Congressional Record, Volume 159 Issue 9 (Thursday, January 24, 2013)

[Congressional Record Volume 159, Number 9 (Thursday, January 24, 2013)]
[Senate]
[Pages S247-S256]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

THE FILIBUSTER

Mr. HARKIN. Mr. President, I come to the floor today to give some
remarks that I give about every 2 years, I guess, when the Senate
reconvenes for a new Congress. Now this is a new Congress, so once
again I come here to point out that we need to make some changes in the
way we operate.
I have been in this body for 28 years. I am currently eighth in
seniority. As soon as Senator Kerry becomes Secretary of State, I will
be seventh in seniority. I am proud to represent the great State of
Iowa; I am proud to be a Senator, to serve in this illustrious body. I
have been in the majority and minority I think up to five times in the
Senate. Before that, I served 10 years in the House. I love the Senate.
It is a wonderful institution--it is, as envisioned by our Founders.
The Senate at times has been frustratingly slow to encompass the
changes necessary to the smooth functioning of our country. I mention
in particular the long, long struggle for civil rights and how that was
held up by a small minority--which happened to be in my party, by the
way, at that time.
Nonetheless, the Senate through the years has really been the Chamber
that takes a long and hard look at legislation, where we have the right
to amend, where we have the right to discuss and to embark upon
discourse on legislation in a manner that allows even the smallest
State to be represented as much as a large State. That is not true in
the body that both the occupant of the chair and I used to serve in,
the House. There, as you know, large States tend to dominate because we
have most of the Members. But here, a Senator from Connecticut is just
as important as a Senator from California or a Senator from Iowa or--
let's see, what is the least populous State? I think Wyoming or
Alaska--is equal to a Senator from New York or Florida or Texas or
California. This has been a great equalizing body.
Having served here for this time, I think I have some perspective on
this Senate. As I said, at its best, this Senate is where our great
American experience in democratic self-government most fully manifests
itself. It is in this body that the American people, through their
elected officials, can come together collectively to debate,
deliberate, and address the great issues of our time. Through our
Nation's history, it has done so. In the nearly quarter of a century I
have been here--well, wait, it is 28 years that I have been here, so it
is over a quarter of a century--the rights of Americans have been
expanded: Americans with disabilities; we have ensured health insurance
for millions of Americans.
In the early 1990s we voted here on the course to eliminate the
national deficit in a generation, and we are on our way to doing that.
It is because of my great reverence for this institution and my love
for our country that I come to the floor today. One does not need to
read the abysmal approval ratings of Congress to know that Americans
are fed up and angry with this broken government. In too many critical
areas, people see a Congress that is riven with dysfunction. Citizens
see their legislature going from manufactured crisis to manufactured
crisis. They see a legislature that is simply unable to respond
effectively to the most urgent challenges of our time.
Of course, there are a myriad of reasons for this gridlock--increased
partisanship; a decline in civility and comity; too much power, I
believe, in the hands of special interest groups; a polarizing instant-
news media; and, I might add, the increasing time demands on all of us
here involved in raising large amounts of money to run for reelection.
But make no mistake, a principal cause of dysfunction here in the
Senate is the rampant abuse of the filibuster.
It is long past time to make the Senate a more functional body, one
that is better able, as I said, to respond to our Nation's challenges.
The fact is that I am not a Johnny-come-lately to filibuster reform. In
January of 1995--when I was in the minority, I might add--I first
introduced legislation to reform the filibuster. We got a vote on it.
Obviously, we did not win, but I made my points then, and I engaged in
a very good debate with Senator Byrd at that time, in 1995. You can
read it in the Record. I think it was probably January 8, if I am not
mistaken, of 1995.
At that time, I submitted a resolution because, as I said, I saw an
arms race in which each side would simply escalate the use of the
filibuster and abuse procedural rules to a point where we would just
cease to function here in the Senate. I said that at the time. I said
that what happens is when the Democrats are in the minority, they abuse
the filibuster against the Republicans. Then when the Republicans
become the minority, they say: You Democrats did it to us 20 times, we
will do it to you 30 times. Then when it switches again and the
Democrats are in the minority, they say: Republicans did it to us 30
times, we will do it 50 times. We will teach them a lesson.
On and on, the arms race is escalated. I said at the time that we
might get to a point where this body simply cannot function, and sadly
that is what happened.
That is why 18 years after I first submitted my proposal, I believe
reform is never more urgent and necessary. The minority leader stated
that reformers advocate ``a fundamental change to the way the Senate
operates.'' To the contrary, it is the abuse of the filibuster, not the
reforms being advocated, that has fundamentally changed the character
of this body and our entire system of government. Again, I will point
out now and I will point out repeatedly in my remarks that Democrats
are not guiltless in this regard by any means, but the real power grab
and the real abuse has come about when the Republicans have abused this
tool--one that was used sparingly for nearly 200 years.
What has happened is that effective control of the Senate and of
public policy has been turned over to the minority, not to the majority
that has been elected by the American people. In many cases, those who
are warning of a fundamental change to the nature and culture of the
Senate are the very ones

[[Page S248]]

who have already carried out a revolutionary change. Those of us who
are seeking to reform the filibuster rules are not the ones who are
doing a nuclear option or blowing up the Senate. Those who have abused
the filibuster are the ones who have already changed the character of
the Senate. What we are trying to do is restore some functionality to
the Senate so that the Senate can operate with due regard for the
rights of the minority. I will talk about that more in a moment.
The minority leader has recently called the filibuster ``near
sacred.'' I am sorry, he could not be more incorrect. The notion that
60 votes are required to pass any measure or confirm any nominee is not
in the Constitution and until recently would have been considered a
ludicrous idea, flying in the face of any definition of government by
democracy.
Far from considering the filibuster ``near sacred,'' it is safe to
say that the Founders would have considered a supermajority requirement
sacrilegious. After all, they experimented with a supermajority
requirement under the Articles of Confederation, and it was expressly
rejected in the Constitution because the Framers believed it had proven
unworkable. That is right, the Articles of Confederation basically had
a supermajority requirement, and they found that did not work. That is
why, as I will mention in a moment also, the Framers of the
Constitution set out explicitly five different times that this Senate
requires a supermajority. You would have thought that if they wanted a
supermajority for everything, they would have said so. No, they
specified treaties, impeachments, expelling a Member--those require a
supermajority as expressly spelled out in the Constitution.
The filibuster was once a tool used only in rare instances--most
shamefully, as I said earlier, to block civil rights legislation. But
across the entire 19th century, there were only 23 filibusters, in 100
years. From 1917, when the Senate first adopted rules to end
filibusters, until 1969 there were fewer than 50--during all those
years. That is less than one filibuster a year. In his 6 years as
majority leader, Lyndon Johnson only faced one filibuster.
According to one study, in the 1960s just 8 percent of major bills
were filibustered. Think about all the legislation that was passed--
civil rights, Voting Rights Act, Medicare, Medicaid, Older Americans
Act, Pell grants, Higher Education Act, Elementary and Secondary
Education Act. Think of all the legislation passed in the 1960s. Just 8
percent was filibustered. In contrast, since 2007 when Democrats
regained control of the Senate, there have been over 380 motions to end
filibusters--380. This does not even include the countless bills and
nominations on which the majority has not even tried to obtain cloture
either because of a lack of time or because we knew it would be
fruitless.
The fact is that for the first time in history, on almost a daily
basis, the minority--and in many cases, just one Senator--routinely is
able to and does use the threat of a filibuster to stop bills from even
coming to the floor for debate and amendment. Unfortunately, moreover,
because of outdated rules, an actual filibuster rarely occurs. Too
often it is merely the threat of a filibuster, and that is the end of
it; it is not debated or anything.
Let's get beyond the outrageous idea that Democrats, in proposing
rules reform, would be initiating a revolution. In actuality, the
changes that are seriously under discussion right now are simply a
modest reaction to decades of escalating warfare which has culminated
in 6 years of unrelenting minority obstructionism.
Because I feel so passionately that reform is so badly needed, I
fully support the commonsense proposals from Senator Merkley and
Senator Udall. Their proposals would simply require the minority to
actually filibuster, actually debate. A Senator would have to come to
the floor and explain his or her opposition or offer his or her views
on how a bill could be improved. Under the proposed reforms, the
Senators would actually have to make arguments, debate, and deliberate.
Senators would have to obstruct in public and be held accountable for
that obstructionism.
Perhaps because this is such a commonsense reform, Republicans who
have come to the floor have not addressed why they oppose rules that
would require more transparency. Republicans have failed to explain to
this body or to the public why a minority--again, the group the public
chose not to govern here--why should they be able to kill a nominee by
stealth? Republicans have failed to explain why they oppose more debate
and more deliberation. Why do they oppose more debate, more
deliberation, which is puzzling given that they profess that their
sincere concerns are animated by the desire to foster debate and
deliberation. But that is not what is happening. In stealth, they
oppose a bill. They do not come to the floor, and they fail to defend
why they do not even do that, why they will not even come to the floor
and speak.
Instead, Republican after Republican has come to the floor and
denounced what they claim are Democratic efforts to eliminate the
filibuster and to, in their words, ``fundamentally change'' this body.
The fact is that they are attacking the wrong plan. The truth is, under
the reforms proposed either by Senator Udall or Senator Merkley or one
they have together or even under my proposal, the filibuster would
still be a tool. Sixty votes would be needed to enact a measure, to
confirm a nominee. Under their proposal, it would still require 60
votes.
Under my proposal as I first laid out in this body in 1995, I said:
You know, sure, OK, on the first vote after you have the cloture motion
filed, the first vote would require 60 votes.
If they didn't have 60 votes, they would have to wait 3 days, file
another cloture motion, and then they would need 57 votes. If they
didn't get 57 votes, they would have to file another cloture motion,
wait 3 days, and they would need 54 votes. If they didn't get that,
they would file another cloture motion, wait 3 days, and they would
need 51 votes.
Under this proposal I have worked out with other groups and other
people over the last almost 20 years, the fact is the filibuster could
be used for what it was intended--slow things down. I believe the
Senate ought to be a place where we slow things down. It should not be
a place where just a few Senators can kill a bill. This should be a
place where the filibuster is used not to slow things down but is
actually used to kill a bill.
What I have proposed would be a period of time--actually up to about
16 days--where someone could slow a bill down, but eventually the
majority would be able to act. I mean, what a revolutionary idea. The
majority should be able to prevail. Think about our own elections. I
guess maybe it could be extended further to say it is not enough to get
51 percent, or the majority of votes, we have to get 60; if they don't
get that, they don't take office. What a revolutionary idea that
somehow the majority should be able to move legislation.
I also agree there should be the rights of the minority to debate,
discuss, and amend legislation. Again, the majority, after ample debate
and deliberation, should have the power to govern, to enact the agenda
the voters voted for, and to be held accountable at the ballot box. I
guess I fundamentally believe in democracy. Maybe that is a failing on
my part. I fundamentally believe the majority should rule, with respect
for rights of the minority.
As I have noted, a revolution has already occurred in the Senate in
recent years. Never before in the history of this Senate was it
accepted that a 60-vote threshold was required for everything. This did
not occur as a constitutional amendment or through any great public
debate. Rather, this occurred because of the abuse of the filibuster.
The minority party has assumed for itself absolute and virtually
unchecked veto power over all legislation; over any executive branch
nominee, no matter how insignificant the position; over all judges, no
matter how uncontroversial.
In other words, because of the filibuster, even when a party has been
resoundingly repudiated at the polls, that party retains the power to
prevent the majority from governing and carrying out the agenda the
public elected it to implement. In this regard, over 380 filibusters is
not some cold statistic. Each filibuster represents a minority of
Senators--sometimes a mere

[[Page S249]]

handful--who are preventing the majority of the people's
representatives from governing.
As one example, Republicans repeatedly filibustered a motion to
proceed to legislation that would require more disclosure of campaign
donations. The DISCLOSE Act is what it was called. A substantial
majority of Senators supported the bill. Polling showed that 80 percent
of the public believed the Supreme Court's decision in Citizens United
was wrong, that we needed to know more disclosure of campaign
contributions. Yet a small minority of Senators was able to prevent the
bill from even being debated on the floor of the Senate, let alone
receiving an up-or-down vote. That is just one example.
In the last two Congresses, consider some of the measures blocked by
the minority, measures that received majority support on a cloture
vote: the DREAM Act, Bring Jobs Home Act, Small Business Jobs and Tax
Relief Act, Paying a Fair Share Act of 2012, Repeal Big Oil Tax
Subsidies Act, Teachers and First Responders Back to Work Act, American
Jobs Act of 2011, Public Safety Employer-Employee Cooperation Act,
Paycheck Fairness Act, Creating American Jobs and Ending Offshoring
Act.
Again, it is not that the bills were filibustered. The right to even
debate these bills and vote on them was filibustered. It is one thing
if we are on the bill and have a filibuster. No, we could not even
debate them even though a majority of Senators voted for cloture. Not
60 votes but a majority. So the majority was thwarted from the ability
to even bring these up and debate them or even letting people offer
amendments.
It used to be that if a Senator opposed a bill, he or she would
engage in a spirited debate, try to change people's minds, attempt to
persuade the public, offer amendments, vote no, and then try to hold
Members who voted yes accountable at the ballot box. Isn't that what it
is about? In contrast, today--and to quote former Republican Senator
Charles McC. Mathias in 1994:

The filibuster has become an epidemic, used whenever a
coalition can find 41 votes to oppose legislation. The
distinction between voting against legislation and blocking a
vote, between opposing and obstructing, has nearly
disappeared.

When Senator McC. Mathias spoke and described it as an epidemic, in
that Congress there were 80 motions to end filibusters. That is a
number which pales in comparison to today, when we have had 380 motions
to end the filibuster. To grind this body to a halt, all the minority
party has to do is resort to the filibuster of a motion to proceed.
Under the critical jobs legislation, all the minority party had to do
was block the motion to proceed and then they turn around and blame the
majority for failing to address the jobs crisis. We had jobs bills; we
could not get them up. We had jobs bills, but then they blamed us for
failing to address the jobs crisis. It is no surprise that Americans
are fed up with the broken government. As that list of blocked bills
demonstrates, the anger is fully justified. In too many critical areas
what people see is a dysfunctional Congress that is unable to respond
collectively to the urgent challenges we face.
As the Des Moines Register recently noted:

It is no surprise that editorials throughout the country have
recognized that the use of the filibuster must be changed.
USA Today has noted that the ``filibuster has become destructively
routine.''
The Roanoke Times noted that ``filibuster reform alone will not fix
everything that is wrong with Washington, but it would remove one of
the chief impediments to governing.''
The Minnesota Star Tribune stated:

Most Americans live under the impression that
representative democracy's basic precept is majority rule.
Sadly, that's no longer the case in the U.S. Senate, where
the minority party has so abused the filibuster that it (the
minority) now controls the action--or more accurately, the
inaction. This perverts the will of the voters and should not
be allowed to stand.

Mr. President, I ask unanimous consent that the copies of these
editorials, and others from around the country, in support of
filibuster reform be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the StarTribune, Dec. 25, 2012]

Filibuster in Need of Major Overhaul

(By Editorial Board)

Most Americans live under the impression that
representative democracy's basic precept is majority rule.
Sadly, that's no longer the case In the U.S. Senate, where
the minority party has so abused the filibuster that it (the
minority) now controls the action--or more accurately, the
Inaction.
This perverts the will of the voters and should not be
allowed to stand. As its first order of business next month,
the new Senate should reform the filibuster rules in a way
that restores fairness to the majority, preserves reasonable
rights for the minority and keeps faith with the intent of
the Constitution and the voting public. Democrats Jeff
Merkley of Oregon and Tom Harkin of Iowa have solid proposals
for their fellow senators to consider. What they should not
consider is keeping the filibuster rules the way they are.
Let's be clear. This is not a partisan matter. The abusers
in this case happen to be Republicans. They have masterfully
mounted hundreds of filibusters in recent years to frustrate
the majority Democrats and, in the process, have remade their
leader, Mitch McConnell, into the Senate's de facto majority
leader. But Democrats could--and probably would--stoop to the
same depths the next time they're relegated to minority
status.
As an idea, the filibuster has merit, and when used more
sparingly in the past, it has won support from this page. Not
rushing to judgment is a main function of the Senate, which
was intended as a deliberative body. Extending debate also
protects important rights for minority views. But the
minority's clear abuse of those rights has gone beyond
reason.
Here's the problem. On nearly every major bill, rather than
accept a loss by a simple majority, the minority party
launches a filibuster--a procedure that pushes the bill into
a limbo of theoretically endless ``debate'' unless a
supermajority of 60 votes can be rounded up to stop it.
Getting 60 senators to agree on anything is nearly
impossible. So the wheels of government grind to a halt. It's
a perfect tactic for the minority, because the public tends
to blame the majority for ineffectual leadership.
But it's worse than that. To mount and maintain a
filibuster takes no real effort or conviction. The minority
party never has to stand up on the Senate floor to defend its
position. There is no real debate, no real deliberation on
the nation's important business, or on the scores of judges
and other federal officials whose nominations the Senate must
confirm.
Not since 1970, when ``silent filibusters'' were adopted,
have senators had to hold the floor in the manner made famous
by the film ``Mr. Smith Goes to Washington'' (1939) or the
endless tag-team ordeals that Strom Thurmond and other
southern senators employed against civil-rights legislation
in the 1960s.
Even In those bygone days, senators reserved filibusters
for extraordinary moments. But now they are routine. In his
six years as majority leader, Harry Reid has faced 380
filibusters. Lyndon Johnson, in his six years as majority
leader (1955-1961), dealt with one.
``If you had a child acting like this, you'd worry about
him,'' former Vice President Walter Mondale told a University
of Minnesota audience last week. As a senator, Mondale led
efforts to reform the filibuster in 1975, but clearly his
changes weren't enough to halt the abuse.
Merkley's proposal would bring back the traditional
``talking filibuster.'' If more than half of senators voted
to end debate, but not the 60 votes required, then senators
would have to hold the floor with talking marathons.
Harkin offers a ``sliding filibuster.'' If the 60-vote
threshold to halt a filibuster isn't met, a 57-vote threshold
kicks in three days later, then a 54-vote threshold three
days after that. Finally, after nine days, the bill could
pass by a simple majority.
A third option is to get rid of the filibuster altogether.
A pending lawsuit from Common Cause proposes just that,
arguing that requiring a supermajority is unlawful except on
treaties and other Matters enumerated in the Constitution.
As currently practiced, the filibuster is a cynical affront
to voters and to the precepts of representative democracy. It
does not extend debate in a meaningful way. It does not make
the Senates deliberative body. It does more harm than good.
It should be reformed at the earliest possible moment
____

[From the Des Moines Register, Dec. 6, 2012]

Time Has Come To End Senate Logjam

(By The Register's Editorial Staff)

One message candidates heard from voters this election was
contempt for partisan gridlock in Congress. One of the
biggest obstacles to congressional action is the profusion of
filibusters in the Senate.
Now is the time to reform Senate rules to break that
legislative logjam.
It's a longstanding tradition for senators to block
legislation by merely talking it to

[[Page S250]]

death, known as a filibuster. Though by definition a
filibuster means literally obstructing Senate procedures by
continuous speech by members on the floor, a senator can have
the same effect these days by simply threatening to
filibuster. That is increasingly common.
The only way to stop a filibuster, according to the
Senate's rules, is by a ``cloture'' vote, which requires the
support of three-fifths of the body, or 60 senators. The
upshot is a minority of senators can block the will of the
majority.
In the past six years alone, 385 cloture motions have been
filed in the Senate calling for votes to end filibusters.
That is more than all of such motions filed in the 70-year
period after the cloture-vote rule was created, according to
a report by the Brennan Center for Justice. This has become
so common that it is assumed a 60 percent supermajority is
required for all votes.
That was not the intent of the framers, however. The
Constitution requires a supermajority vote for a limited
number of issues, which means only a majority is necessary on
all others.
Still, the filibuster is deeply rooted in Senate tradition.
The Senate cherishes the right of any senator to be fully
heard. Thus, the rules say no senator ``shall interrupt
another senator in debate without his consent.'' In other
words, one senator can hold the floor as long as he or she
has the capacity to speak.
Originally one had to actually talk continuously to prevent
a bill coming to a vote, which Southerners did to great
effect to block civil rights laws in the 1950s. Indeed, the
late Sen. Strom Thurmond of South Carolina still holds the
record for talking 24 hours and 18 minutes in August 1957.
The previous record holder was Louisiana Sen. Huey Long who
would read aloud recipes, instructions on how to fry oysters
and the occasional ``rambling discourse on the subject of
`potlilkker','' according to one account.
The Senate has sought to curb the filibuster before. In
1917, the rules were changed to provide for a way to end a
filibuster if two-thirds of the body is in favor, or 67
votes. The threshold was lowered to three-fifths, 60 votes,
in 1975.
Some argue that changing the rules would destroy the
Senate, but the party making that case is usually in the
minority and is using the filibuster to frustrate the
majority. Both parties are guilty of abusing the rules to
make it next to impossible for the Senate to perform its
duty, which is to act on legislation. Both parties should
agree on a compromise to reform the filibuster.
The Senate should agree on a rule change that recognizes
the Senate's respect for hearing the views of the minority
and to preserve the Senate's role in slowing reckless
proposals from the House for more thoughtful consideration.
But it should not preserve the status quo, which means that
nothing gets done in the Senate, and by extension nothing
gets done in Congress. That is neither the intent of the
Constitution or of the American people.
____

[From the Los Angeles Times, Dec. 12, 2012]

Go Nuclear on the Filibuster

(Editorial)

Harry Reid offers a plan to curb a tactic that has created
gridlock in Congress. It's a good start.
Nothing exposes partisan hypocrisy quite like the
filibuster, that irksome parliamentary rule that allows a
minority of U.S. senators to block legislation, judicial
appointments and other business by requiring a 60-vote
majority to proceed to a vote. Almost invariably, the party
in power considers the filibuster to be an enemy of progress
that must be squashed, while the minority fights to preserve
it at all cost. That the same players often find themselves
arguing from opposite sides depending on whether they control
the Senate or are in the minority hardly seems to trouble
most lawmakers.
So comes now Senate Majority Leader Harry Reid (D-Nev.)
with a campaign to alter the filibuster rule using the so-
called nuclear option, which if invoked on the opening day of
the new legislative session would allow senators to change
the rules by majority vote. Republicans are appalled that he
would consider such a ploy, even though they floated the same
proposal when they held the majority in 2005. Back then,
reform was blocked when a Gang of 14 senators led
negotiations that kept the filibuster largely intact, and top
Senate Republicans are reportedly reaching out to their
Democratic counterparts in an effort to repeat that
``success.'' We hope they fail.
For the record, we were rooting for the Republicans to go
nuclear in 2005, and we feel the same way with Democrats in
control. This is not a venerable rule created by the Founding
Fathers to protect against the tyranny of the majority, but a
procedural nicety that has been altered many times throughout
history. In its current incarnation, it goes much too far and
has produced gridlock in Congress.
Reid reportedly aims to return to the era of the ``talking
filibuster,'' when senators who wanted to hold up a bill had
to stand up and debate it ceaselessly, day and night. This
doesn't go quite far enough; Reid should also place limits on
the number of opportunities for senators to mount
filibusters, and put the burden on minority opponents by
forcing them to come up with 40 votes to sustain a
filibuster, rather than requiring the majority to drum up 60
votes to end it. Nonetheless, Reid's plan is a nice start,
requiring those who want to hold up legislation to do so
publicly and to use their oratorical skills to explain why
such a move is justified.
Even many Democrats realize that someday they'll be in the
minority, and fret that a future Republican-dominated chamber
will use Reid's precedent to put even stricter limits on
filibusters. But that's no reason not to approve Reid's
proposal. If some future Senate majority wants to go
thermonuclear, that's a debate for another day.
____

[From the Baltimore Sun, Dec. 11, 2012]

Ending Filibuster Abuse

Our view: In a matter of weeks, incoming Senators can
strike a blow for democracy and approve badly needed reforms
to the chamber's dysfunctional filibuster rule.
The announcement last week that South Carolina's Jim DeMint
is leaving his Senate seat to run the Heritage Foundation
caused some in Washington to wishfully think that perhaps the
move might usher in a more congenial, if not cooperative,
outlook in the U.S. Senate. But while Mr. DeMint set the gold
standard for ideological purity (denouncing his own party's
candidates from time to time when they failed to measure up
to his tea party, ultraconservative viewpoint), there are
still plenty in the GOP with the flexibility of a ramrod.
The Senate's legislative logjam was well-documented long
before the ``fiscal cliff' approached. Democrats may hold a
majority--and will even enjoy a slightly larger one next year
courtesy of the nation's voters--but the filibuster has
become so abused that it's simply become a given in the
chamber that passing legislation of any substance requires a
60-vote super-majority. That's the minimum required to invoke
cloture and prevent or curtail a filibuster. Even getting a
presidential nominee approved has become maddeningly
difficult, no matter how qualified or uncontroversial the
prospective judge or appointee may be.
____

[From Cleveland.com, Nov. 27, 2012]

Get the Senate Out of Its Own Way

(By the Plain Dealer Editorial Board)

The founders clearly intended the U.S. Senate--with its
six-year terms, its guarantee of equal representation for
every state and, initially, the indirect election of its
membership--to be a brake on the presumably more populist
House of Representatives. There is no evidence the
Constitution's architects envisioned it as a place where
legislation goes to die.
And yet that's what it has become.
According to the Brennan Center for Justice at the New York
University School of Law, the Senate has passed a record-low
2.8 percent of bills introduced during the current 112th
Congress. Judicial nominations have languished on average for
more than six months.
That inaction can be tied to the increased use of
filibusters--or even the threat of them--a tactic that,
operationally, means it takes a supermajority of 60 votes to
pass anything.
That's not only anti-democratic--a point made in the
Federalist Papers by Alexander Hamilton and James Madison--it
also is embarrassing. The Senate has simply stopped making
decisions on critical issues. Each parties uses procedural
tactics to frustrate the other, and as a result, the work of
the American people isn't getting done.
Now some junior Democrats want to vote on changing the
Senate's rules when the 113th Congress opens in January, and
Majority Leader Harry Reid says they'll get that vote. The
suggested changes make sense: No more blocking motions to
bring a bill to the floor or convene conference committees.
And a requirement that senators who wish to filibuster a bill
once again stand and talk for hours on end to block its
consideration. We'd add an idea from the nonpartisan No
Labels group: a 90-day deadline for confirmation votes.
Republicans who favored similar reforms when Democrats used
the rules to frustrate their majority during the Bush years
now complain that Reid would destroy the Senate's culture if
he rams through changes by a majority vote--and some veteran
Democrats, who recall being in the minority, agree. There
must be a way for Senate to resolve this impasse in a way
that respects minority views, yet allows real work to
proceed.
____

[From the Columbian, Dec. 18, 2012]

Many changes will be required for Congress to overcome its
current soul-crushing and will-sapping partisan divide. But
even the longest journey begins with a single step, which is
why the Senate should enact two quick and easy reforms when
the 113th Congress convenes in January.
No, this has nothing to do with the so-called ``fiscal
cliff,'' which is a crisis that for now is wholly owned by
the House of Representatives. But it is a reminder that there
are pressing issues in addition to the nation's financial
crisis. Among them is the fact that there is gridlock in the
Senate. Yes, the austere, august Senate, originally designed
as a refuge of nobility and decorum, is no more noble than
the sandbox fight that is the House.
During the past six years, Republicans used the
parliamentary procedure known as a filibuster almost 400
times to waylay legislation. That is about twice as often as
the

[[Page S251]]

procedure was used during the previous six years, and it
included the filibustering of simple procedural motions. All
of this suggests the Republicans have been more interested in
obstructionism than productivity, and we would hope for a
little less paralysis and a lot more action from the next
Senate.
To be sure, the filibuster is a necessary and often-
productive method for preventing tyranny of the majority. The
party that is not in power must have some means to prevent
being bulldozed by an overzealous ruling party that wishes to
limit debate. But the modern filibuster isn't the filibuster
they taught about in your grandfather's high school Civics
class.
The traditional filibuster evokes images of a courageous
legislator righteously standing up for his or her beliefs,
speaking for hours on the Senate floor and resorting to
reading the phone book if necessary to prevent a bill from
coming to a vote. Yet the modern filibuster consists of
little more than a notification that a filibuster is in
effect--and that notification can be delivered anonymously.
The filibuster then prevents a vote and effectively kills
legislation unless a cloture vote can be passed to end the
``debate.'' This essentially means that 60 votes are required
to pass any legislation out of the Senate, providing the
minority party with more power than voters have willed to
them.
That brings us to our proposals:
Restore the rule requiring actual floor debate to sustain a
filibuster. Not only would this force senators to act on
their convictions rather than their partisan predilections,
but in a world of 24/7 media coverage it would allow voters
to see exactly who is holding up legislation and to consider
why they are doing so. If a senator wishes to read recipes in
order to prevent a vote on the Paycheck Fairness Act, so be
it. But let the country watch.
Prohibit anonymous filibusters. If a senator wishes to
prevent a vote on the Dream Act, fine. But he or she should
own it, for the whole world to see. The trick is that any
procedural changes governing Senate business can be passed by
a simple majority--if the change is made on the first day of
a new session. The 113th Congress will convene on Jan. 3,
2013, and we urge the new Senate to show that it is
interested in a new way of doing business--one that actually
welcomes debate and accountability rather than allowing
legislators to silently and anonymously block the people's
business.
We should expect nothing less from those we send to
Washington.
____

[From the San Bernardino County Sun,
Dec. 7, 2012]

Back to the Future on Filibuster Reform

(By the San Jose Mercury News)

The Senate needs to go back to the future on filibuster
reform. Senators should have to stand their ground and raise
their voices on the Senate floor, around the clock if
necessary, a la Jimmy Stewart in ``Mr. Smith Goes to
Washington,'' to keep legislation from coming to a vote.
Back in the day, a minority senator had to have strong
personal convictions against legislation to undertake the
onerous, sleep-depriving filibuster, talking and talking and
talking to block action. Today, a senator, or a group of
senators, can merely threaten a filibuster, and suddenly the
legislation requires a 60-vote supermajority to move forward
to a vote. It's outrageous. Senate Majority Leader Harry Reid
wants to change the rules, and President Obama should be
helping to persuade the handful of Democratic senators who
are on the fence.
California Sen. Dianne Feinstein is one of them. She told
the publication The Hill that she thinks it would be a
mistake to use the Senate's power to change the filibuster
rules, but she said, ``I'll listen to arguments.''
Senate Republicans' record should be argument enough. And
if the parties' control of the Senate were reversed, that
would be just as wrong.
Not one filibuster was recorded in the Senate until 1841.
The average in the decade of the Reagan and Carter years was
about 20 per year. Senate Republicans used the filibuster a
record 112 times in 2012 and have used it 360 times since
2007.
They have stopped legislation that has widespread public
support. GOP senators blocked a major military spending bill,
a badly needed veterans' jobs bill and the Dream Act, all of
which would have passed with a majority. They stifled the
Disclose Act, which would require greater transparency in
campaign advertising. In a particularly craven abuse of the
system, they have halted the nominations of nearly two dozen
judicial appointments, causing backlogs in courts that delay
justice for people and businesses across the country.
Some Democrats fear that Republicans will win control of
the body in 2014, when 20 Senate Democrats will have to
defend their seats, and they'll want the power minority
Republicans have now. But then Republicans could change the
rules.
In ``Mr. Smith,'' an idealistic Jimmy Stewart used the
filibuster in an admirable way. But it has an ugly history,
often as a last-ditch attempt to stop overdue change. In
1957, Sen. Strom Thurmond spoke for a record 24 hours and 18
minutes against the Civil Rights Act, which he labeled
unconstitutional and ``cruel and unusual punishment.''
The Senate is supposed to debate the great issues of the
day, not stop them from being debated. Senators should change
the rules and get back to work.
____

[From the Contra Costa Times, Dec. 3, 2012]

Filibuster Rules Must Change and Lawmakers Need To Get Back To Work

(Contra Costa Times editorial)

The Senate needs to go back to the future on filibuster
reform. Senators should have to stand their ground and raise
their voices on the Senate floor, around the clock if
necessary, a la Jimmy Stewart in ``Mr. Smith Goes to
Washington,'' to keep legislation from coming to a vote.
Back in the day, a minority senator had to have strong
personal convictions against legislation to undertake the
onerous, sleep-depriving filibuster, talking and talking and
talking to block action. Today, a senator, or a group of
senators, can merely threaten a filibuster, and suddenly the
legislation requires a 60-vote supermajority to move forward
to a vote. It's outrageous. Senate Majority Leader Harry Reid
wants to change the rules, and President Obama should be
helping to persuade the handful of Democratic senators who
are on the fence.
California Sen. Dianne Feinstein is one of them. She told
the publication The Hill that she thinks it would be a
mistake to use the Senate's power to change the filibuster
rules, but she said, ``I'll listen to arguments.''
Senate Republicans'' record should be argument enough. And
if the parties' control of the Senate were reversed, that
would be just as wrong.
Not one filibuster was recorded in the Senate until 1841.
The average in the decade of the Reagan and Carter years was
about 20 per year. Senate Republicans used the filibuster a
record 112 times in 2012, and have used it 360 times since
2007.
They have stopped legislation that has widespread public
support. GOP senators blocked a major military spending bill,
a badly needed veterans' jobs bill and the Dream Act, all of
which would have passed with a majority. They stifled the
Disclose Act, which would require greater transparency in
campaign advertising. In a particularly craven abuse of the
system, they have halted the nominations of nearly two dozen
judicial appointments, causing backlogs in courts that delay
justice for people and businesses across the country.
Some Democrats fear that Republicans will win control of
the body in 2014, when 20 Senate Democrats will have to
defend their seats, and they'll want the power minority
Republicans have now. But then Republicans could change the
rules.
In ``Mr. Smith,'' an idealistic Jimmy Stewart used the
filibuster in an admirable way. But it has an ugly history,
often as a last-ditch attempt to stop overdue change. In
1957, Sen. Strom Thurmond spoke for a record 24 hours and 18
minutes against the Civil Rights Act, which he labeled
unconstitutional and ``cruel and unusual punishment.''
The Senate is supposed to debate the great issues of the
day, not stop them from being debated. Senators should change
the rules and get back to work.

Mr. HARKIN. At issue in this debate is a principle at the heart of
our representative democracy. This is from Alexander Hamilton in
Federalist Paper No. 22:

The fundamental maxim of republican government . . .
requires that the sense of the majority should prevail.

The Framers, to be sure, put in place important checks to temper pure
majority rule. For example, the Bill of Rights protects fundamental
rights and liberties. Moreover, the Framers imposed structural
requirements. For example, to become a law, a bill must pass both
Houses of Congress and then it is subject to the President's veto
power, and then, of course, there are always the courts and the Supreme
Court to rule on the constitutionality of legislation.
The Senate itself was a check on pure majority rule. As James Madison
said:

The use of the Senate is to consist in its proceeding with
more coolness, with more system, and with more wisdom, than
the popular branch.

Meaning the House of Representatives.
To achieve this purpose, citizens from the smallest States have the
same number of Senators as citizens from the largest States, which I
commented on earlier. Further, Senators are elected every 6 years, not
every 2 years. These provisions in the Constitution are ample to
protect minority rights and to restrain pure majority rule.
What is not necessary and what was never intended is an
extraconstitutional empowerment of the minority through a de facto
requirement that a supermajority of Senators be needed to even consider
a bill or nominee, let alone to enact a measure or confirm an
individual for office.
As I said earlier, the Constitution was expressly framed and ratified
to correct the glaring defects of the Articles of Confederation. The
Articles of

[[Page S252]]

Confederation required a two-thirds supermajority to pass any law and a
unanimous consent of all States to ratify any amendment. Well, we know
that the experience under the Articles of Confederation was a dismal
failure, one that crippled the national government. The Framers were
determined to remedy those defects under our new Constitution.
It is not surprising that the Founders specifically rejected the idea
that more than a majority would be needed for most decisions. In fact,
the Framers were crystal clear about when a supermajority is needed--
five times. It is spelled out clearly in the Constitution: ratification
of a treaty, the override of a veto, votes of impeachment, passage of a
constitutional amendment, and the expulsion of a Member. It is
expressly pointed out in the Constitution.
It should be clear, especially to those who worship at the shrine of
``original intent,'' that if the Framers wanted a supermajority for
moving legislation or confirming a nominee, they would have done so.
They would have written it in there. Not only did they not do so, until
1806 the Senate had a rule that allowed for a motion for the previous
question. That goes back to the British Parliament. It permitted a
majority to stop debate and bring up an immediate vote.
It was Vice President Aaron Burr, as he was leaving the Senate and
they were reforming the rules, who said: You know, this is never used.
We might as well do away with it because it is never used, anyway. So
they did away with the motion for the previous question, but the point
being that the first Congress in the first Senate enacted that. They
had that motion for the previous question. The Founders were very clear
why a supermajority requirement was not included. As Hamilton
explained, a supermajority requirement would mean that a small minority
could ``destroy the energy of government.''
That is what Madison said. A supermajority would mean that a small
minority could ``destroy the energy of government.'' Government would,
in Hamilton's words, be subject to the ``pleasure, caprice or artifices
of an insignificant, turbulent or corrupt junta.''
James Madison, as I said, said this:

It would no longer be the majority that would rule, the
power would be transferred to the minority.

Federalist Paper No. 58. When James Madison--sort of the author of
our Constitution--said, no, you cannot have a supermajority; if you do
that, then the minority would rule, the power would be transferred to
the minority--unfortunately, Madison's warning has come true. In the
Senate today--the United States Senate--the minority, not the majority,
controls. In today's Senate, American democracy is turned on its head.
The minority rules, the majority is blocked. The majority has
responsibility and accountability, but the majority lacks the power to
govern. The minority has the power but lacks accountability and
responsibility. This means the minority can block bills and prevent
confirmation of officials and then turn around and blame the majority
for not solving the Nation's problems. The minority can block popular
legislation and then accuse the majority of being ineffective.

I firmly believe we need to restore the tradition of majority rule to
the Senate. Elections, I believe, should have consequences. That is why
I developed my plan, as I said, almost 20 years ago to amend the
standing rules to permit a decreasing majority of Senators over a
period of days to invoke cloture on a given matter. I believe it is
clear in the history of the Senate and of the Framers of the
Constitution.
There is the story, of course, that has been told many times. It may
be a popular story, I don't know. Thomas Jefferson, of course, was not
here for the drafting of the Constitution. He was in France. He came
back home and looked at the Constitution. He was having breakfast with
George Washington. As the story goes, Jefferson was upset about the
Senate. He looked upon it as another House of Lords. So he asked
Washington why he allowed such a thing to happen, that the Senate would
be created. Washington supposedly said to him: Why did you pour your
tea into the saucer? Jefferson said: To cool it down. Washington
purportedly said: Just so. That is why we created the Senate, to cool
things down, to slow down legislation, apart from that popular body
over there, so there could be a more sober second look at things. What
Washington did not say, as far as I know, was that the Senate was
created to be a trash can where legislation could be killed and
stopped. The idea was to slow things down, to deliberate.
Senator George Hoar noted in 1897 the Framers designed the Senate to
be a deliberative forum in which a ``sober second thought of the people
might find expression.'' That is what the Senate is supposed to be
about. But at the end of ample debate and with the right of the
minority to be able to offer amendments and have them voted on, the
majority should be allowed to act with an up-or-down vote on
legislation or on a nominee. In this way, we could restore this body to
one where government can actually function and where we can actually
legislate.
I think this plan also has another advantage. Recently, the minority
leader defended the abuse of the filibuster on the grounds that it
forces the majority to compromise and to ``resolve the great issues of
the moment in the middle.'' I strongly disagree with the minority
leader. Right now, the fact is, because of the abuse of the filibuster,
the minority has no incentive to compromise. Why should they? They can
stop it. They have the power to block legislation without even coming
to the floor to explain themselves. In such a world, as we have seen
over the past few years, why would the minority come to the table to
cut a deal? I showed my colleagues the list of all the legislation they
have blocked the last couple years. There wasn't any overture from the
minority to compromise. They just said: We are going to kill it; the
majority is not going to be able to bring it up.
The DREAM Act, for example. What are those other bills on the chart?
The DREAM Act, and the other ones listed we wanted to bring up. Here is
the list again. The DREAM Act. Did the Republicans say we want to
compromise? No, they just killed it. The Bring Jobs Home Act, just kill
it. The Paycheck Fairness Act, just kill it. Creating American Jobs and
Ending Offshoring Act, just kill it. There was no real attempt to
compromise because they didn't have to compromise.
In contrast, under my proposal, where we would have 60 votes at the
beginning and if we didn't have 60 votes, we would file another cloture
motion and wait 3 days, then we would have another vote. Then we would
need 57 votes. Then, if we didn't get 57, we could file another cloture
motion and then we would wait 3 days and need 54 votes. If we didn't
get that, we would wait 3 more days, file another cloture motion and
only need 51 votes.
This would be a period of about 16 days, plus 30 hours of debate,
that would be allowed under my proposal. Here is why that would be a
true compromise. The minority wants the right to offer amendments to be
heard on a bill. I understand that. They should have that right. The
most important thing to the majority leader--whether Republican or
Democrat, whoever the majority leader may be--the most important thing
for the majority leader is time on the floor. So someone files a bill,
it is filibustered by the minority, they have a cloture vote, and let's
say there are only 53 votes for it. The minority knows that at some
point, this bill is going to come to the floor. We will get a vote on
it. The majority leader knows that will happen, but it is going to chew
up a couple weeks' time. The most important thing to the majority
leader is time, so the majority leader would like to collapse that
time. The minority leader would like to have the right to offer
amendments, and therein is the compromise. The minority leader comes
and says: If we can offer these amendments, we will collapse the time;
if not, we will chew up a couple weeks' time. That provokes compromise.
But when one side knows that with 41 votes they can absolutely trash
can something, why should they compromise if they have the 41 votes?
Again, I wish to emphasize another fact about my proposal. The
Republicans have said the filibuster is necessary because Democrats
increasingly employ procedural maneuvers to deprive them of their right
to offer amendments. I want my colleagues to

[[Page S253]]

know I am sympathetic to that argument. That is why in the last
Congress I included in my resolution the guaranteed right to offer
germane amendments; the inherent right of the minority to offer those
amendments.
Unfortunately, of course, every Republican voted against my proposal,
and that is because Republicans currently want the best of both worlds:
the right to offer nongermane amendments and the right to obstruct, and
that doesn't make sense.
Again, no one should be fooled. The fact is the radicals who now hold
sway in the Republican Party are not concerned with making the
government or the Senate function better. That is because the current
use of the filibuster has nothing to do with ensuring minority rights
to debate and deliberate or the right to amend; otherwise, they could
support either one of these proposals, either mine or Senator Merkley's
or Senator Udall's. Nor have I ever heard one Republican come to the
floor and unequivocally state that if the majority leader stopped
filling the amendment tree, they would routinely vote for cloture, even
if they opposed the underlying bill. I have not heard one of them say
that because the current use of the filibuster has nothing to do with
minority rights. It has everything to do with obstruction, hijacking
democracy, and a pure power grab designed to nullify elections in which
the public has rejected the minority's ideas and placed them in the
minority so the majority could act.
The minority leader, I must say, has been frank about this approach
to governing. In a speech about the balanced budget amendment, he said
the following. Listen to this. This is our minority leader:

The time has come for a balanced budget amendment that
forces Washington to balance its books. The Constitution must
be amended to keep the government in check. We have tried
persuasion. We have tried negotiations. We have tried
elections. Nothing has worked.

Think about that. In other words, when elections--when democracy
doesn't work, what does the minority leader want? The ability to
undermine the majority from acting in the Senate. Imagine that. We have
tried elections and the elections didn't go their way. They have tried
elections. So if they can't do that, then they have to do something
else. It seems to me the ballot box ought to be determinative of what
kind of government we have.
Republicans have repeatedly filibustered motions to proceed. How can
they offer amendments if we can't even bring it up? They filibuster
judicial nominees. Of course, nominations can't be amended; again,
belying the argument that many Republicans use because of filling the
tree. There is no tree when it comes to nominations.
I want to now emphasize something. I have been saying all along the
Republicans and how they have been using the filibuster. I want to say
unequivocally the Democrats don't come to this with clean hands, I can
tell my colleagues. It has been both sides. It depends on who is in the
majority and who is in the minority. That is all it depends on. As I
said earlier when I first brought this up in the 1990s, I warned then
of an escalating arms race. I have been in the Senate long enough to
have five different changes in the Senate between majority and
minority, and every single time the number of filibusters goes up--
every time. Democrats say to Republicans: You filibustered 30 times
last Congress. We are now in power; we will filibuster you 60 times.
The Democrats get kicked out and the Republicans come back and they
say: They did it 60 times and we will do it 100 times, on and on and
on.
It is akin to an arms race. So any time I use the word ``Republican''
generically, we can just substitute minority. I don't care what
minority, Democrats or Republicans. It doesn't make any difference. The
minority in the Senate should not have the absolute power to trash can
something. It should have the power to slow things down, to debate, to
amend, to deliberate, but eventually the majority--the people whom the
people at the ballot box in this country have put in charge to govern--
should at some point be allowed to govern. If I am in the minority, all
I want is the right to be able to debate, have my views heard, offer
amendments.
I might also say this: The right of the minority is not to win. The
minority doesn't have the right to win, but it sure has the right to
offer amendments and to be heard and to be able to try to sway people.
I have been in the Senate when we have had amendments and, amazingly
enough, we get some Republicans and some Democrats and it passes, even
though some Democrats and some Republicans oppose it. That very rarely
happens any longer.
Again, I have been talking mostly about Republicans generically, and
that is because they are in the minority now. I said the same thing
about Democrats when the Democrats were in the minority. This is not a
minority right. It is nothing less than a form of tyranny by the
minority. Who said that? That was Senator Frist, the Republican leader,
again, in November of 2004, when he was in the majority and we were in
the minority: ``This filibuster is nothing less than a formula for
tyranny by the minority.'' He was right. It just depends on who is in
the minority and who is in the majority.
That is why we have to make a change. It could be Democrats, it could
be Republicans, it could be--even a bipartisan coalition, if it is a
minority, a small minority.
As I said, I don't think there is anything radical about what I have
introduced. As I noted, the filibuster was not in the Constitution. It
was rejected by the Founders. There is nothing sacred about requiring
60 votes to end debate. The Senate has adopted rules and laws that
prevent the filibuster in numerous circumstances. Get that. This Senate
has adopted rules that forbid the filibuster in certain cases. The
budget cannot be filibustered, war powers cannot be filibustered,
international trade acts--imagine that. International trade acts cannot
be filibustered. Congressional Review Act, disapproval of regulations,
cannot be filibustered. So if the filibuster is so sacred, why have we
carved out exceptions for international trade acts?
Moreover, article I, section 5, clause 2 of the Constitution, the
rules of proceedings clause, specifies: ``Each House may determine the
rules of its proceedings.'' Again, my resolution, far from being
unprecedented, stands squarely within the tradition of updating Senate
rules as appropriate to fostering more effective and functioning
legislation. For example, beginning in 1917, the Senate passed four
significant amendments to its standing rules, the latest in 1975, to
narrow, to shape the filibuster. In 1979, Senator Robert Byrd made
clear that the Constitution allows a majority of the Senate to change
its rules. He said:

[t]he Constitution, in Article I, section 5, specifies that
each House may determine the rules of its proceedings. Now we
are at the beginning of a Congress.

Senator Byrd said:

This Congress is not obliged to be bound by the dead hand
of the past . . . It is my belief--which has been supported
by rulings of Vice Presidents of both parties and by votes of
the Senate in essence upholding the power and right of a
majority of the Senate to change the rules of the Senate at
the beginning of a new Congress.

Senator Byrd: ``This Congress is not obliged to be bound by the dead
hand of the past.'' He said that. `` . . . power and right of a
majority of the Senate to change the rules of the Senate at the
beginning of a new Congress.''
Again, this was also the opinion of the Republican Party. As I
mentioned, in 2005 the Republican policy committee, chaired by our
former colleague Senator Kyl, stated:

The Senate has always had, and repeatedly has exercised,
the constitutional power to change the Senate's procedures
through a majority vote.

That is a statement from the Republican policy committee in 2005.
Those who say this is some kind of nuclear option, blow up the
Senate, all these terms about nuclear options--no, it is not a nuclear
option. As Senator Byrd said and as Senator Kyl said, ``The Senate has
always had, and repeatedly has exercised, the constitutional power to
change the Senate's procedures through a majority vote.''
There are those now--I must admit, some in my own party on this side
of the aisle in the Senate--who say that in order to change the rules,
we have to have a two-thirds vote. Now, why is that? Well, because some
Senate in the past set down the rules. They said that in order to
change these rules, you need a two-thirds vote. Are we bound

[[Page S254]]

by that dead hand of the past? Not at all. Not at all. Each new
Congress--each time the Senate convenes after a new Congress forms--can
by majority vote change its own rules. It is not a nuclear option at
all.
To be very clear, I opposed the Frist motion at that time in 2005,
and I made it clear why--because they were attempting to change the
rules in the middle of a Congress.
While I believe the Congress has the power--I'm sorry, it was the
Republican policy committee. It is at the beginning of a Congress.
Senator Byrd said:

It is my belief--which has been supported by rulings of
Vice Presidents of both parties and by votes of the Senate in
essence upholding the power and right of the majority of the
Senate to change the rules of the Senate at the beginning of
a new Congress.

I mean, you can't go changing rules every other week. How do you know
what is going to happen? But at the beginning of a Congress every 2
years, the Senate has the right by a majority vote to set down the
rules, and you operate by those rules for 2 years. What Senator Frist
was trying to do was change it in the middle of the game. Well, if you
go down that pathway, my goodness, the majority could change the rules
next week and the week after, do it one time one week and one time the
next. How would you ever know what the rules of the road were? The only
reason I opposed the Frist motion at that time was because it was
changing it in the middle of a Congress.
Here is a letter from numerous constitutional scholars, including
Charles Fried, Solicitor General under President Reagan, and Michael
McConnell, a former Federal judge nominated by President George W.
Bush. These scholars make clear that at the beginning of a new
Congress, a majority of the Senate can change its rules. Here is the
letter, and it reads in part:

Some, however, have sought to elevate the debate to
constitutional dimensions by suggesting that it is
institutionally improper for a new Senate to alter the
Senate's rules by majority vote because the internal
procedures adopted by prior Senates have required a two-third
majority to allow a vote on a motion to alter the rules.
With respect, such a concern confuses the power to change
the Senate rules during a session with the unquestioned
constitutional power of each incoming Senate to fix its own
rules unencumbered by the decisions of past Senates. The
standing two-thirds requirement for altering the Senate's
rules is a sensible effort at preventing changes to the rules
in the midst of a game. It cannot, however, prevent the
Senate, at the beginning of a new game, from adopting rules
deemed necessary to permit the just, efficient and orderly
operations of the 113th Senate. . . .

This letter from Charles Fried, Solicitor General under President
Reagan, and Michael McConnell, a former Federal judge nominated by
President George W. Bush, states:

We agree with the overwhelming consensus of the academic
community that no preexisting internal procedural rule can
limit the constitutional authority of each new Senate to
determine by majority vote its own rules of procedure.
We agree with the overwhelming consensus of the academic
community that no preexisting internal procedural rule can
limit the constitutional authority of each new Senate to
determine by majority vote its own rules of procedure.

That is very profound. So it is not just me as a Democrat. Here are
two Republicans, very prominent Republicans, saying the same thing.
The last significant rules change, I might point out, was in 1975,
when the number of votes necessary for cloture was set at 60. There is
only one Senator today--Senator Leahy--who was in the Senate in 1975 to
vote on that current version of rule XXII. No one else was here then.
We have had how many different Senates since that time, and yet that
dead hand of the past continues to rule.
Mr. President, I would like to emphasize that I firmly agree that
amending the standing rules is necessary. Informal agreements are
insufficient to return the Senate to functionality. We had this last
time--sort of a handshake agreement to make the Senate a better
institution through fewer filibusters, procedural delays, et cetera.
Looking back over the last 2 years, I don't think anyone would agree
that this gentleman's agreement was very effective.
The minority leader recently stated that the reforms being advocated
by me and others are being done with the ``purpose of consolidating
power and further marginalizing the minority voice.'' Nothing--
nothing--could be further from the truth. I want to be clear that the
reforms I advocate are not about one party or one agenda gaining an
unfair advantage. It is about the Senate as an institution operating
more fairly, effectively, and democratically. Those of us who went to
law school all remember that if you come into the court of equity, you
have to come in with clean hands. I hope that I have clean hands since
I first offered this when I was in the minority. I was in the minority.

Again, I would point out that it belies belief that sometime in the
future, Democrats won't be in the minority again. It is going to
happen, and it should. No one party should rule here for long periods
of time. We need to have that kind of change. But what we need is the
ability of whoever is in the majority to be able to govern. That is
what the people elected them to do.
Well, the truth is that we do not function here. We do not function
in the way we are supposed to under the Constitution--something both
Democrats and Republicans should care about. What was never envisioned
and what should not be allowed to continue is a system where bills are
prevented from being debated or the idea that a small minority can
block legislation or nominees without even coming to the floor to
explain themselves.
Finally, there is one other red herring that keeps coming up, and
that is that somehow the reform I am proposing or any reform will
somehow make the Senate like the House. I have heard that from Members
from the other side of the aisle--oh, we will just become like the
House of Representatives.
I have to ask the question, since when did the Senate become defined
by rule XXII, the cloture rule? Why does that define the Senate? It
seems to me the Senate was designed in the Constitution where we have
two Senators from every State, small and large; where we are reelected
every 6 years, not every 2; where the Senate has certain functions on
treaties and on nominations that the House of Representatives doesn't
have; and where the Constitution is very clear; there are five times
where the Senate must have a supermajority to act.
Again, I would point out that the Senate will, by its very nature--
even under my proposed reform or even that of Mr. Udall or Mr.
Merkley--still operate based on unanimous consent, and each Senator
will continue to understand that maintaining good relationships with
all Senators, working hard to become experts in issues, and drafting
legislation and amendments will remain the essence of what it means to
be a Senator, not the ability to filibuster.
To those who say we have become more like the House, I say that is
not going to happen. Well, it could. Sure it could. Some future Senate
could wipe out all the rules--wipe out all the rules. Now, they
couldn't do away with the constitutional aspect. They couldn't make us
elected every 2 years, for example, but take away the function of the
Senate in terms of treaties, impeachments, and things like that, sure.
Any future Congress can change the rules.
I think that because of the nature of the Senate, the way it is
established, because of the way it is set in the Constitution--two from
every State, not popularly elected every 2 years--that means Senators
will have to work with one another. They will have to exhibit that kind
of comity--c-o-m-i-t-y, not comedy--of recognizing that each Senator
should have the right to amend, to debate, to discuss the question, to
offer amendments.
Again, we were told that somehow the filibuster--this idea that the
filibuster somehow defines the Senate, again, until 1970 there was
approximately one filibuster per Congress. Did anyone ever suggest then
that because there was not the rapid use of a filibuster, the Senate
was no different from the House? Was the Senate of Clay, Wagner,
Vandenberg, Johnson, and Taft just another House of Representatives?
Were the giants in the Senate who came before us--the Daniel Websters,
the Henry Clays, the Robert Tafts, the Hubert Humphreys--were they any
less a Senator because they were not defined by a de facto 60-vote
supermajority requirement?

[[Page S255]]

I believe the Senate should embrace George Washington's vision of
this body, if that story is true about him and Jefferson and the saucer
and the tea. The Senate was set up to slow things down to ensure proper
debate and deliberation. That is what the Founders intended. That is
what we have advocated and I advocate. We will not become the House. As
one author has noted, however, the increasing use of the filibuster has
converted the Senate from the saucer George Washington intended into a
deep freeze and a dead weight.
At the heart of this debate is a central question: Do we believe in
democracy?
Republicans and, sadly, many of my colleagues in my own caucus
repeatedly warn about advancing these reforms because Democrats will
find themselves in the minority one day and we may want to stop
something. Well, I am sorry, I don't fear democracy. If the people of
this country at the ballot box put the Republicans in charge of the
Senate, the Republicans ought to have the right to govern. We should
have the right to be able to offer amendments and debate and
deliberate, but we should not have the right to absolutely obstruct
what the majority is doing. Issues of public policy should be decided
at the ballot box, not by the manipulation of archaic procedural rules.
The truth is that neither party should be afraid of majority rule,
afraid of allowing a majority of the people's representatives to work
its will. After ample protections for minority rights, the majority in
the Senate, whether Democratic, Republican, or a bipartisan coalition,
duly elected by the American people, should be allowed to carry out its
agenda, to govern, and to be held accountable at the ballot box.
I wish to conclude by noting that it is often said--and it is true--
that the power of a Senator comes not by what we can do but by what we
can stop. That is true. The Senate is a body in which one individual
Senator has an enormous amount of power to stop things. No one wants to
give up that power. But I believe it is time for us Senators to take a
look at ourselves. For the good of the Senate and, more importantly,
for the good of the country, we need to give up that power--not all of
it but a little bit of it. I am willing to give it up.

All Senators should have fundamental confidence in democracy and the
good sense of the American people. We must have confidence in our
ability to make our case to the people and to prevail at the ballot
box. We must not be afraid of democracy. I am not afraid of it. I,
quite frankly, believe my ideas, my support of certain measures, is
more widely supported by the American people than my friends on the
other side of the aisle. They believe just the opposite. That is good.
That is the way we should operate here in grinding out legislation and
then at the ballot box every 2 years.
Healthy debate is about the direction of the country and which way we
should go. We should have the confidence--the Republicans should have
their own confidence and we should have our own confidence--in our
ability to make our case to the people and to prevail at the ballot
box. I say: Don't be afraid. Don't be afraid of the American people and
their inherent ability to make wise and just decisions. Things may go
awry one time or another time, but in the great history of our country,
the American people--as Winston Churchill once said: After we try
everything else, we always do the right thing--the American people make
the right decisions. Sometimes I may not agree with it, but then it is
my business to go out and try to convince my constituents and others
they made the wrong choice; that we should be going in a different
direction.
That is the essence of democracy, not the power of me, a Senator from
Iowa, being able to stop what the majority wants to do; not me, just
with a handful of other people saying: I don't care what they want to
do; we can stop it, put it in the trash can.
All I want is the right to debate, to discuss, to be able to offer
amendments that are germane to the legislation. So, again, I am not
afraid of living with these reforms, both as a member of the majority
party and as a member of the minority party, which I am sure we will
once again become at some point in the future.
So, Mr. President, as I have over the last, I guess it makes 17 years
now, I come to the floor knowing that my proposal will not win. Well,
it hasn't thus far. And that is all right. A lot of times people say:
Why do you offer it? You know you are going to lose.
I offer it because I believe so deeply in this, and I believe
sometimes you just have to stand for what you believe in, and you have
to make your case as forcefully, as intelligently as possible. I hope I
have done that both in my words and in my statement and in the past
debates I have had on this Senate floor that occur about every 2 years
when the Senate convenes.
I don't carry this beyond the first day of legislative business. I
don't think we should. If we set the rules down on the first day, after
that I don't think we should be changing the rules in the middle of the
game. But we are still in the first legislative day, and I think now is
the time to do this.
Mr. President, before I yield the floor, I know our distinguished
minority and majority leaders have been working hard on some reforms on
the filibuster. I am not privy to all of that. I don't know exactly all
the details of it, although it was discussed in our policy caucus
today. But I will say this about it--at least what I understand to be
the essence of the reforms that our majority leader has worked so hard
on--it is better than what we have right now. From what I understand--
and I don't know all the details--it is a step in the right direction.
I want to make it clear that I might vote for it--as soon as I find
out exactly what it all is. I might vote for it because it is probably
better than what we have right now. But I just want to be clear that my
vote for that does not signify that I prefer that over doing away with
this absolute 60-vote threshold because under the reformed rules that I
understand are being promulgated by the majority and minority leaders,
we still have a 60-vote threshold on anything except for the motion to
proceed.
So on any amendment, any bill, we still have 60 votes. So a small
group, a handful, can still put bills and amendments and everything
else in the trash can. I just fundamentally disagree with that. So if I
do vote for that--like I say, I probably will--it is because it looks
like it might be better than what we have now.
I know it is tough. I do not denigrate for one minute the effort and
the work of the majority leader and the minority leader in trying to
reach these agreements. These are tough things. I just think we have to
be more forthright in constantly--every 2 years--going after this idea
that somehow this dead hand of the past that says we need a two-thirds
vote to change the rules and that somehow that controls us--it
shouldn't; it doesn't control us--that somehow we have to adhere to
this 60-vote threshold forever. That shouldn't control us.
Every 2 years, according to the Constitution, according to Senator
Byrd, according to constitutional scholars of both parties, we have the
constitutional right at the beginning of a Congress to change our rules
with a majority vote. That is what we ought to be about doing.
So, Mr. President, I look forward to seeing the proposed rules reform
the majority leader and minority leader have been working on. Again, I
know it is tough to work these things out, but I think this body has to
move ahead and do away with that dead hand of the past and provide for
rules changes that allow us to function, that allow the majority to
act, with the right of the minority to debate, to slow things down and
to amend--but not the right to win. I have never said the minority has
to have the right to win. But the minority ought to have the right to
make their voices and their votes heard in this body.
That is what my proposal would do. Again, as I said, I don't expect
it to win, but I want people to be able to express themselves if they
believe we should move in that direction, and I offer it in that vein.
I know there are those who believe somehow that we have to abide by
that two-thirds vote, by this dead hand of the past. I just don't
believe so.
Mr. President, with that, I yield the floor.

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The PRESIDING OFFICER (Mr. King). The Senator from Maryland.

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