[Congressional Record Volume 159, Number 83 (Wednesday, June 12, 2013)]
[Senate]
[Pages S4357-S4359]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ADVICE AND CONSENT
Mr. BARRASSO. Mr. President, I come to the floor today to talk about
the advice and consent duties of the Senate. Our Constitution gives the
Senate the responsibility to advise the President on high-level
executive positions and judgeships. The Senate is also asked to consent
on those appointments to ensure that only those who are worthy of the
public's trust hold positions of such great power. The confirmation
process is a way to protect the American people from nominees who
simply aren't up to the job or to the times we are in as a country.
It is also an important opportunity for the Senate to exercise
oversight over the agencies and the policies of an administration and
to do this on behalf of the American people. Let me repeat that. It is
about exercising oversight on behalf of the American people.
This is one of the most important roles we play as Senators. This is
one of the reasons our Nation's Founding Fathers intentionally made the
pace of the Senate deliberate. They wanted to make sure there was free
debate on important subjects so we could give appropriate consideration
to policies, to laws, and to nominations.
The Father of our Constitution, James Madison, explained the Senate's
role was ``first to protect the people against their rulers.''
``First to protect the people against their rulers'' was the point of
this body. That is why, over its long history, the Senate has adopted
rules that provide strong protections for political minorities.
Lately some in the majority have decided the American people
shouldn't ask so many questions and the minority shouldn't have so many
rights. Here is a little perspective on the conversation we are having
today. Over the last 6 years Majority Leader Reid has taken an
unprecedented stand against the rights of the minority in this body. He
has done it through procedural tactics such as filling the amendment
tree on bills and bypassing committees using something called rule XIV
of the Senate rules. Those techniques may make it easier for the
majority leader to get what he wants, but they shut many Senators out
of legislating, and they shut out the Americans we represent, Democrats
as well as Republicans.
At the beginning of the last Congress and again at the start of this
Congress, there was an attempt to use the so-called nuclear option and
to use it to radically change the rules of the Senate and to strip the
rights of the minority. Back in 2011, Majority Leader Reid made a
commitment not to use the nuclear option.
On the floor he said:
I agree that the proper way to change Senate rules is
through the procedures established in those rules, and I will
oppose any effort in this Congress or the next to change the
Senate rules other than through the regular order.
He said this Congress or the next Congress, so that includes the
Congress we are in right now today.
It didn't stop some of the members of his caucus from trying to force
the nuclear option again earlier this year. I was one of a bipartisan
group of Senators--eight of us--who worked together and negotiated, I
thought, responsible changes to Senate procedures. Our goal was to
avoid the rush that would take drastic steps that would damage this
body and our country forever. It was a fair agreement.
It was also an agreement that we were told would rule out the use of
the nuclear option. So Republicans agreed to support two new standing
orders and two new standing rules of the Senate. Those changes were
overwhelmingly supported by Republicans as well as Democrats in this
body.
In return, the majority leader again gave his word he would not try
to break the rules in order to change the rules. Here is what he said a
few months ago on the Senate floor: ``Any other resolutions related to
Senate procedure would be subject to a regular order process.''
He even added this included considerations by the Rules Committee.
There was no equivocating in the statement by the Democratic leader.
There were no ifs, ands, or buts. This was January 24 of this year.
Here we are again, less than 5 months later, and we are having this
same argument.
Some Senate Democrats want to use the nuclear option to break the
rules, to change the rules, and do away with the right to extended
debate on nominations. This would be an unprecedented power grab by the
majority. It would gut the advice and consent function of the Senate.
It would trample the rights of the minority. It would deprive millions
of Americans of their right to have their voices heard through their
representatives here in Washington. The nuclear option would
irreparably change this institution.
Republicans have raised principled objections to a select few of the
President's nominees. In other cases, such as the DC Circuit Court, we
simply want to apply the standard the Democrats had set, that the
court's workload doesn't justify the addition of three more judges.
The President claims his nominees have been treated unfairly. Even
the Washington Post's Fact Checker said the President's comments were
untrue. The other day the Post Fact Checker gave the President not just
one but two Pinocchios for his claims about Republican delays on his
judicial nominees.
The White House and the majority leader don't want to hear it. They
want the Senate to rubberstamp the President's nominees. The Democrats
aren't happy with the rulings by the DC Circuit Court, and they want to
avoid any more inconvenient questions about the Obama administration.
Democrats claim they want to change the rules to make things move more
quickly, but that is no excuse. Remember when the majority leader
threatened the same drastic step a couple of years ago? One of the
Democrats who stood up to oppose the current majority leader at the
time was former Senator Chris Dodd. In his farewell speech in this body
in late 2010, this is what Senator Dodd had to say:
I can understand the temptation to change the rules that
make the Senate so unique--and, simultaneously, so
frustrating. But whether such a temptation is motivated by a
noble desire to speed up the legislative process, or by pure
political expedience, I believe such changes would be unwise.
This was a Democratic Senator with 30 years of service in the Senate.
The reality is the pace of the Senate can be deliberate. Extended
debate and questioning of nominees is a vital tool to help ensure the
men and women who run our government are up to the job and are held
accountable.
Under the system some in the majority want to impose, there will be
less opportunity for political minorities to question nominees. There
will be less government transparency. The faith of the American people
in their government will get smaller and smaller.
I believe it would be a terrible mistake for Democrats to pursue the
nuclear option and an irresponsible abuse of power. From the beginning
the American political system has functioned on majority rule but with
strong minority rights. Democracy is not winner-take-all. Senator Reid
gave his word. We negotiated in good faith earlier this year. We
reached a bipartisan agreement to avoid the nuclear option. Using the
nuclear option on nominations now would unfairly disregard that
agreement. If Democrats break the rules to change the rules, political
minorities and all Americans will lose.
I yield the floor.
The PRESIDING OFFICER (Ms. Heitkamp). The Senator from Iowa.
Mr. GRASSLEY. I listened to my colleague from Wyoming. He states it
very well. I have come to the floor for roughly the same reason, but I
don't know how many times you have to say it, because I think basically
what the Senator from Wyoming was saying, and what I want to say is it
is very difficult to reach agreements in the Senate. But when you reach
an agreement, particularly only if it involves two Senators but
particularly if they are leaders of the Senate, a person's word is his
bond. That bond ought to be kept--as far as I know, always kept. At
least that has been my relationship with fellow Senators. You say you
are going to do
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something and you continue that until it is successful. So here we are,
no Senator has not kept their word yet, but we hear this threat. So I
come to the floor to give my comments on it.
At the beginning of this Congress, the majority and minority leaders
reached an agreement as to how to proceed with rules changes. An
agreement was reached. We agreed to two rule changes: One change to the
standing rules and one to the standing order. Senate Republicans gave
up certain rights and protections in those rules changes. That was the
first part of the agreement. In exchange for these rules changes, the
majority leader gave his word to Republican Senators he would not
utilize what is called around here and around this town the ``nuclear
option'' and not use it during this Congress.
Let me review the exact wording of that agreement as it is recorded
for history in the Congressional Record. This year, on January 24,
2013, the following exchange took place in the Senate. Senator
McConnell stated:
Finally, I would confirm with the majority leader that the
Senate would not consider other resolutions relating to any
standing order or rules in this Congress unless they went
through the regular order process?
The majority leader replied:
This is correct. Any other resolution related to Senate
procedure would be subject to a regular order process,
including consideration by the rules committee.
In fact, the majority leader gave his word at the beginning of the
last Congress as well. He stated:
The minority leader and I have discussed this issue on
numerous occasions. I know that there is a strong interest in
rules changes among many in my caucus. In fact, I would
support many of these changes through regular order. But I
agree that the proper way to change Senate rules is through
the procedures established in those rules and I will oppose
any effort in this Congress or the next to change the Senate
rules other than through regular order.
Let me just say when a Senator reaches an agreement and gives his
word that he will stick to that agreement, that should mean something
around here. As far as I am concerned, it means something all the time.
I don't think I have been subject to entering an agreement with a
colleague that hasn't been kept.
Let me emphasize something further. There was no contingency on that
agreement. Republicans agreed to a change in the rules, and the
majority leader gave his word he would not invoke the so-called nuclear
option. That was the extent of the agreement, period. I trust the
majority leader will keep his word and his commitment. If he pulls back
on that commitment, it will irreparably damage the Senate.
Moreover, the notion there is now a crisis that demands another rules
change is completely manufactured. The minority leader has spoken about
the culture of intimidation. I am troubled it is finding its way into
the Senate. For the record, in regard to why there is some talk around
this institution of changing the rules--something to do with
nominations and particularly judicial nominations not moving fast
enough--I am in the middle of that as ranking member of the Judiciary
Committee. So far this year, we have confirmed 22 lower court nominees,
with two more scheduled for this week. That is more than double the
number of judges who were confirmed at this point during the previous
President's second term--President Bush.
With the nominations this week, we have confirmed 195 of President
Obama's nominees as lower court judges. We have defeated only two. That
is a batting average of 99-plus percent. I don't know how much better
we can get unless it is expected the Senate will not raise any
questions about anybody appointed by any President to the judgeships of
our country.
The claim we are obstructing nominees is plainly without foundation.
I have cooperated with the chairman of the Judiciary Committee in
moving forward on consensus nominees, and on the Senate floor there has
been a consistent and steady progress on judicial nominations. Yet it
seems as if the majority is intent on creating a false crisis in order
to effect changes in longstanding Senate practices. They are now even
threatening--can you believe this--to break the rules to change the
rules. Again, I hope the majority leader keeps his word. We have
certainly upheld our end of the bargain.
May I inquire of the Chair how many minutes are remaining for the
minority in morning business?
The PRESIDING OFFICER. The Republicans control 15 minutes.
Mr. GRASSLEY. Fifteen minutes more?
The PRESIDING OFFICER. The Senator is correct.
Mr. GRASSLEY. In regard to this whole issue about the Senate as an
institution and where I said if this nuclear option holds it is going
to destroy the Senate, I think it is very appropriate for us to
remember the Senate is the only institution in our political branch of
government where minority views are protected. In the House of
Representatives, whether it is a Republican majority or a Democratic
majority, as long as they stick together, they can do anything they
want to and they can ignore the minority. But in the Senate, where it
takes a supermajority of 60 to get something done, whether there is a
Republican or Democratic minority, that minority is protected.
Today, where we have 54 Democrats and 46 Republicans, nothing is
going to get done unless it is done in a bipartisan consensus way, and
that is why it is so very important we do not destroy that aspect of
the uniqueness of the Senate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BLUNT. I thank the Chair for the opportunity to speak, and I wish
to continue discussing what my good friend from Iowa was talking about.
There is a reason for the Senate. There are times when it is hard to
figure out exactly what that reason is, with the lack of activity we
have seen in the last couple of years, but that has very little to do
with the rules of the Senate. It has a lot to do with the Senate not
following its regular order, its regular procedures. In fact, when we
have done that, whether it was the highway bill or the Federal Aviation
Act or the farm bill, we have always produced a successful piece of
legislation.
The Senate works when we let the Senate work. The Senate works when
people are allowed to bring differing points of view to the Senate
floor. Frankly, one of the reasons to be in the Senate is to have the
ability to not only bring those ideas to the floor but to have a vote
on those ideas; to let the American people know where we stand and to
let the people in the States we represent know where we stand. The idea
the Senate is now afraid of the amendment process is a great obstacle
to the Senate getting its work done.
Another obstacle is constantly talking about changing the Senate
rules. The Senate rules have served the Senate well for a long time and
served the country well. The Senate rules are what define the Senate in
giving individual Senators abilities they wouldn't otherwise have. This
is the only body like it in the world where a bare majority can't do
whatever it wants to do. If that is the way we want to govern the
country, we have one of those bodies already. It is called the House of
Representatives, where the majority absolutely rules, where the Rules
Committee has nine members representing the majority and four members
representing the minority.
I was the whip in the House for a long time--the chief vote counter
in the House--and I can tell you that nine always beats four. It is not
just 2 to 1, it is 2 to 1, plus 1. That is a body where the majority
has incredible capacity to do whatever the majority wants to do. That
is not the way the Senate is supposed to work.
We started off this year trying to agree on how to move the Senate
forward in an agreeable and effective way, and now we are right back,
every day now, hearing: We are going to have to think about changing
the rules. When we hear the majority leader talking about changing the
rules, it usually is not a good indication we will be prepared to get
anything done.
The two leaders, when we started this year, agreed on a plan to make
sure the Senate wouldn't unilaterally change the rules; that we would
break the rules to change the rules. The thing we would have to do to
change the rules is to break the rules, because the rules, once the
Senate is constituted, can't be changed by just a majority of Senators.
It takes more than that.
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We created two new ways for the majority leader--not the minority
leader but for the majority leader--to expedite Senate action. We gave
new powers to the leader. One of these rules changes passed 78 to 16.
The other one passed 86 to 9. These changes gave the majority ways to
consider nominations and legislation and going to conference. The
minority agreed, under certain circumstances, the ability to engage in
debate could and would be limited.
But now we are back again having the same discussion. The only way
the majority leader would be able to get what he apparently wants would
be to break the rules. There are enough rules being broken, in my view,
in Washington right now. One of the problems we face is that the
country, frankly, does not trust their government. When we look across
the board, from the IRS to what happened in Benghazi, to what the NSA
has said in answering about the retaining of records, we don't need to
do yet another thing to convince people there is a reason they should
not believe what people in the government say.
Let's look at a few things the majority leader said on the Senate
floor over the last couple of years. On January of 2011--January 27, to
be exact--Mr. Reid said:
I agree that the proper way to change the Senate rules is
through the procedures established in those rules, and I will
oppose any effort in this Congress or the next to change the
Senate rules other than through the regular order.
That was January of 2011. Mr. McConnell, in January of this year,
said on the Senate floor--January 24:
I would confirm with the majority leader that the Senate
would not consider other resolutions relating to any standing
order or rules in this Congress unless they went through the
regular order process?
That was Senator McConnell's question. In response, Senator Reid
said:
That is correct. Any other resolutions related to Senate
procedure would be subject to a regular order process,
including consideration by the Rules Committee.
I am on the Rules Committee, and we are not talking about any rules
changes in the Rules Committee, which Senator Reid said in January of
this year would have to be part of looking at that.
Of course, a lot of the discussion is: The nominations are taking too
long. But these are important jobs, and there is a reason they take so
long. In particular, judicial nominees serve for the rest of their
lives. They are going to serve well beyond, in most cases, the
President who nominates them. So they have taken a long time for quite
a while.
I would think the facts are clear the Senate is treating President
Obama's judicial nominees fairly and, in some ways, even better than
they treated President Bush's nominees.
Already in this Congress, the Senate--in this Congress, the one that
began in January--the Senate has approved 22 of the President's
lifetime appointments. Twenty-two people on the Federal bench for the
rest of their lives, that is already happening this year. At a
comparable point in President Bush's second term the Senate had
approved only five of his judicial nominees.
In the last Congress, President Obama had 50 percent more
confirmations than President Bush; 171 of his nominees were confirmed.
His predecessor had 119 under similar circumstances, a time when the
Senate was also dealing with 2 Supreme Court nominees who, by the way,
also serve for life.
I think in the first term of President Obama the Senate made the kind
of progress one would expect the Senate to make on these important
jobs. In fact, President Obama has had more district court
confirmations than any President in the previous eight Congresses. One
would think that would be a pretty good record on the part of the
Senate doing its job.
The Constitution says the President nominates but, it says, the
Senate confirms. In my view, those are equally important jobs. In fact,
one could argue that the last job, the one that actually puts the judge
on the bench, is even more important than the first job.
Overall, the Senate has confirmed 193 lower court judges under
President Obama and defeated only 2. The Washington Post cited the
Congressional Research Service conclusion that from nomination to
confirmation, which is the most relevant indicator, President Obama's
circuit court nominees were being processed about 100 days quicker than
those of President Bush. President Bush's nominees took about a year,
350 days. President Obama's take about 100 days less than that.
Let's look at the other side of nominations. There is a difference in
the executive nominations, I believe, because they are only likely to
serve during the term of the President and not exceed that. I think
that creates a slightly different standard. The process on these
nominations has been pretty extraordinary in any view. If anything, the
Obama administration has had more nominations considered quicker than
the Bush administration.
The Secretary of Energy was recently confirmed 97 to 0. The Secretary
of the Interior was confirmed 87 to 11; the Secretary of the Treasury,
71 to 26. Those are substantial votes done in a substantial time. The
commerce committee that I am on just this week voted out three
nominations the President had made with no dissenting votes to report
that nomination to the floor.
The Director of the Office of Management and Budget was confirmed 96
to 0. The Secretary of State was confirmed 94 to 3, only 7 days after
the Secretary of State was nominated. Members of the Senate knew the
Secretary of State pretty well. It was easy to look at that in a quick
way, but it is pretty hard to imagine a Secretary of State who can be
confirmed quicker than 7 days after that person was nominated.
The Administrator for the Centers of Medicare & Medicaid Services was
confirmed 91 to 7. The Chair of the Securities and Exchange Commission
was confirmed by a voice vote. Yet in spite of all of that, we are
being told by the White House and by others that somehow the Senate's
record on these nominations is worthy of an unprecedented rules change,
and that rules change would shut out the rights of the minority to
fully review and debate, particularly, lifetime judicial nominations.
The very essence of the constitutional obligation of the Senate is to
look at these nominations and decide whether these people should go
onto the Federal bench for the rest of their lives.
I am hopeful that the majority leader will keep his word to the
Senate and to the American people and ensure that we move onto this
debate that should happen--didn't happen in January--and instead of
changing the rules, we do what we are supposed to do and do it in a way
that meets our obligations as a Senate and our obligations to the
Constitution. Let's not break the rules to change the rules. Let's get
on with the important business that is before us rather than going back
to the business we have dealt with months ago.
I yield the floor.
____________________