[Congressional Record Volume 159, Number 167 (Thursday, November 21, 2013)]
[Senate]
[Pages S8441-S8444]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                         Changing Senate Rules

  Mr. McCAIN. Mr. President, the events and votes that took place today 
are probably as historic as any votes that I have seen taken in the 
years I have been here in the Senate.
  The majority, with only majority votes--the same as ObamaCare passed 
with only Democratic votes--changed the rules of the Senate in a way 
that is detrimental, in my view, not only to the Senate, not only to 
those of us in the minority party, but great damage to the institution 
itself.
  One of the men who served in this Senate for a long, long time, whom 
we respected as much or more than any other leader--he certainly knew 
the Senate rules more than any of the rest of us combined--was one 
Robert Byrd. Three months before his death, Robert

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Byrd wrote this letter. Three months before his death, he said:

       During my half-century of service in various leadership 
     posts in the U.S. Senate--including Minority Leader, Majority 
     Leader, Majority Whip and now President Pro Tempore--I have 
     carefully studied this body's history, rules, and precedents. 
     Studying those things leads one to an understanding of the 
     Constitutional Framers' vision for the Senate as an 
     institution, and the subsequent development of the Senate 
     rules and precedents to protect that institutional role.

  This is important, I say to my colleagues.
  He said:

       I am sympathetic to frustrations about the Senate's rules, 
     but those frustrations are nothing new. I recognize the need 
     for the Senate to be responsive to changing times, and have 
     worked continually for necessary reforms aimed at modernizing 
     this institution, using the prescribed Senate procedure for 
     amending the rules.
       However, I believe that efforts to change or reinterpret 
     the rules in order to facilitate expeditious action by a 
     simple majority, while popular, are grossly misguided. While 
     I welcome needed reform, we must always be mindful of our 
     first responsibility to preserve the institution's special 
     purpose.

  Finally, at the end, he said:

       Extended deliberation and debate--when employed 
     judiciously--protect every Senator, and the interests of 
     their constituency, and are essential to the protection of 
     the liberties of a free people.

  Mr. President, I ask unanimous consent that this letter by Robert 
Byrd be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                  Committee on Appropriations,

                                Washington, DC, February 23, 2010.
       Dear Colleague: During my half-century of service in 
     various leadership posts in the U.S. Senate--including 
     Minority Leader, Majority Leader, Majority Whip and now 
     President Pro Tempore--I have carefully studied this body's 
     history, rules and precedents. Studying those things leads 
     one to an understanding of the Constitutional Framers' vision 
     for the Senate as an institution, and the subsequent 
     development of the Senate rules and precedents to protect 
     that institutional role.
       I am sympathetic to frustrations about the Senate's rules, 
     but those frustrations are nothing new. I recognize the need 
     for the Senate to be responsive to changing times, and have 
     worked continually for necessary reforms aimed at modernizing 
     this institution, using the prescribed Senate procedure for 
     amending the rules.
       However, I believe that efforts to change or reinterpret 
     the rules in order to facilitate expeditious action by a 
     simple majority, while popular, are grossly misguided. While 
     I welcome needed reform, we must always be mindful of our 
     first responsibility to preserve the institution's special 
     purpose. The occasional abuse of the rules has been, at 
     times, a painful side effect of what is otherwise the 
     Senate's greatest purpose--the right to extended, or even 
     unlimited, debate.
       If the Senate rules are being abused, it does not 
     necessarily follow that the solution is to change the rules. 
     Senators are obliged to exercise their best judgment when 
     invoking their right to extended debate. They also should be 
     obliged to actually filibuster, that is go to the Floor and 
     talk, instead of finding less strenuous ways to accomplish 
     the same end. If the rules are abused, and Senators exhaust 
     the patience of their colleagues, such actions can invite 
     draconian measures. But those measures themselves can, in the 
     long run, be as detrimental to the role of the institution 
     and to the rights of the American people as the abuse of the 
     rules.
       I hope Senators will take a moment to recall why the 
     devices of extended debate and amendments are so important to 
     our freedoms. The Senate is the only place in government 
     where the rights of a numerical minority are so protected. 
     Majorities change with elections. A minority can be right, 
     and minority views can certainly improve legislation. As U.S. 
     Senator George Hoar explained in his 1897 article, ``Has the 
     Senate Degenerated?'', the Constitution's Framers 
     intentionally designed the Senate to be a deliberative forum 
     in which ``the sober second thought of the people might find 
     expression.''
       Extended deliberation and debate--when employed 
     judiciously--protect every Senator, and the interests of 
     their constituency, and are essential to the protection of 
     the liberties of a free people.
       With kind regards, I am
           Sincerely yours,
                                                   Robert C. Byrd.

  Mr. McCAIN. Mr. President, I wish Robert Byrd had been here on the 
floor today. I wish Robert Byrd had seen the travesty that just took 
place on a party-line vote. And when I use the word ``hypocrisy,'' I 
use it guardedly. I do not use that word with abandon. But this is 
another broken promise--another broken promise.
  I read from an article entitled ``FLASHBACK: Reid in 2008: `As Long 
As I Am The Leader' We Will Not Have a Nuclear Option.''

       Sen. Harry Reid said in a 2008 interview that as long as he 
     was the Senate Majority Leader, the nuclear option would 
     never happen under his watch.
       ``As long as I am the Leader, the answer's no,'' he said. 
     ``I think we should just forget that. That is a black chapter 
     in the history of the Senate. I hope we never, ever get to 
     that again because I really do believe it will ruin our 
     country.''

  He was talking about 2005 when this side of the aisle was in the 
majority and there was an effort--which we were able to diffuse--in 
order to do exactly what we did today. In 2008:

       Reid railed against Republicans who fought for the measure, 
     saying it would lead to a unicameral legislature and that the 
     U.S. Senate was purposefully set up by the Founding Fathers 
     to have different rules than the House of Representatives. 
     Such a measure like the nuclear option, he said, would 
     ``change our country forever.''

  I am sorry to say, I agree with him.
  I agree with what he said in 2008. Yet, on Thursday, on a nearly 
party-line vote of 52-48, the Democrats abruptly changed the Senate's 
balance of power.
  Here is the full exchange I will read from.

       Tom Daschle: What was the nuclear option, and what 
     likelihood is there that we're going to have to face nuclear 
     option-like questions again?

  This is an interview that the majority leader had with the former 
majority leader Tom Daschle.

       What the Republicans came up with was a way to change our 
     country forever. They made a decision if they didn't get 
     every judge they wanted, every judge they wanted, then they 
     were going to make the Senate just like the House of 
     Representatives. We would in fact have a unicameral 
     legislature where a simple majority would determine whatever 
     happens. In the House of Representatives today, Pelosi's the 
     leader. Prior to that, it was Hastert. Whatever they wanted, 
     Hastert or Pelosi, they get done. The rules over there allow 
     that. The Senate was set up to be different.
       That was the genius, the vision of our Founding Fathers, 
     that this bicameral legislature which was unique, had two 
     different duties. One was as Franklin said, to pour the 
     coffee into the saucer and let it cool off. That's why you 
     have the ability to filibuster and to terminate filibuster. 
     They wanted to get rid of all of that, and that's what the 
     nuclear option was all about.
       Daschle: And is there any likelihood that we're going to 
     face circumstances like that again?
       Reid: As long as I am the Leader, the answer's no.

  I repeat. He said, ``As long as I'm the Leader, the answer's no.''

       I think we should just forget that. That is a black chapter 
     in the history of the Senate. I hope we never, ever get to 
     that again because I really do believe it will ruin our 
     country. I said during that debate that in all my years in 
     government, that was the most important thing I ever worked 
     on.

  This gives new meaning as to where you stand on an issue as opposed 
to where you sit. This hypocrisy is not confined to Members of the 
Senate. Senator Barack Obama, former Member of this body, on April 1, 
2005, for the benefit especially of our newer Members on the Democratic 
side who were not here at the time and do not know what we went through 
to try to stop it when it was being proposed by this side of the aisle, 
then-Senator Barack Obama said--who congratulated the Senate today on 
our action. He said:

       The American people sent us here to be their voice. They 
     understand that those voices can at times become loud and 
     argumentative, but they also hope we can disagree without 
     being disagreeable.

  Then-Senator Barack Obama went on to say:

       What they don't expect is for one party, be it Republican 
     or Democrat, to change the rules in the middle of the game so 
     that they can make all of the decisions while the other party 
     is told to sit down and keep quiet.

  I ask my colleagues, what were we just told to do today?
  He went on to say that the American people want less partisanship in 
this town. But everyone in this Chamber knows that if the majority 
chooses to end the filibuster:

       If they choose to change the rules and put an end to the 
     Democratic debate, then the fighting and the bitterness and 
     the gridlock will only get worse.

  He went on to say:

       Now, I understand the Republicans are getting a lot of 
     pressure to do this from factions outside the Chamber. But we 
     need to rise above the ends-justifies-the-means mentality, 
     because we're here to answer to the people, all of the 
     people, not just the ones that are wearing our particular 
     party label.

  He went on to say:

       If the right of open and free debate is taken away from the 
     minority party and the

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     millions of Americans who ask us to be their voice, I fear 
     that already partisan atmosphere in Washington will be 
     poisoned to the point where no one will be able to agree on 
     anything.

  That does not serve anyone's best interests. It certainly is not what 
the patriots who founded this democracy had in mind.
  We owe the people who sent us here more than that. We owe them much 
more. There are several other--in May 2005, Senator Reid also said:

       If there was ever an example of an abuse of power, this is 
     it. The filibuster is the last check we have against the 
     abuse of power in Washington.

  We just eliminated the filibuster, my dear friends, on nominees.
  Then he went on to say in April of 2005:

       The threat to change Senate rules is a raw abuse of power 
     and will destroy the very checks and balances our Founding 
     Fathers put in place to prevent absolute power by any one 
     branch of government.

  So, yes, I am upset. Yes, on several occasions we have gotten 
together on a bipartisan basis and prevented what exactly happened 
today. What exactly happened today is not just a shift in power to 
appoint judges. That, in itself, is something that is very important. 
But what we really did today and what is so damning and what will last 
for a long time, unless we change it, that could permanently change the 
unique aspects of this institution, the Senate, is if only a majority 
can change the rules, then there are no rules. That is the only 
conclusion anyone can draw from what we did today.
  Suppose that in a few weeks the majority does not like it that we 
object to the motion to proceed: 51 votes. Suppose on cloture, they do 
not like having those votes for cloture: 51 votes. My friends, we are 
approaching a slippery slope that will destroy the very unique aspects 
of this institution called the Senate.
  I believe the facts will show, as the Republican leader pointed out 
today, that this was a bit of a strawman. Yes, there have been a 
handful, a small number, of nominees who were rejected by this side of 
the aisle. But there have been literally hundreds and hundreds of 
nominees who have not even been in debate on the floor of the Senate.
  All I can say is, when people make a commitment such as I just read 
from the President of the United States when he was in the Senate, from 
our majority leader, we should not be surprised when there is a great 
deal of cynicism about when we give our word and our commitment. I go 
back to the man I probably respected more than anyone in the years I 
have been in the Senate, one Robert Byrd. One thing I can promise you, 
if Robert Byrd had been sitting over in the majority leader's chair 
today, we would not have seen the events that transpired. This is a sad 
day.
  I am angry, yes. We will get over the anger. But the sorrow at what 
has been done to this institution will be with us for a long time.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Markey.) The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I want to thank Senator McCain, because 
I remember very vividly Senator McCain was part of a group of 14 
Senators who avoided this kind of occurrence.
  In 2005, I guess it was, right after President Bush took office, a 
group of Senators, really the entire Democratic Conference, went into a 
retreat, as reported by the New York Times. I think Senator Schumer was 
the organizer of it, but the whole conference attended. Cass Sunstein, 
Laurence Tribe, Marcia Greenberger were their experts. They discussed 
what to do about President Bush's new election and his ability to 
appoint judges. They announced they were changing the ground rules of 
confirmation, and for the first time immediately thereafter the Bush 
nominees were filibustered systematically. He nominated a Mr. Gregory 
who had been nominated by President Clinton and not confirmed. 
President Bush renominated him in a bipartisan act. He was promptly 
confirmed.
  But I believe the very next 10 nominees were all filibustered, every 
one of them. We had never seen a real filibuster of any judges at that 
time. But they were changing the ground rules to commit systematic 
filibusters. They filibustered virtually the first 10 judges President 
Bush nominated. It went on for weeks and months.
  We brought up nominees every way we could. These were some fabulous 
nominees, Supreme Court Justices, people with high academic records. 
But they were all blocked. It was something we had never seen before in 
the Senate. There was great intensity of focus on it. It went on for 
quite a long time.
  Finally there was a feeling on this side that this systematic 
filibuster was so significant that it undermined and neutered the 
ability of the President of the United States to appoint judges. There 
was a discussion about changing the rules. As time went by, that became 
more and more of a possibility. I think the American people turned 
against my colleagues who were blocking these judges, because they did 
not appreciate it.
  But finally a compromise was reached. This was what it amounted to: 
We will not filibuster a judge unless there are substantial reasons to 
do so. That was sort of the agreement. At that moment, five judges were 
confirmed--and a lot of people remember that. But what is forgotten is 
five went down. Five highly qualified judges were defeated on a 
partisan, ideological basis right out of the chute. They were some of 
the first judges President Bush ever nominated.
  I would just say that what has happened so far is that we have 
confirmed over 200 of President Obama's judges. Only two have been 
blocked. They have brought forth at this time three judges for the DC 
Circuit, the District of Columbia Circuit, the Federal Circuit. They 
are not needed. This country is financially broke. Even with the 
vacancies on the court today, with the 8 judges they have, their 
average caseload per active judge is 149. The average caseload for all 
the judges in all of the circuits around the country is 383, almost 3 
times, more than twice. My circuit, the Eleventh Circuit, the average 
caseload per judge is 778. They say they are not asking for more 
judges; they have been able to maintain that caseload.
  They say: Well, this is such a horrible, complex circuit. It is not a 
horrible, complex circuit. That is not so. The judges take the whole 
summer off because they do not have sufficient caseloads to remain 
busy. Judges on that circuit say they do not need any more judges. They 
do not need any more judges.
  I have been the ranking Republican on the courts subcommittee of the 
Judiciary Committee and chairman of it at times. The entire time I have 
been in the Senate I have been on that subcommittee one way or the 
other. I know how the caseloads are calculated, weighted caseloads and 
actual caseloads.
  That is why these judges were not confirmed, because we do not need 
them. Not for some ideological purpose. But the reason the President 
has insisted that they be appointed is an ideological purpose, because 
he wants to pack that court because he thinks he can impact regulatory 
matters for years to come. But I would just say, President Bush tried 
to do the same thing. Senator Grassley and I, who had been opposing to 
expanding the circuit, resisted President Bush's importunings to 
approve one of his judges.
  We eventually were able to fully transfer and close out one of those 
slots and move it to the Ninth Circuit where the judge was needed. 
Still, the caseloads have dropped. The caseloads in the DC Circuit have 
continued to drop year after year after year.
  We are going broke. This country doesn't have enough money to do its 
business. We are borrowing and placing our children at great risk. It 
is obvious we ought not to fill a judgeship we don't need. It is about 
$1 million a year, virtually $1 million a year to fund one of these 
judgeships. For the judges, the clerks, the supporting secretaries, the 
computer systems, and courtrooms we have to supply is $1 million. It is 
similar to burning $1 million a year on The Mall. We don't have $1 
million a year to throw away.
  We have other places in America that need judgeships. Senator 
Grassley has asked--and I have supported--and our bill would call for 
hearings and then we would transfer these judges to places that have 
greater need. That is why the judges were not moved forward.
  The caseloads continue to decline. The need is less than ever, and we 
don't

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have the money to fill a slot we don't need.
  It is heartbreaking to see that we have crossed this rubicon and 
changed these rules when the President--as a matter of actual ability 
to perform the job--has only had 2 judges fail to be confirmed out of 
over 200.
  This is breathtaking to me. There is a growing concern on our side of 
the aisle that Senator Reid, the majority leader, is very unwilling to 
accept the process. He is unwilling to accept the fact that he can't 
win every battle, and he changed the rules so he could win.
  I feel this is a dark day for the Senate. I don't know how we can get 
out of it. It is the biggest rules change--certainly since I have been 
in the Senate, maybe my lifetime, and maybe in the history of the 
Senate--where it has changed by a simple majority by overruling the 
Chair.
  The Parliamentarian advises the Presiding Officer of the Senate, when 
Senator Reid asked that these judges be confirmed by a majority vote, 
the Parliamentarian advises the Chair and the Chair ruled we can't 
confirm them on a majority vote. We can't shut off debate without a 
supermajority vote. The Chair ruled.
  Senator Reid says: I appeal the ruling of the Chair. I ask my 
colleagues in the Senate to overrule the rules of the Senate, by a 
simple majority vote, to overrule the Parliamentarian and the Presiding 
Officer of the Senate.
  This is what happened. When our rules say to change the rules of the 
Senate, it takes a two-thirds vote.
  This is a dangerous path which I hope my colleagues understand. Many 
things that are bad have been happening in the Senate. I will speak 
more about things that should not have happened and are eroding the 
ability of this Senate and the way it should function, that are eroding 
the ability of individual Senators from either party to have their 
voices heard.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. MORAN. I am a new Member of the Senate, serving in my first term. 
I was a Member of the House of Representatives before coming to the 
Senate, and I had great anticipation and expectation of the opportunity 
that service in this body presented to me.
  The Presiding Officer of the Senate today has had similar 
experiences. We served in the House of Representatives together. The 
ability for an individual Senator, particularly a new Senator, and 
perhaps even more so, someone from a smaller, rural State, our ability 
to influence the outcome to receive attention and to have the 
administration's nominees come to pay a call on us to become acquainted 
is diminished.
  In my view, today is the day that reduces the ability for all 
Senators to have influence in the outcome of the decisions of this body 
and therefore the outcome of the future of our country.
  I don't understand why this happened today. The empirical evidence 
doesn't suggest that Republicans have been abusive, that the minority 
party has failed in its obligation to be responsible.
  We heard the words the Senator from Arizona Mr. McCain spoke about 
others--President Obama, the majority leader of the Senate, the former 
Senator from West Virginia Mr. Byrd--about their views on this issue. 
Yet the outcome today was something different, different from what they 
said only a short time ago.
  It is hard to know why we did what we did today, but I know our 
ability as Senators of the United States to represent the people who 
hired us to represent them has been diminished.
  I am reluctant to attribute motives as to why this occurred. In the 
absence of evidence that would suggest there is a justifiable reason, a 
justified reason for doing so, I am fearful that what is reported in 
the press and elsewhere is the reason the rules were changed, which 
makes today even more sad to me because the explanation for why the 
rules were changed was a political effort to change the topic of 
conversation in Washington, DC, and across the country.
  The story is that the White House pressured the Senate to change its 
rules, not because the rules needed to be changed, there was abuse or 
because people actually believed this was a good rules change for the 
benefit of the Senate and the country but because the Affordable Care 
Act, ObamaCare, is front and center in the national media and on the 
minds of the American people. As ObamaCare is being implemented, people 
are discovering the serious problems it presents them and their 
families. Therefore, politically, we need to change the dialog, change 
the topic. For us to use a political reason to do so much damage to the 
institution of the United States is such a travesty.