[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.

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