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

[Congressional Record Volume 159, Number 9 (Thursday, January 24, 2013)]
[Senate]
[Pages S256-S259]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXTENSION OF MORNING BUSINESS

Mr. CARDIN. Mr. President, I ask unanimous consent that the period of
morning business be extended until 6:30 p.m. today, and that all
provisions of the previous order remain in effect.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARDIN. Mr. President, first, let me compliment Senator Harkin
for his incredible leadership in bringing to the attention of this body
something I think everyone understands; that is, with the procedures of
the Senate and the way it is operating today, there is a problem. There
is a very serious problem.
All one needs to do is to turn on C-SPAN to see the Senate in a
quorum call for hours to know there is a better way for us to operate.
All one has to do is to look at a week that goes by where there are
very few recorded votes to know there is opportunity for debate and
action that is being lost in the Senate. We can do better. The
procedures we are following today, the way that is being honored by the
Members of the Senate, we need to change the rules and procedures of
the Senate.
I want to thank the majority leader and the Republican leader for
negotiating and getting together to understand the frustrations that
are out there in both of our caucuses and to try to come up with
reasonable changes in our rules. I see Senator McCain is on the floor,
and I acknowledge his leadership, along with that of Senator Levin. I
was honored to work with that group, along with Senators Pryor,
Schumer, Barrasso, Alexander, and our former colleague, Senator Kyl. We
sat for hours debating, and it was very educational for me, Mr.
President, because I listened to the concerns of my Republican
colleagues--and it was a lot different than what I heard in the
Democratic caucus--and I think we both learned a lot from each other.
But there was general agreement that there is a real problem in the
operation of the Senate, and we have an obligation to take a look at
our rules and see whether we can't modify the rules so we can have the
type of deliberation, debate, and voting that is expected of the
Senate.
One of the problems that became very apparent to all of us is that
individual Senators are able to block the consideration of amendments
and bills on the floor of the Senate indefinitely. That is wrong. My
colleague from Arizona pointed out that someone could be in their home
State and offer an objection, and a bill could be brought to a
standstill. That is not how the Senate should operate. We should be
able to consider legislation, and individual Senators should not be
able to block the consideration of that legislation.
I could give examples of hundreds of bills that have been reported
out of our committees in the Senate that have never reached the floor
of the Senate. Quite frankly, the reason is an individual Senator
blocked consideration, and it would take the majority leader too much
time to go through cloture motions in order to bring those issues to
the floor of the Senate.
We also have seen an abuse of the 60-vote threshold. The 60-vote
threshold shouldn't be the standard working procedure of the Senate. A
simple majority should control our actions. Yet in too many cases we
have used the 60-vote threshold in order to move legislation forward.
We have also seen that it is very difficult to bring amendments up
for consideration. It has been very difficult to get action on
individual amendments on the floor of the Senate. So we need to change
our procedures. We need to be the great deliberative body which
historically the Senate has been.
I want to compliment many of my colleagues--I already mentioned the
group that worked on some suggested rules changes and made those
recommendations to the majority leader and the Republican leader--but I
also want to thank my colleague, Senator Harkin, who just spoke, for
his leadership on this issue, as well as Senators Merkley and Tom
Udall, who have been leaders on this matter. We have brought this to
the attention not only of our colleagues but to the attention of the
American people, and they expect us to take action to improve the
operation of the Senate.
Let me talk a moment about the negotiated agreement between the
Democratic leader and the Republican leader--between the majority and
minority leaders--and what I understand will be recommended to us very
shortly, and I hope we can act on it as early as this evening.
First, one of the frustrations is that we find it difficult to bring
a bill to the floor of the Senate in a motion to proceed. The threat of
a filibuster on the motion to proceed has denied us the opportunity to
even start debating an issue. Under the agreement I expect will be
brought forward, the majority leader will have two additional
opportunities to start debate on an issue.
First, if the Republican leader is in agreement, they can bring that
bill to the floor immediately, without any preconditions. That could
particularly work well on institutional issues that need to be dealt
with, such as appropriations bills, so that we can get onto
appropriations bills a lot sooner than we can today.
There is then another opportunity where the majority leader could
bring a bill to the floor without the fear of a filibuster, without
having to file cloture, by offering amendments. There would be a
guaranteed right to offer up to four amendments: two by the minority,
two by the majority. That gets us started on legislation.
Now, it is very interesting, if one looks at the process that has
been used where bills come to the floor and where we are most pleased
by how the process has worked--such as in the case of the national
defense authorization bill, postal reform, and the Agriculture bill in
the 112th Congress--in each of those cases the committees voted on the
bills, they came to the floor with the managers, we started on the
bills, and we completed the bills. I think we were all pretty proud
with the manner in which those issues were handled on the floor of the
Senate.
Under this process, the majority leader could get us started. The
managers can get us started on legislation. Once we start on
legislation, once we start debating the issues, we can see what
amendments are out there, and we can try to manage the time
appropriately and actually get action and debate and votes on the floor
of the Senate on the amendments and on final passage.
I do think this empowers our committees. We all spend a lot of time
in our committees. We are there for the hearings, we want to see
committee markups, but we also like to see the products we bring up in
the committee be the major work on the floor of the Senate. Well, now,
with this reform and the ability of the leader to bring forward a bill
that has come out of our committees, our committee products will be
more respected, and we will have a better legislative process because
we are using the products that come out of our committee. We are
respecting the work of our committees. We are rewarding our chairmen
and ranking members working together and bringing legislation to the
floor of the Senate.
I think that is a real major improvement and something that will
allow the Senate to operate in the way it should.
We also allow for conference committees to be formed in a more
expedited way. Right now it could take three cloture votes to get into
conference. We contract that into one. I think that is going to be the
recommendation.
I had the honor in the 112th Congress to serve on a conference
committee that dealt with the payroll tax extension. We got our work
done, brought a bill to the floor of the Senate and the House, and got
it enacted into law because we were able, in a very open and
transparent way, to work with our colleagues in the other body, resolve
our differences, and bring legislation forward. I might be wrong, but I
think that was the only conference committee that operated in the 112th
Congress. There haven't been many. I think most Members of this body
would be hard-pressed to remember when they last served on a conference
committee. Yet we know there are significant differences between the
products that come out of this body and the products that come out of
the other body. We need to reconcile those differences. Being able to
go into conference allows us the opportunity to let

[[Page S257]]

the legislative process work the way it should.
One of the procedures the majority leader is going to talk about is
that once cloture is invoked, if you have to use cloture, you have 30
hours. But you don't guarantee 30 hours. That 30 hours is the maximum.
Each Member is entitled to only 1 hour to speak, and a quorum call
during postcloture can be considered dilatory if we have already
established a quorum.
The majority leader and the minority leader are going to talk about
the fact that postcloture, if you want to speak, come to the floor and
speak. If you don't, the Presiding Officer should put the issue to the
membership for vote so we can expedite issues and not waste a full day
letting the 30 hours expire.
There will also be recommendations to deal with nominations. We were
extremely frustrated. I served on the Judiciary Committee. I had the
opportunity to recommend to the President several appointments to the
Federal bench. It took months for these noncontroversial nominees to be
approved on the floor of the Senate. It truly affects our ability to
recruit the very best to serve on our courts.
The same thing is true with the President on his team to have in
place, and there will be recommendations to shorten the postcloture
time if a cloture vote is needed on judicial nominations to, I think, 2
hours, and sub-Cabinet appointments to around 8 hours. That allows the
leader to be able to bring these issues to the floor without the threat
that it would tie us up for weeks to take up just a couple
appointments.
These are all major improvements. Let me make it clear. If I were
writing the rules of the Senate, I would go a lot further. I know I
might be in the minority in this body, but I happen to believe in
majority rule. I happen to believe the majority should make the
decisions. I think there should be adequate time for debate, et cetera.
The Senate is different than the House. I accept that. But at the end
of the day, I am in favor of majority rule. But I am also in favor of
trying to get our rules done in a bipartisan manner because, quite
frankly, the Democrats may not be in the majority forever.
If we look since 1981 through the end of this Congress, but for
Senator Jeffords' decision in May of 2001 to become an Independent and
caucus with the Democrats, the Senate would have been divided as
follows: Sixteen years under Democratic control, 16 years under
Republican control, and 2 years split 50-50.
I think it is very important we all understand these rules need to
work regardless of which party is in the majority. That is why it is
the right thing to do to negotiate between the Democrats and
Republicans rules that can withstand the test of time and be fair to
both the majority and the minority.
Once again, I would have majority rule. That is what I believe and I
know there will be a chance to vote on that and that is how I will
express my vote. But I do believe it is best for us to work together,
Democrats and Republicans, and come together with a true compromise on
the rules changes. I think that is exactly what Leader Reid and Leader
McConnell have done. They have taken the recommendations of many of us,
they have listened to a lot of us, they have listened to both caucuses,
and they will come forward with recommendations that will allow this
body to carry out its responsibilities in a more effective way--in a
way that is better understandable to the American people, where we can
get on legislation a lot sooner, debate issues a lot quicker, take up
amendments and actually vote on amendments and be able to move
legislation that comes out of our committee and approve nominations in
a much more efficient way.
To me, that gives us an opportunity for a new start in the Senate as
we begin the 113th Congress. Let's hope the cooperation we see
developing on the changes of the rules will allow us to work together
to deal with the problems of the Nation in a more collegial way,
recognizing that compromise is how this country was formed, listen to
each other, and move legislation in the best traditions of the Senate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, before the Senator from Maryland leaves
the floor, I would like to tell him how much I appreciate the remarks
he just made. I think he gave a very accurate depiction of the
agreement we reached after many hours of always pleasant conversation.
The fact is we showed our colleagues and many others it is still
possible for a group of us to join together on a very difficult issue
and a very complex one.
The Senator from Maryland stated his preference just a minute ago
that he is for majority rule. But he also understood that in order for
us to come together, that we had to move--each of us--in a more
centrist direction. Without his input, his efforts, and his
willingness, in my view, it is very likely we would not have agreed.
I ask unanimous consent that the Senator from Maryland and I engage
in a colloquy.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. I think the Senator from Maryland and I would agree that
even though this is not a headline-grabbing issue and a lot of people
in America have no real idea what was at stake, that if we hadn't
reached this agreement amongst us, it could have had repercussions for
a very long period of time in the Senate; would the Senator agree to
that?
Mr. CARDIN. I certainly agree with my friend from Arizona. They may
not have understood what caused the problems, but when they see the
type of gridlock where the Senate can't take up amendments for 1 week
or can't take up a bill for 2 weeks or debating how to proceed on a
motion to proceed, not only on substance, they wonder what is going on
here. So the Senator is absolutely right.
Also, we are going to be in a much better start to this Senate with
Democrats and Republicans agreeing on the rules collectively. That is
certainly a better place for us to start to work with this Congress,
and it gives us the opportunity to work together with more confidence,
beyond just rules but also dealing with the difficult issues this
country faces.
Mr. McCAIN. Wouldn't the Senator from Maryland agree that the whole
purpose of this is not to block? In fact, with our numerous meetings
with the Parliamentarians, I think we reached a greater and fuller
understanding that if someone really, really wants to block progress in
the Senate, given the incredible--if the word isn't ``arcane,'' it is
certainly ``detailed''--rules of the Senate, they can.
But the real purpose of this and the outcome that the Senator from
Maryland and I and Senator Kyl, Senator Barrasso, Senator Levin,
Senator Schumer, Senator Pryor--and I note the presence of the Senator
from Michigan on the floor; I think he would agree that this fix, this
compromise we have all now agreed to--and hopefully we will agree to
and pass shortly--is also intended to change an attitude in the Senate.
Instead of blocking everything moving forward and blocking
amendments, perhaps we could create a new environment in the Senate
where we will let the minority have their amendments, but also the
minority party will let the process move forward. I think that is the
tradeoff that was the fundamental aspect of the negotiations we
continued in the office of the Senator from Michigan for many days and
many hours.
I think the Senator from Michigan and the Senator from Maryland would
agree; if someone wants to block the Senate from moving forward, they
can at least do it for some short period of time. What has happened,
looking back 10, 15 years ago, the tree wasn't filled. But at the same
time, on the other side, amendments were not produced by the hundreds.
I believe the object and I believe the outcome of this hard-earned
compromise will be that there will be a greater degree of comity in the
Senate which would allow us to achieve the legislative goals that all
of us seek.
I ask unanimous consent that the Senator from Michigan join the
Senator from Maryland and me in this colloquy.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, first, let me thank my dear friend from
Arizona for helping to lead this bipartisan effort, where eight of us
spent weeks to

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try to come up with a bipartisan proposal to our leaders. Senator
Cardin was one of the eight, and I am grateful to him and to all the
eight Members, including one who has now left, Senator Kyl.
Its purpose was twofold. The first purpose was to address the
specific hurdles that have created gridlock, the specific mechanisms
which have been overused in this Senate that have led to gridlock.
There are a number of things that have led to gridlock, but the most
significant problem we have faced is the excessive use of the threat of
the filibuster on the motion to proceed to a bill.
The reason it was used--according to many Members of the minority--
was because of a fear that the tree would be filled by the majority
leader and then there would be no opportunity to offer amendments. So
what the eight of us strived to do was to find a balance where we could
protect the minority's rights to offer some amendments at the same time
that we finally got rid of a roadblock which was being abused, which
was a threat to filibuster a motion to proceed. So we devised this
approach which is now part of the leadership proposal to do exactly
that.
The other purpose is the one which my friend from Arizona has just
identified; that if we could come together, the eight of us, four
Democrats and four Republicans--Senator Schumer is now on the floor and
he was one of the eight. If we could come together and come up with a
bipartisan proposal on this issue, we could hopefully begin to change
the dynamic that has so divided this Senate. That is, hopefully, a very
important and, I hope, successful outcome of those discussions and of
the leadership then coming together, because those two leaders have to
come together if this Senate is to come together and be able to move
legislation in the ordinary course.
I agree with Senator McCain's assessment as to the second goal we
had, which was to show that on the thorniest procedural issue we face,
that four Democrats and four Republicans, meeting in a very thorough
and personal way, without a lot of staff around, could find a way
through this procedural thicket and then make recommendations to the
majority and to the Republican leader. I do agree with the Senator from
Arizona.
Mr. McCAIN. I think my friend from Maryland would also agree that we
have found, for example, on the Defense authorization bill, that once
we get onto a bill and once we have some amendments--in the case of our
agreement it was four--that now the Members are sort of invested in
moving the process forward. The logjam has always appeared before the
bill is ever taken up for debate and amendments. By expediting that
process, without depriving Members of their rights but expediting that
process, hopefully, we will get onto the bill and some amendments that
are already--four in one option--are already agreed to, and then we can
move forward.
I would like to point out one other thing, and I think my two
colleagues would agree; that is, we are fairly well paid around here,
and maybe sometimes we should work a 5-day workweek; and maybe, if
absolutely necessary, God forbid, a 6-day workweek. We should be taking
up legislation and completing that legislation before the end of the
week or, depending on how massive the legislation is, at least 2 weeks.
But there should be dates certain. It is funny how this body operates
when there are deadlines as opposed to just extended periods of debate
and amending.
Mr. CARDIN. Could I inquire because I want to use the two Senators as
the example. They did that on the Defense Authorization Act. They were
able to get the bill to the floor. They started on the bill, had a
little rough start, but started on the bill and then set up a series of
votes. We were able to vote on I don't know how many amendments. But it
is interesting, if my memory is correct, there was no requirement for a
60-vote threshold on any of those amendments. You voted them all on
majority so there was no need for a cloture vote because we started on
it and people believed the process was fair. They had the opportunity,
they had a chance to debate. So we had full and open debate on many
issues.
National defense authorization opens a whole host of issues which are
very controversial: What do we do with detainees? What do we do with
our civil liberty rights? What do we do with our troop levels? There
were a lot of issues that could have divided us, and we had the type of
debate that I think was in the best interests of the Senate and we
completed that bill in a timely way.
I think the way the two Senators were able to come forward--there are
a lot of other committees. I serve on the Senate Foreign Relations
Committee. We talked today, yesterday, during--Senator McCain is also
on that committee. We talked--Secretary Clinton--wouldn't it be nice to
get a State Department authorization bill on the floor of the Senate?
Mr. McCAIN. It is a disgrace that we have not--in how many years?
Mr. CARDIN. A long time. Certainly, I have not been in the Senate
since that happened. But I do think now we have a better opportunity.
If our committee could mark up a Defense authorization bill--and maybe
it would take a week or two. Maybe we would have to work Friday or
Saturday to get it done, but we should do that. But we now have the
opportunity for the leader to bring that to the Senate floor
immediately and allow the amendment process to start. Once it starts,
normally we can get the type of consideration by all of us as to a
reasonable number of amendments, and we can get the bill, hopefully,
through the Senate. That is what I think is the real plus of the type
of reforms we are talking about that allow the right legislative
process to work.
As I said, it doesn't cover everything I wanted to cover. I would
have gone further. But I do think it does give us a chance, allows us
to do our work in the way that we should.
Mr. McCAIN. I, again, would like to express my appreciation to
Senator Schumer and Senator Cardin, Senator Pryor and my Republican
colleagues, Senator Kyl and Senator Barrasso. But I would especially
like to thank Senator Levin. We have known each other and worked
together now for many years. We had very spirited and open and honest
disagreements, but there is a level of trust and friendship that allows
us, when committed to the same goal, to be able to--I believe,
hopefully, in a very short period of time--achieve it.
Maybe I am being a little bit too optimistic. Hopefully, because of
this, we can start moving legislation through the Senate. The record
that we have achieved over the last 2 years is less than admirable. We
know that filling the tree has dramatically increased, but we also know
the objections to moving forward also have. I am not placing any
responsibility on either side. I am placing the responsibility on both
sides. Maybe we can start a new day, take up some legislation, pass it,
and do the people's will. Maybe we would improve our favorability
ratings to exceed that of--I saw a poll the other day; I don't know if
my colleagues did. A colonoscopy is more favorable than Members of the
Congress. I don't know if they saw that.
I hope we can at least raise it to some level above that. By getting
things done around here I think that will probably enhance our chances
of regaining some more favorability amongst the American people.
Again, I thank the Senator from Maryland and my friend from Michigan
and, hopefully, in a couple of hours we will have achieved something
that, in my view, could avert a fundamental change in the Senate which
maybe could never have been repaired. I view it with the utmost
seriousness. I have never been involved in an issue that impacted this
body to the degree that the nuclear option would have caused. We would
have regretted it for a long time. Hopefully, in a few hours we will
have avoided it.
I just want to remind my friend from Maryland and the Senator from
Michigan, this is going to be for 2 years. So we are in kind of an
experimental phase. If we are unable to do the things that we aspire
to, then I think you could see further Draconian measures considered by
the majority. It is up to both sides to make this work.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, first of all, let me comment on what
Senator Cardin said about one of the purposes of this effort, which is
to get a bill to the floor so the managers can work on it.

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As we have proven in the last couple of months on a number of bills,
and the Senator has pointed this out, if we can get the bill to the
floor for the managers to be able to work with our colleagues on
amendments, we can legislate. The problem has been that we have not
been able to get bills to the floor because of this blockage, the
blockage caused by the overuse of the filibuster and, more accurately,
the threat of a filibuster on the motion to proceed, which, in turn--
and my Republican friends believe this very keenly--was caused by the
use of filling the tree, which meant that they would not have the
opportunity to offer amendments. So they would then use that threat of
a filibuster in order to try to gain assurance that they would be able
to offer some amendments.
That is the heart of the compromise we proposed. There are a lot of
other aspects to it, including trying to get rid of these filibusters
on going to conference; including these filibusters that tied up
nominations with postcloture 30-hours, nominations that were going to
pass with votes of 90 to 0.
There are a lot of other parts to the recommendations and what the
leaders are recommending to us, but the key thing--and Senator Reid
said it to us repeatedly--the key thing that this compromise addresses,
and it is a bipartisan approach, is trying to overcome that barrier to
getting legislation to the floor. We know--the Senator from Maryland
has pointed out and Senator McCain knows it because we have lived it--
if you can get a bill to the floor with managers, they can work out
amendments, sometimes by the hundreds.
I think Senator McCain and I probably had over 100 amendments filed
to our bill.
Mr. McCAIN. I think it was about 383.
Mr. LEVIN. OK. I am glad I exaggerated in the downward direction. In
any event, we were able not to work through all of them but to deal
with that challenge, to probably deal with about 100 of them, as I
remember. We did it in about 3 days.
That doesn't mean we are magicians. It means we are capable, all of
us are capable, if we can get the bill to the floor. Particularly when
the bill has come out of committee with broad bipartisan support, we
can get bills passed here. So the heart of what we have proposed to the
leadership, this group of 8, and what they have adopted and
incorporated in their bipartisan approach to the Senate and to the
country, is exactly what Senator Cardin has talked about: getting bills
to the floor. We can then watch the momentum work.
I want to add one other thing. Senator McCain just made reference to
it. That has to do with the so-called nuclear option, or the
constitutional option, depending on what your view of it is. I have
always believed the threat of that option was troublesome. I was
troubled by it because it is inconsistent with the rules of the Senate
which require a two-thirds vote for amendments to the rules and because
we are a continuing body, not just by our rules but by even a Supreme
Court opinion which so ruled.
I believe if the constitutional or the nuclear option were utilized
here, if we ended up with the utilization of that option, that what we
now have, which is gridlock, would have resulted instead in a meltdown.
I want to remind my Democratic friends and folks around the country
that not too many years ago when the Republicans threatened to use a
constitutional option, the reaction on this side of the aisle was
intense. The words of Senator Kennedy, Senator Biden, Senator Byrd
resonated through this Chamber in strong opposition to the use of a
nuclear option.
I have just a few examples of what our reaction was on this side of
the aisle when there was a threat to use the nuclear option when it was
threatened relative to judges. What I am not going to do tonight is go
through the history of the constitutional or the nuclear option, what
happened over the century when it has been threatened, how it has not
been adopted by the Senate. It is a long, detailed history.
I know some of my colleagues have argued that the constitutional
option is based on the Constitution. It is very much the opposite in
terms of the history of this Chamber and the rejection of any idea that
the Constitution somehow requires that at the beginning of a session of
a Senate that rules can be amended by majority vote. It is a long
history.
I want to just quote, if I can find these quotes, what the reaction
was on this side of the aisle when there was a threat on the Republican
side of the aisle to use this approach of getting a ruling from the
Chair, somehow, that the rules, although they say they can only be
amended by two-thirds, can in fact be amended by a majority.

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