[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.