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

[Congressional Record Volume 159, Number 9 (Thursday, January 24, 2013)]
[Senate]
[Pages S259-S266]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXTENSION OF MORNING BUSINESS

Mr. LEVIN. Mr. President, while I am looking for these quotes, let me
ask unanimous consent the period for morning business be extended until
7 p.m. today and that all provisions of the previous order remain in
effect.
The PRESIDING OFFICER. Without objection, it is so ordered.
I wish to quote Senator Byrd as to what he said when the actual issue
was before the Senate. He said:

Now, if we go down this road--

That is the road which says rules can be adopted by a majority vote,
even though the rules say it takes 67 votes.
He said:

Now, if we go down this road, I can guarantee that every
Senator in this body will rue this day . . . Senators, do we
want to do it this way? If this is done today, it can be done
any day. If it can be done on the constitutional question, it
can be done on any other constitutional question. It can be
done on any other point of order which the Chair wishes for
the Senate for decision . . . I believe that there is a
danger here that, if Senators will reflect upon it for but a
little while, they could foresee a time when they say that we
went the wrong way to achieve an otherwise notable purpose .
. . Put this power in the hands of a tyrannical leadership,
and a tyrannical majority of 51 Senators, and we are going to
be sorry on both sides of the aisle.

This is what Senator Inouye said in his maiden speech in this
Chamber. They were discussing civil rights legislation. The question
was whether there would be a ruling of the Chair which would allow the
rules to be changed by the majority vote. This is a Senator who had
been discriminated against in probably one of the most dramatic and
massive ways that anyone could be discriminated against, being denied
freedom because of his Japanese-American ancestry while he was fighting
to defend this country.
What he said in his maiden speech was the Senate needs to preserve
its protections for minority views, even though those protections
allowed a misguided minority to obstruct our Nation's progress.
He supported the civil rights legislation, but he would not allow it
to be addressed in violation of the rights of the minority of this
body. This is what Danny Inouye said in his maiden speech:

The philosophy of the Constitution and the Bill of Rights
is not simply to grant the majority the power to rule, but it
is also to set out limitation after limitation upon that
power. Freedom of speech, freedom of the press, freedom of
religion: What are these but the recognition that at times
when the majority of men would willingly destroy him, a
dissenting man may have no friend but the law? This power
given to the minority is the most sophisticated and the most
vital power bestowed by our Constitution.

He was not willing to end a grave injustice, which is what civil
rights legislation would have achieved, by a method that he felt ran
roughshod over the rights of the minority. He warned us against the
attempts, in his words, ``to destroy the power of the minority . . . in
the name of another minority.''
Mike Mansfield, leader of the Senate, supported a modification in the
rule to reduce the number of Senators needed to end debate from 67 to
60. Although he supported the change in the rules, he opposed the use
of the nuclear option, or the constitutional option, to achieve it.
This is what Mike Mansfield said in arguing for the reform:

[The] urgency or even wisdom of adopting the three-fifths
resolution does not justify a path of destruction to the
Senate as an institution and its vital importance to our
scheme of government. And this, in my opinion, is what the
present motion to invoke cloture by simple majority would do.

He added:

I simply feel the protection of the minority transcends any
rule change however desirable. . . . The issue of limiting
debate in this body is one of such monumental importance

[[Page S260]]

that it reaches, in my opinion, to the very essence of the
Senate as an institution. I believe it compels a decision by
more than a majority.

Senator Kennedy's words were extremely powerful in this regard. I
quoted some of Senator Byrd's words and Senator Biden's words
vehemently opposing the effort to change the rules of this body by
majority vote when the rules themselves provide it takes two-thirds of
the vote to amend the rules.
We have to be consistent. The rules cannot just be simply what the
majority wants them to be, whatever the current majority is. This is a
body that has continuity. It is one of the few bodies in this country
that has continuity. The only other one is the Supreme Court.
Two-thirds of us were not elected last November. Two-thirds of us
continued from the last Senate. Over the centuries, this body has been
looked to as a source of continuity, where the rules cannot be changed
at the will or whim of a majority but where the rules stay in place
until amended. The rules don't end when a Congress ends, in terms of
Senate rules. House rules do because all the House Members are elected
every 2 years. Senate rules are permanent until amended or changed. It
is critically important that we not say those rules can be modified
whenever the majority wishes to modify those rules or else we will lose
not just the protection of the minority, which is so critically
important to the history and purpose of the Senate, but it is
critically important to the very continuity and stability of the
Senate.
This is a unique position, where most of us--two-thirds of us--stay
from Congress to Congress to Congress. It is not always the same two-
thirds, but it is always two-thirds. That has created an institution
which is unique in protecting minority rights as well as holding out to
the American public that continuity. In the last few years, we have
fallen terribly short of what we should be. There are many reasons for
that, and I will not go into all of them or even any of them right at
the moment. We have fallen terribly short. We have not carried out our
duties for lots of reasons; again, most of which, frankly, are not
acceptable to me.
We talk about how the filibuster has been abused--and it has been. In
part, it has been abused because we, in the majority, have allowed it
to be abused. We have not made the filibusterers filibuster. As Senator
Byrd put it, it is just the whiff of a threat of a filibuster which has
tied up the Senate. It doesn't have to be that way, and it should not
be that way.
I see Senator Alexander is here. He is such an important part of this
group of eight.
What has happened is that eight of us came together with a very
specific purpose. There were four Democrats and four Republicans. I
have mentioned everybody who was in that group already. We came
together to try and see if we could get through this thicket, where we
have this threat of a filibuster on the motion to proceed which takes
weeks to dispose of. What that means is it has been a huge problem in
terms of getting things done.

Eight of us got together and said: Let's just reason together and see
if we cannot get rid of the roadblock and the abuse of the threat of a
filibuster but protect the rights of the minority at the same time to
offer amendments. As I said before, it was that which drove many
Republicans to use that threat because of the fear the tree would be
filled and there would be no opportunity to offer amendments. Unless
there was some assurance that there could be amendments offered, they
then stood their ground and said: We are not going to proceed to that
bill unless there is some assurance in terms of amendments. It is that
balance that we struck, and that is where the two amendments on each
side came from and where some of the suggestions we made to the
majority came from.
I wish to thank Senator Alexander and all the other Members. I am
going to repeat the names of this group who spent so many hours
together to try and come together not just to solve the problem of
getting through this thicket, but also to help restore a climate in the
Senate which might help us be more fruitful in our work.
Again, I wish to thank Senators McCain, Schumer, Kyl, Kirk,
Alexander, Pryor, and Barrasso for all the work they put in on this
bipartisan proposal to reform Senate procedures.
I ask unanimous consent that the bipartisan proposal we made to the
leadership--and which they have embraced in large measure in their own
extraordinarily important effort to offer the Senate and the Nation a
bipartisan approach of getting through this rules morass--be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Bipartisan Proposal To Reform Senate Procedures

We propose the Senate adopt a Standing Order at the
beginning of the next Congress, which would provide two
additional alternatives to the existing rules for the
Majority Leader to proceed to the consideration of a measure
on the Senate Calendar. It also streamlines procedures
relative to going to conference and consideration of
nominations. The two additional methods for the Majority
Leader to proceed, at his option, would sunset at the end of
the 113th Congress. The current rule relative to proceeding
to a bill would remain an option. We also propose a number of
recommendations relative to current practices and comity
including that the Leaders inform their conferences that
existing rules which require Senators to come to the floor to
debate or object to a matter will be enforced.

Highlights

Two Additional Methods for the Majority Leader to Proceed, at
his option
(1) No filibuster of the motion to proceed (debate on the
motion would be limited to 4 hours, equally divided.) The
amendment tree could not be filled at the time the Senate
proceeds to the consideration of such bills where this option
is used. The process by which this option would be
implemented is in attachment A. It includes a guaranteed
amendment at the beginning of the bill's consideration for
each of the following in the order indicated: the Minority
Manager, the Majority Manager, the Minority Leader and the
Majority Leader. (Those amendments would not be subject to
amendment or division.)
(2) When a cloture motion is filed that is signed by both
the Majority Leader and the Minority Leader on a motion to
proceed, and where the cloture motion is signed by at least
five additional Senators from each caucus, the motion ripens
after two hours of debate, equally divided and, if cloture is
invoked by three-fifths affirmative vote, there will be no
post-cloture debate.
Going to Conference
(3) All three initial motions relative to going to
conference (insist, request, appoint) would be collapsed into
one nondivisible motion. Cloture on such a motion would ripen
after up to two hours of debate, equally divided, with no
post-cloture debate if cloture is invoked.
Nominations
(4) The list of nominees subject to the current expedited
process of putting nominations directly on the Calendar (S.
Res. 116, 1126 Congress) unless a nomination is objected to
by any Senator would be expanded by 531 nominations leaving
448 nominations to go through the traditional committee
review process. Committee Chairs and Ranking Members would be
able to strike nominations from the list of 531 before the
Standing Order is put to a vote.
(5) A cloture motion on nominations would ripen after up to
two hours of debate, equally divided, with no post-cloture
debate if cloture is invoked. This change would not apply to
Cabinet Officers, Cabinet-level Officers, or Article III
judges. However, relative to district court nominations,
post-cloture consideration would be limited to 2 hours.

Current Practices and Comity

In addition to the adoption of the Standing Order, the
leaders, at their respective conference meetings, should
address changing some practices to make the Senate operate
more efficiently. They should notify their members about the
following:
Leaders and bill managers should not honor requests to
object or threats to filibuster on behalf of another Senator
unless, after reasonable notice, that Senator comes to the
floor and exercises his or her rights himself or herself.
This also applies to all objections to unanimous consent
requests. Members should be required to come to the floor and
participate in the legislative process--to voice objections,
engage in debate, or offer amendments.
When the two cloakrooms send out hotlines agreed to by the
two leaders, any Senator may object, but the Senator should
lose his or her objection if, after appropriate notice, the
Senator fails to object to the request on the floor the next
session day.
Rule XXII makes provision for 30 hours of debate after
cloture is invoked. Within the 30 hours, Senators have strict
limitations on the amount of time each Senator is allowed to
speak. These limits should be enforced by the leaders and
bill managers. Rule XXII further says, ``After no more than
thirty hours of debate . . .'', so 30 hours will be
considered the outside limit of post-cloture debate time.
When the Majority Leader or bill manager has reasonably
alerted the body of the intention to do so and the Senate is
not in a quorum call and there is no order of the Senate to
the contrary, the Presiding Officer

[[Page S261]]

may ask if there is further debate, and if no Senator seeks
recognition, the Presiding Officer may put the question to a
vote. This is consistent with precedent of the Senate and
with Riddick's Senate Procedure, 1992. (See p. 716; see also
footnotes 385 and 386 on p. 764) This can be done pre-cloture
or post-cloture on any amendment, bill, resolution or
nomination.
____

Attachment A

(1) The first amendments in order to any measure shall be
one amendment for each of the two Leaders and two Managers.
Such amendments shall be offered in the following order:
Minority Manager, Majority Manager, Minority Leader, Majority
Leader. If an amendment is not offered in its designated
order, the right to offer the amendment is forfeited.
(2) Each paragraph 1 amendment must be disposed of before
the next amendment may be offered.
(3) Paragraph 1 amendments are not subject to amendment or
division.
(4) Each paragraph 1 amendment, if adopted, would be
considered original text for purpose of further amendment.
(5) No points of order would be waived by virtue of this
procedure.
(6) No motion to recommit shall be in order during the
pendency of any amendment offered pursuant to paragraph 1.
(7) Notwithstanding Rule XXII, if cloture is invoked before
all paragraph 1 amendments are disposed of, any amendment in
order under paragraph 1 but not considered upon the
expiration of post-cloture time may be offered and is
guaranteed up to 1 hour of debate, equally divided.

Mr. LEVIN. Our proposal was born out of the sincere belief that, even
in today's hyper-partisan environment, it is still possible for
Senators from both parties to work together to restore the deliberative
traditions for which the Senate was once known. It took many days of
discussions over two months among our group to reach an agreement we
could present to our Leaders. We looked past our frustrations with the
recent practices of the Senate and acted together for the sake of this
vital institution. I would also like to thank our former and current
Parliamentarians, Alan Frumin and Elizabeth MacDonough, who answered
our questions and provided their expert advice throughout our
discussions.
Perhaps the most significant reform in the bipartisan leadership
proposal, as in our bipartisan proposal to the leadership, is a reform
designed to end the abuse of the threat of a filibuster on the motion
to proceed to a bill--that is, the abuse of the Senate's minority
protections to obstruct the Senate from even taking up and debating
legislation. Reform in this area is vital, because abuse of the rules
on the motion to proceed has prevented the Senate from engaging in what
our rules are supposed to promote: Debate of the important issues our
nation must face. Over the previous two Congresses, we have had to hold
59 cloture votes on motions to proceed, and the very threat of the
filibuster on the motion to proceed has on countless occasions derailed
the Senate's legislative process. Reforming the procedures regarding
the motion to proceed will allow this body to deliberate as it is
intended to do.
The proposal before us will give the majority leader two alternatives
to the method in the existing rules for proceeding to a bill. The first
alternative, in the form of a standing order effective for the 113th
Congress, would limit debate on the motion to proceed to 4 hours. When
used by the majority leader, this alternative would guarantee
consideration of some minority amendments. Specifically, two amendments
each for both the majority and the minority would be the first
amendments in order at the beginning of consideration of a measure. The
order of those amendments would be the first minority amendment, the
first majority amendment, the second minority amendment, and the second
majority amendment. Each amendment would need to be disposed of prior
to the offering of the next amendment in order. These amendments would
not be subject to amendment or division, and if adopted, the amendments
would be considered original text for purpose of further amendment.
They could be tabled or filibustered. If an amendment is not offered in
its designated order, the right to offer that amendment would be
forfeited. Filing deadlines would occur on these amendments if a
cloture motion is filed. If cloture is invoked, any of these amendments
not offered prior to the expiration of post-cloture time could be
offered and would be guaranteed up to 1 hour of debate.
The second alternative would allow the Senate to move quickly when
both the majority and minority leaders agree we should proceed to a
matter. Specifically, where eight Senators from each side, including
the two Leaders, sign a cloture petition on the motion to proceed to a
measure, then the cloture vote would occur the day following the filing
of the motion with no post-cloture debate if cloture is invoked.
The bipartisan proposal before us would also reform the process of
going to conference by collapsing the three motions currently required
by the rules to be adopted in order to go to conference into a single
motion and shrinking the cloture process on that conference motion from
30 to 2 hours. This change would be in the form of an amendment to the
Standing Rules, and was part of our bipartisan group's recommendations
to the leaders.
In addition, the proposal before us would reform the consideration of
nominations. First, for district court nominations, it would reduce
post-cloture time from 30 to 2 hours, as recommended by our bipartisan
group of eight. Second, it would shrink the cloture process on
subcabinet nominations by reducing post-cloture time from 30 to 8
hours. This change would be in the form of a standing order and would
be effective for the 113th Congress.
When a few Senators threaten to filibuster or object to proposed
unanimous consent agreements, those Senators should have to come to the
floor to speak or object. Our bipartisan group's reform proposal urged
the leaders to give notice that the existing rules of the Senate will
be used more vigorously to force filibusterers to show up on the Senate
floor to speak, and their colloquy on this matter reflects the leaders'
intention to do so.
This proposal includes reasonable protections for the minority, and
it reforms our procedures in ways that can end the gridlock that
bedevils us. And as it accomplishes those important reforms, this
proposal allows the Senate to avoid a process that would break the
rules of the Senate and do untold damage to this institution. Amending
our procedures in this way, without use of the nuclear option, avoids
having the Senate go from gridlock to meltdown. I want to spend some
time discussing this process because the issue is extremely important
and not fully understood.
The greatest difference between the Senate and the House of
Representatives is the approach to minority rights. Senate rules
protect the rights of the minority and the House rules do not. With
those rights, a minority or even a single Senator can influence the
legislative process. Without those rights, a simple majority can render
a minority irrelevant and powerless to influence the legislative
process.
The current Standing Rules of the Senate spell out clearly the
process by which the rules of the Senate may be amended. Rule 5 states
that the rules of the Senate shall continue from one Congress to the
next Congress unless they are changed as provided in these rules. Rule
22 states that an affirmative vote by two-thirds of the Senators
present and voting is required to end debate on a proposal to amend the
rules.
Some Senators have argued that the Constitution empowers a simple
majority of Senators to force a change in the rules at the beginning of
a Congress, although the change would occur in violation of rule 5 and
rule 22. Supporters of this position refer to this procedure as the
``constitutional option.'' Others, including many of us who have served
here for longer periods of time in both the majority and in the
minority, refer to it as the ``nuclear option'' because we can see the
damage this procedure would do to the Senate. Indeed, many of us who
are deeply concerned about its use vehemently opposed Republican
threats to use this procedure in 2005.

How worried were we in 2005? Senator Kennedy was worried enough to
tell his colleagues: ``By the time all pretense of comity, all sense of
mutual respect and fairness, all of the normal courtesies that allow
the Senate to proceed expeditiously on any business at all will have
been destroyed by the preemptive Republican nuclear strike on the
Senate floor . . . They will have broken the Senate compact of comity,
and will

[[Page S262]]

have launched a preemptive nuclear war.''
And here's what Senator Biden said on this floor: ``I say to my
friends on the Republican side: You may own the field right now, but
you won't own it forever. I pray God when the Democrats take back
control, we don't make the kind of naked power grab you are doing.''
Why were our esteemed former colleagues so concerned about walking
this path? Here are some of the dangers inherent in the
``constitutional'' or ``nuclear'' option, and some explanation of why
and how the Senate has consistently rejected this approach in the past.
Supporters of the nuclear option claim a simple majority of Senators
can force a rules change at the beginning of a Congress, but do not
argue that they can do so at other times. There is no basis for the
argument that the beginning of a Congress enjoys a special status for
rules adoption or amendment that the remainder of a term of Congress
does not. If the Constitution grants a simple majority of Senators the
right to amend the rules of the Senate at the beginning of a Congress,
when and how does that majority lose that right? This temporal
distinction cannot be found anywhere in the Constitution. Article I,
section 5 of the Constitution says that each House may determine the
rules of its proceedings. It makes no distinction as to when.
That provision of the Constitution, which governs the Senate, also
governs the House. The House adopts its rules at the opening of every
Congress, but it can and does amend its rules in the middle of a
Congress. If the Constitution grants a simple majority of Senators the
power to adopt rules, what would stop that simple majority from
amending those rules in the middle of a Congress, just as our House
colleagues do? And if that is the case, the Senate would no longer be
able to fulfill its historic distinction of protecting the rights of
the minority.
Some supporters of the constitutional or nuclear option claim that
rule 22's supermajority threshold to end debate on a proposed rules
change is unconstitutional because it inhibits the Senate from
exercising its constitutional power to determine its rules under
article I, section 5.
But the power to set its own rules is just one of the many powers
granted the Senate by the Constitution. For instance, the Senate is
empowered to provide advice and consent on nominations and to consider
legislation to collect taxes, to pay the nation's debts, to provide for
the common defense and general welfare of the United States. Yet,
filibusters have delayed or prevented the Senate from acting on those
important measures and nominations that fall within the Senate's
constitutional duties.
In testimony before the Senate Rules Committee, CRS expert Stanley
Bach argued:

Adopting and amending its own rules is not the only thing,
and arguably not the most important thing, that the
Constitution empowers and expects the Senate to do. If
filibusters are unconstitutional because they impede the
Senate in its efforts to exercise its authority under section
5 of Article I to adopt or amend its rules, then why are
filibusters constitutional when they impede the Senate's
efforts to exercise its equally or more important authority
under Article I, especially section 8, to legislate on
matters committed to it and the House of Representatives?

In other words, if the filibuster of a rules change is
unconstitutional, as nuclear option advocates contend, then a
filibuster on any matter would also be unconstitutional because it
would delay or prevent the Senate from discharging its constitutional
duties. So by declaring the filibuster unconstitutional on a rules
change, advocates of the nuclear option are thereby swinging the door
wide open to eliminate the filibuster altogether from the Senate.
Some supporters of the nuclear option say that the Founders never
intended for the Senate to have filibusters. They claim that the
original Senate's rules included a motion for the previous question,
which they further claim was used to end debate and bring a matter to
an immediate vote. So, they argue, the early Senate supported the
ability to close debate and bring a matter to immediate vote by simple
majority vote.
The problem is that they have their history wrong. The early form of
the motion for the previous question is unlike its modern day version.
In the first Congress, both Chambers had a motion for the previous
question in their rules--the Senate dropped the motion from its rules
in 1806. But the early version of the motion was not used to bring a
question to an immediate vote. The motion, which was phrased ``shall
the question be now put,'' was used to suppress or postpone a question.
It was moved by Senators who would then vote against the motion in
order to suppress or postpone the pending question.
The modern day version of the motion for the previous question in the
House serves as a simple majority cloture device. However, in the early
House, just as in the Senate, if the motion for the previous question
was decided in the negative, then the question was suppressed and the
House moved on to other business; if the motion was decided in the
affirmative, then the House would continue debate on the pending
question, not immediately proceed to a vote. That practice continued
until 1811, when a new precedent was set that the motion, when agreed
to, would immediately end debate and bring a vote on the question. That
was the origin of simple majority cloture in the House.
The early history of the motion for the previous question is set
forth in the House of Representatives official guide to procedure,
House Practice: A Guide to the Rules, Precedents and Procedures of the
House:

In early Congresses, the previous question was used in the
House for an entirely different purpose than it is today,
having been modeled on the English parliamentary practice. As
early as 1604, the previous question had been used in the
Parliament to suppress a question that the majority deemed
undesirable for further discussion or action. The Continental
Congress adopted this device in 1778, but there was no
intention of using it as a means of closing debate in order
to bring the pending question to a vote. Early
interpretations of the rule in the House were consistent with
its usage in the Continental Congress. (House Practice, page
690)

Just as in the House, the early Senate rules had a motion for the
previous question, which, just as in the House, was used only to end
debate and move to another matter, not put a question to an immediate
vote. This motion was eventually dropped from the Senate rules. In his
speech to the Senate on March 2, 1805, Vice President Aaron Burr
recommended changes to the rules of the Senate. Among those, he
suggested that the Senate drop the motion for the previous question on
the basis that it was duplicative to the motion for indefinite
postponement. The diary of John Quincy Adams contains the following
account of Burr's speech:

He [Burr] mentioned one or two of the rules which appeared
to him to need a revisal, and recommended the abolition of
that respecting the previous question, which he said had in
the four years been only once taken, and that upon an
amendment. That was proof that it could not be necessary, and
all its purposes were certainly much better answered by the
question of indefinite postponement. (Memoirs of John Quincy
Adams, edited by Charles Francis Adams, vol. I, p. 365)

Supporters of the nuclear option often reference advisory opinions
and rulings by Vice Presidents Nixon, Humphrey, and Rockefeller that
the Senate may adopt its rules by simple majority vote at the opening
of Congress. These advisory rulings and opinions were rendered during
actual attempts to change the rules, but the proposed changes were
rejected, for good reason.
For example, Vice President Nixon believed the constitution granted a
simple majority of Senators the power to force a rules change in
violation of Senate rules. In 1957, when an attempt to change the rules
was made at the beginning of a new Congress, Nixon made reference to
his belief, but his advisory opinion recognized no special status for
the beginning of a Congress. Nixon believed a simple majority of
Senators could amend the rules at any point during a Congress. In his
advisory opinion, Nixon said, ``The Constitution also provides that
`each House may determine the rules of its proceedings.' This
constitutional right is lodged in the membership of the Senate and it
may be exercised by a majority of the Senate at any time.'' Vice
President Nixon also acknowledged that his opinion was merely advisory,
and not binding upon the Senate.
Vice President Humphrey advised the Senate in 1969 that if a simple
majority of Senators, but fewer than the two-

[[Page S263]]

thirds required by the rules, voted to invoke cloture on a proposed
rules change, then he would rule that cloture had been invoked. On
January 16, 1969, the Senate voted 51-47 in favor of a motion to invoke
cloture. Vice President Humphrey ruled that cloture had been invoked by
the majority. Humphrey's decision was appealed and the Senate reversed
Humphrey's decision by a vote of 53-45. In doing so, the Senate
established a clear precedent rejecting Vice President Humphrey's
ruling that a simple majority could end debate.
Supporters of the constitutional argument point to statements by Vice
Presidents Humphrey and Rockefeller in 1967 and 1975, respectively. In
both these instances, the Vice Presidents advised the Senate that
tabling a point of order against a motion to end debate by simple
majority would validate the motion to end debate and cause it to self-
execute. It is my understanding that both former and current Senate
Parliamentarians disagree with the advisory opinions of Humphrey and
Rockefeller. Tabling a point of order lodged against a motion to end
debate by simple majority does not validate that motion or cause it to
self-execute. In tabling the point of order, the question simply recurs
on the underlying motion, and that question is debatable. At the end of
my remarks I intend to propound several parliamentary inquiries that, I
believe, will address the errors of the Humphrey and Rockefeller
rulings.
Let's examine more closely these two advisory rulings.
In 1967, it was Senator McGovern who offered a motion to end debate
by a simple majority on the question of proceeding to a rules change.
Senator Dirksen raised a point of order that the motion was out of
order because it violated the rules of the Senate. Vice President
Humphrey advised the Senate that if the Senate tabled the Dirksen point
of order, that act would serve to validate the constitutionality of the
McGovern motion. But in any event, the Senate rejected the motion to
table the Dirksen point of order by a vote of 37-61. Then the Senate
sustained Dirksen's point of order by a vote of 59-37. This is yet
another example of the Senate establishing a clear precedent rejecting
simple majority cloture of debate on a rules change.
Then, again, in 1975, the Senate faced a very similar question.
Senator Mondale offered a motion that would end debate with a simple
majority. Majority Leader Mansfield raised a point of order against the
motion. Vice President Rockefeller advised that if the Senate tabled
the Mansfield point of order, he would interpret that act as an
expression of the Senate that the motion was proper--again, as I will
show in a moment, a dubious position. After considerable intervening
action and debate, the Senate ultimately sustained the Mansfield point
of order by a vote of 53-43. Once again, the Senate established a clear
precedent of its rejection of simple majority cloture of debate on a
rules change.
The danger of the advisory rulings by Humphrey and Rockefeller in
1967 and 1975 is made clear in a grave warning issued by our former
colleague, Senator Robert C. Byrd of West Virginia, the longest serving
Senator in the history of the Senate and the author of its definitive
history. During the debate in 1975 on the question of whether a simple
majority could end debate on a proposed rules change, Senator Byrd gave
the following remarks that I believe we should heed carefully today.

May I say to those of us on our side that the day may
come--although I hope it will not be in my time--when we will
be in the minority, and it will take only 51 Senators from
the other side of the aisle to stop debate immediately,
without one word, on some matter which we may consider vital
to our States or to the Nation. Let me show the Senate how
this would work. ...
Suppose it were the Bay of Tonkin resolution, which
involved a declaration of war by the Congress of the United
States. Any Senator could contrive his own--and I do not use
that word disrespectfully--any Senator could write a
similarly phrased divisible motion, a multiple motion, sent
it to the Chair and all someone would have to do is raise a
point of order, another Senator would move to table the point
of order; if the point of order were tabled, the matter,
without debate, would immediately be put to a vote. If a
majority were to sustain that vote, debate would be closed on
the basic motion to move to consideration of the matter, or
if the matter were already before the Senate, to proceed to
vote immediately on the matter without further debate.

Senator Byrd that same day said:

I must say that I have to disagree respectfully with the
Chair. We are today operating by the rules of the Senate,
which rules and precedents provide that a motion before the
Senate, against which a point of order has been made and
tabled, remains before the Senate and is debatable. I cannot
for the life of me understand how, in this instance, the
motion, if the point of order is tabled, will not still be
before the Senate and will not be debatable. I cannot
understand that. I cannot understand how the Chair can
logically state that the Senate, by this motion, and by
virtue of its tabling a point of order, which is a separate
matter, ipso facto shuts off debate on the motion.
Now, if we go down this road, I can guarantee that every
Senator in this body will rue this day ... Senators, do we
want to do it this way? If this is done today, it can be done
any day. If it can be done on this constitutional question,
it can be done on any other constitutional question. It can
be done on any other point of order the Chair wishes to refer
to the Senate for decision. ... I believe that there is a
danger here that, if Senators will reflect upon it for but a
little while, they can foresee a time when we would say that
we went the wrong way to achieve an otherwise very notable
purpose ... Put this power in the hands of a tyrannical
leadership, and a tyrannical majority of 51 Senators, and we
are going to be sorry on both sides of the aisle. (121
Congressional Record 3842-3844)

So in 1975, the Senate did what it has always done when confronted
with the question of simple majority cloture on debate of a motion to
amend the rules. It rejected it.
The reason that the constitutional approach to rules changes has
never been implemented is that every time it has been attempted, the
Senate has not gone along.
When Vice President Humphrey explicitly ruled that the Senate could
end debate by a simple majority, the Senate voted to overturn that
ruling. In those instances when a Vice President has advised that
tabling a point of order against a motion to limit debate on a rules
change by a simple majority amounted to Senate approval of that motion,
the Senate has either voted to reject that interpretation outright or
voted against tabling the point of order.
The very basis for minority rights in the Senate is the absence of
simple majority cloture, which would allow a majority of Senators to
end debate. The absence of simple majority cloture is the only ground
on which a minority, and sometimes a single Senator, can stand to
demand they be heard on any given issue.
I believe by the letter and spirit of our rules, and the history and
practice of this body, the bipartisan leadership proposal before us
merits support. But I also recognize that these arguments alone may not
suffice for the millions of Americans who understandably do not know or
care much about the procedures and rules of the Senate, and who have
watched for the last 4 years with mounting frustration as abuse of
those rules has obstructed progress and mired the Senate in seemingly
endless delay.

The foundation of Democratic governance is rule by majority consent.
Indeed, democracy arose as a response to centuries of rule by a
privileged and self-interested minority imposing its will on the
majority. And the need for a system that protects minority rights is
counter-intuitive to many Americans, who find it hard to understand why
the majority's will does not always carry the day in the Senate.
But while the foundation of our Democratic system is rule by the will
of the people, our Founding Fathers were careful to enshrine
protections against what they warned was a dangerous threat to true
political liberty. They called it ``majority faction,'' the possibility
that a majority of the public would, in pursuit of its own interests,
infringe upon the rights of their fellow citizens.
They crafted our system with a series of checks and balances to
protect against the dangers of majority faction. And since the
founding, many of the most important steps forward for our country have
involved protecting minorities from the harms of majority faction.
The giants of the Senate have recognized the vital importance of
protecting minority rights. Senator Daniel Inouye was rightly eulogized
recently in this chamber as a wise and experienced presence in the
Senate. He demonstrated that wisdom from the very beginning of his
career here. In

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his maiden speech on this floor, he implored the Senate to preserve its
protections for minority views, even when those protections allowed a
misguided minority to obstruct our Nation's progress. This is what he
said:

The philosophy of the Constitution and the Bill of Rights
is not simply to grant the majority the power to rule, but is
also to set out limitation after limitation upon that power.
Freedom of speech, freedom of the press, freedom of religion:
What are these but the recognition that at times when the
majority of men would willingly destroy him, a dissenting man
may have no friend but the law? This power given to the
minority is the most sophisticated and the most vital power
bestowed by our Constitution.

Understand what was taking place here. Senator Inouye spoke as the
Senate was debating whether to weaken the rights of the Senate
minority, so that the Senate majority could end grave injustice by
enacting civil rights legislation. Senator Inouye, a man who had
himself felt the pain of racial discrimination, even during and after
his remarkable service to this nation during World War II, used his
first speech on this floor to warn against the attempts ``to destroy
the power of the minority . . . in the name of another minority.''
I want to make clear to my colleagues my belief that defense of the
minority's rights in the Senate is not defense of the current use, and
abuse, of those rights. It is not a defense of a few who threaten
routinely to prevent consideration of judicial nominees unanimously
approved in committee, or to prevent debate on legislation. We need to
act so that the Senate can function again.
But we can't save the Senate by destroying its very nature and role.
In the past, Senators strongly committed to reforming the Senate rules
have been equally committed to preserving its institutional strengths.
Listen to the words of Senator Mansfield, who, in 1967, worked to
reform the cloture rule so the Senate would function more normally--
but, importantly, urged his colleagues not to pursue those reforms by
the destructive means of establishing simple majority cloture to end
debate on a rules change. While arguing strongly for reform, Senator
Mansfield said, ``[The] urgency or even wisdom of adopting the three-
fifths resolution does not justify a path of destruction to the Senate
as an institution and its vital importance to our scheme of government.
And this, in my opinion, is what the present motion to invoke cloture
by simple majority would do.'' Senator Mansfield added: ``I simply feel
the protection of the minority transcends any rule change, however
desirable. . . . The issue of limiting debate in this body is one of
such monumental importance that it reaches, in my opinion, to the very
essence of the Senate as an institution. I believe it compels a
decision by more than a majority.''
In 1975, Senator Byrd argued in favor of the rule change reducing the
number of votes needed to end debate from 67 to 60. But he strongly
opposed using simple-majority cloture of the debate on that rules
change. ``I feel that a three-fifths cloture vote would protect the
minority, protect the uniqueness of this institution, and preserve a
fair and equitable way to close debate. But I am not for destroying the
Senate as a unique institution in an effort to reach that end.''

In 2010, in testimony before the Rules Committee on this subject,
Senator Byrd said:

During this 111th Congress, in particular, the minority has
threatened to filibuster almost every matter proposed for
Senate consideration. I find this tactic contrary to every
Senator's duty to act in good faith. I share the profound
frustration of my constituents and colleagues as we confront
this situation. The challenges before our nation are too
grave, too numerous, for the Senate to be rendered impotent
to address them, and yet be derided for inaction by those
causing the delays. . . . Does the difficulty reside in the
construction of our rules, or does it reside in the ease of
circumventing them? A true filibuster is a fight, not a
threat, not a bluff. . . . Now, unbelievably, just the
whisper of opposition brings the `world's greatest
deliberative body' to a grinding halt. . . . Forceful
confrontation to a threat to filibuster is undoubtedly the
antidote to the malady.

There have without question been times when a self-interested or
hide-bound minority in the Senate has frustrated American progress. But
there have also been times when a Senate majority has attempted to
impose its will in ways that would have been harmful. Those instances
resonate far less loudly when one is a supporter of a frustrated
majority. But those of us who have served in the minority in this body,
as I have for nearly half my time in the Senate, remember them well.
In the recent past, Senate Democrats in the minority used the
protections afforded the minority to block a series of bills that would
have unwisely restricted the reproductive rights of American women. We
beat back special-interest efforts to limit Americans' ability to seek
justice in our courts when harmed by corporate wrongdoing. We used
those protections to seek an extension of unemployment benefits for
millions of Americans. We used them to oppose the nomination of
nominees to the Federal courts who we thought would do great harm to
the law. Progressives distressed that the recent fiscal cliff agreement
raised the estate tax exemption to more than $5 million should recall
that without the protections afforded the Senate minority, a total
repeal of the estate tax would have passed the Senate in 2006. Forty-
one Senators prevented that from happening.
Over the history of this body, giants of the Senate have repeatedly
warned us against the danger of damaging, even with the best of
intentions, the Senate's protections for minority rights and extended
debate. Time and again, the Senate has heeded those warnings. While it
is necessary to reasonably preserve those minority rights, it also is
urgent that we restore the Senate's ability to function. Unless we do
that, the Senate's character and function within our system of
government will remain threatened by constant gridlock. The bipartisan
proposal before us holds the promise of restoring the Senate's
deliberative and legislative process, without going down a ``nuclear''
path that might severely damage the Senate in an attempt to save it.
This proposal holds the promise of demonstrating to a nation hungering
for bipartisan cooperation that we are capable of providing it. I urge
my colleagues to embrace a bipartisan approach that will allow us to
end the gridlock of which we have seen too much, and to do so with the
bipartisan spirit of which our people have seen too little.
Mr. LEVIN. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, I wish to thank Senator Levin for his
leadership, as well as Senator McCain, Senators Schumer, Cardin, Pryor,
and Senator Kyl--who has now retired from the Senate--and Senator
Barrasso. We are hopeful the leaders will be able to recommend to us a
set of changes in our rules and procedures and practices that will help
the Senate operate in a fairer and more efficient way. That is what all
of us want. It is surprising how many of us want that.
We all worked pretty hard to get here. We all understand we are
political accidents. The Senator from Maine, the Senator from
Arkansas--we all know that. We are very fortunate to be here. While we
are here, we would like to contribute something. That gets down to a
couple things. Let's make it easy for a committee bill to come to the
floor, and let's make it easier for Senators from the various States
and from various points of view to have their say. Allow them to offer
their amendment and have it voted up or down and to have a final vote.
That is all.
I often use the analogy of the Grand Ole Opry. A person is lucky to
be on the Grand Ole Opry. If you are there, you want to sing. Sometimes
being in the Senate has been like being in the Grand Ole Opry and not
being able to sing. We have all done the finger-pointing. The
Democrats--the majority--say: You Republicans are filibustering. You
are blocking things and keeping things from happening.
What we are saying is the majority leader has used the gag rule 69
times. Senator Daschle only used it once. What the eight of us found
very quickly when we sat down in the first meeting a few weeks ago was
that we were of the same mind. We honored this institution and we
believe our country has serious problems. We want to get to those
problems, and we want to serve our country well in the position we
have.
If we are from Michigan, we want to be able to offer the voices of
Michigan

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on the floor of the Senate. If we are from Nashville or the mountains
of Tennessee or Maine, we want to be able to do the same. We want our
voices heard--not our voices but the voices of the people whom we
represent. That is the importance of the discussion we are having
today.
My hope is the majority leader and the Republican leader--and I
congratulate them for sort of sticking their necks out in their
respective conferences--recommend a way that we can do two things: make
it easier for bills to come to the floor and make it easier for
Senators to get their amendments in. I believe if that happens, this
Senate will see a new day.
On this side of the aisle, we believe we don't need rules changes;
that we just need a change in behavior. On the other side of the aisle,
there are those who say: Let's get rid of the filibuster. I think once
we get back into what we call regular order, all that talk will go
away. I think Senator Mikulski and Senator Shelby are going to have 10
or 11 or 12 appropriations bills ready to come to the floor within a
few weeks, and I think they are going to want them to be considered by
this body. If they do, we will be busy for 8 or 10 weeks and we will
have dozens of amendments. I heard the chairman of the Budget Committee
say she intended to have a budget and, if she does, we will have dozens
of amendments. Then the voices of the people of this country will be
heard here on the floor of the U.S. Senate. We will have votes, we will
have amendments, and we will be doing our job, and all of this talk we
are having right now will be pushed into the background.

There is a reason for a Senate that is different than the House of
Representatives. It goes all the way back to the founding of our
country. It was noticed by the first observers of our country. Alexis
de Tocqueville, in his fascinating view of America in ``Democracy in
America'' which he wrote in the early part of the 19th century, said
America faced two great challenges. One was Russia. The other one was
the tyranny of the majority. This is a democracy. This is a majority
rules country. But he saw in a great, big, complex country the danger
of the tyranny of the majority. And this institution, the U.S. Senate,
has from the beginning of the country protected the minority and
protected the unpopular view. If a Senator didn't like the Vietnam war,
he or she could stand up and say something here and maybe do something
about it. Or if a Senator was on the other side, maybe he or she could
do something about it. They could make people slow down and stop and
think before the country rushes ahead.
Senators of both parties eloquently, as Senator Levin has pointed
out, have defended that right. We Republicans in the Bush
administration were so upset about the Democrats' blocking of judges
that we said we might use the nuclear option, that we might turn this
into a majority body. Now there are a number of Democrats who feel the
same way here. I hope we put that away and realize that this is the
body that stands up for minority views in this country and says, don't
run over minorities. Stop and think. Stop and think before you do that.
Then we forge a consensus.
To conclude my remarks--because I see the Senator from Arkansas, who
has been an outstanding contributor to this effort, as he has been
through his time in the Senate--I came to the Senate as a young staff
aide in 1967. That was a long time ago. I saw a little bit of how
important it is to have a body that gains a consensus when we are
talking about a big, difficult issue for the whole country. In 1967,
the issue was civil rights. The Senator from Maine knows about those
early days in the Senate. The Senator from Michigan does as well. There
were a minority of Republicans at that time. Everett Dirksen was the
Republican leader. But the civil rights bill of 1968 was written in the
Republican leader's office. Why? Because at that time they had to get
67 votes to pass it.
One might say, Well, that shows what is wrong with the Senate,
because it slowed things down. But looking back over history, those
last 8 or 10 years of civil rights laws, the Voting Rights Act,
eventually all of the laws that changed our country and continue to
change it, were big steps. And what happened in 1968 once the Senate
gained a consensus on civil rights? Senator Russell, who led the
opposition to the civil rights bill through his whole career, got on
the airplane, went home to Georgia and said, It is the law of the land.
Now we obey it.
So the value of having a body in our government that respects the
minority and forces a consensus is that once we reach that consensus--
once we reach it--we then have a better chance of having the country
behind what we do on the very controversial and difficult issues we
face.
So if this works out as I hope it does today, I pledge my part to
work with the majority, as one Senator, to help make sure bills come to
the floor, and to work with Republican Senators in the minority to help
make sure they get their amendments. If we do, I think we will do our
job better, we will gain more respect, the country will have a stronger
government, and the rights of the minority will be protected.
I thank Senator Levin for his leadership, as well as Senator Pryor
and the others with whom I have worked.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. PRYOR. Mr. President, I wish to thank Senator Levin and Senator
Alexander for their kind comments about me. The Senator from Tennessee
and I came to the U.S. Senate at the same time. That was 10 years ago.
One of the things I think everyone would agree with is we have seen
over the last 10 years a waning of effectiveness in the Senate. A large
part of that is the fact that this floor is not used as it should be.
This floor has been used to block and obstruct. Both parties are guilty
of that. This floor should be the marketplace of ideas. It should be
where we come together and we work to resolve our differences. Our
differences may be partisan, they may be regional, they may be
philosophical, they may be generational, whatever, but our Founding
Fathers set up our system of government where there would be one place
where difficult, complex, thorny, even sometimes politically
treacherous issues can be resolved, and that is on the floor of the
U.S. Senate.
When we, again Democrats and Republicans, abuse the rules around here
and we stymie the Senate from acting, we get gridlock, and gridlock is
not good for the country. I firmly believe one of the reasons the
American public is so disgusted with Congress right now is because of
the things that are happening and not happening on this floor.
When we think about our system of government and when our Founding
Fathers set it up, of course we have the three branches, but as a
practical matter, the floor, right here, is the only place in our
government where the American people--the people we represent--can
actually see their law being made. Americans don't see law being made
at the White House. They go out there and they huddle up in their
conference rooms and they come out to the Rose Garden and they make the
announcement. We never see the process. We don't see the process in the
U.S. Supreme Court or in the courts of appeals. What happens there is
the lawyers and the parties come in and make their cases and then the
Justices and judges go back and conference and they talk about it back
in their chambers, and they come out with their decision, and that is
what we have. We don't always know what the deliberations are. We don't
know all the considerations. The same thing in the U.S. House of
Representatives, with all due respect to our other Chamber down the
hall. Because of the way their rules operate, because of the Rules
Committee and the way it is structured and their history and, quite
frankly, their DNA, it is a majoritarian body. But not the U.S. Senate.
In the Senate we allow Senators to amend and debate and to vote. That
has been one of the problems here in the last 10 years. The Senator
from Tennessee--and I see the Senator from Texas on the floor--we all
came in together. This Senate has lost a lot of ability to do that.

I am firmly convinced we have sufficient verbiage in rule XXII of the
Senate Rules to require a talking filibuster. I think that is
critically important. It is not a new interpretation, but it is
utilizing the existing interpretations, the longstanding history of the
Senate, based on parliamentary decisions, based on decades of things
that

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have happened here on the floor, where we have the authority already in
rule XXII. But we have asked our two leaders to clarify and state and
notify all of us how we are going to handle issues during this
Congress. The way we are going to handle it when it comes to the
talking filibuster is we are going to require Senators to be here to
object. No more phone-in filibusters. We are going to require Senators
to come down and state their objections, to come down and actually
speak. If they have a problem with moving forward, they need to come
and speak about it. If they want to start a filibuster, they should be
here to speak on the floor. What is going to happen is the majority of
Senators who want to see legislation get done may have to do a little
work and be here late nights, but that is part of it. That is what we
signed up for. It is like the Senator from Tennessee said a few moments
ago. We all worked very hard to get here, and we came here to work for
the country. If we are ever going to have a chance of resolving the big
and difficult issues that face our Nation--issues such as our debt and
deficit; issues such as the fiscal cliff; a whole set of issues
including tax reform, entitlement reform--we can bet our last dollar
those things are going to happen in the Senate. That is where things
get done.
The fiscal cliff, with all due respect to the House, didn't happen in
the House, it happened in the Senate. The minority leader and the Vice
President worked it out. That is the way things have always gotten
done, for the most part, in American history, and that is the way we
need to allow things to get done in this Congress, because we have too
many big issues to block everything that is coming through on the
Senate floor.
Again, I wish to thank Senator Levin and Senator McCain for leading
this effort. They are great leaders. I thank Senator Kyl, Senator
Barrasso, Senator Alexander. Participating in those meetings with my
Republican colleagues was a great experience, to listen to them, listen
to their concerns. I think it was an education for all the Democrats to
have that quality time where we did listen and then they listened to
us. I think that was very important. We need to do more of that around
here. We will get a lot more done if we do.
Also, our Democratic colleagues, of course led by Senator Levin,
Senator Schumer, and Senator Cardin, everybody contributed, and I think
it is something we should be proud of and it is also a great victory
for bipartisanship. It is a great victory for bipartisanship. I think
that is what the American people are screaming out for: for us to work
together to get things done, and this is a good example of that.

____________________