[Congressional Record Volume 159, Number 1 (Thursday, January 3, 2013)]
[Senate]
[Pages S10-S12]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SENATE RULES CHANGES


                               S. Res. 4

  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. UDALL of New Mexico. Madam President, I have a resolution for 
myself, Senator Merkley, and Senator Harkin, which I send to the desk 
and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The legislative clerk read as follows:

       A resolution (S. Res. 4), to limit certain uses of the 
     filibuster in the Senate to improve the legislative process.

  Mr. UDALL of New Mexico. Madam President, I would object.
  The PRESIDING OFFICER. The Senator is objecting to further 
proceeding?
  Mr. UDALL of New Mexico. Yes.
  The PRESIDING OFFICER. Objection having been heard, the resolution 
will go over under the rule.
  Mr. UDALL of New Mexico. I yield to the Senator from Tennessee for 
his objection.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Reserving the right to object, the majority and 
minority leaders are working together to try to find ways to move bills 
to the floor and get more amendments. I wish to give them time to 
complete that work. I therefore object.
  The PRESIDING OFFICER. Objection is noted.
  Mr. UDALL of New Mexico. I thank the Senator from Tennessee. I know 
he is working diligently and we have some very positive things 
happening.
  Madam President, as we begin the 113th Congress, I have submitted on 
behalf of myself and Senators Merkley and Harkin a resolution to amend 
the Standing Rules of the Senate.
  Our proposal to reform the rules is simple, it is limited, and it is 
fair. Again, we are not ending the filibuster. We preserve the rights 
of the minority. We are only proposing the following:
  No. 1, an end to the widespread abuse of silent filibusters. Instead, 
Senators would be required to go to the floor and actually tell the 
American people why they oppose a bill or nominee in order to maintain 
a filibuster;
  No. 2, debate on motions to proceed to a bill, or to send a bill to 
conference, would be limited to two hours; and
  No. 3, postcloture debate on a nominee--other than a justice to the 
Supreme Court--would be limited to 2 hours, rather than the current 
limit of 30 hours.
  These are sensible changes. These are reforms we are willing to live 
with if we are in the minority. And yet, we are warned that these 
simple reforms will transform the very character of the Senate. Will 
leave the minority without a voice. These arguments are covers for 
continued abuse of the rules.
  The reforms are modest. Some would say too modest. But they would 
discourage the excessive use of filibusters. The minority still has the 
right to filibuster, but not the right to do so by simply making an 
announcement and then going out to dinner or, more likely, to a 
fundraiser.
  Let me just say again: Senators Merkley, Harkin, and I are not 
talking about taking away the rights of the minority. We are not 
abolishing the right to debate or to filibuster.
  But there must be change. The unprecedented use, and abuse, of the 
filibuster and other procedural rules has prevented the Senate from 
doing its job. We are no longer ``the world's greatest deliberative 
body.'' In fact, we barely deliberate at all.
  For most of our history the filibuster was used very sparingly. But, 
in recent years, what was rare has become routine. The exception has 
become the norm. Everything is filibustered--every procedural step of 
the way--with paralyzing effect. The Senate was meant to cool the 
process, not send it into a deep freeze.
  Since the Democratic majority came into the upper chamber in 2007, 
the Senates of the 110th, 111th, and current 112th Congress have 
witnessed the three highest totals of filibusters ever recorded. A 
recent report found the current Senate has passed a record-low 2.8 
percent of bills introduced. That is a 66 percent decrease from the 
last Republican majority in 2005-2006, and a 90 percent decrease from 
the high in 1955-1956.
  I have listened with great interest to the arguments against rules 
reform by the other side. Each day, my Republican colleagues have come 
to the floor and made very impassioned statements in opposition to 
amending our rules at the beginning of the new Congress. They say that 
the rules can only be changed with a two-thirds supermajority, as the 
current filibuster rule requires. And they have repeatedly said any 
attempt to amend the rules by a simple majority is ``breaking the rules 
to change the rules.'' This simply is not true.
  The supermajority requirement to change Senate rules is in direct 
conflict with the U.S. Constitution. Article I Section 5 of the 
Constitution states that, ``Each House may determine the Rules of its 
Proceedings, punish its Members for disorderly Behavior, and, with the 
Concurrence of two thirds, expel a Member.'' When the Framers required 
a supermajority, they explicitly stated so, as they did for expelling a 
member. On all other matters, such as determining the Chamber's rules, 
a majority requirement is clearly implied.
  There have been three rulings by Vice Presidents, sitting as 
President of the Senate, on the meaning of Article I Section 5 as it 
applies to the Senate. In 1957, Vice President Nixon ruled 
definitively: [W]hile the rules of the Senate have been continued from 
one Congress to another, the right of a current majority of the Senate 
at the beginning of a new Congress to adopt its own rules, stemming as 
it does from the Constitution itself, cannot be restricted or limited 
by rules adopted by a majority of a previous Congress. Any provision of 
Senate rules adopted in a previous Congress which has the expressed or 
practical effect of denying the majority of the Senate in a new 
Congress the right to adopt the rules under which it desires to proceed 
is, in the opinion of the Chair, unconstitutional.
  Vice-Presidents Rockefeller and Humphrey made similar rulings at the 
beginning of later Congresses.
  I have heard many of my Republican colleagues quote Senator Robert 
Byrd's last statement to the Senate Rules Committee. I was at that 
hearing, and have great respect for Senator Byrd and know that he was 
one of the great Senate historians and deeply loved this institution. 
But we should also consider Senator Byrd's other statements, as well as 
steps he took as Majority Leader to reform this body.
  In 1979, when others were arguing that the rules could only be 
amended in accordance with the previous Senate's rules, Majority Leader 
Byrd said the following on the floor: There is no higher law, insofar 
as our Government is concerned, than the Constitution. The Senate rules 
are subordinate to the Constitution of the United States. The 
Constitution in Article I, Section 5, says that each House shall 
determine the rules of its proceedings. Now we are at the beginning of 
Congress. This Congress is not obliged to be bound by the dead hand of 
the past.
  In addition to the clear language of the Constitution, there is also 
a longstanding common law principle, upheld in the Supreme Court, that 
one legislature cannot bind its successors. For example, if the Senate 
passed a bill with a requirement that it takes 75 votes to repeal it in 
the future, that would violate this principle and be unconstitutional. 
Similarly, the Senate of one Congress cannot adopt procedural rules

[[Page S11]]

that a majority of the Senate in the future cannot amend or repeal.
  Many of my Republican colleagues have made the same argument. For 
example, in 2003 Senator John Cornyn wrote in a law review article: 
Just as one Congress cannot enact a law that a subsequent Congress 
could not amend by majority vote, one Senate cannot enact a rule that a 
subsequent Senate could not amend by majority vote. Such power, after 
all, would violate the general common law principle that one parliament 
cannot bind another.
  So amending our rules at the beginning of a Congress is not 
``breaking the rules to change the rules.'' It is reaffirming that the 
U.S. Constitution is superior to the Senate rules, and that when there 
is a conflict between them, we follow the Constitution.
  I find some of the rhetoric about amending our rules particularly 
troubling. We have heard comments that any such reforms, if done by a 
majority, would ``destroy the Senate.'' Again, I can turn to my 
Republican colleagues to answer this accusation.
  In 2005, the Republican Policy Committee released a memo entitled 
``The Constitutional Option: The Senate's Power to Make Procedural 
Rules by Majority Vote.'' Not only does the memo support all of the 
same arguments I make today in support of reform by a majority, but it 
also refutes many of the recent claims about how the Senate will be 
permanently damaged.
  In a section of the memo titled, ``Common Misunderstandings of the 
Constitutional Option,'' it responds to the misunderstanding that ``the 
essential character of the Senate will be destroyed if the 
constitutional option is exercised'' with the following: When Majority 
Leader Byrd repeatedly exercised the constitutional option to correct 
abuses of Senate rules and precedents, those illustrative exercises of 
the option did little to upset the basic character of the Senate. 
Indeed, many observers argue that the Senate minority is stronger today 
in a body that still allows for extensive debate, full consideration, 
and careful deliberation of all matters with which it is presented.
  What is more important about the Republican memo is the reason they 
believed a change to the rules by a majority was justified. Back then 
it was about the filibuster of judicial nominees--and what Republicans 
saw as a break in longstanding Senate tradition. They claimed they 
weren't using the constitutional option as a power grab, but as a means 
of restoring the Senate to its historical norm.
  The memo states the following: The Senate is a relatively stable 
institution, but its norms of conduct have sometimes been violated. In 
some instances, a minority of Senators has rejected past practices and 
bipartisan understandings and exploited heretofore ``off limits'' 
opportunities to obstruct the Senate's business. At other times, a 
minority of Senators has abused the rules and precedents in a manner 
that violates Senators' reasonable expectations of proper procedural 
parameters. These are efforts to change Senate norms and practices, but 
they do not necessarily have the support of a majority.
  Such situations create institutional conundrums: what should be done 
when a mere minority of Senators changes accepted institutional norms? 
One option is to acquiesce and allow ``rule by the minority'' so that 
the minority's norm becomes the Senate's new norm. But another option 
has been for the majority of Senators to deny the legitimacy of the 
minority Senators' effort to shift the norms of the entire body. And to 
do that, it has been necessary for the majority to act independently to 
restore the previous Senate norms of conduct.
  This is exactly where we find ourselves today. Back then, the 
Republicans argued the constitutional option should be used because 10 
of President Bush's judicial nominees were threatened with a 
filibuster. I believe the departure from Senate tradition we see today 
is far worse.
  Since Democrats became the majority party in the Senate in 2007, we 
have faced the highest number of opposition filibusters ever recorded. 
Lyndon Johnson faced one filibuster during his 6 years as Senate 
Majority Leader. In the same span of time Harry Reid has faced over 
385.
  So, as the Republicans argued in 2005, ``[a]n exercise of the 
constitutional option under the current circumstances would be an act 
of restoration.'' We must return the Senate to a time when every 
procedural step was not filibustered.
  But if my Republican colleagues really believe using the 
constitutional option would be so harmful to the Senate, there is an 
alternative. We don't have to reform the rules with only a majority 
vote. That is up to my colleagues on the other side of the aisle. Each 
time the filibuster rule has been amended in the past, a bipartisan 
group of senators was prepared to use the constitutional option. But 
with the inevitability of a majority vote on the reforms looming, 
enough Members agreed on a compromise and they passed the changes with 
two-thirds in favor.
  We could do that again this month. I know many of my Republican 
colleagues agree with me. The Senate is not working. I said 2 years ago 
that I would push for the same reforms at the beginning of the next 
Congress--regardless of which party was in the majority.
  At the time, many people believed the Democrats would lose their 
majority. So let me be clear. If Leader McConnell had become the new 
majority leader today, on the first day of the 113th Congress, I would 
ask him to work with me on implementing these same reforms.
  I will say again. The proposed changes will reform the abuse of the 
filibuster, not trample the legitimate rights of the minority party. I 
am willing to live with all of the changes we are proposing, whether I 
am in the majority or minority.
  The other side has suggested that a change in the rules is an affront 
to the American public. But the real affront would be to allow the 
abuse of the filibuster to continue.
  We have to change the way we do business. We have to govern. It is 
time for us to pay attention to jobs and the economy and the things 
that matter to American families. That was the message we were sent in 
the election, and we would do well to listen to it.
  Under the abuse of the current rules, all it takes to filibuster is 
one senator picking up the phone. Period. It doesn't even require going 
on the floor to defend it. Just a phone call by one senator. No muss, 
no fuss, no inconvenience. Except for the American public. Except for a 
nation that expects and needs a government that works--a government 
that actually works together and finds common ground.
  Some of my colleagues may believe the Senate is working as it should; 
that everything is fine. Well, Madam President, we do not take that 
view. It isn't working. It needs to change. The American people, of all 
political persuasions, are clamoring for a government that actually 
gets something done. The challenges are too great, the stakes are too 
high, for a government of gridlock to continue.


                               S. Res. 5

  Mr. UDALL of New Mexico. Madam President, on behalf of Senator 
Harkin, I have a resolution which I send to the desk and ask for its 
consideration.
  The PRESIDING OFFICER. The clerk will read the resolution by title.
  The legislative clerk read as follows:

       A resolution (S. Res. 5) amending the Standing Rules of the 
     Senate to provide for cloture to be invoked with less than a 
     three-fifths majority after additional debate.

  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, reserving the right to object, for 
the reason I just stated, to give the majority and minority leader and 
other Senators a chance to find ways to help the Senate function fairly 
and more efficiently, I object.
  The PRESIDING OFFICER. Objection having been heard, the resolution 
will go over under the rule.
  The Senator from New Mexico.
  Mr. UDALL of New Mexico. Madam President, I would also reiterate 
again that Senator Alexander, and a number of Senators, including 
Senator Merkley and myself, are all working to make sure this is a 
better place and that it functions better, and we look forward to 
having the next couple of weeks to do that.
  Madam President, I yield for my good friend, who has been working 
with me on rules from the first day I arrived here.

[[Page S12]]

  I yield for the Senator from Oregon.
  The PRESIDING OFFICER. The Senator from Oregon.


                               S. Res. 6

  Mr. MERKLEY. Madam President, I have a resolution which I send to the 
desk and ask for its consideration.
  The PRESIDING OFFICER. The clerk will read the resolution by title.
  The legislative clerk read as follows:

       A resolution (S. Res. 6) to modify extended debate in the 
     Senate to improve the legislative process.

  The PRESIDING OFFICER. Is there objection to proceeding to the 
resolution?
  The Senator from Tennessee.
  Mr. ALEXANDER. Reserving the right to object, again, the majority and 
minority leaders are working together with other Senators to try and 
find ways we can agree upon to assist in the functioning of the Senate. 
To give them sufficient time to do that, I do object.
  The PRESIDING OFFICER. Objection having been heard, the resolution 
will go over under the rule.
  The Senator from Oregon.
  Mr. MERKLEY. I thank my colleague from Tennessee for the efforts he 
is putting forth to find ways to make this body truly engage in 
dialogue and decisionmaking as the American people expect.


                               S. Res. 7

  Mr. MERKLEY. Madam President, on behalf of Senator Lautenberg, I have 
a resolution which I send to the desk and ask for its consideration.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The legislative clerk read the resolution as follows:

       A resolution (S. Res. 7) to permit the Senate to avoid 
     unnecessary delay and vote on matters for which floor debate 
     has ceased.

  The PRESIDING OFFICER. Is there objection to proceeding to the 
resolution?
  Mr. ALEXANDER. Madam President, for the reasons I have stated with 
the other requests for unanimous consent, I do object.
  The PRESIDING OFFICER. Objection having been heard, the resolution 
will go over under the rule.
  The Senator from Oregon.
  Mr. MERKLEY. Madam President, I look forward to the dialogue among 
all the Members on how the Senate can reclaim its important role as a 
deliberative and decisionmaking body.
  I want to thank Senator Udall for having been so involved in this 
conversation and helping to drive it forward.

                          ____________________