-of-law issues,
which is the basis of our system here in America.
It is a very serious situation. We need to resolve how we handle the
Article III confirmation process in the next Congress, which starts
again in less than 24 hours, as well as the individuals whom we want on
the boards who need confirmation--the sub-Cabinet and Cabinet
positions.
The same thing is true of Cabinet positions. If you are an expert in
securities issues and we want to get you on the Securities and Exchange
Commission and you have to be out there for 6 months, what is it going
to do for your business? Can you do your profession?
It is just not right. I think people are willing to be subjected to
the scrutiny of advice and consent. They understand that. What they do
not understand is dilatory delay, and that is what has to come to an
end.
I thank my colleague for raising those issues.
Mr. UDALL of New Mexico. I thank the Senator from Maryland. He is
passionate about this, and he has explained it very well. I ask any
Senator to look at this Executive Calendar today. We are doing exactly
what my grandfather advised against when he said that if the good
people do not go into public service, the scoundrels will take over.
You get second-class government. You don't get good people. We are
discouraging good people from going into the government with the
procedures we put them through, with the length of time of this delay.
This is not what we should be doing in the Senate.
I yield.
Mr. CARDIN. I ask my colleague--I daresay most people in this country
do not know what a motion to proceed is all about. They do not realize
the majority leader cannot bring a bill. A bill might be reported. We
might have a farm bill or a Defense authorization bill or we might have
a bill coming out that reforms some of our judicial codes. It comes out
of the committee with a bipartisan vote. I think our constituents will
be surprised to learn that the majority leader cannot bring that bill
to the floor. It has to go through what is called a motion to proceed.
What might happen in that motion to proceed? You might just tell us
the problems we have today because we couldn't get to a lot of motions
to proceed.
Mr. UDALL of New Mexico. The Senator from Maryland has hit it on the
head. Look at what we are talking about on a motion to proceed. I think
it would surprise the American people to know that if the majority
leader comes to the floor, now we have--this is not to make it partisan
in any way--55 Democratic votes. The majority leader says: I see we
have a serious housing problem. We want to put a housing bill onto the
floor of the Senate.
I don't think people realize that the majority leader, if he doesn't
have any agreement at all, then has to file a motion to proceed to that
bill. If all the delay and roadblocks and obfuscation are put in front
of him, it takes him 8 days to get to the bill if he can get 60 votes.
If he does not, he probably wastes a whole week trying to get to the
bill, and he doesn't get 60 votes, and then we fold it down and say:
What is the next issue we should move on to?

[[Page S8658]]

As the Senator from Maryland knows, we have to be able to put bills
onto the floor and give them the time they deserve. We are wasting all
this time up front that we could have a bill on the floor, we could
have amendments, we could have debate, we could have all of those
things going on that we know are the way the Senate should work.
I yield.
Mr. CARDIN. Under current policy, the motion to proceed has to be
approved before anyone can offer any amendments. My friend from Alabama
is talking about amendments. We cannot offer any amendments until we
get the bill to the floor. So the majority leader is trying to bring up
this bill to deal with housing because we have a housing crisis. It
came out of the committee, everybody was ready to move on it, but he
cannot get the motion to proceed approved. Now we are literally in no-
man's land. We cannot offer amendments and cannot proceed on it.
The majority leader has one of two choices: He could wait for us to
reach an agreement--if we ever reach an agreement--or file cloture. He
should not have to do that. He should be able to offer the bill and
offer amendments and get started. We cannot do that. We have to approve
the motion to proceed first. So the majority leader tries to condense
the clock. People complain that we are not getting work done, so he
files cloture on the motion to proceed. As a result, we have to waste
one full legislative day before we can get through to the vote on the
cloture. If we get to the vote on the cloture--this is on the motion to
proceed. This does not deny the right of any Member to offer any
amendments, whether germane or not germane.
Let's say the majority wants to approve the motion to proceed and get
60 votes on the cloture--and, remember, this is the third legislative
day. Let's say it is approved 95 to 1, because there was one objection.
That's why we could not get the motion to proceed done. Now we are on
the third legislative day and we have 30 hours of postcloture time.
Another 2 days go by, and we are now on the bill, but we cannot debate
the bill. We have not even started the amendments.
My friend from Alabama is saying he wants to deal with amendments.
Well, I want to deal with amendments. Why do we have to waste all those
days to get to the bill? That makes no sense at all. A lot of us think
we should be able to bring up a motion to proceed. We have some
recommendations on how we can expedite that and guarantee some
amendments as part of the process. That is all part of what we have all
been working on: How can we get the Senate back to its traditional way
of considering legislation in a fair manner and making decisions?
At the end of the day, this is a democracy and the majority should be
able to control the policy of this body. At the end of the day, it
should be able to do that. Certainly those who object should be on the
floor telling why they are objecting. I think that is what we are
trying to do. We are trying to get this process to work in a fair
manner, and I understand we have to protect the rights of the minority.
My friend from Alabama raised a very good point. There are no
guarantees of how long one party will be in the majority. We understand
that. The political whim of Americans changes over time, political
preferences change over time, and we have to make sure that the rules
we operate under protect both the majority and the minority. That is
absolutely important.
The Senate is a deliberative body, and we want to make sure that all
rights are protected, including the minority. However, what is wrong is
when one, two, or a small group of Senators can basically bring this
institution to a halt. They have done that over the last couple of
years at a time when we could have done more business. I think starting
tomorrow we have a chance to change some of those procedures. I hope we
will be able to get that done.
Senator Udall has really brought these issues to light--whether it is
the motion to proceed so we can start debate or whether it is how we
can dispose of amendments, handle a filibuster, deal with court and
other nominations, these are all important issues. How we deal with
what we call comity, or respect of Senators, how Senators deal with
objections, how they should be on the floor of the Senate to raise
those objections, and how objections are done.
When a committee is considering a bill on the floor and the managers
are considering that legislation--they have an orderly way to consider
the amendments--and all of a sudden we hear one Senator objects and
stops us from moving forward on amendments--well, that should not take
place. If the Senator is going to object, have the Senator on the floor
saying why he or she is objecting. Don't do it by saying we can stop
consideration of the bill and go into a quorum call and lose all that
valuable time.
I think there are some commonsense changes. I do hope we can get
Democrats and Republicans joining together for these reforms. Whether
Democrats or Republicans are in the majority, that is how the rules
should work to protect all the Members of this institution.
Mr. UDALL of New Mexico. To the Senator from Maryland, I have one
more question if he has time. First I want to respond as to the motion
to proceed and what he has just talked about. This means we cannot get
on legislation, as he laid out, for a large number of days. Sometimes
we burn a week and several more days before we are able to get on to
the bill.
The Senator by the name of Senator Pete Domenici, whom everybody
knows very well, served for 36 years in the Senate and was my
predecessor. He served on bipartisan study groups to look at the rules.
We have had many study groups such as that. They have always concluded
that the motion to proceed should be short and significant, and we
should get on to the bill.
Senator Cardin has worked very hard to do the same with a bipartisan
group to say: How can we make it work better? How do we make this
institution work better? The reality is we get on to the bill, allow
amendments, allow debate, and allow discussion. That is the way to
move. On a number of occasions this has been bipartisan. I hope we can
join together.
My question goes to a different part of the rules. As the Senator
from Maryland knows--and we both served in the House together--today we
have a Democratic Senate and a Republican House. The way to resolve
differences between the two is to go to conference. That is the best
way to bring the expertise of both bodies and the people in the bodies
who know the substance of the legislation and bring them together if
there are differences. If they both pass a bill, they get together,
resolve those differences and then the respective Houses pass them and
they go on to the President.
We now have in our rules for the Senate three debatable,
filibusterable motions to go to conference. We look at them and we say:
Well, they are basically about going to conference. Let's shrink down
the proposals we are hearing. Why are we putting a filibuster in place
to get into conference to try to resolve disputes?

I know the Senator has looked at this issue. My question is: If the
Senate is able to pass a bill on housing--to use the housing example--
and they are very different bills, but if we have smart people from the
Senate and the House who are on the Housing Committee getting
together--as the Senator from Maryland knows--we can resolve those
differences. We can find the common ground and move forward.
I ask the Senator: Aren't our rules a little bit antiquated in terms
of having three motions to go to conference and allow a filibuster on
every one of those rules?
Mr. CARDIN. The Senator is absolutely right. I think when those rules
were promulgated, the view was they would be done routinely and that
there would never be a challenge to the action taken. The action is
going to conference, appointing conferees, and instructing the
conference. The Senator is absolutely right, they are all the same. It
is getting us into conference where the House and Senate Members can be
together, resolve their differences, and report a common bill back to
both bodies. That is the whole purpose of a conference committee.
I think it is particularly important today that when we have the
House controlled by Republicans and the Senate controlled by Democrats,
we should use regular order. We should meet with our Republican-
controlled delegations

[[Page S8659]]

with the Senate and try to resolve our differences in an open and
transparent way that the rules apply.
Under the current rules, since each one of those is a separate
action--as Senator Udall pointed out--we can object to it being
routinely approved. At that point, under the current rules, we can
force--this is all precloture--a cloture motion being filed on each one
of those three separate actions.
I already went over how much time it takes for a cloture motion to
ripen. Let's assume we can get over that hurdle--which we cannot--each
one of those cloture votes, even though they may be 99 to 1, will have
30 hours of postcloture. If we start to add it up, we are going to lose
over a full week just to get into cloture, which obviously means we
cannot get it to conference. We cannot use the deliberative process to
resolve our differences and we cannot use the Senate unless we have
unanimous consent, basically, and that is wrong.
So we do have a recommendation, and I am pleased the Senator pointed
out that we are working with Republicans. We have had a group of
Democrats and Republicans working together to try to resolve some of
these differences, and I think there is general agreement to collapse
those three motions into one motion so that at least we can eliminate
the extra two votes and potential cloture votes and postcloture time
which would be required. I think that is a relatively easy change for
us to make. I don't know of anyone who objects to that. I have not
heard of anyone who objects to that. I hope we could get that done.
When we start looking at where we could change the procedures and
where we hope we could get bipartisan support, I think going to
conference is one area on which we could get bipartisan support.
I agree with the Senator in that I have not heard of anyone who
believes the motion to proceed has been used in the proper way. I think
we can find a way to condense that. I hope we can. There have been some
bipartisan recommendations to have orderly ways in which we could go to
the motion to proceed immediately by certain guaranteed amendments or
where the two leaders have agreed to go to a bill, so I think we could
do that.
I think there has also been some agreement on the nomination to
shorten the time so we can move that along. I think we have both
Democrats and Republicans who are in agreement with that. I hope we can
figure out a better way so we don't have to file all these cloture
motions and waste a lot of time and those who object on the floor with
the burden to debate the issue--I think that is the important reform
that needs to be done.
Mr. UDALL of New Mexico. The Senator from Maryland has been here a
little bit longer in the Senate than I have. Could the Senator talk
about how many conferences we have done? The Senator has served in the
Maryland Assembly in the legislature. The Senator saw conferences all
the time. I remember in my early days in the House, we had conferences
all the time. My sense is the majority leader, in looking at this path
to get to conference, has said, well, that takes too much time.
Mr. CARDIN. I probably am in a position that most of the Members of
this body are not in. I have served on one conference committee--I have
been here 6 years--and it was a successful conference committee. It
dealt with the payroll tax extensions and some of the other changes. I
was able to serve on that and we were able to reach a conference
agreement and we were able to get our work done in a timely way. We got
it done early by Senate standards and the legislative standards. I am
trying to think if there were any other conferences that were reported
back. I think we had one maybe on aviation that was reported back. I
don't think there were more than a handful of conferences that have met
in the last several congresses. There were maybe a couple each
Congress. Think about how many bills were between the House and the
Senate. It is a rarity. It is virtually not used. Interestingly enough,
when it is used, we generally get better results, earlier results, and
more open results.
I appreciate the Senator mentioning serving in the State legislature.
I am a former speaker of the State legislature. I think we get better
laws when we use the legislative process and have a more open process
where the committees work and bring the bills to the floor, actually
debate them and amend them on the floor of the Senate. That way when
there are differences between the House and the Senate, they are worked
out by the Members. They actually meet and work out their differences.
We are the ones who are accountable for the legislative process. It
should not be some supercommittee or bargaining units that are set up
by the President and the Congress. They should not be the ones. It
should be the legislators who make these decisions, and that is why I
think it is so important to get the committees functioning, get the
floor of the Senate functioning, and get the conference committees
functioning. I think if we can do that, we are going to get better
laws, laws that make more sense, better understood, and that will stand
the test of time. That is what I think all of us are trying to do.

We seek these jobs because we believe in our system. We believe in
the richness of an independent legislature where we are held
accountable for the work we have done. Quite frankly, it is difficult
for us to get our work done in an accountable way if we don't have an
open and transparent system. When we don't have conference committees
that can function or we don't have committee work that can come to the
floor of the Senate, then we are diminishing our constitutional
responsibility to the people who elected us.
Mr. UDALL of New Mexico. I thank very much the Senator from Maryland
for his commitment to pursue these bipartisan rules changes to make
sure the rules get changed. I know I reminded him about my predecessor,
Senator Domenici. Senator Domenici would fight hard, and whenever he
tried to look for bipartisan solutions, coming down to the motion to
proceed, Democrats and Republicans said we have to get off this motion
to proceed and we have to get on the bill. So I thank the Senator from
Maryland.
Mr. CARDIN. The Senator from New Mexico has been the one who has
brought this to us, and I know he has included others and certainly
Senator Merkley has been in the forefront of this. The Senator from New
Mexico has taken a real leadership role and he has done it in an open
way. We want this done with Democrats and Republicans working together
because we recognize the system only works when Democrats and
Republicans can come together. That is why he has taken the time today
on the floor of the Senate, and he has been very open about this issue.
He has taken it to a lot of groups explaining the impact.
People ask us all the time: Why can't we do more to help the
environment? Why can't we do more to help working families? Why can't
we do more for affordable housing? Why can't we do more for affordable
health care?
We say: We can't get that bill to the floor of the Senate.
They say: What are you talking about? You are a Senator. Bring it up
on the floor of the Senate.
We heard Senator Sessions say the Senate can offer an amendment at
any time. Just try.
We want the system to work. Whether a person is a Democrat or a
Republican, we want the system to work. That is why we are taking this
time today, at the end of the 112th Congress, to say: Look, what
happens on Senate rules and procedures affects every person in this
country.
I have talked to so many people who have come into my office with
individual concerns, including families who are worried if their
children will get the type of attention they need if perhaps they have
a disability and they are working on a bill that will help, and they
have all these cosponsors of the bill and they hear the committee
reported it favorably and they are wondering why we can't act on it on
the floor of the Senate. That is what is at stake. We can say to them:
Oh, I am a cosponsor of that bill. I voted for that bill, but the bill
didn't become law because of the process we have now.
That is what we have to correct. That is going to be our
responsibility starting tomorrow, at noon, to deal with rules and
procedures so we are in a position during the next 2 years to end the
gridlock that has happened on

[[Page S8660]]

too many issues. Yes, the public understood somewhat the gridlock on
the fiscal cliff. They don't understand the gridlock on that bill that
affected that family with a child with a disability. They don't
understand why that bill couldn't make it to the floor of the Senate.
We understand that. What the Senator from New Mexico is doing is taking
action so we can be held accountable and do our work in the most
efficient way. I am proud to join him in these efforts and I urge all
my colleagues to do everything we can in the next 24 hours so we can
get progress made.
Look, we all know we are not going to get everything we want. This
institution doesn't work that quickly, but let's make progress, and I
think we can make progress in the 113th Congress.
I thank the Presiding Officer and I thank the Senator from New Mexico
for their leadership.
Mr. UDALL of New Mexico. I thank the Senator from Maryland for his
sincere effort to pursue bipartisan rules reform because I think, if we
all work together, we can make the Senate a much better place.
I am reminded, when we have these discussions about the great
traditions of the Senate, of two periods of time when the Senate truly
stepped to the plate. We had crucial national issues facing us then and
they were issues of war and peace. They were issues of terrible
environmental destruction. The fact is the Senate, in its best
traditions, stepped forward and acted and moved forward. One of those
great traditions of the Senate acting occurred in the 40 years before
the Civil War. People may not know it, but it was the Senate and the
legislation that was passed through the Senate and signed by the
President that for 40 years held the Union together. They held the
country together, and they didn't let the country get into Civil War.
It was people such as Webster and Calhoun and all the Senators at the
time focusing on what the issues were. Whether it was the Missouri
Compromise or some other issue that had to do with slavery, they found
the common ground, and they held the Union together and they did it for
40 years.
That, my friends, is in the best traditions of the Senate, thinking
and figuring out where the common ground is. We can't do that. We can't
carry out that tradition unless we can get bills on the floor and we
can amend them and have debate and then eventually get to a majority.
Of course, we want the minority to be able to be heard, offer
amendments, but the crucial fact is, at the end of the day, unless
there is such a strong minority in terms of its activity, we get to a
majority vote.
The other period of time where the Senate was in its glory days was
in the 1960s and 1970s and we had huge national problems in terms of
civil rights. We had lynchings going on, we had discrimination going
on, including housing discrimination, discrimination in public
accommodations, and there was a big push to try to get rid of that in
our society. It was the Senate that stepped forward and crafted civil
rights legislation that allowed us to move forward.

Many people will remember in the 1970s, the glory days of the Senate,
when we had environmental destruction, rivers catching on fire. The
Wilderness Act, the Clean Water Act, the Clean Air Act, all those
pieces of legislation were crafted in the Senate by people such as
Senator Ed Muskie and Senator Stafford and others. They were Democrats
and Republicans working with each other, but it was because we could
get the legislation on the floor and work on it and amend it and move
it forward and allow the deliberative process to work.
I submit the Senate has been at these two periods--and I am sure
scholars and our Senate Historian and others can point out other
periods--but these two periods struck me: the period of the 40 years
before the Civil War when the Senate, in its deliberative way, held the
Union together for 40 years and in the 1960s and 1970s when we
addressed civil rights, environmental legislation, and many of the
other big national issues we were facing.
So here we are as a country with the need for having a national
energy policy, for dealing with issues such as climate change,
protecting middle-class families, and trying to make sure we have job
growth and economic development; doing everything we can to bring down
the cost of health care but making sure our citizens have high-quality
health care.
We face tremendous issues, and the Senate, in many cases, has been
unable to act. We have been unable to act because the rules are being
abused. This filibuster is not out in the open. It is secret, it is
silent, and we have the opportunity to act on the first legislative
day.
So on that first legislative day, I will offer a motion. It is a very
simple motion my predecessor, Clinton Anderson, offered. He offered it
for the 25 years he was in the Senate. On the first legislative day he
would offer a motion. He would move to adopt the rules of the
Congress--for him, whatever it was. So this motion dealing with
tomorrow: move to adopt the rules for the 113th Congress and then we
focus on it. We focus on what those rules should be.
I know our Republican friends realize, I know they understand the
dysfunction and hopefully they will find a way to join with us to make
the Senate a better place.

____________________