[Congressional Record Volume 159, Number 7 (Tuesday, January 22, 2013)]
[Senate]
[Pages S27-S32]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CHANGING SENATE RULES
Mr. UDALL of New Mexico. Mr. President, I rise today to talk about
our efforts to change the Senate rules. As we began the 113th Congress
on January 3, Senators Merkley, Harkin, and I submitted a resolution to
reform the Standing Rules of the Senate. Thirteen of my colleagues have
signed on to cosponsor our resolution.
When we submitted the resolution, we agreed with the majority leader
that it would be best to have the debate about reforming our rules
after the inauguration. I appreciate his willingness to work with us on
this important issue. Although we postponed the debate, we preserved
the right of a simple majority of this body to amend the rules in
accordance with article 1, section 5 of the Constitution.
Senate Resolution 4, our proposal to reform the rules, is simple, it
is limited, and it is fair. Again, we are not ending the filibuster. We
preserved the rights of the minority. Here is what we are proposing: 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. Debate on motions to proceed to a bill or to send a bill to
conference would be limited to 2 hours. Postcloture debate on a
nominee, other than a Justice of 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
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we are in the minority, and yet we are warned these simple reforms will
transform the very character of the Senate and leave the minority
without a voice. These arguments are covers for continued abuse of the
rules.
The reforms we propose 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 of one Senator to
do so by simply picking up the phone, by simply making an announcement
and then going out to dinner or, more likely, out to a fundraiser. I
have listened carefully to the arguments by the other side against
these changes. Let me say, again, we are not talking about taking away
the rights of the minority, we are not talking about abolishing the
right of debate or to filibuster, but there must be change. The 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. This does not honor this
institution, and it does not serve the American people.
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 112th Congresses have the three
highest totals of 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 390. Lyndon Johnson, 1, Harry
Reid, 390. Legislation is blocked at every turn. The result is not
surprising. The Senate of the 112th Congress 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. By every measure, the 112th Congress was the
most unproductive Congress in our history.
My Republican colleagues have come to the floor and made many
impassioned statements in opposition to amending our rules at the
beginning of this Congress. They say the rules can only be changed with
a two-thirds supermajority, as the current filibuster rule requires.
They argue that any attempt to amend the rules by a simple majority is
breaking the rules to change the rules. This is simply not true. The
supermajority requirement to change Senate rules is in direct conflict
with the U.S. Constitution. Article 1, section 5 of the Constitution
states:
Each House may determine the Rules of its Proceedings,
punish its Members for disorderly Behavior, and, with the
Concurrence of two thirds, expel a Member.
When the Framers required a supermajority, they explicitly said 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--where the Presiding Officer is sitting today--
who have ruled on the meaning of article 1, section 5.
In 1957, Vice President Nixon ruled that:
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.
Vice President Rockefeller and Vice President Humphrey made similar
rulings at the beginning of later Congresses.
The Constitution is clear, and there is also a longstanding common
law principle--upheld in the Supreme Court--that one legislature cannot
bind its successors. 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. When there is a conflict
between them, we follow the Constitution.
Some of my colleagues may believe that using the Constitution in this
way would be harmful to the Senate. But there is an alternative. We do
not have to reform the rules with only a majority vote. Each time the
filibuster rule has been amended in the past, a bipartisan majority of
Senators was prepared to use the constitutional option. But with a
majority vote on the reforms looming, enough Members agreed on a
compromise and they passed the changes with two-thirds in favor.
We could do that again. I know many of my Republican colleagues agree
with me. The Senate is not working. As I visit with my Republican
colleagues on the other side of the aisle, they tell me they are
unhappy with the way things are. I said 2 years ago 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 in this Congress, I would have asked him to work with
me on these same reforms.
I will say again, the proposed changes will reform the abuse of the
filibuster. They will not trample the legitimate rights of the minority
party. I am willing to live with all the changes we are proposing,
whether I am in the majority or the minority.
The other side has suggested a change in the rules is an affront to
the American people. 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 what matters
to American families--what they talk about around the kitchen table.
That was the message that was sent us from this election, and we would
do very well to listen to it.
Under the abuse of the current rules, all it takes to filibuster is
one Senator picking up the phone. That is it--does not even have to go
to the floor and 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.
Maybe some of my colleagues believe the Senate is working as it
should, that everything is fine. We do not take that view. It is not
working and it needs change. The American people of all persuasions
want a government that actually gets something done. The challenges are
too great, the stakes are too high for a government of gridlock to
continue.
The New York Times yesterday and several of the local newspapers in
my home State have editorialized about moving forward with reform and
how important that is. I ask unanimous consent that an editorial from
the New York Times and an editorial from the New Mexican be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Jan. 21, 2013]
A Chance To Fix the Senate
For six years, Democrats in the Senate have chafed at an
unprecedented abuse of the filibuster by Republicans, who
have used the practice to hold up nominees high and low and
require a supermajority for virtually every bill. But now
that they finally have an opportunity to end much of this
delay and abuse, Democrats are instead considering only a few
half-measures.
When the Senate returns on Tuesday, it will still
technically be in the first legislative day of the session,
which means only a simple majority is necessary to change the
rules for the rest of the session.
With the support of 51 senators, the rules could be changed
to require a ``talking filibuster,'' forcing those objecting
to a bill to stand and explain their reasons, at length. The
current practice of routinely requiring a 60-vote majority
for a bill through a silent objection would end, breaking the
logjam that has made the chamber a well of inefficiency and
frustration.
Several younger senators, led by Jeff Merkley of Oregon and
Tom Udall of New Mexico, say that if pressed, a majority of
the Senate would support their plan for the talking
filibuster. But older senators aren't so
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sure, and have reportedly persuaded Harry Reid, the majority
leader, to back off the idea. With the experience of having
been in the minority themselves, these Democrats are fearful
of losing a powerful tool should Republicans ever return to
power in the chamber.
That would squander a moment for change. Supermajorities
were never intended to be a routine legislative barrier; they
should be reserved for the most momentous bills, and the best
way to make that happen is to require that objectors work
hard for their filibuster, assembling a like-minded coalition
and being forthright about their concerns rather than hiding
in the shadows or holding up a bill with an e-mailed note.
Currently there are six opportunities to filibuster most
bills, and Republicans have exploited them all. Mr. Reid
wants to reduce those opportunities and speed things up,
primarily by ending the filibuster on motions to proceed to
debate on bills.
That change alone could cut a week of delay on most
measures. He also wants to curb filibusters that prevent
conference committees from meeting and that hold up some
presidential nominations.
A faster-moving Senate would be useful, but that should not
be the only goal. The best way to end the Senate's sorry
history of inaction is to end the silent filibuster, forcing
lawmakers to explain themselves if they want to block
legislation supported by the majority.
____
[From the New Mexican, Jan. 5, 2013]
Filibuster Reform: We Need It Now
The first day of the 113th Congress took place last week.
But fortunately, for the hopes of filibuster reform in the
U.S. Senate, opening day will continue later this month,
likely Jan. 22. It is, after all, on the opening day of a
session that the Senate can revise its rules with a simple
majority of 51 votes--and a rules revision to make it easier
to do the people's business is desperately needed.
New Mexico Sen. Tom Udall, a Democrat, has been a leader in
the efforts to reform the U.S. Senate, a move that should not
be seen as partisan. Should easing the logjam of holds on
bills and appointments help the Democratic majority right
now, a rules change could assist Republicans in the future.
In politics, no majority is permanent, after all. However,
Udall and others--notably U.S. Sen. Jeff Merkley, an Oregon
Democrat--are right to keep pressing for substantive reform
in how the contemplative Senate does its work. The problem
facing the Senate is this: Obstructionists in the minority
have essentially made it impossible to do business without a
supermajority. To pass legislation, the Senate routinely
needs 60 votes--the number that can overcome a filibuster--
rather than a simple majority. With their reform, Udall and
Merkley want any senator who puts a hold on a bill to have to
get up and actually filibuster. That is, talk and talk and
talk, without stopping, so that the whole world sees who is
gumming up the works. Anonymous holds would stop, whether on
legislation or appointments that require Senate confirmation.
This seems like common sense. A senator who wants to make a
stand should have to stand up and tell the country why.
What is common sense in flyover country is controversial in
Washington, D.C., where lawmakers enjoy exercising secret
holds out of the light of day. Even instituting the reform
will be difficult. Normally, changing Senate rules takes 67
votes; on the first day of Congress, though, 51 votes will do
the job. Senate tradition--and boy, is the Senate
traditional--frowns upon changing rules with such a narrow
margin. Doing so is called the ``nuclear'' option by
detractors, and the ``constitutional'' option to those hoping
to break open stifling Senate culture. In recent days, a
different Senate rules change package has been discussed, one
proposed by Democratic Sen. Carl Levin of Michigan and
Republican Sen. John McCain of Arizona and backed by others.
We like its bipartisan origins, but unfortunately, the
senators' proposal appears too watered down to fix gridlock.
It would make it tougher for the minority to block debate,
but by guaranteeing minority members two amendments, could
serve up another method of killing legislation.
We are encouraged that Majority Leader Harry Reid of Nevada
chose to recess, rather than adjourn, the Senate on its first
day of the session, thus giving Udall and Merkley time to
garner support for their substantive rules reform. The right
for a single senator to stand on principle, holding up
legislation out of strong conviction, must be protected--and
asking a politician to talk, after all, is no heavy penalty.
What must go by the wayside is the ability of any senator to
stall appointments, or hold up necessary legislation, just
because.
When the Senate continues its first day later this month,
we urge Majority Leader Reid to go for broke. Seek true
reform, allowing the filibuster to remain only if senators
will stand up and speak for their positions out loud where
all can see. If need be, institute the reform with 51 votes.
Otherwise, the Senate will not be able to conduct the
essential business of the country--again. And whether
approving Cabinet secretaries or ambassadors or judges, or
passing necessary laws on immigration and gun control, the
nation needs a Senate that can move legislation through in a
timely, thoughtful but never cumbersome fashion.
Mr. UDALL of New Mexico. Three of my Senate colleagues who have just
been elected are in the Chamber. I think one of the best things about
this new class of Senators who have come into the Senate is they have
studied this issue, they understand this issue, they have been out
there with the American people and listened to them. The American
people are demanding change.
So it is a real pleasure to see in the chair the Senator from Hawaii,
who is the Presiding Officer, and on the floor the Senator from North
Dakota and also the Senator from Maine. I know shortly we will be going
into our caucus and having a very lively debate about which way to move
forward, how we do reform.
I am convinced we are going to reform these rules. I hope we do it
working with our colleagues on the other side of the aisle. But if they
will not come with us, we are in a position where we are in the
majority, and we have to make this institution work for the American
people.
With that, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. MERKLEY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Heitkamp). Without objection, it is so
ordered.
Mr. MERKLEY. Madam President, I am rising today to talk about the
vision we have ahead for the next 2 years and how this Senate can
fulfill its responsibilities under the Constitution to do its
legislative responsibilities addressing the big issues facing America.
I don't think anyone is unaware that for the last 2 years this
Chamber has seen simply inaction and paralysis. It has been rated as
one of the worst 2-year sessions in the history of the U.S. Government.
Well, what are we going to do differently? How is it that we only
address 1 out of 24 appropriations bills over the last 2 years? How is
it that so many important bills never made it to the floor of the
Senate, bills such as the replacement for No Child Left Behind, which
was a bipartisan vision that came out of committee.
How is it that so many bills came to this floor to never see a final
vote? These are bills, such as the DISCLOSE Act, which would have
eliminated secrecy in campaign donations; the DREAM Act, which would
have honored creating a future for those who know only America as their
home; the President's jobs package, which would have helped put America
back to work; and the closing of loopholes for the biggest, most
wealthy oil companies. Those funds could be put to use reducing our
deficit or funding critical programs for working Americans.
On issue after issue after issue, we saw inaction. What we heard
yesterday at the start of this next 2 years was a call from the
President for action. In his inaugural speech he said:
For now decisions are upon us, and we cannot afford delay.
We cannot mistake absolutism for principle, or substitute
spectacle for politics, or treat name-calling as reasoned
debate. We must act, knowing that our work will be imperfect.
We must act, knowing that today's victories will be only
partial.
The President echoed, if you will, the thought that he brought into
his first 4 years, the urgency of now. We have big issues facing
America, and it is time for the executive branch and the legislative
branch to work together to address those issues.
In this call for action, we must ask how much action can there be if
we see more than 100 filibusters in the next 2 years? How much action
can there be if on every request for a vote an objection is heard that
creates a day of delay in this Senate? The contrast is enormous from
the time that Lyndon B. Johnson was President of the Senate.
Lyndon B. Johnson, during 6 years of presiding over this body, saw
one filibuster. Harry Reid, in his 6 years of presiding over this
Senate, has seen 391 filibusters.
Let me convey that even when we have the votes to end a filibuster,
the fact that it is launched creates enormous paralysis. Imagine you
are debating a bill, and you continue debating through the end of the
week. When you come in the following Monday to debate, and nobody has
anything left to
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say, then someone says: I ask unanimous consent that we have a final
vote on this bill. Now, you see, we don't have a previous question on
this floor, so one has to ask unanimous consent. Any of the 100
Senators can weigh in and say no.
When they weigh in and say no on that Monday, then on Tuesday a
petition is put forward with 16 Senators saying: Let's have a vote on
closing debate. That vote can't happen until Thursday, under the rules.
If it is successful on a Thursday, we have to have 30 hours more of
debate before we can hold the final vote. That takes us into Saturday.
Monday through Saturday is lost based on an objection on Monday by one
Senator.
If we have 391 of these objections that waste a week of our time in
the course of a 6-year period, then we basically waste every
legislative week because there are not 391 weeks in a 6-year period.
It becomes pretty simple to see why we only were able to get one
appropriations bill done in the last 2 years, and why so many bills
never made it to the floor of the Senate for consideration even though
they were essential to restoring the economic vitality of our Nation
and putting people back to work. I, for one, find this absolutely
unacceptable.
Over our history there have been three basic forms of filibusters.
The first only worked in an age when transportation didn't work very
well, and at any given moment there were a number of Members who
couldn't get here to the floor of the Senate because they were
traveling from their farms and the axle on their wagon broke or the
train broke down or so on and so forth. Sometimes those journeys would
take many weeks and things happened along the way. In that situation, a
quorum of 50 percent plus 1 was sometimes in doubt, and those seeking
delay could say: You know what. Let's deny a quorum.
Well, that was an effective tool only through that period. Then, as
that changed, folks said: You know, we have the respect here of hearing
everyone out. Therefore, if I can get to the floor of the Senate, I may
delay this Senate as long as I am able to speak.
Well, it is through this effort that we have a number of famous
filibusters, folks such as Strom Thurmond holding forth for 24 hours.
We have, however, seen that a person can only delay the Senate for 24
hours. Then someone else can seek the floor, and you may proceed. So
that was a fairly modest strategy.
In both the case of the denying quorum and in the case of speaking as
long as you could, you had to spend time and energy. You had to
organize, and it was visible before this body. It was visible before
the reporters gathered in the balcony. Therefore, the American people,
long before there was a television camera here, could see what you were
doing, and the public could provide feedback on that.
But now we come to the modern era, from 1970 forward, in which it has
become popular to start using the objection as an instrument of party
warfare, the objection to a final vote. If we turn back before 1970, we
had an overlap between the parties of perhaps 30 Members. So if you had
used this objection, you would have a good sense that you would be able
to get cloture. Furthermore, there was a social contract that you only
interrupted the workings of this body on an issue of deep principle.
You only blockaded the operations of the Senate on an issue of profound
concern to your State, not as a routine instrument of party politics.
But that has changed over the last 43 years, since 1970 forward, and
now the minority party can say: Let's show that the majority can't even
get an agenda onto the floor of the Senate, and then let's complain
about them not acting. This is not a philosophy that serves America. It
is not a philosophy that was embraced through the extent of our
history. You came here with the responsibility to contribute in
committee, to contribute on the Senate floor, to try to make bills
better, and to try to get issues addressed. You were not trying to
paralyze this body so issues don't get addressed that may be contained
on that side. That, quite frankly, is an unacceptable theme that has
started to haunt this Hall, and we need to do something about it.
Indeed, if we look at the modern era where the parties have become so
divided, we no longer see that overlap of 30 Senators. Therefore, any
minority group, be it the Democrats, be it the Republicans, has the
ability to bring this Chamber to a halt. But is it right to do so? If
we cannot persuade our colleagues it is wrong to do so, then we need to
change the rules of the Senate. We need to insist if someone is going
to throw a shoe into the gears, if someone is going to blockade the
ability of the Senate to deliberate and decide, then that Senator needs
to take responsibility here on the floor of the Senate.
Yes, we should get rid of the filibuster on the motion to proceed.
Filibustering on whether to get to a bill does not enhance deliberation
on the bill itself. We should make that decision in a crisp fashion and
get on to the work, not waste weeks trying to decide if we are going to
do the work of the people.
Second, we should get rid of the filibuster on going to a conference
committee. Both Chambers have decided. They have voted in favor of the
bill. It has been passed in different forms. Nothing should impede
getting to conference and having a negotiation. Indeed, out of those
negotiations, even if starting with one Chamber having a dramatic view
different from the other, there is a coming together that takes steps
forward that both Chambers can agree to. So nothing should impede that
negotiation from going forward. We recognize a bill can still be
filibustered when it comes back from committee, so why impede getting
to the conference committee in the first place?
We should greatly reduce the number of hours after we have gotten
cloture on debate. On nominations, by the time we vote on closing
debate, our Members know how they are going to vote on that nominee. So
we could have a final 2 hours but not a final 30 hours. Thirty hours is
another wasted set of days we can ill afford. And certainly it makes
sense to say, whenever possible, we should cut down that 30 hours on
bills after we have reached cloture. We can do it by unanimous consent,
and we often do that now. We can do it by requiring Senators to proceed
to a vote if they do not stand and talk, but that is postcloture.
Here is the thing: When 41 Senators say they want additional debate,
they want to delay the decisionmaking process here in the Senate, they
should be willing to stand and make their case before their colleagues
and the American people. It takes time and energy if you go that
direction. It doesn't become a freebie where one Senator spends no
time, no energy, and can go off to dinner or on vacation while
paralyzing the Senate. You should have to spend the time and energy to
be here to make your case.
Not only is that important in stripping away frivolous filibusters,
it also means the American people get to weigh in. I am absolutely
convinced if we were to go back to the debate on the DISCLOSE Act,
which stripped away secrecy in campaign donations, and we had 59 votes
to close debate--we needed a sixtieth--if those who voted for
additional debate, and who fled this Chamber fearful of making their
case before the American people, had been required to stand and defend
secrecy and foreign donations in our campaign system, the American
people would not have said they were heroes but they were bums. They
would have weighed in and said to their own Senators: Join the effort
to close debate, because to stand in the way of a final vote over
secrecy in campaign donations does great damage to our democracy. Maybe
the pressure and common sense of the citizens would have helped address
the bitter partisanship that guides this body.
At a minimum, the citizens of this Nation have the right to know what
is happening to legislation here on floor. The idea it is being
paralyzed by the secret filibuster is unacceptable, so we should
include the talking filibuster in any package we bring to modify the
rules of the Senate.
I see my colleague from New Mexico has come to the floor, and he
spoke earlier. He has put forward the vision that we must, at the start
of every 2 years, evaluate how the Senate is working, and if it has
problems we need to pass changes in the rules to address those
problems.
This is not some remote concept of inside baseball. This is about
American citizens having a legislature that can
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address the big issues facing our Nation. So I praise him for his
leadership in putting this forward, which has led to this day. And it
is the second time. We were here 2 years ago making this case, making
this argument that we owe it to our citizens to improve the workings of
the Senate, and we are here again today.
There is a saying about the Senate, that the Senate is the world's
greatest deliberative body. If only it were so. It has been, at various
points in its history, a thoughtful Chamber, a deliberative Chamber.
But not today. It is driven by deep partisan differences, those being
converted into strategies of paralysis, that prevent deliberation. We
must change that. It is our responsibility as Senators to change that.
The American people expect it. Let's make it so.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. UDALL of New Mexico. Madam President, I ask unanimous consent to
engage in a colloquy with my friend, the Senator from Oregon.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. UDALL of New Mexico. Madam President, once again let me say at
the beginning it is a real pleasure to see my old attorney general
colleague, now the Senator from North Dakota, Heidi Heitkamp, in the
chair presiding over the Senate, and also to see the Senator from
Maine, Angus King, here--our new Senators. I think Senator Merkley
would agree with this, that our new Senators bring an energy to this
that we don't necessarily have. We are 4 years from our last campaign.
We ran in 2008. I love hearing their stories and what they have heard
and how they have visited with people in townhall meetings.
The American people get this. I don't think there is any doubt that
they really get this. I know my colleague has done a number of
townhalls on this issue. I just hope, as we have the chance to discuss
this, both in our caucus and on the floor and with other Senators, that
we can capture the energy of the Senators who have arrived here and
have been out with the people in their States, with their constituents,
and what they bring to this.
But I wanted to ask the Senator because, among many of our Senators,
he does regular townhall meetings--and I have also done a number in my
career--is this kind of rules change something that is so arcane that
people don't understand it? Are they saying: Why are you bothering with
procedure or do people get it? Do they get it in Oregon when you are in
a meeting?
Mr. MERKLEY. To my colleague from New Mexico, I would say they most
adamantly get it. In fact, I had 13 townhall meetings 2 weeks ago, in
conservative parts of the State, in more liberal parts of the State.
And in every setting--every setting from conservative to liberal--folks
said: Please, please continue this effort to address the filibuster and
the paralysis, and the simple notion behind the talking filibuster.
If a Senator is voting for more debate--that is to delay the workings
of the Senate--then he or she should be making their case on the floor
so the citizens get to see what is going on and they get to decide
whether they support it or oppose it. That idea resonates with people.
It is the way folks think the Senate works, and they often think the
rules that required it in the past have been changed so it does not
happen now. So it is a chance I have to explain to them that what has
changed is the social contract; that when people objected to the Senate
proceeding with its business in the past, they wanted to make their
views known on the Senate floor. They wanted to take responsibility
because they realized it was a very high privilege to be able to delay
the Senate and they had a responsibility to do so only for deeply
principled or large issues and to make their case known.
So I do see overwhelming support. I feel as though the American
people are so far ahead of maybe our own Chamber in understanding how
broken we are and how much it needs to be fixed.
Mr. UDALL of New Mexico. The Senator made some nice comments about
me--he was probably a little too generous--and I wanted to also thank
him for all the work he has done on this issue. He has been a
passionate voice for change, and he and I have both reached out to our
friends across the aisle and tried to get things done.
I always bring this back to the question of why are we doing this. We
are doing this so government can tackle the issues the American people
care about. And I think there are two times in history--I am sure there
are many others--where for me the Senate was in its glory days. We
should always remember we have that potential. We see little bits of
light every now and then here, such as with the passage of a
transportation bill or a farm bill out of the Senate where
bipartisanship exists and we come together, but I wish to talk very
briefly about two time periods that I consider to be the glory days of
the Senate.
One was before the Civil War. In the 40 years before the Civil War,
the Senate was grappling with how do we hold the Union together. There
was tremendous discussion, and Senators such as Daniel Webster and John
Calhoun and others would work with each other and have heated debate,
but for that 40 years before the Civil War, they held the country
together. It was the Senate that fashioned those compromises that
allowed the country to stay out of the Civil War. They didn't
completely prevent it, but most people, looking at history, say those
were some of the glory days of the Senate.
The second period was in the 1960s and 1970s, with Senators such as
Muskie and Stafford and Chafee--giants in this body--who stepped
forward on civil rights, stepped forward on environmental issues,
stepped forward on the pressing issues of the time. So the Senate, once
again in that time period, passed laws.
I remember; I was a kid here in Washington, and my father was
Secretary of the Interior, when the wilderness law, the Clean Water
Act, the Clean Air Act, and the Environmental Protection Agency was set
up. Those were big laws--big, bold laws--that were dealing with our
problems. So once again, they are glory days of the Senate.
I think we have that potential. As I see the new Senators coming in,
the folks who were elected with us, and the Senators who arrived in the
last 5 or 10 years, I think we have the ability to respond in a big,
bold way to the crises that face us.
I know Senator Merkley came here as a young man with Senator
Hatfield, I believe, and he saw a different Senate. Maybe he could talk
about that. We don't want to stay; I know we are going to a caucus and
we have our generous chair here--our presiding officer--so we don't
want to keep her up here too long.
Anyway, I yield to the Senator.
Mr. MERKLEY. I think my colleague from New Mexico is absolutely right
in pointing out there were periods when the Senate really worked to
face the big issues of America. And it wasn't that there weren't
profound differences. There were fierce differences, emotional
differences, deep differences, but folks came to this floor, they
conversed, they laid out their arguments and, ultimately, they made
decisions about which way to go. They didn't bring the attitude: Well,
let's paralyze this Chamber from doing anything. Had they done that,
there would never have been the set of changes that addressed
significant issues in either of those periods.
My colleague is right that a part of the reason I feel so strongly
about restoring the functioning of this Senate is that when I came here
as an intern at age 19 for Senator Hatfield, I had the very good
fortune to be assigned to the Tax Reform Act of 1976, and then I had
the even better fortune that it came up on the floor of the Senate. So
during the many days it came before the body, I sat up in the staff
gallery and watched as amendment after amendment was raised and debated
and voted on. And since in those days there was no camera or e-mail,
the member of the Senate team who was responsible for it would run down
from the staff gallery, intercept their Senator, and tell them what the
issue was, what was said about it, what the folks back home thought
about it, what the set of motions was that had been dealt with on it,
and so it was a legislature at work. And rarely, rarely, did the
thought that anything would not be decided by 51 pass the minds of
Senators.
[[Page S32]]
Again, that objection for 51 was reserved for very special, very rare
occasions. It might happen once or twice in your career.
I do feel that the conversation we have before us is so important
that I thought I would put up this chart. As my colleague can see, this
just dramatizes it. It is a picture of Lyndon B. Johnson showing his
one filibuster in 6 years, one time that he needed to get a cloture
motion to try to shut down debate; otherwise, there was a courtesy that
people said what they had to say and then stood aside and took votes.
And here we have Harry Reid in his 6 years--it says ``387 and
counting.'' It hit 391 before we completed his sixth year. So there is
an enormous difference.
The work we are engaged in right now of trying to find a way to have
every voice heard and then to be able to proceed to be accountable and
transparent before the public is so important.
As the Senator and I have engaged in this conversation, sometimes we
have heard criticism from across the aisle saying: You are trying to
silence the voice of the minority. Does the Senator see anything in the
proposals that we have been advocating that in any way silences the
voice of the minority?
Mr. UDALL of Colorado. In looking at this, I do not see anything in
the proposals, and I think we, in working on this together, tried to
bring a discipline to it that said we want to preserve the best
traditions of the Senate, we want the minority to be heard, we want the
minority to have amendments, and we want them included in the process.
What we don't want is the tyranny of the minority. And the Founders
talked about the tyranny of the minority. They talked about the fact
that if you allowed a small minority to govern and block the governing
of the majority, that was the tyranny of the minority, and they feared
that.
So I think that when we consider this and we talk about the
filibuster and our institution today, our Senate, where many times the
Republican leader has come to the floor and said that it is going to
take 60 votes, everything takes 60 votes, that isn't the way the
Founders designed it. The Founders actually had very strong language
for what they thought of supermajorities.
Everybody remembers their history. The Founders came off the Articles
of Confederation. It was a supermajority. It didn't work. It was
broken. So they only put into the Constitution in five places
supermajorities--things such as expelling a Member and ratifying a
treaty--but otherwise it was simple majorities. And when the history is
going to be written, it is hard to tell how this happened. But to have
a leader of the Senate stand and say that everything takes 60 votes--
the Founders never contemplated that. When they adopted rule XXII in
1917, that wasn't what they were trying to do, and the rule has
actually been turned on its head.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Madam President, I would like to follow up on the last
point Senator Udall of New Mexico made about our Founders.
I have in my hand three of the Federalist Papers, Federalist Papers
22, 75, and 58. These are by Madison and Hamilton, and they explore
this issue of the supermajority. It was a very conscious decision that
a supermajority was not put into the Constitution for decisions of
these Chambers. And the reason why--and they explained it more
eloquently--is essentially that if you take the path that the minority
thinks is the right path rather than the path the majority thinks is
the right path, then over time you make a series of worse decisions.
The minority might be right on occasion, but most of the time the
viewpoint brought by those representing the greatest number of States
in this case or the greatest number of citizens on the House side is
the path that makes sense. And they warned about the supermajority as
an instrument that would bring paralysis. It is almost as if they could
look forward 200 years to this moment and say: Don't do that because
you will end up with paralysis.
This is from Federalist Paper No. 22 by Alexander Hamilton. He wrote
this in 1787, and he notes in commenting about the issue of a simple
majority that ``there is commonly a necessity for action. The public
business must, in some way or other, go forward. If a pertinacious
minority can control the opinion of a majority, respecting the best
mode of conducting it, the majority, in order that something may be
done, must conform to the views of the minority; and thus the sense of
the smaller number will overrule that of the greater, and give a tone
to the national proceedings. Hence, tedious delays; continual
negotiation and intrigue; contemptible compromises of the public
good.''
Let me read that last set of words about what Hamilton said would
happen if you had a supermajority requirement in the Senate: ``tedious
delays; continual negotiation and intrigue; contemptible compromises of
the public good.'' I think anyone watching the proceedings of the
Senate for the last 2 years would say that Hamilton was right on the
mark in that regard. And, of course, he was not alone. There was not a
single Federalist Paper written arguing that there should be a
supermajority in the Senate or the House because of the experience that
had been had previous to forming the strategy embodied in the
Constitution.
Let's turn to James Madison. In Federalist 58, James Madison said:
It has been said that more than a majority ought to have
been required for a quorum . . .
He goes on to discuss it in various views, and he said:
Lastly, it would facilitate and foster the baneful practice
of secessions; a practice which has shown itself even in
States where a majority only is required; a practice
subversive--
And here is the key language--
a practice subversive of all the principles of order and
regular government; a practice which leads more directly to
public convulsions, and the ruin of popular governments, than
any other which has yet been displayed among us.
He also made the point that we would end up with equitable sacrifices
to the general weal--or general good.
So as we turn to our conversations in our respective caucuses and to
the dialog here on the floor of the Senate, I ask my colleagues to
search your hearts about our responsibility to the citizens of the
United States of America to address the big issues facing America,
which means that we don't paralyze this body in secret. If my
colleagues have points to make, then make them as was done during the
periods of great debate on the floor of the Senate: Make them on the
floor of the Senate, engage in that debate, and when no more is to be
said, when all 100 Senators say: We have had our full input, then let's
make a decision.
Madam President, I yield the floor.
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