[Congressional Record Volume 161, Number 60 (Thursday, April 23, 2015)]
[Senate]
[Pages S2391-S2393]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               THE STATE OF THE SENATE AS AN INSTITUTION

  Mr. HATCH. Mr. President, in the last Congress, I came to the Senate 
floor to express my concern about the state of the Senate as an 
institution, how it had been beset by dysfunction, destructive 
partisanship, and corrosion of its vital characteristics.
  Today, I wish to reflect on some of the progress we have made in the 
first few months of this Congress in restoring this great institution 
to its essential role in our constitutional system. While significant 
progress has been made, there still remains much more to be done.
  Central to properly understanding our responsibilities as Senators is 
an appreciation of the Senate's role in our system of government. 
Consider the particularly distinct purposes of the two Houses of 
Congress. The House of Representatives is the organ of government 
designed to embody the will of the people. Its small constituencies and 
short terms allow its Members to be as closely in touch with the voters 
as possible. With 435 Members, robust participation by every Member in 
each debate is impossibly cumbersome. Thus, the House's work is defined 
by majority rule as logically befits a body that represents the popular 
will.
  By contrast, the Framers designed the Senate to serve as what they 
called ``a necessary fence'' against the ``fickleness and passion'' 
that sometimes drives popular pressure for hasty and ill-considered 
lawmaking--or, as Edmund Randolph put it, ``the turbulence and follies 
of democracy.'' Similarly, James Madison described its purpose as 
``protect[ing] the people against the transient impressions into which 
they themselves might be led.''
  Through its character and its institutional structure, the Senate not 
only checks transient and occasionally intemperate impulses but also 
refines the popular will with wisdom and sound judgment. Perhaps the 
most important characteristic that guarantees this key function is the 
Senate's relatively small size, which enables each and every Senator to 
contribute meaningfully in debate.
  The primacy of individual Senators' rights has long guided the 
development of the Senate's rules and traditions, including the right 
to extend debate, open amendment consideration, and a committee system 
that gives all Members, from the most seasoned chairman to the newest 
freshman, a hand in drafting and improving legislation. Moreover, there 
is the reality that to function efficiently and effectively, the Senate 
frequently requires temporary modifications to the institution's 
oftentimes complex and cumbersome rules--agreements that require the 
unanimous consent of all Senators to take effect.
  The expansive rights of Senators are a double-edged sword--at once 
both the great genius of the institution and the source of some of the 
greatest pitfalls that may befall it. By giving a minority of 
Senators--sometimes even a minority of one--great sway over the 
business of the whole body, each one of us is entrusted with enormous 
powers that can be used to grind the Senate to a halt. These powers can 
be used to do enormous good when used wisely and judiciously--from 
forcing a majority to reconsider misguided legislation to extracting 
important guarantees from the executive branch in exchange for allowing 
a nomination to go forward.
  The former Senator from Oklahoma, Dr. Tom Coburn, was a leading 
exponent of these rights. During his time in the Senate, he was 
legendary for his use of the rules to stop wasteful spending and limit 
the expansion of the Federal Government. While we may not always have 
agreed on particular matters, it is beyond question that his 
willingness to stand up for what he believed in--even in the face of 
overwhelming opposition--did enormous good for our Nation. Dr. Coburn's 
service demonstrates exactly why the Senate allows a minority to hold 
such a sway over this body.
  Nevertheless, while the whole Republic has benefited time and again 
from a Senate minority's judicious exercise of its rights, we know all 
too well how these rights can be abused. Today, the Senate's procedures 
have become bywords for mindless obstruction. In the minds of many of 
our fellow citizens, what drives the exercise of minority rights is not 
the interests of thoughtful legislating or productive oversight but, 
rather, reflexive partisanship and political grandstanding.
  From various quarters, including some within this very body, we often 
hear calls to eliminate the various rights of the minority. Although 
these calls may be instinctively appealing, we should decisively reject 
them. After all, without these minority rights, the Senate would lose 
its unique character, which has allowed it to serve the Republic so 
well for so many years. The Senate, stripped of its minority rights, 
would merely duplicate and needlessly frustrate the work of the House 
of Representatives.
  Those of us in the present day should recall that we are not the 
first in our Nation's history to confront the potential for great 
dysfunction. In particular, we should recall the example of the late 
Senator from Montana, Mike Mansfield. Senator Mansfield served as 
majority leader from 1961 until 1977, holding that position longer than 
any other Senate leader. These were turbulent times for the Nation and 
the Senate alike, when the issues of the day could hardly have been 
more divisive and problematic.
  Near the beginning of his tenure, when a determined minority stalled 
President Kennedy's legislative priorities, Senator Mansfield faced 
great pressure from within his own party to exert the majority's power 
more assertively. In an act of great courage, Mansfield resisted these 
calls to bend the Senate's rules. Although tempted by the prospect of 
important policy and political victories, he instead counseled that the 
remedy to gridlock ``lies not in the seeking of shortcuts, not in the 
cracking of nonexistent whips, not in wheeling and dealing, but in an 
honest facing of the situation and a resolution of it by the Senate 
itself, by accommodation, by respect for one another, [and] by mutual 
restraint.''
  Senator Mansfield was absolutely right, and his wisdom is perhaps 
more relevant now than ever. For the Senate to function effectively, 
Senators of all stripes must practice mutual restraint--Republican and 
Democrat, conservative and liberal, majority and minority alike.
  In practice, restraint requires different sacrifices of different 
Senators, depending on their position. For the majority leadership, it 
is measured in part by what sort of measures are brought before the 
Senate for consideration. Do they tend to be divisive and partisan 
messaging bills, or do they tend to be measures that can gather 
bipartisan support--those that may offer less prospects of a messaging 
victory but greater prospects for actually becoming law? Have the 
measures typically been considered by the committee of jurisdiction, 
allowing for a

[[Page S2392]]

thorough vetting and best chance for bipartisan consensus?
  Restraint is also measured in how the majority conducts its 
consideration of a particular measure. Is there an open amendment 
process that allows all Senators to contribute to the Chamber's work 
and seek means of mutual accommodation, or does the majority leader 
fill up the so-called amendment tree, thereby freezing legislation in 
the exact form that he demands? Is the full Senate allowed sufficient 
time for full and free debate on a measure important enough for 
consideration on the floor, or does the majority leader move to end 
debate as soon as it begins?
  The need for mutual restraint also creates correlative obligations 
for the minority. From filibusters, to poison-pill amendments, to 
objections, to routine unanimous consent requests--an often 
underappreciated but incredibly important tool to chew up this body's 
valuable time--Senators in the minority have numerous ways in which 
they can grind this body to a halt and derail a measure. Senators on 
both sides of the aisle--myself included--have relied on these means 
before. Their use can be quite legitimate when employed judiciously and 
motivated by serious policy disagreement; however, when employed 
indiscriminately for the purpose of frustrating the operation of the 
Senate for partisan gain, the use of such tactics is deeply improper.
  The appropriateness of the minority's behavior hinges in large part 
on the actions of the majority. With the power to decide the Senate's 
business, including what the Senate considers as well as how it 
considers it, the majority's behavior rightfully shapes the minority's 
response. Majority restraint invites minority restraint, begetting 
productive legislating, whereas majority overreach invites minority 
intransigence, causing only dysfunction.
  The Senate's dysfunction over the past few years resulted from 
exactly that--repeated instances of overreach by the majority in direct 
contradiction to the restraint counseled by Senator Mansfield. This 
overreach occurred along a wide variety of fronts, many of which my 
colleagues and I spoke out against in great detail.
  In the last Congress, many bills that received floor consideration 
had completely bypassed the committee process. In fact, each of the 
past four Congresses set a new record for the use of this extraordinary 
procedure. The unfortunate but predictable result was the waste of the 
Senate's valuable floor time on partisan messaging bills that no one 
seriously expected to become law.
  Instead of allowing an open amendment process, the previous majority 
used the procedural maneuver known as filling the tree to deny Senators 
the right to offer an amendment. By refusing to allow amendments out of 
a desire to prevent a vote on commonsense bipartisan ideas, such as 
building the Keystone XL Pipeline and rolling back bureaucratic red 
tape, the previous majority invited minority opposition to the 
underlying measures, killing important bipartisan legislation such as 
the energy efficiency bill and the sportsman's bill.
  In the last Congress, almost a year went by during which the majority 
allowed votes on only 11 minority amendments. During that period, all 
45 Senators in the minority together got fewer votes on amendments 
than, for example, one House Democrat, Congresswoman Sheila Jackson 
Lee. In fact, the Congressional Research Service confirms that the 
previous majority leader used his position to block the consideration 
of amendments more than twice as often as the previous six majority 
leaders combined.
  The previous majority also frequently moved to end debate on a 
measure at the very same time it was brought up for consideration, 
employing this tactic far more often than previous majorities. Its 
effect is not to end debate on legislation but to prevent it all 
together. Whenever those of us then in the minority resisted this 
demand that we end debate as soon as we began consideration, the 
majority wrongfully labeled it a ``filibuster.'' Worst of all, the 
majority used this supposedly unprecedented level of obstruction to 
take the drastic step of abolishing extended debate all together on 
most nominations using the so-called nuclear option.
  With the new leadership of the Senate under the senior Senator from 
Kentucky, we have made enormous progress toward restoring this sense of 
mutual restraint. Consider the sort of legislation the current majority 
leader has brought up for floor consideration so far this Congress: the 
bipartisan Hoeven-Manchin bill to authorize the Keystone XL Pipeline; 
the permanent solution for Medicare's Sustainable Growth Rate and 
reauthorization of the State Children's Health Insurance Program, which 
passed 92 to 8; and the Cornyn-Klobuchar bill to fight the scourge of 
modern-day slavery known as human trafficking.
  These are not Republican messaging bills. The majority leader has 
admirably avoided the temptation to fill our agenda with partisan bills 
just to score cheap political points. Instead, we have focused on bills 
that command broad bipartisan support. Moreover, consider the bills 
that the majority leader has indicated are next up for floor 
consideration: the Corker-Menendez Iran nuclear agreement legislation 
that passed the Foreign Relations Committee with unexpected and 
impressive unanimity; the bipartisan Alexander-Murray rewrite of No 
Child Left Behind; and our bipartisan Congressional Trade Priorities 
and Accountability Act, which passed out of the Finance Committee last 
night with the support of 13 Republicans and 7 Democrats. By 
identifying these priorities, the majority leader has indicated that 
his focus on bipartisan committee-vetted legislation is not a fleeting 
illusion but a long-term commitment to responsible leadership.
  The way in which the majority leader has conducted our consideration 
of these bills also demonstrates this commitment to restraint. We have 
seen committee consideration of legislation restored as the norm. We 
have also seen a renewed commitment to an open amendment process. In 
January, for example, the Senate voted on more amendments in 1 week 
than in all of last year. By my count, we have voted on 114 individual 
amendments in less than 4 months, the majority of which were offered by 
the minority. Many of these were tough votes, but the need to govern 
responsibly far outweighed any political cost. Instead of cutting off 
debate before it even begins, we have moved at a deliberate pace to 
allow the amendment process to flourish, tempering our own desire to 
move legislation faster in order to legislate according to the best 
traditions of this body.
  This is not to say that the past 4 months have been perfect. There 
have been times when the sailing has been a bit rocky. While the 
current minority has repeatedly displayed admirable cooperation--the 
sort of mutual restraint that Senator Mansfield wisely lauded so many 
years ago--there have been times when some of my colleagues have fallen 
prey to the temptation of partisan obstruction.
  In particular, I was extremely disappointed by the logjam that 
developed over the Hyde amendment and impeded progress on the 
bipartisan human trafficking bill. The gridlock over what should have 
been an uncontroversial provision indicated a troubling willingness on 
the part of some to derail our efforts to legislate responsibly and 
instead resort to tired and discredited war-on-women rhetoric to win 
cheap political votes.
  I was so encouraged by this week's resolution of that impasse. The 
willingness on the part of leaders on both sides of the aisle to break 
the gridlock reflected the best of the Senate's great tradition of 
statesmanship. I want to extend my sincere thanks and respect to the 
senior Senators from Washington, Minnesota, and Texas, Senators Murray, 
Klobuchar and Cornyn, as well as everyone else who helped craft the 
compromise.
  By putting partisanship aside, they have not only benefitted the 
victims of human trafficking; they have also helped reinvigorate the 
ethos of accommodation and mutual restraint that is at the heart of 
this institution. We should all look to this example as a model of 
leadership worthy of the world's greatest deliberative body.
  It is incumbent on all of us to get the Senate back to work for the 
American people. By returning to the spirit of comity that served this 
body so well for so long, we have already made real and meaningful 
progress. I urge all of my colleagues to continue in this noble 
pursuit. It is undoubtedly worth the cost.

[[Page S2393]]

  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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