[Congressional Record (Bound Edition), Volume 157 (2011), Part 1]
[Senate]
[Pages 35-56]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         AMENDING SENATE RULES

  Mr. UDALL of New Mexico. Madam President, I submit on behalf of 
myself and Senators Harkin, Merkley, Durbin, Klobuchar, Brown, Begich, 
Blumenthal, Gillibrand, Shaheen, Boxer, Tester, Cardin, Mikulski, 
Warner, and Manchin a resolution to amend rule VIII and rule XXII of 
the Standing Rules of the Senate, and I ask unanimous consent to 
proceed to the immediate consideration of the resolution.
  The PRESIDING OFFICER. Is there objection?
  Mr. ALEXANDER. Madam President, reserving the right to object, I have 
had a number of discussions with the Senator from New Mexico and the 
Senator from Oregon. I respect their proposals and will have more to 
say about them, but I think since they have waited such a long time to 
make their presentations I will merely state my objection now and have 
more to say later. So I object.
  The PRESIDING OFFICER. The objection having been heard, the 
resolution will go over under the rule.
  Mr. UDALL of New Mexico. Madam President, let me just inquire through 
the Parliamentarian, it is my understanding that by objecting to this 
resolution being immediately considered now, the result is the 
resolution will go over under the rule, allowing it to be available to 
be brought up at a future time. Is that understanding correct?
  The PRESIDING OFFICER. That is correct.
  Mr. UDALL of New Mexico. Thank you very much.
  Madam President, I rise today to introduce the resolution I just 
mentioned. I have worked very hard with all of my colleagues, including 
my two colleagues from Iowa and Oregon, Senators Harkin and Merkley, to 
reform the rules of this unique and prestigious body. I do so after 
coming to the floor last January--January 25, in fact, now almost 1 
year ago--to issue a warning, a warning because of partisan rancor and 
the Senate's own incapacitating rules, that this body was failing to 
represent the best interests of the American people. The unprecedented 
abuse of the filibuster, of secret holds, and of other procedural 
tactics routinely prevent the Senate from getting its work done. It 
prevents us from doing the job the American people sent us here to do.
  Since that day in January things haven't gotten better. In fact, I 
would say they have gotten worse--much worse. Here in the Senate open 
and honest debate has been replaced with secret backroom deals and 
partisan gridlock. Up-or-down votes on important issues have been 
unreasonably delayed and blocked entirely at the whim

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of a single Senator. Last year, for example, one committee had almost 
every piece of legislation held up by holds from one Senator.
  The Senate is broken. In the Congress that just ended, because of 
rampant and growing obstruction, not a single appropriations bill was 
passed. There wasn't a budget bill. Only one authorization bill was 
approved, and that was only done at the very last minute. More than 400 
bills on a variety of important issues were sent over from the House. 
Not a single one was acted upon. Key judicial nominations and executive 
appointments continue to languish.
  The American people are fed up with it. They are fed up with us, and 
I don't blame them. We need to bring the workings of the Senate out of 
the shadows and restore its accountability. That begins with addressing 
our own dysfunction, specifically the source of that dysfunction--the 
Senate rules.
  Last year the Senate Rules Committee took a hard look at how our 
rules have become so abused and how this Chamber no longer functions as 
our Founders intended. I applaud Chairman Schumer and his excellent 
staff for devoting so much time to this important issue. I thank 
Senator Alexander and Senator Roberts. We have some very good 
Republican colleagues on the committee, and we have had some good 
exchanges. They know we had six hearings and heard from some of the 
most respected experts in the field.
  But these hearings demonstrated that the rules are not broken for one 
party, or for only the majority. Today the Democrats lament the abuse 
of the filibuster and the Republicans complain they are not allowed to 
offer amendments to legislation. Five years ago, those roles were 
reversed. Rather than continue on this destructive path, we should 
adopt rules that allow a majority to act while protecting the 
minority's right to be heard. Whichever party is in the majority, they 
must be able to do the people's business.
  I think that is what Senator Harkin spoke so persuasively to in his 
comments on the filibuster--that the majority has to be able to govern. 
The way the filibuster is being used the minority thwarts the 
majority's ability to govern.
  At a hearing in September, I testified before the committee about my 
procedural plan for amending the Senate's rules--the constitutional 
option. Unlike the specific changes to the rules proposed by other 
Senators and experts, my proposal is to make the Senate of each 
Congress accountable for all of our rules. This is what the 
Constitution provides for, and it is what our Founders intended.
  Rule XXII is the most obvious example of the need for reform. Last 
amended in 1975, rule XXII demonstrates what happens when the Members 
of the current Senate have no ability to amend the rules adopted long 
ago--rules that get abused.
  I have said this before, but it bears repeating. Of the 100 Members 
of the Senate, only two of us have had the opportunity to vote on the 
cloture requirement in rule XXII--Senators Inouye and Leahy.
  So if 98 of us haven't voted on the rule, what is the effect? Well, 
the effect is that we are not held accountable when the rule gets 
abused, and with a requirement of 67 votes for any rules change that is 
a whole lot of power without restraint.
  But we can change this. We can restore accountability to the Senate. 
Many of my colleagues, as well as constitutional scholars, agree with 
me that a simple majority of the Senate can end debate--that is the 
first step--and adopt its rules at the beginning of a new Congress.
  Critics of my position argue that the rules can only be changed in 
accordance with the current rules, and that rule XXII requires two-
thirds of Senators present and voting to agree to end debate on a 
change to the Senate rules.
  Since this rule was first adopted in 1917, members of both parties 
have rejected this argument on many occasions.
  In fact, advisory rulings by Vice Presidents Nixon, Humphrey, and 
Rockefeller, sitting as President of the Senate, have stated that a 
Senate, at the beginning of a Congress, is not bound by the cloture 
requirement imposed by a previous Senate. They went on to say that each 
new Senate may end debate on a proposal to adopt or amend the standing 
rules by a majority vote. That bears repeating--by a majority vote--
cloture and amendment, majority vote.
  Even in today's more partisan environment I hope my colleagues will 
extend to us the same courtesy, and our constitutional rights will be 
protected as we continue to debate the various rules reform proposals 
at the beginning of this Congress.
  In 2005, Senator Hatch--someone who understands constitutional issues 
perhaps better than any other Member of this Chamber--wrote the 
following:

       The compelling conclusion is that, before the Senate 
     readopts Rule XXII by acquiescence, a simple majority can 
     invoke cloture and adopt a rules change. This is the basis 
     for Vice President Nixon's advisory opinion in 1957. As he 
     outlined, the Senate's right to determine its procedural 
     rules derives from the Constitution itself and, therefore, 
     ``cannot be restricted or limited by rules adopted by a 
     majority of the Senate in a previous Congress.'' So it is 
     clear that the Senate, at the beginning of a new Congress, 
     can invoke cloture and amend its rules by a simple majority.

  That was Senator Hatch's quote. As Senator Alexander and Senator 
Corker know, he was for many years chairman of the Judiciary Committee, 
and I think that is a very powerful quote.
  This is the basis for introducing our resolution today, just as 
reformers have done at the beginning of Congresses in the 1950s, 1960s, 
and 1970s, and it is why I am here on the floor on the first day--to 
make clear I am not acquiescing to the rule XXII adopted by the Senate 
over 35 years ago. That Senate tried to tie the hands of all future 
Senates by leaving the requirement in rule XXII for two-thirds of the 
Senate to vote to end a filibuster on a rules change. But this is not 
what our Founders intended.
  Article I, section 5 of the Constitution clearly states that ``each 
House may determine the Rules of its Proceedings.'' There is no 
requirement for a supermajority to adopt our rules, and the 
Constitution makes it very clear when a supermajority is required to 
act. Therefore, any rule that prevents a majority in future Senates 
from being able to change or amend rules adopted in the past is 
unconstitutional.
  The fact that we are bound by a supermajority requirement that was 
first established 93 years ago also violates the common law principle 
that one legislature cannot bind its successors.
  This principle goes back hundreds of years and has been upheld by the 
Supreme Court on numerous occasions. This is not a radical concept. The 
constitutional option has a history dating back to 1917, and it has 
been a catalyst for bipartisan rules reform several times since then. 
The constitutional option is our chance to fix rules that are being 
abused--rules that have encouraged obstruction like none ever seen 
before in this Chamber.
  Amending our rules will not, as some have contended, make the Senate 
no different than the House. While many conservatives claim that the 
Democrats are trying to abolish the filibuster, our resolution 
maintains the rule but addresses its abuse. But, more importantly, the 
filibuster was never part of the original Senate. The Founders made 
this body distinct from the House in many ways, but the filibuster is 
not one of them.
  So here we are today on the first day of a new Congress offering a 
resolution to reform the Senate's rules. We don't intend to force a 
vote today; in fact, we hope that we can return from the break and 
spend some time on the floor debating our resolution, considering 
amendments to make it better, and debating other resolutions. This 
should not be a partisan exercise. I think almost every one of us who 
have spoken today have said that. We know both sides have abused the 
rules, and now it is time for us to work together to fix them.
  But we believe the Senate of the 112th Congress has two paths from

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which to choose. There is the first path: We do nothing and just hope 
the spirit of bipartisanship and deliberation returns--the truth is we 
have been on this path for a while now, and I think the results are 
pretty clear--or we can take a second path: We can take a good, hard 
look at our rules, how they incentivize obstructionism, how they 
inhibit rather than promote debate, and how they prevent bipartisan 
cooperation, and then we should implement commonsense reforms to meet 
these challenges, reforms that will restore the uniquely deliberative 
nature of this body, while also allowing it to function more 
efficiently.
  I contend that we not only should but have a duty to choose the 
second path. We owe it to the American people and to the future of this 
institution we all serve.
  The reform resolution we introduce today is our attempt at the second 
path. It contains five reforms that should garner broad, bipartisan 
support--if we can act for the good of the country and not the good of 
our parties.
  The first two provisions in our resolution address the debate on 
motions to proceed and secret holds. These are not new issues. Making 
the motion to proceed nondebatable or limiting debate on such a motion 
has had bipartisan support for decades and is often mentioned as a way 
to end the abuse of holds.
  I was privileged to be here for Senator Byrd's final Rules Committee 
hearing, where he stated:

       I have proposed a variety of improvements to Senate rules 
     to achieve a more sensible balance, allowing the majority to 
     function while still protecting minority rights. For example, 
     I have supported eliminating debate on the motion to proceed 
     to a matter . . . or limiting debate to a reasonable time on 
     such motions.

  In January, 1979, Senator Byrd--then-majority leader--took to the 
Senate floor and said unlimited debate on a motion to proceed ``makes 
the majority leader and the majority party the subject of the minority, 
subject to the control and the will of the minority.''
  Despite the moderate change that Senator Byrd proposed--limiting 
debate on a motion to proceed to 30 minutes--it did not have the 
necessary 67 votes to overcome a filibuster.
  At the time, Senator Byrd argued that a new Senate should not be 
bound by that rule, stating:

       The Constitution, in Article I, Section 5, says that each 
     House shall determine the rules of its proceedings. Now we 
     are at the beginning of Congress. This Congress is not 
     obliged to be bound by the dead hand of the past.

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. UDALL of New Mexico. Madam President, I ask unanimous consent for 
another 2 minutes--also recognizing the Republican side has speakers--
to wrap up.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. UDALL of New Mexico. Madam President, efforts to reform the 
motion to proceed have continued since. In 1984, a bipartisan Study 
Group on Senate Practices and Procedures recommended placing a 2-hour 
limit on debate of a motion to proceed. That recommendation was 
ignored.
  In 1993, Congress convened the Joint Committee on the Organization of 
Congress. That was a bipartisan, bicameral attempt to look at Congress 
and determine how it can be a better institution. My predecessor, 
Senator Domenici, was the co-vice chairman of that committee. He was a 
long-time Republican here, and he supported that.
  The third provision in the resolution is included based on the 
comments of Republicans at last year's Rules Committee hearings. Each 
time Democrats complained about filibusters on motions to proceed, 
Republicans responded that it was their only recourse because the 
majority leader fills the amendment tree and prevents them from 
offering amendments. Our resolution provides a simple solution, 
guaranteeing the minority the right to offer amendments.
  The fourth provision in the resolution, which Senator Merkley will 
cover extensively, is regarding the talking filibuster. We want to 
replace a silent filibuster with a talking filibuster.
  Finally, our resolution reduces postcloture time on nominations from 
30 hours to 1. Postcloture time is meant for debating and voting on 
amendments--something that is not possible on nominations.
  Instead, the minority now requires the Senate use this time simply to 
prevent it from moving on to other business.
  These reforms will not, as some have contended, make the Senate the 
same as the House. We understand, and respect, the Framers intent in 
structuring the Senate to be a uniquely deliberative body. Minority 
rights are a critical piece to its unique operations. Which is exactly 
why they remain protected in our reform resolution.
  But the current rules have done away with any deliberation and we 
have instead become a uniquely dysfunctional body.
  Our resolution will make actual debate a more common occurrence. It 
would bring our legislative process into the light, and hopefully, it 
would help restore the Senate's role as the ``world's greatest 
deliberative body.''
  With that, I will sum up and say that reform is badly needed. We have 
a responsibility to the Constitution and to the American people to come 
together and fix the Senate. We were sent to Washington to tackle the 
Nation's problems. But we find that the biggest problem to tackle is 
Washington itself.
  With that, I ask unanimous consent that an editorial on the 
filibuster that appeared in the Washington Post, and an op-ed piece in 
the New York Times by Walter Mondale be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Jan. 2, 2011]

                       Reform and the Filibuster

       The new Senate will face one of its most momentous 
     decisions in its opening hours on Wednesday: a vote on 
     whether to change its rules to prohibit the widespread abuse 
     of the filibuster. Americans are fed up with Washington 
     gridlock. The Senate should seize the opportunity.
       A filibuster--the catchall term for delaying or blocking a 
     majority vote on a bill by lengthy debate or other 
     procedures--remains a valuable tool for ensuring that a 
     minority of senators cannot be steamrollered into silence. No 
     one is talking about ending the practice.
       Every returning Democratic senator, though, has signed a 
     letter demanding an end to the almost automatic way the 
     filibuster has been used in recent years. By simply raising 
     an anonymous objection, senators can trigger a 60-vote 
     supermajority for virtually every piece of legislation. The 
     time has come to make senators work for their filibusters, 
     and justify them to the public.
       Critics will say that it is self-serving for Democrats to 
     propose these reforms now, when they face a larger and more 
     restive Republican minority. The facts of the growing 
     procedural abuse are clearly on their side. In the last two 
     Congressional terms, Republicans have brought 275 filibusters 
     that Democrats have been forced to try to break. That is by 
     far the highest number in Congressional history, and more 
     than twice the amount in the previous two terms.
       These filibusters are the reason there was no budget passed 
     this year, and why as many as 125 nominees to executive 
     branch positions and 48 judicial nominations were never 
     brought to a vote. They have produced public policy that we 
     strongly opposed, most recently preserving the tax cuts for 
     the rich, but even bipartisan measures like the food safety 
     bill are routinely filibustered and delayed.
       The key is to find a way to ensure that any minority 
     party--and the Democrats could find themselves there again--
     has leverage in the Senate without grinding every bill to an 
     automatic halt. The most thoughtful proposal to do so was 
     developed by Senator Jeff Merkley of Oregon, along with Tom 
     Udall of New Mexico and a few other freshmen. It would make 
     these major changes:


                          NO LAZY FILIBUSTERS

       At least 10 senators would have to file a filibuster 
     petition, and members would have to speak continuously on the 
     floor to keep the filibuster going. To ensure the seriousness 
     of the attempt, the requirements would grow each day: five 
     senators would have to hold the floor for the first day, 10 
     the second day, etc. Those conducting the filibuster would 
     thus have to make their case on camera. (A cloture vote of 60 
     senators would still be required to break the blockade.)


                        FEWER BITES OF THE APPLE

       Republicans now routinely filibuster not only the final 
     vote on a bill, but the initial motion to even debate it, as 
     well as amendments and votes on conference committees. 
     Breaking each of these filibusters adds days

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     or weeks to every bill. The plan would limit filibusters to 
     the actual passage of a bill.


                          MINORITY AMENDMENTS

       Harry Reid, the majority leader, frequently prevents 
     Republicans from offering amendments because he fears they 
     will lead to more opportunities to filibuster. Republicans 
     say they mount filibusters because they are precluded from 
     offering amendments. This situation would be resolved by 
     allowing a fixed number of amendments from each side on a 
     bill, followed by a fixed amount of debate on each one.
       Changing these rules could be done by a simple majority of 
     senators, but only on the first day of the session. 
     Republicans have said that ramming through such a measure 
     would reduce what little comity remains in the chamber.
       Nonetheless, the fear of such a vote has led Republican 
     leaders to negotiate privately with Democrats in search of a 
     compromise, possibly on amendments. Any plan that does not 
     require filibustering senators to hold the floor and make 
     their case to the public would fall short. The Senate has 
     been crippled long enough.
                                  ____


                [From the New York Times, Jan. 1, 2011]

                      Resolved: Fix the Filibuster

                         (By Walter F. Mondale)

       Minneapolis, MN--We all have hopes for the New Year. Here's 
     one of mine: filibuster reform. It was around this time 36 
     years ago--during a different recession--that I was part of a 
     bipartisan effort to reform Senate Rule 22, the cloture rule. 
     At the time, 67 votes were needed to cut off debate and thus 
     end a filibuster, and nothing was getting done. After long 
     negotiations, a compromise lowered to 6o the cloture vote 
     requirement on legislation and nominations. We hoped this 
     moderate change would preserve debate and deliberation while 
     avoiding paralysis, and for a while it did.
       But it's now clear that our reform was insufficient for 
     today's more partisan, increasingly gridlocked Senate. In 
     2011, Senators should pull back the curtain on Senate 
     obstruction and once again amend the filibuster rules.
       Reducing the number of votes to end a filibuster, perhaps 
     to 55, is one option. Requiring a filibustering senator to 
     actually speak on the Senate floor for the duration of a 
     filibuster would also help. So, too, would reforms that bring 
     greater transparency--like eliminating the secret ``holds'' 
     that allow senators to block debate anonymously.
       Our country faces major challenges--budget deficits, high 
     unemployment and two wars, to name just a few--and needs a 
     functioning legislative branch to address these pressing 
     issues. Certainly some significant legislation passed in the 
     last two years, but too much else fell by the wayside. The 
     Senate never even considered some appropriations and 
     authorization bills, and failed to settle on a federal budget 
     for all of next year. Votes on this sort of legislation used 
     to be routine, but with the new frequency of the filibuster, 
     a supermajority is needed to pass almost anything. As a 
     result the Senate is arguably more dysfunctional than at any 
     time in recent history.
       People give lots of reasons for not reforming the 
     filibuster. The minority often claims that it needs the 
     filibuster to ensure that its voice is heard, even though the 
     filibuster is now used to prevent debate from ever beginning. 
     What really gets me, though, is when opponents to reform 
     point to the provision left in Rule 22 after 1975 saying that 
     the Senate cannot change any of its rules without a two-
     thirds supermajority to end debate.
       This requirement cannot constrain any future Senate. A 
     long-standing principle of common law holds that one 
     legislature cannot bind its successors. If changing Senate 
     rules really required a two-thirds supermajority, it would 
     effectively prevent a simple majority of any Senate from ever 
     amending its own rules, which would be unconstitutional. 
     Article I, Section 5 of the Constitution states: ``Each House 
     may determine the rules of its proceedings.'' The document is 
     very explicit about the few instances where a supermajority 
     vote is needed -- and changing the Senate's procedural rules 
     is not among them. In all other instances it must be assumed 
     that the Constitution requires only a majority vote.
       In other words, the fact that one Senate, decades ago, 
     passed the two-thirds majority rule does not mean that all 
     future Senates are bound by it. This year's new Senate could 
     use this ``constitutional option'' to force a vote on any 
     change to Senate rules, including Rule 22, and change them 
     with a simple majority.
       At the very opening of Congress in 1975, my colleagues and 
     I announced our proposal to amend Rule 22, and threatened to 
     force a majority vote to end a filibuster on the change if 
     the minority tried to block it. In the end, we reached the 
     60-vote compromise, and never had to use the constitutional 
     option after all. A similar strategy would likely work today.
       Tom Udall, Democrat of New Mexico, has said that in a few 
     days, at the beginning of the 112th Congress, he will call on 
     the Senate to exercise its constitutional right to change its 
     rules of procedure, including Rule 22, by a simple majority 
     vote. I wholeheartedly support his effort and encourage both 
     Democrats and Republicans to cooperate with him. The 
     filibuster need not be eliminated, but it must no longer be 
     so easy to use.

  Mr. UDALL of New Mexico. I know my colleague, Amy Klobuchar, is here. 
Senator Mondale was a distinguished former Vice President and leader in 
the Senate, and he wrote the very passionate piece in the New York 
Times that I have just had printed in the Record.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. Madam President, my colleagues and any of the public 
watching the debate today know there is a great partisan divide thus 
far. Senator Wyden has already referred to the motion he and I are 
putting before the Senate. Senator Wyden, a Democrat, and I, a 
Republican, are joined also by Senator McCaskill, who is the Presiding 
Officer now, as well as Senator Collins, in this effort. It is the only 
bipartisan issue before the Senate this particular day. I emphasize 
that because I think the public ought to know that not everything in 
the Senate is partisan.
  Senator Wyden and I have been chipping away at the informal, backroom 
process known as secret holds in the Senate. We have been working on 
this for well over 10 years. So it should not surprise anybody that we 
are back again at the start of another Congress, joined, as I said, by 
Senator McCaskill of Missouri, who was very helpful in our pushing this 
issue to the forefront at the end of the last Congress, and, as I said, 
I am pleased that we have Senator Collins onboard again.
  There has been a lot of talk lately about the possibility of far-
reaching reforms to how the Senate does business that have been hastily 
conceived and could shift the traditional balance between the rights of 
the majority and the rights of the minority parties.
  In contrast, our resolution by Senator Wyden and this Senator is 
neither of those two things. In other words, it does not shift any 
balance between the majority and the minority.
  This resolution is well thought out, a bipartisan reform effort that 
has been the subject of two committee hearings and numerous careful 
revisions over several years. In no way does it alter the balance of 
power between the minority and majority parties, nor does it change any 
rights of any individual Senator. This is simply about transparency, 
and with transparency you get a great deal of accountability.
  I wish to be very clear that I fully support the fundamental right of 
any individual Senator to withhold his consent when unanimous consent 
is requested. In the old days when Senators conducted much of their 
daily business from their desks on the Senate floor and were on the 
Senate floor for most of the day, it was quite a simple matter for any 
Senator at that time to stand up and say ``I object'' when necessary, 
if they really objected to a unanimous consent request, and that was 
it. That stopped it. Now, since most Senators spend most of their time 
off the Senate floor because of the obligation of committee hearings, 
the obligation of meeting with constituents, and a lot of other 
obligations we have, we now tend to rely upon our majority leader in 
the case of the Democrats or the minority leader in the case of the 
Republicans to protect our rights, privileges, and prerogatives as 
individual Senators by asking those leaders or their substitutes to 
object on our behalf.
  Just as any Senator has the right to stand on the Senate floor and 
publicly say ``I object,'' it is perfectly legitimate to ask another 
Senator to object on our behalf if he cannot make it to the floor when 
unanimous consent is requested. By the same token, Senators have no 
inherent right to have others object on their behalf while at the same 
time keeping their identity secret, thus shielding their legislative 
actions from the public, because that is not transparency and it is 
obviously not being accountable.
  What I object to is not the use of the word ``holds'' or the process 
of holding up something in the Senate, but I object to what is called 
secret holds. The adjective ``secret'' is what we are fighting. If a 
Senator has a legitimate reason to object to proceeding to a bill or

[[Page 39]]

a nominee, then he or she ought to have the guts to do so publicly.
  A Senator may object because he does not agree to the substance of a 
bill and therefore cannot in good conscience grant consent or because 
the Senator has not had adequate opportunity to review the matter at 
hand. Regardless, we should have no fear of being held accountable by 
our constituents if we are acting in their interest, as we are elected 
to do. I have practiced publicly announcing my holds for many years, 
and it has not hurt one bit. In fact, some of the Senators who are most 
conscientious about protecting their prerogatives to review legislation 
before granting consent to its consideration or passage are also quite 
public about it.
  In short, there is no legitimate reason for any Senator, if they 
place a hold, to have that hold be secret.
  How does our proposal achieve transparency and the resultant 
accountability? In our proposed standing order, for the majority or 
minority leader to recognize a hold, the Senator placing the hold must 
get a statement in the Record within 1 session day and must give 
permission to their leader at the time they place the hold to object in 
their name, not in the name of the leader. Since the leader will 
automatically have permission to name the Senator on whose behalf they 
are objecting, there will no longer be any expectation or pressure on 
the leader to keep the hold secret.
  Further, if a Senator objects to a unanimous consent request and does 
not name another Senator as having the objection, then the objecting 
Senator will be listed as having the hold. This will end entirely, once 
and for all, the situation where one Senator objects but is able to 
remain very coy about whether it is their own objection or some unnamed 
Senator. All objections will have to be owned up to.
  Again, our proposal protects the rights of individual Senators to 
withhold their consent while ensuring transparency and public 
accountability. In Congress, as well as almost anyplace in the Federal 
Government--except maybe national security issues--the public's 
business always ought to be public and the people who are involved in 
the public's business ought to stand behind their actions. As I have 
repeatedly said, the Senate's business ought to be done more in the 
public than it is, and most of it is public, but this secret hold puts 
a mystery about things going on in Washington that hurts the 
credibility of the institution.
  This principle of accountability and transparency is a principle that 
I think the vast majority, if not all, of Senators can get behind. I 
believe the time has come for this simple, commonsense reform.
  I yield the floor. Under the UC, if it is permissible to retain the 
remainder of our time, I do that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. I yield the floor.
  The PRESIDING OFFICER (Mrs. Hagan). The Senator from Oregon.
  Mr. MERKLEY. Madam President, the Senate is broken. During the course 
of my first 2 years in this body, there have been only a couple serious 
debates in this Chamber. The first one happened just a couple weeks 
ago, and that was an impeachment trial of a judge. The magic began 
because the cameras were turned off. Senators were not speaking to the 
camera; they were speaking to each other. Second, they were required to 
be on the floor, so they were required to listen to each other. After 
all the evidence had been presented, Senators started to engage back 
and forth about their interpretations of the evidence, about the 
standards that would constitute grounds for conviction. One would not 
have been able to tell who was a Republican or who was a Democrat. We 
had a real debate, but it took 2 years to have that first debate. Then 
we had a debate over the START treaty. That was a pretty good debate 
too. That also happened just a couple weeks ago. For the balance of 2 
years, there has virtually never been a serious debate on this floor 
with Senators hearing each other out, listening to each other, 
considering the pros and cons, addressing each other's amendments.
  That is a tremendously different Senate from the Senate I first 
witnessed when I came here as a young man, as an intern for Senator 
Hatfield in 1976. I was up in the staff section. I would come down to 
meet Senator Hatfield on a particular tax reform bill that had a series 
of amendments. I would brief him on the amendment that was being 
debated. He would come in, talk it over with folks, and vote. An hour 
later, there would be another vote, and an hour later, another vote, 
with debate in between, back and forth, with enormous respect and 
courtesy among the Members to the principle of the Senate being a body 
of deliberation, a body of debate. But today, that respect is gone. The 
most visible sign of the decrease in the mutual accord has been the 
abuse of the filibuster.
  ``Filibuster'' is a common term we use for a decision to oppose the 
termination of debate and oppose voting with a straight majority as 
envisioned in the Constitution. That starts from a principle of mutual 
respect, that is, as long as any individual has an opinion that bears 
on the issue at hand, that Senator should be able to express that 
opinion and we as a body should be able to hear it. Out of that would 
come a better policymaking process. Unfortunately, over time, that 
mutual respect has been yielded more and more as an instrument of 
obstruction because each time a Senator objects to a simple majority 
vote, under the rules they create a 1-week delay and a supermajority 
hurdle. If one objects 50 times a year, they have wiped out every 
single week of the year.
  This chart gives some indication of how grossly the principle of 
mutual respect and debate has been corrupted and abused.
  From 1900 through 1970, there was an average of a single use of the 
filibuster each year--an average of 1 per year over that 70-year 
period. In the 1970s, that climbed to an average of 16 per year; in the 
1980s, an average of 21 per year; in the 1990s, an average of 36 per 
year; between 2000 and 2010, this last decade, 48 per year; and in the 
last 2 years I have served in the Senate, 68 per year--an average of 68 
per year or roughly 135, 136 in that 2-year period. If each one of 
these absorbs 1 week of the Senate's time, one can see how this has 
been used to essentially run out the clock and obstruct the very dialog 
on which the Senate would like to pride itself.
  There is a statement about the Senate: the world's greatest 
deliberative body. But today in the modern Senate, that incredible 
tribute to this Chamber has been turned into an exclamation of despair. 
Where did that deliberative body go--not only not the greatest 
deliberative body but virtually devoid of deliberation due to this 
abuse. We went from mutual respect to essentially mutual legislative 
destruction using this filibuster.
  In 2010, this last year past, not a single appropriations bill 
passed. We have a huge backlog of nominations. Our role of advice and 
consent has been turned into obstruct and delay in terms of nominations 
for the executive branch and the judiciary. We have a constitutional 
responsibility to express our opinion, but this body, by using the 
filibuster, has prevented Senators from advising and consenting, either 
approving or disapproving these nominations. It certainly is terrible 
to have our responsibilities as a legislature damaged, but not only 
have we done that, we have proceeded to damage the executive branch and 
the legislative branch--quite an intrusion on the balance of powers 
envisioned in our Constitution. Then we have the hundreds of House 
bills that are collecting dust on the floor because they cannot get to 
this Chamber because of this abuse.
  All of this needs to change. When I first came here in the 1970s, 
when there was a challenge in 1975, there was a huge debate, and it 
resulted in changing the level required to overcome the filibuster from 
67 Senators to 60 Senators. Yet in 1973 and 1974, the 2 years that 
preceded, there was only an average of 22 filibusters a year, not 68. 
We have more than tripled the dysfunction that led to the last rules 
debate.

[[Page 40]]

  That is why we are here today--to find a path forward. There are so 
many who have been so instrumental in this debate. So many Members of 
the class of 2006, 2008, and now Members of 2010 are engaged in this 
effort. My hat goes off to Senator Schumer for leading the hearings in 
the Rules Committee and trying to find that balance between every 
Senator's right to be heard and our collective responsibility for the 
majority to legislate. Senator Udall has done this enormous 
investigation of the constitutional process for amending the rules and 
so many others.
  The first key part in the package of reforms a number of us--16, I 
believe, now have cosponsored this resolution--is the talking 
filibuster. The talking filibuster reform is essentially to make the 
filibuster what all Americans believe it is; that is, if you believe so 
strongly that this Chamber is headed in a direction that is misguided, 
you should be willing to come and take this floor and make your case to 
the American people.
  Let's take a look at our image of that. Here we are: Jimmy Stewart 
playing the role of Jefferson Smith, who comes to this Chamber where I 
now stand and says: I will take this floor to oppose the abuses that 
otherwise might go forward, and he held that floor until he collapsed.
  That is what the American people believe a filibuster is all about. 
You want to make your case before the American people. But today we 
don't have a talking filibuster in the Senate. We have the silent 
filibuster.
  Let's take a look at what that looks like. This is the way it works: 
A Senator takes their phone--maybe an old or modern phone--they call 
the cloakroom, and they say: I object to a majority vote, and then they 
go off to dinner. They do not take the floor with principle and 
conviction to say to the American people: Here is why I am delaying the 
Senate. Here is why I am going to hold this floor. This is not a 
situation we can allow to go forward and I am going to stand here and 
make my case and, American citizens, please join me and help me 
convince the other Senators in this room. That is the talking 
filibuster. But now we have the silent filibuster.
  My good colleague from Tennessee spoke earlier, and he said: I would 
like to have the talk-your-head-off proposal. I am glad to hear him 
back the talking filibuster--the Jimmy Stewart filibuster. That is what 
this reform does. It says, when folks object to concluding debate, it 
is because they have something to say, and so we are going to require 
they come to the floor and say it. It is that simple. When nobody has 
anything left to say, then we will proceed with a majority vote. We 
don't change the number of Senators required one bit. It is still 60, 
which completely honors that principle established in 1975.
  The second main proposal is the right to amend. A number of our 
colleagues on both sides of the aisle have been very concerned about 
the fact that issues come to this floor and you can only amend if you 
get unanimous consent to put an amendment forward, and that only works, 
largely, if there is a deal that has been worked out between the 
majority and the minority leaders. Some of my colleagues across the 
aisle say they are offended by their inability to amend.
  I can assure my colleagues across the aisle that I am equally 
offended. I wanted desperately to be able to offer amendments to 
President Obama's tax package that came through here because I think we 
could have improved it, and I think we should have seen amendments from 
the other side. This is an issue of concern from both sides. This 
proposal addresses that and says there will be a guaranteed set of 
amendments that the minority leader can pick from among the minority 
members and a guaranteed set of amendments the majority leader can pick 
from among the majority members, but we get the process of amendments 
going.
  If they want to have unanimous consent to increase that number to a 
higher level, get more for the minority or the majority side, that 
would be terrific, but at least they can't say no amendments. No leader 
can block the principle that each side has the opportunity to amend.
  The third point is on nominations. Right now, we have this huge 
backlog. This resolution makes a modest change in nominations. It says 
the period following cloture will be reduced from 30 hours to 2 hours. 
We have already had the debate over the individual, let's have the 
vote. That is what that says. This means Senators will be less tempted 
to use the filibuster on nominations as an instrument to delay and 
obstruct the Senate. It is not a completely pure reform but a step 
forward in the right direction.
  Our fourth is the ban on secret holds. Senator Grassley has spoken to 
this, and Senator Wyden will speak to it. Senator McCaskill has joined 
with them and others, and I believe at one time point there were as 
many as 70 Senators expressing in a letter their support to get rid of 
the secret hold. Anyone who wants to hold up legislation should have to 
stand on this floor and present their objection to this Chamber, to 
their colleagues, and to the American people.
  When folks have to take a position on this floor, whether it be 
through the talking filibuster or through publicly announced holds, 
then the American public can weigh in. Then you are taking the business 
out of the back rooms and onto the floor of this Chamber and American 
citizens can say: You are a hero for your actions or you are a bum for 
what you are doing.
  The fifth point is a clear path to debate. Right now, a lot of times 
we suffer through just getting to debate; that is, getting onto a bill 
to begin with or proceeding to a bill. There is probably no better 
example of the abuse of the filibuster--which was supposed to be mutual 
respect for debate--being used to prevent debate. So under this 
proposal, there would be 2 hours of debate over whether to proceed to a 
bill and then we would vote. We would either go to the bill or we would 
not. If Senators then want to filibuster on the bill, they can do it, 
but it would be a talking filibuster, where we are not in the back 
rooms, we are out here making our case.
  These five concepts are not radical concepts. They are modest steps 
toward saying that in this incredibly partisan environment we now 
operate in, where so many press outlets are attacking on each side all 
the time and so on and so forth, we have to set ourselves on the path 
to taking ourselves out of that hyperpartisan atmosphere and start to 
restore the Senate as a place of dialog and debate. Perhaps these are 
modest steps but modest steps in the right direction, and that is an 
extremely important way to go. So I call on my colleagues on both sides 
of the aisle--colleagues who have said there should be amendments, 
colleagues who have spoken in favor, on both sides of the aisle, of the 
Jimmy Stewart model of holding this floor and having talking 
filibusters--to approve this. Let's use the start of this 2-year period 
to acknowledge that something is deeply wrong when, in a 2-year period, 
we have 135 or 138 filibusters eating up all the floor time and 
preventing modest bills from moving forward and keeping us on this path 
to gridlock. The Senate is broken. Let's fix it.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, I have enjoyed this extensive 
opportunity to hear my colleagues on a very important subject about 
what the nature of the Senate will be. I am going to have about 10 
minutes of remarks on the comments of Senators Merkley and Udall, and 
then I will yield to Senator Wyden, for his comments.
  If I could say anything from deep down within me to my colleagues who 
are so exercised about this, it would be this: Before we change the 
rules, use the rules.
  We talk about Senator Byrd a lot because he understood the rules so 
well. I have often told the story of when Senator Baker became the 
Republican majority leader in 1981. He went to see Senator Byrd, the 
Democratic leader, and said: Senator Byrd, I am suddenly the majority 
leader. I will never know

[[Page 41]]

the rules as well as you do, so I will make a deal with you. If you 
will not surprise me, I will not surprise you. Senator Byrd said: Let 
me think about it. The next morning he told Senator Baker he would do 
that.
  The reason I mention those two Senators is because, before we get too 
mired down in our differences, let us think for a moment about what our 
goal ought to be. The goal for the Senate, to me, is to return the 
Senate to the way it operated during those 8 years when Senator Byrd 
and Senator Baker were the leaders of their parties. Four years Senator 
Byrd was the majority leader and 4 years Senator Baker was the majority 
leader.
  I have talked to staff members, some of whom are still around. 
Senator Merkley's history goes back to Senator Hatfield in 1976, but I 
first came in 1967 as Senator Baker's legislative assistant, when there 
was only one legislative assistant per Senator. In 1977, I came back 
and spent 3 months with Senator Baker when he became the Republican 
leader, and I followed him pretty closely during the next 8 years.
  Here is the way it worked back then.
  The majority leader--whether it was Senator Byrd or Senator Baker--
would bring a bill to the floor. He would get the bill to the floor 
because Senators knew they were going to get to debate and amend the 
bill. The Senator from Oregon is talking about no debates occurring 
today. Well, of course there are no debates, because when Republicans 
come down here with amendments, the majority leader doesn't let us 
offer them. All those cloture motions he is talking about means the 
majority leader is cutting off my right to represent my people and 
offer an amendment in a debate. They are calling a filibuster a cutoff. 
It wouldn't be a filibuster if the majority leader weren't cutting off 
my right, which he has done more than the last six majority leaders 
combined.
  But let's go back to what our goal should be. Senators Byrd or Baker 
would say: OK. The Energy bill or the education bill is up, everybody 
get their amendments in. They might get 300 amendments filed. At some 
point, the majority leader would say: I ask unanimous consent that the 
amendments be cut off. Of course, they would get that after a while 
because everybody had all the amendments in that they could think of.
  You didn't go to the majority leader down on your knees and say: Mr. 
Majority Leader, may I please offer this amendment or that amendment. 
You just put your amendment out there, and then they started voting.
  Then Senators Byrd and Baker did something else we don't do today, 
which is why I am talking about using the rules before we change the 
rules. They debated, they voted; they debated, they voted; they 
debated; they voted. Of course, 300 amendments are a lot of amendments 
to get through. So the leaders and the staff would say to the Senator 
from North Carolina or the Senator from Oregon: Are you sure you want 
25 amendments? It is Wednesday night. No, 10 will be enough. On 
Thursday night they might say: Are you sure you want these five 
amendments? It is Thursday night. We are going to be here Friday, and 
we are going to finish this bill. We will be here Saturday if we have 
to be, and we will be here Sunday. You are going to get your 
amendments, and we are going to vote on it, but we are going to finish 
the bill. That is what the leaders did.
  Sometimes there would be a piece of legislation that would come up 
where one side or the other wanted to kill it and so they would try to 
kill it. That's just like we would do today, if Democrats were to bring 
up a bill to abolish the secret ballot in union elections. We would do 
everything we could to kill it. If the House passes a bill and brings 
it over here to repeal the health care law, the Democrats are going to 
do everything they can to kill it. That is separate. But most of the 
time under the leadership of Senators Byrd and Baker, the bill came to 
the floor, there was bipartisan cooperation, and there were amendments.
  Why was there bipartisan cooperation? Because the leaders knew that 
unless they had it, they wouldn't move an inch. Being good Senators, 
they wanted to do their jobs. In fact, Senator Baker would often tell 
his Republican chairmen: Don't even bring the bill to the floor unless 
the ranking member, the Democrat, is with you. So most of the time, you 
would have the Democrat and the Republican there together and they 
would allow amendments, would fight other amendments off, and they 
would get to a conclusion. There weren't so many filibusters because 
the majority leader wasn't cutting off the right to debate and calling 
it a filibuster. This is a word trick is what this is.
  I have talked to a lot of my friends on the Democratic side and a lot 
of Republicans and I think we basically want the same thing. I think we 
want a Senate that works better. I think it is now a mere shadow of 
itself. I agree with Senator Merkley about that but not because of 
filibusters. It is because the majority leader is cutting off debate 
and calling it a filibuster.
  The majority leader and the Republican leader I commend today because 
they have been talking about how we can do better. We all know that 
changing our behavior will be more lasting than changing the rules. I 
am glad Senators Reid and McConnell are working on this. They have 
asked Senator Schumer and me to work on it some more, and we are going 
to do that. We have had several meetings and we have another this 
afternoon and we will keep working. We will consider carefully these 
proposals or any others that come, and we will see if we can come to 
some agreement about how to move ahead.
  My heartfelt plea is before we change the rules, let's use the rules. 
Going down through the list of reform suggestions:
  The motion to proceed--that is a difficult one for many of us because 
if you are in the minority the motion to proceed is your weapon to 
require the majority to give you amendments.
  Secret holds--Senator Wyden tells me he and Senator Grassley have 
been working on that for 15 years. They have Republican support and 
Democratic support for it. Maybe this is the time to deal with secret 
holds. I make my holds public. When I was nominated for the U.S. 
Education Secretary by President Bush, the Senator from Ohio held me up 
for 3 months and never said why. I went around to see the Senator 
Rudman from New Hampshire and asked him what to do. He said when he was 
nominated by President Ford to the Federal Communications Commission, 
the Senator from New Hampshire held him up. Finally Rudman withdrew his 
name and ran for the Senate against the Senator and beat him. That is 
how Senator Rudman got in the Senate. Secret holds is an area that has 
had a lot of work and bipartisan support.
  The right to offer amendments--the problem I have with altering the 
current rules is that offering amendments is what we do. I went to see 
Johnny Cash one time in the 1980s, and I asked him a dumb question, I 
said: Johnny, how many nights are you on the road? He said: Oh, 200. I 
said: Why do you do that? He said: That is what I do. If you are on the 
Grand Ole Opry, you sing. If you are in the Senate, you offer 
amendments and you debate. That is what we do, that is what we are 
supposed to do. Yet we have not been allowed to do it.
  Talking filibusters--if we are talking about the postcloture period, 
the problem with that is the majority has not used the rules. If I 
object to going forward with a bill, the majority, if they think I am 
abusing the rules, can say OK, Senator Alexander, get down there on the 
floor because we are going to be here all night. And you can only get 7 
hours and then you have to line up 23 other Senators to take 1 hour 
each, and if you stop talking we are going to put the question to a 
vote. If you do a number of certain other things we are going to make a 
dilatory motion. In other words, the majority can make it really hard 
for a Senator who objects.
  Someone said one, two, three, or four Senators can hold this place 
up. They cannot hold it up. Because if you have 60 votes you can pass 
anything. If you have 60 votes you can pass anything and Senator Byrd 
said in his last testimony before the Rules Committee that

[[Page 42]]

you can confront a filibuster by using the rules.
  The last two things we could do are, No. 1, we could stop complaining 
about voting. It happens on the Republican side and the Democratic 
side. If somebody offers an amendment that is controversial and 
everybody runs up to the leader and says we don't want to vote on that, 
then too bad. We are here to vote. That is why we are here so we should 
do that.
  The third thing we can do, and Senator Byrd suggested this in his 
last testimony, is let's get rid of the 3-day work week. There is not 
enough time for all the Senators to offer their amendments and there is 
not enough time for the majority to confront the minority if they think 
the filibuster is being abused if we have a 3-day work week, and we 
never vote on Friday. We did not vote on Friday one time last year.
  Let's use the rules. If you think we are holding something up 
improperly, confront that Senator. Run over him. You can do it. You 
have the power to do it if you have 60 votes. In this new Congress 
there will be plenty of opportunities there.
  Finally I am going to take these five suggestions and work with 
Senator Schumer and work with my friends on the other side. They are 
very thoughtful. Senator Udall spent a lot of time on this, Senator 
Wyden and Senator Grassley spent 15 years. Senator Merkley used to be a 
speaker. We have talked a number of times. I greatly respect his work 
in his State and the fact that he has seen the Senate for a long period 
of time. I am taking very seriously everything that is said here. I am 
just worried about turning the Senate into the House.
  We have a majoritarian organization over there. They can repeal the 
health care law or they can get rid of the secret ballot in union 
elections with a majority vote. If you turn this place into that, you 
just go bam, bam and it is done. The Senate is the place for us to say: 
Whoa, whoa, let's see if we can get a consensus before we do anything.
  When we get a consensus we not only get a better bill, but usually, 
the country accepts it better. The American people like to see us 
cooperating. They like to see us coming up with a tax bill or treaty or 
civil rights bill or a health care bill or a financial regulation bill, 
where we all have something in it. They feel better about that product. 
It is the check and the balance that is the genius of our system.
  Obviously we can do some things better around here. I am committed to 
trying. I thank my friends for the amount of time and effort they have 
given. I am going to take everything they have said very seriously and 
in the spirit they have offered it. But I hope a part of our solution 
is that we use the rules before we change the rules because this is the 
forum to protect minority rights, this is the forum to force a 
consensus, and we dare not lose that. We dare not lose that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Madam President, I ask unanimous consent the Senate 
proceed to the immediate consideration of the bipartisan Wyden-
Grassley-McCaskill-Collins resolution to end secret holds, which is at 
the desk.
  The PRESIDING OFFICER. Is there objection?
  Mr. ALEXANDER. Madam President, reserving the right to object, as I 
said earlier, Senator Wyden and Senator Grassley and Senator McCaskill 
and others have worked on this, some of them for as long as 15 years. 
They have made significant progress in gaining bipartisan support. I am 
going to object but only for the reason that this is one of the items 
we will be discussing and working on over the next few weeks with the 
hope that perhaps we can get agreement over here and agreement over 
there. It has been mentioned by all of the speakers today. It is a very 
serious proposal. But because we do not want to resolve it today, I 
object.
  The PRESIDING OFFICER. Objection having been heard, the resolution 
will go over under the rule.
  The Senator from Oregon.
  Mr. WYDEN. Madam President, before he leaves the floor, let me thank 
Senator Alexander for the discussions he has had with me on this issue. 
Senator McConnell has also spoken with me about this. I wish we were 
getting this done today, largely because this would give us a chance on 
the first day of the Senate's new session to send a message that once 
and for all we were deep-sixing secrecy, that we were saying public 
business ought to be done in public. I wish it were being done today 
but I understand completely the sentiments of the Senator from 
Tennessee and the fact that he is willing to work with me is something 
I appreciate.
  As I have indicated, there are obviously significant differences 
between the parties about how to reform the rules of the Senate. What I 
hope will be done--certainly the very first day that the Senate comes 
back and is in a position to formally act, which appears to be January 
24--is once and for all we would bring Democrats and Republicans 
together around an extraordinarily important change in the Senate 
procedures that Senator Grassley and I have been trying to change for 
literally 15 years. Particularly with the energy and enthusiasm Senator 
McCaskill has brought to the cause, I think we are now on the cusp of 
being able to finally get this done.
  It has been clear that if you walk up and down the Main Streets of 
this country, people do not know what a secret hold is. Probably a lot 
of people think it is a hair spray. The fact of the matter is there are 
practically more versions of secret holds in the Senate than there are 
in pro wrestling. But what a secret hold is really all about, it is one 
of the most extraordinary powers an individual Senator has here in the 
Senate and it can be exercised without any transparency and without any 
accountability whatsoever. What a secret hold is all about is one 
Senator can block the American people, the entire country, from 
learning about a piece of legislation that can involve billions of 
dollars, scores and scores of people, or a nomination with the ability 
to influence the lives of all Americans. One Senator can block that 
consideration without owning up to the fact that Senator is the one who 
is defying the public's right to know about how Senate business is 
blocked.
  That is wrong. It is not about how Republicans see it, or Democrats 
see it, it is just common sense. Most people say, when you tell them 
that a Senator can block an enormously important piece of legislation 
or a nomination that affects millions of people and they can do it in 
secret, I can't believe you have those kinds of rules.
  The fact is, that is the way the Senate operates. Suffice it to say 
it is getting worse. A few days ago, for example, Chief Justice Roberts 
said that the number of vacancies on our courts is creating a judicial 
emergency. Those are the words of Chief Justice Roberts.
  At least 19 Federal judges have been approved by the Senate Judiciary 
Committee unanimously or near unanimously and never got a vote on the 
floor of the Senate. Not one Senator has publicly taken responsibility 
for worsening the judicial crisis that Chief Justice Roberts has been 
decrying over the last few days. Think about that. The Chief Justice of 
the United States during the Christmas holidays included in his annual 
report on the Judiciary that the delay in confirming federal judges is 
creating an emergency in the judicial system.
  Chief Justice Roberts, in my view, is correct. I think we do have an 
emergency. We have been trying to get several judges in the State of 
Oregon approved, Senator Merkley and I have been working to get this 
done. But these nominees and others have been blocked and no Member of 
the Senate will publicly take responsibility for worsening this crisis 
that Chief Justice Roberts is appropriately so concerned about.
  We have tried in the past with legislation to end secret holds. We 
actually got a law passed at one time to get rid of secret holds. We 
have tried with pledges from the leadership of both political parties. 
In every instance, the defenders of secrecy have found their way around 
the requirements and, in my view, the public interest.

[[Page 43]]

  I will make two points and then I want to allow Senator McCaskill to 
have a chance to address this issue. There are two points with respect 
to why this effort to end secret holds would be different. The first is 
that every hold here in the Senate, after the passage of this 
bipartisan resolution, would have a public owner. Every single hold 
would have a public owner. Second, there would be consequences. In the 
past, there have not been consequences for the individual who would 
object anonymously. In fact, the individual who would object would 
usually send someone else out to do their objecting for them and there 
would be complete anonymity for, essentially, all concerned because the 
person who would be objecting would be in effect saying this is not my 
doing, I am doing it for somebody else.
  The heart of this bipartisan compromise is to make sure that every 
hold has a public owner and there would be consequences. There may be a 
Senator around here who becomes known as ``Senator Obstruction.'' 
Senator Obstruction is the one who is trying to block public business. 
Let him explain it to the American people.
  I will have more to say about it in a little bit, and there is the 
possibility of other colleagues coming to speak. But Senator McCaskill 
has brought the kind of energy and passion to this that has made it 
possible for us to, as I say, be on the cusp of finally forcing, here 
in the Senate, public business to be done in public. I thank her for 
all her help and will allow her to take the time. She said she thought 
she might speak for around 10 minutes. Senator Klobuchar, who has also 
been a great and passionate advocate of open government, will also 
speak, and for colleagues who have an interest we have 30 minutes of 
time.
  I say to Senator McCaskill, with appreciation for all she has done, 
the time is hers.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mrs. McCASKILL. Madam President, when I arrived in this Chamber 4 
years ago at this time, I had no idea what the ways of the Senate were. 
I had an idea that this was a place where people came to debate and to 
have a collegial relationship with fellow Senators across the aisle. 
There had been a lot of problems with ethical issues in the Capitol. So 
one of the first things that happened to the class of 2006 was S. 1, 
and S. 1 was a far-reaching ethics bill that included things such as no 
more free flights on corporate jets. It included new requirements in 
terms of gifts from lobbyists, and it also included a provision that I 
did not know at the time had been worked on by Senator Wyden and 
Senator Grassley for many years.
  That provision said we were not going to have secret holds anymore. 
So imagine how great I felt on January 18, 2007, that we had done this 
comprehensive ethics bill that was going to clean up our act, and that 
we were not going to have secret holds. Well, I find it ironic that 
Senator Alexander says: Well, just use the rules. Just use them.
  Well, so when I started figuring out that the game around here in the 
last 18 months had developed into a game of secret holds, I asked my 
staff: Hey, did we not have something in S. 1 about secret holds? Not 
knowing really the relationship that language had to Senator Wyden and 
Senator Grassley.
  So my staff pulled out the legislation and we looked at it. I said: 
Well, right here it says they cannot do it. So I began coming down to 
the floor and using the law.
  I did exactly what Senator Alexander recommended. I came down here 
and began making motion after motion, which under the language of that 
statute would seem to indicate all of the Senators supported--except 
for a handful--that once you made these motions people would have to 
come out of the shadows and claim their holds.
  Well, that is when I discovered the people who voted for this, or a 
bunch of them, did not mean it. They did not mean it. It was window 
dressing. They were not sincere about ending secret holds because we 
discovered, when we started trying to use that language, some of the 
folks who voted for it were doing the old switcheroo. When they were 
called upon under the law to reveal their holds, they would just hand 
their hold off to someone else.
  That is when I began getting frustrated with the games that were 
being played. I thank Senator Wyden and Senator Grassley and others who 
have worked on this, but I will tell you what is the most depressing 
thing I have heard today: that this is something that has been worked 
on for 15 years.
  Now, seriously, think about that. We have allowed people to secretly 
hold nominations and the people's business, and there have been Members 
trying to clean it up for 15 years. We wonder why we are having trouble 
with our approval ratings.
  Nothing is more hypocritical than all of the sanctimonious stuff I am 
hearing down the hall about the new era, no more business as usual, no 
more. We are going to have accountability and transparency. But yet we 
seem to be embroiled, down at this end of the hall, with not even being 
able to get beyond a secret hold. This should not be hard; this should 
be easy.
  Now, some of the other provisions that are being debated today, I 
understand there is concern about the power of the minority in the 
Senate. I think those concerns have been addressed in the resolution 
that has been presented by Senator Merkley and Senator Udall and 
Senator Harkin from Iowa.
  But if we cannot get 67 votes to end secret holds and amend the 
rules, how seriously can we take anybody who claims they want 
accountability and transparency in government? I mean, this is the hall 
of fame of hypocrisy. This is not just hypocrisy, it is the hall of 
fame. So that is why I think we have to get busy and get the secret 
hold provision done.
  I would like to see us get all of these reforms done. I wanted to 
spend a second on what Senator Alexander's suggestion was. His 
suggestion was to use the rules. Well, honestly, does he think the way 
to solve this problem is to force the majority to stay here all night, 
with staff, spending the taxpayers' money to force someone over and 
over again to say, ``I object''?
  We cannot make the minority talk. So that means the majority, whether 
it is Democrats or Republicans, has to stay all night and call the 
question. They do not have to have--I mean, we could do live quorum 
calls, but that is what we need to do to make this place work? That is 
his suggestion, to force the people who are objecting and the staff and 
the people around here to stay here all night every night until someone 
breaks? That is a good idea?
  I think that means someone has probably been around here too long. It 
does not sound like a good idea, that it is not a commonsense idea that 
we would be promoting on Main Street in Missouri. I think it makes more 
sense, if you are the minority and you want to block legislation that 
you own it. Just own it. Block it. That is what the Senate is about. 
The minority can continue to block legislation whether the Democrats 
are in the minority or the Republicans are in the minority. They can 
block all the legislation they want. They just have to own it. They 
have to be willing to say they are blocking this for the following 
reasons--because we think it is important--and let the people decide.
  Same thing with holds. You want to hold something, hold it. But let 
the people decide whether you are being reasonable or whether you are--
really what I was disgusted to learn is how many people were using 
secret holds. In fact, they brag about it. They are using secret holds 
to get something else. I am going to hold this nominee in this 
department because I want money for a community center in my town. If 
you do not give me money for a community center in my town, you cannot 
get the Deputy Secretary of the Interior through. I mean, I am making 
up this example, but this was actually going on. It is like you 
secretly hold something so that you can get them to give you something 
else. That is the essence of the backroom dealing that people are 
disgusted with. Own it. Be proud of it. Defend it. Debate it. But do 
not hide it. That is what this is all about.
  I thank all of my colleagues who have worked on this. I just want to

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close with this comment: Bad habits have consequences, and if we do not 
take this opportunity to fix what is going on in the Senate--this is 
not the way the Senate has operated for hundreds of years. If we do not 
change this path, then we are going to be on this path forever. And if 
the minority now does not think that when the time comes they may not 
be in the minority anymore, if we do not think we have not learned from 
them--seriously?
  This place is going to be dysfunctional as far as the eye can see 
because they will fill the tree and we will just block everything. Then 
they will block everything and we will fill the tree. This is going to 
go on forever until there are enough people around here who are willing 
to set aside the political maneuvering and do what is right for the 
future of deliberations in a body that we all want to be proud of. But 
right now we cannot be so proud of the way we operate.
  I thank the Senator from Oregon and all of the Senators who have 
worked on this issue. I hope we can pull back from the brink because 
that is where we are. We are about ready to institutionalize a way of 
operating around here that is not something that any of us should be 
proud of.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. How much time remains on our side?
  The PRESIDING OFFICER. The Senator has 13 minutes remaining.
  Mr. WYDEN. Madam President, I yield 5 minutes to the Senator from 
Minnesota.
  Ms. KLOBUCHAR. I thank Senator Wyden for his leadership.
  Madam President, as we begin the 112th Congress, I first congratulate 
my colleagues on how we ended the 111th Congress. We had an incredibly 
productive lameduck session, ensuring that taxes were not raised on the 
middle class during an economic downturn, ratifying the START treaty, 
among other things. We worked together to solve problems. This was not 
always the case during the last Congress. But we ended on a high note.
  As our work begins today anew, we all know there is still a great 
deal of work to be done. We have a lot of work ahead of us to ensure 
that American workers can find jobs, to get our private sector economy 
back on track, to find long-term solutions to our mounting deficit. 
Because of the urgent business that is in front of us, I am hopeful 
that my fellow Senators and my colleagues across the aisle will agree 
that it is time for change, that it is not time for business as usual.
  We have heard from so many of my colleagues who have been working on 
this issue--Senator Udall from New Mexico, Senator Merkley, Senator 
Harkin, Senator Wyden, Senator McCaskill, and also Senator Grassley, 
which is important work on the secret holds.
  The elections on November 2 sent a message to every Member of 
Congress that the American people are not interested in partisan 
bickering or procedural backlogs or the gamesmanship and gridlock that 
prevents elected officials from doing their job. We were not hired by 
our constituents to hide behind outdated Senate rules as an excuse for 
not accomplishing things or not taking tough votes. That is just what 
the current Senate rules are allowing us to do.
  I heard a lot from my friend from Tennessee about how we should use 
the current rules. But the problem I have is that too many people have 
been abusing the current rules. First, as Senator Wyden, Senator 
McCaskill, Senator Grassley have so eloquently stated, we have to 
permanently end the practice known as secret holds, which basically 
allows one or two Members of the Senate to prevent nominations or 
legislation from reaching the Senate floor without identifying 
themselves.
  We thought we had this done, as Senator McCaskill pointed out, with 
the ethics bill we passed when we first came into this Chamber. But, 
unfortunately, once again, those rules were abused. There are some 
Senators who are playing games with the rules. They are following the 
letter but not the spirit of the reforms we adopted.
  Look at the kind of secret holds we have seen, secret holds 
preventing the President from assembling the team he needs to run the 
executive branch. This summer, for example, secret holds were placed on 
two members of the Marine Mammal Commission for months. The Marine 
Mammal Commission--held secret in a hold while the Deepwater Horizon 
oilspill was continuing to play out in the gulf region.
  A second example of what we have to get done is filibuster reform. It 
is a long-standing tradition in the Senate that one Senator can, if he 
or she chooses, hold the floor to explain objections to a bill. We 
think of Jimmy Stewart's character, Jefferson Smith, in ``Mr. Smith 
Goes to Washington,'' as a shining example of how individual conscience 
can matter because an individual can stay on the Senate floor to the 
point of exhaustion in order to stymie a corrupt piece of legislation.
  Well, that is not how the filibuster works in practice today. Today, 
an individual Senator virtually has the power to prevent legislation 
from being considered by merely threatening a filibuster. At that 
point, the majority leader must file a cloture motion in order to move 
to that piece of legislation. This adds a great deal of time to an 
already crowded Senate calendar. This is not governing. This is not how 
we do the people's business. This is not how we come together to find 
practical solutions to our common problems.
  Our current system is a far cry from Jimmy Stewart. That is why a 
group of us have been working to get some legislation passed to change 
the rules going forward. When you think about the history of the 
Senate--and I listened with great respect as my colleagues talked about 
the tradition and the importance of the rules of the Senate, about 
protecting the rules of the minority. None of these proposals will 
interfere with the rights of the minority to filibuster any piece of 
legislation.
  But when you look at the history of the Senate, it is about 
tradition. As time goes forward, there have been changes to the Senate 
rules. Every few decades there are changes to the Senate rules. Look at 
my former colleague, Vice President Mondale, a great leader who made 
significant changes to the Senate rules.
  This is all about transparency and accountability. I urge my 
colleagues to support this resolution.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Whitehouse.) The Senator from Oregon.
  Mr. WYDEN. Mr. President, I do not see any of our colleagues who want 
to speak on the bipartisan efforts to end secret holds, so let me make 
a couple of comments in wrapping up.
  The first is, Senator Grassley and I and others who have been at this 
for so long have been willing in the past to just put a statement in 
the Congressional Record when, in the handful of instances, we thought 
it was important to block a particular piece of legislation or a 
nomination. We felt it was important to be publicly accountable.
  All we are asking is that principle of openness, transparency, and 
government in the sunshine apply to all Members of the Senate.
  The fact is, secrecy has real consequences. I mentioned the fact that 
Chief Justice Roberts has been so concerned about the judicial 
emergency he has seen develop in the court system. I saw during the 
lameduck session, on a bipartisan bill Senator Cornyn and I spent many 
months on to combat sex trafficking, the consequences of a secret hold. 
When our bill passed the Senate, it went over to the House of 
Representatives, was passed in the House, and then came back to the 
Senate and was blocked secretly. And this was a bipartisan bill to 
allow us to strengthen the tools law enforcement would have in order to 
fight sex trafficking, to provide urgently needed shelters to sex 
trafficking victims. A bipartisan bill Senator Cornyn and I spent many 
months on did not become law during the lameduck session because of a 
secret hold.
  A lot of Senators have seen exactly these kinds of problems with 
judges and U.S. attorney candidates. We had both from my home State, 
two judges

[[Page 45]]

who couldn't be considered because of a hold and we could not identify 
who was objecting, the same with the U.S. attorney nominee. These are 
the real consequences of secret holds.
  The big winners in these secret holds are the lobbyists. The 
lobbyists benefit tremendously from secret holds. Practically every 
Senator has received requests from a lobbyist asking if the Senator 
would put a secret hold on a bill or a nomination in order to kill it 
without getting any public debate and without the lobbyist's 
fingerprints appearing anywhere. If you can get a Senator to go out and 
put an anonymous hold on a bill, you have then hit the lobbyist 
jackpot. No lobbyist can win more significantly than by getting a 
Senator to secretly object because the Senator is protected by the 
cloak of anonymity, but so is the lobbyist. With a secret hold, 
Senators can play both sides of the street. They can give a lobbyist a 
victory for their clients without alienating potential or future 
clients.
  Given the number of instances where I have heard of lobbyists asking 
for secret holds, I wish to say that those who oppose our efforts to 
end secret holds are basically saying we ought to give lobbyists an 
extra tool, an extension of the tools they already have in order to 
advocate for their clients and defy public accountability.
  We passed stricter ethics requirements with respect to lobbyists. But 
it looks to me to be the height of hypocrisy if the Senate adopts a 
variety of changes to curtail lobbying, as has been done in the past, 
and at the same time allows lobbyists to continue to benefit, as so 
many special interests have, from secret holds.
  This is the opportunity, after a decade and a half, for the public to 
get a fair shake and for the public interest to come first. We have 
tried this in the past. We have tried this in the past with pledges and 
by passing a law and each time the supporters of secrecy found ways 
around it. But I think the public has caught on.
  Suffice to say, there are going to be plenty of differences between 
Democrats and Republicans with respect to how to reform the rules of 
the Senate. What I think has come to light is, it doesn't pass the 
smell test to keep arguing that Senate business ought to be done in 
secret. The American people don't buy that anymore. They think this 
ought to be an open institution, a place where every Senator is held 
accountable.
  This time it is going to be different. There are going to be public 
owners of any hold. There are going to be consequences for any Senator 
who tries to block a bill or a nomination in secret. This is going to 
be an important vote when we come back, a very important vote, and 
finally one that will require that public business in the Senate be 
done in public.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in 
morning business for 7 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mrs. Murray and Mrs. Hagan are printed in today's 
Record under ``Morning Business.'')
  Mrs. HAGAN. Mr. President, I yield the floor and suggest the absence 
of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. UDALL of New Mexico. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. UDALL of New Mexico. Mr. President, with the process we are in 
right now--and we have had questions back and forth on this whole issue 
of Senate rules reform--I want to respond to Senator Alexander because 
Senator Alexander raised some questions, and some of those questions 
were not answered on our side. So I want to put in a couple responses 
here.
  Senator Alexander asked the question: What is a filibuster? He was 
asking our side. He was asking in this debate, what is a filibuster? 
Well, all of us know and we have heard in this debate what a true 
filibuster is. We saw a hero here on our side in terms of a true 
filibuster when it came to Bernie Sanders just a week or so ago, where 
he stood up for 8 hours to oppose a tax package on principle. He took 
the floor and he spoke and spoke passionately.
  I say to Senator Harkin, another example of a true filibuster is from 
a movie the American public knows the best, a Jimmy Stewart movie, 
``Mr. Smith Goes to Washington.'' Senator Merkley earlier had some 
charts on that, and he showed Mr. Smith on the floor, surrounded by 
other Senators, where he spoke until he collapsed.
  Then you have the old-time tales of the Southern Democrats when civil 
rights legislation was being pushed in the 1950s and 1960s, when a 
number of what you would say were Northern Senators were pushing an 
anti-lynching law because lynching was going on in the South. So they 
were trying to say you cannot do that, and Southern Senators would 
stand up--I think sometimes the record was in the range of 20 hours or 
25 hours where they were completely exhausted from speaking on the 
floor.
  So that is what the American public thinks about a filibuster.
  Well, we know that is not what is happening here. I have been here 
for 2 years, and the only real filibuster I saw was the Bernie Sanders 
filibuster. I asked one of the historians, I think: When was the last 
one? And they said: Well, you would go back to 1992 and Alfonse 
D'Amato, where he took 12 hours to talk about an issue in New York that 
he was passionate about.
  So when Senator Alexander asked us, What is a filibuster, that is my 
description of what a filibuster is.
  But what I think the real question is--and I would like Senator 
Alexander, when he returns, to answer this--is, What impact has the 
threat of a filibuster had? What impact has the threat of a filibuster 
had? So people are probably asking: What are we talking about when we 
say ``the threat of a filibuster''? Well, actually we have been talking 
about it all day.
  First of all, it is the secret holds. As our Presiding Officer, who 
sits on the Judiciary Committee, knows, they work very hard in the 
Judiciary Committee. They produce a bipartisan result on these judicial 
nominations. These judicial nominations come out. They are put on the 
calendar. Then months and months and months later some of them get up 
for a vote.
  I do not know about the exact number, but my understanding is that we 
had to send back to the President a number of judicial nominations that 
had received bipartisan support from the committee. We finished our 
business in December, and we sent those nominations back, only to have 
to have the President send them back down again because it is a new 
Congress. We are going to have to have hearings all over. This is the 
kind of situation we are in. So that is one specific case of the threat 
of a filibuster. And we have these all the time.
  One of the ones that is the most remarkable to me--and I am not going 
to pick out the Senator or the exact committee--but a number of us, as 
Senators, saw a stack of bills, a stack of legislation that had come 
out, on a bipartisan basis, from one of our committees that was very 
thick, and it was legislation from 2 years--2 years--of that committee 
legislating in a bipartisan way, and those Democrats and Republicans 
working together and doing the hard work, and one Senator--one 
Senator--held up all of that legislation this last Congress, held it up 
completely.
  That is the threat of a filibuster. You may say: Well, how did that 
happen? What happens is, the legislation comes out of committee, and a 
Senator--whom we do not even know; a lot of us suspect after various 
things that have happened over time, but the Senator comes down and 
says, in a secret way to his leader: Well, if you bring any of those 
bills to the floor, I am going to filibuster.
  That is what the threat of a filibuster is. But that is an agreement 
that none of us knows about. So the threat of a filibuster has had an 
enormous impact on this institution.

[[Page 46]]

  Let me describe a couple of other things.
  I talked about judicial nominations. As to executive nominations, I 
come from the era when my father was Secretary of the Interior. I was a 
kid. I remember when he went into office. In visiting with him about 
that later, I said: We can't get executive people in place. They don't 
have their team. He said: Tom, I had my whole team in place the first 2 
weeks. So you are talking about the whole team for the Department of 
the Interior in the first 2 weeks.
  I remember the Washington Post did an extensive study of the first 
year of the Obama administration. So imagine: President Obama takes 
office. He goes through a year, and he only had 55 percent of his 
executive nominations in place. So he only had 55 percent of his team.
  Those of us who believe in government, believe that government does 
good things out there, find that appalling because we believe if you 
put people in place, they will be responsive to citizens on the 
particular issues of those departments. So that is very important, I 
believe, getting executive nominations in place. So that is what the 
threat of a filibuster ends up doing.
  I see my colleague from Mississippi, and I do not know whether he is 
going to step in for Mr. Alexander and ask questions. We are in this 
questioning back and forth period. Senator Harkin may want to say 
something on the question issue here too. What impact has the threat of 
a filibuster had?
  We can hear the argument--Senator Alexander has made this a number of 
times--look at all the great things you accomplished in the lameduck 
and look at all the great things you feel you accomplished in terms of 
health care, the stimulus package, and financial reform. But the 
reality is, in order to accomplish those in the constant filibuster we 
were in, we have basically destroyed our institution. As some of the 
more senior Senators here have told me, the Senate is kind of a shadow 
of itself.
  What I do mean: ``We have destroyed the institution''? Well, it used 
to be that our big oversight function was to look over the money bills 
for the government, the appropriations bills. Guess what. Last year we 
did not do a single appropriations bill on the floor of the Senate. You 
do not have to go back very far when we used to bring all 12 of those 
bills to the floor, and we would have 2 or 3 days of lively debate. 
Every Senator could put in amendments.
  Senator Harkin knows because he is one of the cardinals, he is the 
chairman of one of these committees. It is a very helpful process, one 
for the agency to know that all Senators are overlooking that agency, 
and for a person in Senator Harkin's position, as the chair of the 
committee, to know what the concern of the entire body is. But we have 
given that up. We do not do that anymore, and it is because of the 
constant filibuster and the threat of filibuster. So you have that 
situation.
  I would think my friend from Mississippi, the Senator from 
Mississippi, would be very concerned about this one: We did not do a 
budget last year. The one way we can impact--if you talk about fiscal 
responsibility, and you talk about keeping the government under 
control, and guiding it in the right direction, the one thing you want 
to do is a budget. You want to pass a budget and set some outlines 
there.
  Well, we did not do a budget last year because we were in a constant 
filibuster, the threat of a filibuster. And the story goes on and on.
  So I say to Senator Harkin, we are in the question phase right now. I 
am going to yield the floor. I am sure there is time still on the other 
side. But I think the question is not, as Senator Alexander raised it, 
What is a filibuster? The real question out there--for when Senator 
Alexander returns--is, What impact has the threat of a filibuster had 
on this institution we love of the Senate?
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, I hope the Senator from New Mexico will 
stay on the floor. I wish to engage in a colloquy with the Senator from 
New Mexico on the topic on which he just spoke.
  I say to my friend from New Mexico, the Senator from Tennessee, as I 
understand, had propounded the question, what is a filibuster? The 
Senator from New Mexico has been very eloquent in responding to that, 
talking about the filibuster. But I think the better question is, what 
has a filibuster become, because as the Senator pointed out and as 
Senator Merkley pointed out, this whole image of someone standing on 
the floor and speaking until they drop such as Senator D'Amato or 
Senator Thurman back in the old days on the civil rights bills or even 
Senator Sanders a few weeks ago, that is not really a filibuster any 
longer. So what has a filibuster become?
  Let me go back again a little bit in history. In the 19th century, in 
the 1800s, the filibuster was used, if I am not mistaken, about 20 
times during that whole 100 years. But it was used under a different 
set of circumstances. In the 1800s, a Senator or a Congressman was 
elected in November, but the session of Congress lasted until March. 
The Senators or Congressmen elected in November actually did not take 
their seats here until a year and a month later, in December of the 
following year. So sometimes, in this ``lameduck'' session that ended 
in March, people in the majority party--especially if they had lost the 
election--would try to ram through a lot of stuff. The minority party 
would speak until the session ended in March so that nothing would get 
done, and then they would pick it up in December when the new Senate 
and House would meet. So it was a means of stopping onerous legislation 
for a short period of time.
  That was in the 19th century. We have a different situation now. So 
the filibuster is not used to speak now and to slow up one piece of 
legislation or to stop one piece of legislation; it is used to slow 
down everything. One case in point: We had before my committee last 
year a nominee by the name of Patricia Smith to be Solicitor General of 
the Department of Labor. We had our hearings, I say to my friend from 
Kansas who is not here right now. We had our hearings in committee. She 
answered questions, answered written questions. We reported her out of 
committee. We came here to the floor. We had to file cloture on 
Patricia Smith to be Solicitor of Labor, so we filed cloture. We got 
the 60 votes. But as we know, under postcloture you get 30 hours. Well, 
the minority forced us to use the 30 hours. Senator Enzi, our ranking 
member, came and spoke for 15 minutes and left, and I sat here for 30 
hours and no one spoke. So for 29 hours and 45 minutes we sat here 
doing nothing, unable to do anything, on a nominee who had over 60 
votes. At that time, the record will show, I kept asking: Why are we 
here?
  Why are we using 30 hours of the Senate's time, when nobody is even 
speaking and we already have the 60 votes for Patricia Smith? That is 
an example of what the filibuster has become. It has become a tool in 
order to slow everything down.
  For example, nominees. We had nominees who got through here on a 99-
to-0 vote after being held up for 6 months. Well, what if, I ask, we 
have to file cloture on every nominee and then every nominee has a vote 
on cloture and then you have 30 more hours. If you did that on every 
nominee, I believe the majority leader said we would be here from 
January through August doing nothing every day of the week except 
nominations. How would we ever get anything else done?
  The question is, What has the filibuster become? It has become a 
means whereby a few--this, I guess, would be the question I might 
propound to my friend from New Mexico or at least suggest that he might 
respond. Has not the filibuster or the threat of a filibuster become a 
tool by which one or two or three or four Senators can absolutely slow 
down or stop things from coming to the Senate? Has not the filibuster 
become a tool by which one Senator who publicly announces that his goal 
is total gridlock of the Senate--total gridlock--has not the filibuster

[[Page 47]]

then become the tool by which one Senator can impose gridlock on the 
Senate? Is that not what the filibuster has become?
  Mr. UDALL of New Mexico. The Senator from Iowa makes an excellent 
point. I was here for his talk earlier, where the Senator led with the 
filibuster and laid it out and Senator Alexander came back and asked 
these questions. I think the key question is the one the Senator just 
asked, which is: What has a filibuster become? The Senator seemed to be 
defending the old-fashioned filibuster that no longer exists. That is 
the situation we have.
  Some of our friends on the other side--I hear them talk about this--
are saying this is the filibuster of the past; it is a very pure thing 
and a wonderful thing. But it has been distorted, manipulated. The 
filibuster has been twisted in a way that it does exactly what the 
Senator is talking about--slowing everything down. It is an attempt, in 
a way, to defeat the majority from governing.
  I think the Senator cited the Federalist Papers. One of the biggest 
dangers in a democracy is if you give the power to the minority to shut 
down the ability of the majority to govern. If you do that, you have 
rendered your democracy useless because then you get yourself into a 
situation, as the Senator from Iowa knows, where they can prevent the 
majority from doing anything and then run in a campaign and say: Well, 
they didn't do anything, which is kind of a hypocritical way to 
approach legislating.
  One of the things that is remarkable to me--and I served over in the 
House of Representatives for 10 years and I know we don't have to take 
up every House bill the way it is written and we don't have to respond 
to every bill, but when you hear the fact that 400 House of 
Representatives bills in 2 years--the last session of Congress--were 
sent over here and we ended up--the younger Members of the Senate were 
interested in some of these bills. We looked into them. We found out 
that these were on veterans issues and many were good bills. We found 
out they had to do with small business, and they were good bills. We 
found out they had to do with building the economy and economic growth 
and those kinds of things and that they were good bills. But we didn't 
have the time to act upon them because the way the filibuster is being 
utilized is to defeat our ability to move forward.
  The one other area I wish to mention--and I know this is something 
that concerns our friends on the other side--if you are talking about 
making government responsible, fiscally responsible, doing oversight 
over government--and they say they are going to do all this oversight 
in the House--one of the best ways to do oversight is in an 
authorization bill. As everybody knows, we have an authorization 
process, and we have an appropriations process. Well, apparently now, 
with the studies being done at the Center for American Research--and 
Senator Harkin would know this more than others because he serves on 
the Appropriations Committee--a major part of our appropriations are 
unauthorized now. I think the figure I saw was close to 40 percent. So 
that means if these are unauthorized appropriations, it means the side 
of our Senate and the side of our Congress that deals with 
authorization, that is an oversight. You go in there in the 
authorization process and look at an agency and you say: How is this 
program functioning? Is this program effective, a good program, 
something that is working?
  If the answers come back and you have evidence it is not working, you 
write in the authorization we are getting rid of that. If you don't do 
any authorizations at all and the authorization doesn't come to the 
Senate floor and all Senators don't have an opportunity to participate, 
then you are giving up that kind of essential oversight. I would think 
they would be for that. Guess how many authorizations we did last year. 
How many? We did one. We did it at the very last minute as we went out 
of town, and that was the Defense Department authorization. That was 
held up with a filibuster because it had don't ask, don't tell in the 
bill.
  So here we are at war--we have two wars going on. As Chairman Levin 
said, a lot of the things in that bill were to help the military do a 
better job and help the fighters on the ground in these two wars and we 
weren't able to get them done at the start of the fiscal year and move 
forward. So we were able to get it done before we left. I was happy 
about that. How about intelligence and the huge agencies that run the 
health care programs and all those? We have not done that oversight.
  To the Senator's question what has the filibuster become, it has 
become something pretty horrible in the history of the Senate. If we 
don't fix this, we are going to be in a bad way. The way to fix it is 
the constitutional option. That is the wonderful thing about where we 
are today.
  Today, we are in the first legislative day of the beginning of the 
112th Congress. What everybody has told us on that first legislative 
day is that we can have all these rules proposals. The Senator from 
Iowa has one and Senator Merkley and myself have one and Senator Wyden. 
Guess what. If we round up 51 Senators--and they don't have to be only 
Democrats--who say, No. 1, here are rules changes we want to make with 
51 Senators, we can cut off debate on those changes and 51 Senators--a 
majority--can vote those rules in, and we can fix the situation we have 
all been talking about here.
  I think the Senator's question is the right one. The filibuster has 
become a procedural morass.
  Mr. HARKIN. I thank my friend from New Mexico. I also thank him for 
his great leadership on the constitutional option. I am a cosponsor of 
his resolution, which he sent to the desk earlier today. He is right on 
target. The dead hand of the past cannot bind us. Every Congress, on 
the first legislative day--as Senator Byrd said himself in the past--
has the authority, with 51 Senators, to set our rules--not two-thirds, 
just 51. We are on that first legislative day today.
  I understand the leader will put us into recess so we will stay in 
the first legislative day when we come back. So we will be on this 
issue when we come back on January 25.
  I wonder if I might explore a little bit with my friends who are 
here--and the Senator from Oregon has been a great leader in this 
effort. As a former speaker of the legislature in Oregon, he has lent a 
great deal of expertise to our thinking and in evolving how we modify 
our rules to make this place function a little better. I thank Senator 
Merkley for his leadership. A lot of what was in the measure that 
Senator Udall sent to the desk earlier today is what Senator Merkley 
has devised. These are things we need to do.
  I ask again to bring this up here for maybe a brief discussion, if I 
might. This is something Senator Cornyn and I got into a little bit 
earlier. He went on at length about building consensus; that we want to 
build consensus and have bills over here with a consensus. Well, I 
agree with that. You try to get as much consensus as possible. 
Obviously, if you can get 100 Senators, that is nice--or 80 or 70. It 
is always nice to get as many as possible. I ask my friends, isn't it 
sometimes true that legislation comes up that can be contentious, and 
you can open it--I think it ought to be opened in the committee process 
for amendments. I pointed to the health care bill that we had in our 
HELP Committee, and the occupant of the chair was so vitally involved 
with that. We had 54 hours and 13 days of open markup and open session. 
No Senator was denied the opportunity to offer any amendment on that 
bill--Republicans or Democrats. Senator Dodd was chairing at the time. 
We adopted 161 Republican amendments. Imagine that, over 13 days, 161 
Republican amendments. As I said, nobody was cut off.
  Yet at end of that, when we finally brought it up for a vote, not one 
Republican voted for it, even though they had a big hand in shaping it. 
So whenever I hear comments that ``we didn't have a hand in shaping the 
health care bill,'' I don't understand that. I know in the Finance 
Committee Senator Baucus bent over backward to make sure Senators on 
both sides could offer

[[Page 48]]

amendments and be a part of the process. I say, if they don't want to 
vote for it in the end, fine; that is their right and privilege. People 
can vote their conscience and on behalf of their constituents. But we 
weren't able to get a consensus on it.
  So if you have a bill on which you can't get a consensus, does that 
mean we should stop? As I asked the Senator from Texas, does that mean 
every bill has to have 60 votes? Is that what we have become--no bill 
will pass here unless it has 60 votes or more? The Senator from Texas 
pointed out, correctly, that some bills pass here by unanimous consent. 
Fine. That is 100 votes. So do they mean we have to have a minimum of 
60 to 100 votes in order for anything to pass? What happened to 
majority rules? What happened to the idea that you only need 51 
percent? Isn't that sort of the basis of a democratic government?
  Again, I ask my friends about this idea of consensus. Yes, we all 
want to get that. We all want as many Senators as possible on 
legislation, and we try hard to do that. But if that is not possible, 
does that mean that 53 or 54 or 55 or 56 Senators cannot then vote to 
pass a piece of legislation or an amendment?
  I ask my friends, what about this idea of consensus? Have we come to 
where we have to have a supermajority? Is that the situation we are in 
now?
  Mr. UDALL of New Mexico. The Senator from Iowa and my good friend, 
the Senator from Oregon, want to speak. The Senator mentioned--and I 
want to put this quote in the Record--the Senator from Texas, Mr. 
Cornyn, who came to the floor and talked today. One of the reasons I 
have a real belief that we might have some common ground is he was a 
judge before he came to the Senate. I think he was on the supreme court 
in the State of Texas. On this issue of the constitutional option, he 
wrote a law review article in the Harvard Journal of Law and Public 
Policy. The name of the article was ``Our Broken Judicial Confirmation 
Process and the Need for Filibuster Reform.''
  Listen to this. This is Senator John Cornyn of Texas:

       Just as one Congress cannot enact a law that a subsequent 
     Congress could not amend by majority vote, one Senate cannot 
     enact a rule that a subsequent Senate could not amend by 
     majority vote. Such power, after all, would violate the 
     general common law principle that one parliament cannot bind 
     another.

  He is basically driving home the point that we have the authority 
today, on the first day of the 112th Congress, the first legislative 
day, to pull together and take a hard look at the rules. The Senator 
from Iowa raised a very important issue on consensus. I am going to 
pass this off to Senator Merkley in this colloquy and let him answer 
that point. Maybe he may have another question.
  I wish our friends on the other side of the aisle were here for this 
discussion. Senator Alexander was here earlier. We had Senator Wicker. 
But nobody is here to answer the questions we are putting that way, but 
we are answering the ones this way.
  Mr. HARKIN. Mr. President, hopefully, I say to my friend from New 
Mexico, when we come back on the 25th we will engage in more of this 
discussion.
  I should yield the floor. I wanted to raise that question about 
consensus because it sounds so good, and we all love consensus. Of 
course we do. But sometimes we cannot get it. Does that mean then that 
the majority cannot act if they do not get consensus of over 60? Does 
that mean the majority simply cannot act?
  Mr. President, I leave the question hanging and yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, continuing the conversation, my colleague 
from New Mexico pointed out the challenge with authorization bills. We 
should add to that, during 2010, the Senate did not manage to pass a 
single appropriations bill. It is dysfunction on top of dysfunction. 
That is why we are here today.
  I put back up the chart of Jimmy Stewart in the well because I think 
at the heart of this conversation is a notion that, yes, every Senator 
should be able to hold forth, to share their idea, to advocate that in 
which they believe, to persuade their colleagues, but not to simply 
lodge an objection and walk away and never present their case before 
the American people.
  Our good colleague from Tennessee said he wanted to see--how did he 
put it?--something to the effect of a ``talking your heads off'' form 
of filibuster, and he referred to Jimmy Stewart.
  There is a sense of commonality in our views that if one is going to 
vote to continue debate, then the debate should continue--it is that 
simple--so the citizens can see if you have a case to make that makes 
sense, and they can weigh in and help turn the tide in the direction of 
the Senator, or that you have no case to make and they want you to sit 
down and have the Senate get on with its business. That is simple.
  There are many ideas for much more radical steps--steps in which we 
would proceed to say, yes, we will do something different. We will 
eliminate the filibuster. But that is not the proposal I am speaking to 
today. It is not the proposal to which many of us are speaking. We are 
saying, yes, you can keep speaking, but you have to speak. You cannot 
go on vacation. You cannot hide from the American people. You cannot 
object and hide. That is not in the tradition of the Senate.
  There is a Wall Street Journal article that came out yesterday. I am 
not sure if it was an editorial or an op-ed, so I will not attribute it 
to anyone specifically. But it said there is no chance for filibuster 
reform to address the filibusters on legislation because the Democrats 
will not want to imperil their ability to obstruct the Republicans when 
the Republicans are in power someday.
  Here we are, we are Democrats, and we are saying we are talking about 
rules that we have placed against the test of whether we can support 
these rules, whether in the majority or in the minority. The proposal 
we signed onto today--the five reforms we have laid out--we have run 
through the test of saying: Will this meet a fairness standard? Would 
this be fair if we were in the minority?
  One of the proposals is to make sure the minority and the majority 
get to have amendments. That is a valuable protection for whichever 
party is in the minority.
  Another piece of it is to say, yes, the filibuster can still be used. 
But you have to invest time and energy and make your case before the 
American people.
  We have believed we can live with that in the minority. If we are 
going to obstruct the Senate, we are willing to take this floor. We are 
willing to make our case. But we are saying a Senator should not be 
able to obstruct and hide. They should not be able to engage in the 
silent, the secret filibuster but should have to have the talking 
filibuster.
  I applaud my colleague from Iowa, my colleague from New Mexico, and 
my colleagues who are about to speak--Senator Mark Udall from 
Colorado--and say we have a couple weeks now in America to have a 
debate on the dysfunction and brokenness of the Senate. We are asking 
the American public to engage, to call your Senators, to share your 
concerns about a Senate that cannot do authorizations, that has not 
done appropriations, that leaves hundreds of House bills on the floor, 
and that cannot fulfill its constitutional responsibility to advise and 
consent on nominations, thereby undermining our other two branches of 
government.
  This has to be addressed. That is why we are here.
  The PRESIDING OFFICER (Mr. Manchin). The Senator from Iowa.
  Mr. HARKIN. Mr. President, I thank the Senator from Oregon for his 
leadership. I want to rephrase my question that I left hanging when I 
yielded the floor the last time. I see our great friend from New York 
is here to speak. I will not take more than a minute or two. I want to 
rephrase the question.
  I asked the question: What has the filibuster become? And I further 
asked a question about consensus. If you do

[[Page 49]]

not get a consensus--that is, over 60 people--to agree on something, 
should then the majority not have the right to act? I want to rephrase 
that question and put it this way: If consensus--meaning over 60 
Senators--if over 60 Senators cannot agree on something, then should 
the minority have the absolute total veto power over what the majority 
is proposing? That is the essence of it. If you cannot get a consensus, 
should the minority have the total, absolute power to determine the 
outcome?
  That is what has happened in the Senate. That is what has become of 
this filibuster. The end result has become the fact that 41 Senators--
if you do not have 60 Senators or more--41 Senators decide what we do, 
what we vote on, what comes before this body. How does that square with 
the principle of democratic government and majority rule?
  I leave that out there: Should we have and continue to have, if we 
cannot reach a consensus, should we continue to have veto power by the 
minority?
  I also see the Senator from Colorado here to speak.
  I also want to publicly thank the Senator from New York who I see is 
about ready to speak, the chairman of our Rules Committee. Senator 
Schumer has spent so many hours and so many days this past year on this 
issue of reforming the Senate rules. He was kind enough to let me 
testify before his committee and kind enough to actually let me sit 
with his committee to listen to others.
  Senator Schumer has been in harness on this issue trying to get us to 
the point where we can have meaningful changes in the rules so that 
this place can function a little bit better and a little bit more 
democratically--with a small ``d,'' not democratically in terms of 
political affiliation.
  I know in the next few weeks Senator Schumer is going to be very much 
involved as one on our leadership team, along with Senator Reid and 
others, seeing what we can do to work things out so we can have a 
meaningful change in the rules.
  Again, I am all for getting rid of secret holds, but that seems to be 
kind of a no-brainer. That would probably get close to 100 votes. But 
if that is all we are going to do, that is not a very meaningful change 
in the rules.
  I submit that what Senator Udall, Senator Merkley, and others have 
introduced, or I submitted myself going on for 15 years now, that is 
meaningful change in the rules. I know Senator Schumer is going to be 
very much involved in that discussion. I applaud him for his efforts 
and leadership. We will be back on January 25 to take up this cause 
again. I know I speak for my friend from Oregon that he is going to be 
here on the 25th, and my friend from New Mexico and everyone else. We 
are going to be here because we cannot let this go. We cannot permit 
the Senate to be so dysfunctional that we cannot respond to the urgent 
needs of America and our place in the world today. We cannot continue 
to go downhill as a country and cannot continue to let the Senate be a 
dumping ground and nothing ever gets done.
  These rules need to be changed. We will be back on the 25th to do so. 
I thank my friend from Colorado for his indulgence.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. UDALL of Colorado. Mr. President, I ask unanimous consent that 
Senator Schumer be recognized after me for up to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. UDALL of Colorado. Mr. President, before I speak on the matter 
today, which the group of Senators today so eloquently and powerfully 
outlined for all of us, I want to acknowledge that the 111th Congress 
was one of the most productive in history. Legislation we passed will 
make real changes for American families who are struggling through a 
tough economy, as the Presiding Officer knows, and with rising health 
care costs. What we did also will make our military and Nation safe and 
stronger. We should be proud of the work we accomplished in the 
previous Congress.
  But I have to also say that the last 2 years was a time of 
unprecedented obstruction and partisanship. If you do not want to take 
my word for it, you do not have to go very far to listen to many 
impartial observers of the Congress who will tell you that it was 
exactly the case.
  I rise today to add my voice to the growing number of Coloradans and 
Members of the Senate who are deeply concerned about the gridlock that 
at times has paralyzed our Chamber and prevented meaningful debate.
  Many of us read with dismay an article by George Packer in the New 
Yorker magazine several months ago, which detailed examples of Senate 
dysfunction.
  Americans from both political parties--and Independents as well--have 
asked whether the rules of the Senate are working to help solve these 
problems that face us. Some of my colleagues have understandably sought 
to change or eliminate the filibuster to make it easier to pass 
important legislation supported by a majority of Senators.
  I come to this debate from a somewhat different perspective than my 
colleagues. I come to this debate with this guiding principle; that is, 
any attempt to limit the power of the minority by eliminating or 
weakening the ability to filibuster will simply lead to a further 
breakdown in what is already a fractured partisan relationship.
  While I share much of the frustration expressed by many of our 
colleagues, I believe we must be thoughtful about how we approach 
changes to the Senate rules.
  Several years ago, Minister Robert Fulghum had everyone using the 
phrase, ``everything I need to know I learned in kindergarten.'' His 
essays made the point that the simple rules we teach children about 
getting along, about being kind to one another, about cleaning up after 
ourselves apply throughout life.
  On one level, you could boil down the debate we are engaging in this 
week and say what we need are rules that will help us get along better 
in the Senate's sandbox, and we need to talk with each other more and 
we need to listen even more than we talk. Why? Because the 
consequences, if we cannot find a way to work together, are extremely 
serious.
  No problem we face is more troubling or urgent than our economic 
future. Our unemployment rate is still above 9 percent, and it is much 
higher in some regions of the country. Home foreclosures are still 
expected to rise. Even more troubling is this fact: Americans are less 
optimistic about their economic prospects than they were during the 
Great Depression. That is a very serious situation.
  On top of those grim statistics, we face a massive budget deficit and 
a crippling debt that not only threaten our long-term economic 
stability but darken the horizon in a way that discourages investment 
and innovation that we need to spur American job creation today.
  Moreover, our apparent inability to squarely address the problem in a 
partisan way is a signal to the American people--as if they need 
further proof--that their institutions of government are not working. 
And that, in my opinion, is as dangerous as any attack on our country.
  Many have remarked that it is past time to have a serious discussion 
about how to turn our economic situation around. I have faith we can do 
that, but only if we are able to set aside the ideological differences 
that have sidetracked our politics, and frankly our policymaking, up to 
now.
  We can't reach the level of bipartisan cooperation we need in this 
body if we prevent substantive debate and cut off the rights of the 
minority. But neither can we make necessary progress if Members of the 
Senate continue to be able to use technical loopholes and procedural 
gymnastics to hijack the Senate--literally--for days and, in some cases 
weeks at a time.
  That is why today's debate--so ably led by colleagues from across the 
country--is more than just an esoteric debate about the Senate's rules. 
It is a critical turning point, and it is why today I am again 
introducing a resolution which I believe can help reduce

[[Page 50]]

the opportunity for gridlock while also encouraging both sides to work 
together on the most important issues we face in our Nation.
  I developed this proposal after listening to and talking with experts 
on Senate procedure from both sides of the aisle, including the noted 
congressional scholar Norm Ornstein of the Conservative American 
Enterprise Institute.
  In a nutshell, I propose that by eliminating unnecessary 
opportunities for delay--without making changes that would jam through 
legislation at the expense of the minority party--we can improve the 
way the Senate works and make it more effective and fairer for the 
American people.
  If I might, I want to make a couple of comments on some of the 
specifics of what I am proposing, similar to what the Senators from 
Oregon, New Mexico, Iowa, and others have put on the table.
  I would first level the playing fields between the majority and the 
minority on cloture votes and require Senators actually vote in 
opposition to the bill they are filibustering. Currently, cloture is 
invoked when three-fifths of the Chamber votes yes, so staying home is 
the same as voting no, and Members can simply threaten to filibuster 
and skip town with no recourse.
  My proposal would require that Senators show up, debate, and actually 
vote against a bill if they are conducting a filibuster, by changing 
the rules to invoke cloture not on three-fifths of the Chamber but 
invoking cloture when three-fifths of those voting to end debate create 
an incentive to actually have a meaningful discussion. If Members don't 
show, the threshold is lowered accordingly--three-fifths of 90 is 54 
votes to end debate, three-fifths of 80 is 48 votes to cut off a 
filibuster, and so on.
  Second, I would reduce the number of votes required in debate on a 
single bill. The Senate rules now allow for a filibuster on a motion to 
proceed to a bill, a substitute amendment to a bill, final passage 
after we have already overcome a filibuster on the exact same text--and 
the list continues. There are three separate opportunities to 
filibuster before sending a bill to a conference committee. My proposal 
would eliminate all these opportunities to filibuster except for final 
passage.
  Third, I would shorten the timeframe required to invoke cloture. I 
would propose we vote 24 hours after cloture is filed, instead of 
waiting 2 days, as is required today. I would also allow the 30 hours 
of postcloture debate to be split between the parties, to avoid 
needless delays. In total, we could shorten the time required for 
cloture by nearly 40 hours for a single cloture motion.
  Fourth, I would end the requirement that amendments be read in their 
entirety if they have been made available on line at least 24 hours in 
advance.
  Fifth, I would end the requirement that Senate committees seek 
consent to meet.
  Sixth, after I propose that we change the rules to move more quickly 
on judicial nominations--allowing a final vote immediately after 
cloture is invoked on a nomination.
  Finally, I would provide a way to call up an amendment when a 
majority leader has filled the amendment tree.
  The Senate is famous for great debates and a free amendment process. 
But in recent years the process of presenting amendments has frequently 
been shut off by the majority party. So my proposal would, on a limited 
basis, give Senators the opportunity to present their amendments when 
they are otherwise being blocked from doing so.
  The Senate has been called the world's greatest deliberative body. 
But what happens if we don't deliberate? I am afraid we risk turning 
the Senate into an extension of the 24-hour political spin cycle, which 
seeks to separate us rather than allowing us to work out solutions to 
the problems we face.
  Every day, proud Americans come to our Capitol hoping to watch 
debates such as those of years past. Many are increasingly dismayed to 
see a small number of Senators, such as those here today, debating 
among themselves in an empty Chamber. We don't even require Senators to 
attend their own filibusters--no ``Mr. Smith Goes to Washington,'' no 
actual debate.
  I want the Senate to work the way Americans envision it does--where 
Members discuss their differences, cooperate, vote on amendments, and 
improve legislation for the good of the country.
  With that in mind, I hope our colleagues will join me to seize the 
opportunity we have before us. Let's work together to improve the way 
the Senate operates. I want to extend my hand to the Republicans to ask 
for ideas in how we can improve the way the Senate operates. I want to 
work with anybody, as I think all my colleagues do, to solve these 
problems in front of us. We have a responsibility to work together to 
bring about the cooperation and the problem solving Americans expect 
and deserve.
  Mr. President, I appreciate your attention, I appreciate the 
important work all my colleagues have undertaken, and I look forward to 
working with the 99 other Members of the Senate to make the Senate a 
Senate we know and love and believe is the greatest deliberative body 
in the world.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I wish to talk a little about the issue 
we have been discussing, and first let me congratulate my colleagues 
who have been on the floor on this issue, particularly the Senator from 
New Mexico, Senator Udall; the Senator from Oregon, Senator Merkley; 
the Senator from Colorado, also named Udall; and the Senator from Iowa, 
Senator Harkin; and many others who have participated in this debate. 
They have done a great job today.
  The other thing I think I appreciated--and Senator Harkin helped do 
this--is there was not just debate, there was actual discussion, even 
when we didn't agree. I thought it was pretty interesting watching on 
the TV in my office when Senator Roberts came and stood by a desk here 
on the Democratic side, a desk away from Senator Harkin, and they 
didn't agree on the issues but they debated the issues. What a great 
first-step metaphor for the kind of debates we want to have here on the 
Senate floor. So this has been a very positive and hopefully prescient 
opening of the debate to change the rules because we all know that in 
the last Congress the Senate didn't function effectively and the time 
for change has come. I want to salute the leaders, as well as Senator 
Klobuchar, Senator Franken, Senator Lautenberg, and so many others, who 
have been so involved in our discussion and for the work they have 
done.
  I also want to say to my colleagues this is not something that has 
just happened recently. This idea that all of a sudden this has popped 
up in the Senate is wrong. Last year, the Rules Committee--and I was 
urged by Senator Udall to do this among the first days of the session 2 
years ago, and I think we did a pretty extensive and good job--held six 
hearings that examined the history of the filibuster, trends in the use 
of the filibuster, secret holds, stalled nominations, and proposals for 
change. In those hearings, we heard from Senators from both parties who 
have valuable ideas about the need to reform the filibuster. Senators 
Harkin, Lautenberg, Wyden, Grassley, Udall, Udall, McCaskill, Gregg, 
and Bennet all testified at the hearings. We also brought former 
Senators of both parties, scholars, and former Senate staff of both 
parties to come and testify.
  In the first half of the 20th century, filibusters and filibuster 
threats were relatively rare events. That has been documented already, 
and our hearings documented it extensively. But since that time, the 
number has continued to dramatically increase. When you face an average 
of two cloture motions per week--which is what has happened currently--
then we know there is a problem, and it is no mystery that the Senate 
has been labeled as ``dysfunctional.''
  Between 1917 and 1971, there was an average of one cloture motion 
filed per year. In the 110th and 111th, we had more than 70 cloture 
motions. These cloture motion counts are a response

[[Page 51]]

to the filibuster, and it is distorting the way the Senate does 
business.
  For the legislative branch, hundreds of bills passed by the House in 
the 111th Congress were not considered, even though they had passed the 
House by voice vote or with a majority of House Republicans voting yes. 
The Senate is supposed to be a cooling saucer, not an ice box.
  In the executive branch and the judiciary, dozens of judicial 
appointments were delayed or blocked from floor consideration for 
months and months in the last Congress. Many of these were approved 
unanimously by both Democrats and Republicans in committee, yet sat on 
the Executive Calendar for months because of secret holds. This is 
dangerous at a time when we need a Federal Government using all its 
resources to fight terrorism, protect our country, and address our 
economic needs.
  I salute Senators Wyden, McCaskill, and Grassley for focusing our 
attention on this issue. It is important to end anonymous or secret 
holds and shine some light on the kinds of long-term delays that can 
hold up a nomination or a bill for weeks or months or even longer.
  Also, during the fiscal year 2010, half of all nondefense spending--
$290 billion--was appropriated without legal authority because Congress 
hadn't reauthorized the programs. The unprecedented threat of a 
filibuster--not even the actual use of the filibuster--has prevented 
debate with such frequency that extended deliberation is a dying 
commodity. Make no mistake about it, the everyday threat of the 
filibuster does not ensure debate, it restricts it.
  Reforming the rules in a thoughtful way would clear the way for more 
legislating, not less. Filibusters provide a minority of Senators a way 
to make their voices heard, but they should not provide a way for a 
minority of Senators or even a single Senator to grind the Senate to a 
halt regardless of whether they are Democrats, Republicans, or 
Independents.
  Reform will engage the American people and reenergize this 
institution. This will not end the filibuster or cut off debate. On the 
contrary, it will pull back the curtain and show the American people 
what we actually believe and what our deliberations are really about.
  There have been many ideas for reform presented by my colleagues that 
are worthy of discussion. The Senator from New Jersey, Mr. Lautenberg, 
testified before the Rules Committee about his plan, which he called 
the ``Mr. Smith Goes to Washington'' proposal. Senator Merkley, Senator 
Udall, and others have developed their own versions of this important 
concept, which I call the talking filibuster. This talking filibuster 
idea would require filibustering Senators to keep speaking on the floor 
after cloture fails, to show clearly their wish to continue debate and 
to allow them to talk for as long as they wish.
  Currently, the only evidence that a Senator is facing a filibuster is 
the vote on cloture. The Senate floor has evolved into a place where 
the majority assumes that each bill will be opposed and that little 
actual debate will occur on legislation. The rules require a vote of 
three-fifths of the Senators chosen and sworn to end debate on a matter 
or measure. The very question that is posed to the Senate in a cloture 
vote is, Is it the sense of the Senate that debate should be brought to 
a close? Those are the words. If it turns out that enough Senators 
answer that question: No, we want more debate, then those Senators 
should actually be required to debate. It is difficult to explain to 
the American people that the Senators who voted for additional debate 
are silent when then given that opportunity. If they want to debate, 
well, then let's debate.
  One way we can guarantee fair and meaningful debate after Senators 
vote on cloture to continue debate--and cloture fails--the Senate 
remains on that measure and Senators must actually debate the bill. 
Senators may be recognized one after the other, as long as debate is 
continuous. If no more Senators seek to debate the issue, then the 
majority leader can move to close debate.
  Obviously, there are technical things that have to be worked out--and 
we are working hard to do that--to make sure this proposal works and is 
viable. In the past, attempts at debate have been frustrated by quorum 
calls or unnecessary motions, all aimed at avoiding actual debate. If 
we change the rules to encourage extended debate after cloture fails, 
then the priority during this period will be to either debate the 
matter or move forward and not play parliamentary games. The American 
people deserve better of their elected officials than what the Senate 
has been giving them. Governing is not a game of charades.
  The majority will not choose to waste floor time on a matter the 
minority is committed to stop. But will the minority choose to 
filibuster every single piece of legislation if actual debate is 
required? I don't think so.
  That would apply whether Republicans are in the majority or Democrats 
are in the majority.
  In addition to the other worthy options proposed for reform, I think 
this proposal is strong because it allows the minority the same ability 
to debate and block legislation--so long as they actually debate. If 
there is no actual debate, there can be no filibuster, and the Senate 
can proceed to do its business for the American people.
  I believe this modest proposal is one on which both Democrats and 
Republicans should agree. It could be a point of bipartisan agreement, 
and I will present it in the bipartisan negotiations happening over the 
next few weeks.
  Of course there are other good-faith proposals that my colleagues 
have put forward. Many of them are thoughtful. Most all of them would 
represent meaningful change without altering in a too jarring way the 
rules of this institution. Nobody wants us to become the House of 
Representatives. Everyone understands that we should not rule simply by 
majority vote on every issue. However, we can pull the curtain back and 
make sure that when people say they want more debate, they debate.
  In the next 2 weeks, we should look at these proposals--all of them. 
During the recess, we need to talk to each other, Democrats and 
Republicans, about genuine ways to reform this body, to restore the 
Senate to its traditional role as the world's greatest deliberative 
body, and to do so in a way that encourages full and open debate--both 
for the majority which proposes and for the minority which wishes to 
modify what the majority proposes.
  I believe we owe it to the American people to reform the Senate so it 
functions in a way that best represents their interests.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, first, let me thank the Senator from 
New York for his very distinguished leadership of the Rules Committee 
and for the very open and thorough way in which he engaged that 
committee on these issues of addressing the filibuster and problems 
that have been caused by its current abuse on the Senate floor. Let me 
also thank Senators Udall and Merkley, who worked so hard to organize 
this and who have put together what I think is a very good proposal.
  At the outset of my remarks, I ask unanimous consent that I be added 
as a cosponsor to the rules resolution that is here, at this point.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WHITEHOUSE. The distinguished Senator from Oregon, Mr. Merkley, 
showed a photograph a little while ago of Jimmy Stewart in ``Mr. Smith 
Goes to Washington.'' That has become the sort of emblematic, signature 
demonstration of the American Senate filibuster.
  There is a scene in that movie that I am sure the Senator is familiar 
with where a reporter is up in the galleries and is describing the 
action down here on the Senate floor, is describing Jimmy Stewart--the 
Senator he represents engaging in the filibuster. The reporter 
describes the filibuster as ``democracy's finest show . . . the right 
to talk your head off . . . the American privilege of free speech in 
its most dramatic form . . . one lone and single

[[Page 52]]

American holding the greatest floor in the land . . . bleary-eyed, 
voice gone.'' That is what we think of when we think of the traditional 
Senate filibuster. In those days, you stood up and you filibustered 
against a bill because you were opposed to it, because you hated it, 
because on principle you wanted to stand and fight against it. That was 
the old filibuster.
  Now when this Chamber is engaged in a filibuster, how does the 
American public know? When they are watching this floor on C-SPAN and 
they are looking for a filibuster, they don't see democracy's finest 
show, they don't see anybody talking their head off, they don't see the 
American privilege of free speech in its most dramatic form. What they 
see is a droning, tedious quorum call as the parliamentary staff read 
off, one by one, the names of Senators who are not present, and this 
Chamber stands useless during that period. Why is that? Partly it is 
because when Jimmy Stewart was undertaking his filibuster, he was 
exercising the right of an individual Senator to take this floor and to 
hold it and to speak. What is different is that when it is filibuster 
by party rather than filibuster by one individual Senator, then there 
is a whole array of procedural mechanisms the minority party has to 
provoke the majority leader to file for cloture.
  Cloture is the filing that allows the majority leader to bring debate 
to a conclusion and to limit amendments. When cloture is filed, then 
there is 30 hours mandatory for debate. What has happened here is that 
the 30 hours mandatory for debate has become the prize, has become the 
goal of the modern filibuster. That explains why we are no longer 
filibustering bills we are opposed to when we are in the minority. The 
minority actually filibusters bills their Members support. They 
filibuster nominees who get voted through unanimously when the vote is 
finally held.
  What is the filibuster about? It is about forcing cloture and forcing 
those 30-hour increments of time to be burned up. If you are 
filibustering the bill itself and you are filibustering the motion to 
proceed, you have a dual filibuster, and if you are filibustering 
amendments, you can load on an awful lot of 30-hour periods to the 
Senate floor and you can prevent anything from being done in those 30-
hour periods just by sitting back and doing nothing and objecting when 
the majority party tries to move to the vote. All it takes is one 
person waiting in the cloakroom for the minority to force that 30-hour 
period to run. If you stacked up dozens and dozens of 30-hour periods, 
what you do is you take up the entire time available to the Senate and 
you impede this institution in its ability to get its work done.
  That is what we are doing right now. That is why I think it is so 
important that the changes we are recommending restore the Senate to 
the traditional filibuster. We do it in two ways. First of all, if 
these rule changes pass, you will not get to filibuster the motion to 
proceed to the bill and then get to filibuster all over again on the 
bill and double the filibuster. If you really care about the bill, if 
you are really opposed to the bill, if you really hate the bill, you 
can come and talk your head off, but you don't get to do it twice--once 
on a pure parliamentary measure. That will cut down some of the wasted 
time, some of these droning hours that you watch on C-SPAN with nothing 
happening in the Senate and the time being wasted, locked in the 
filibuster.
  There is another rules change that I believe is important. The 30-
hour period is called the period for debate. What this rule change 
would do is, when the debate stops, the 30-hour period stops. Whoever 
is presiding would simply note that there is no longer debate and would 
call the vote. You can still debate the whole 30 hours if you want to 
come here and debate, but when the talking stops, you vote. You are not 
in a position where you can commandeer 30 hours of Senate time, force 
the Senate into quorum calls, and defend against going to the vote with 
one lone Senator back in the cloakroom, able to come out and object 
whenever the majority tries to move the Senate to a vote and get the 
Senate back in its business again.
  These are two simple repairs to the cloture rule that will make it 
less of a prize for the minority, that will prevent us from spending 
all these 30-hour increments droning away in 30-hour filibuster quorum 
calls, and put the Senate back to where it should be--the great chamber 
of debate where people actually have to come to the floor, say their 
piece, and when they are done, we go on to the next piece of work.
  I commend everybody who has worked on this. I think it is a very 
valuable step we are taking. I don't think it is a change away from the 
traditions of the Senate; I see it as returning to the real traditions 
of the Senate, of real debate, not just wasting time for wasting time's 
sake but allowing the Senate to be productive while also allowing 
Members who have opposition to a bill to state it as forthrightly as 
they wish, to engage in, as the reporter said in ``Mr. Smith Goes to 
Washington,'' democracy's finest show, the right to talk your head off, 
the American privilege of free speech in its most dramatic form.
  I thank all Senators present for entertaining my thoughts.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. First, I wish to say I am so pleased to be with 
colleagues who are standing up for activity on behalf of the citizens, 
the constituents we represent, to get things done.
  I doubt many of us would be happy with a report card we got in either 
high school or college or whatever education we got beyond that--I 
doubt we would be proud of any report card that resembles that which we 
have obtained in this facility, in this great house of debate, in this 
distinguished body of legislators, one of the most prominent--the most 
prominent--let me qualify that--legislative body across the world and 
the envy of so many who think the United States is still one great 
country.
  We want to do the right thing. But here what has happened, we find 
ourselves in a morass of dilatory activities, things that do nothing 
but stop progress, and that is the mission we see. I congratulate my 
colleagues who have taken hold here to make sure we do whatever we can 
to change the facility.
  I have here my picture of Jimmy Stewart, ``Mr. Smith.'' While I am 
not anxious to admit it, I do, I remember seeing the picture. We need 
not discuss the precise date, but it was some time ago when I saw this, 
and it left a vivid impression in my mind. But I cannot tell you what 
it was about, except that he was one trouper, that he stood on his 
feet, so many hours it is hard to understand how the body responded to 
the opportunity, trying to clean things up.
  The date of the film was somewhere around the end of the 1930s, 1939, 
most likely. That was not the exact date, but in that vicinity. Even 
then, they were discussing what could be done to move things along and 
how the kind of effort he gave as Mr. Smith was required to honor the 
people, the responsibility he had to the people.
  So we know what kind of report card the legislators here and in the 
House have gotten from the American people because they are sick and 
tired of seeing all this empty space, listening to words I could 
describe more in the vernacular as gobbledygook-gook, not understanding 
what is going on but knowing very well that nothing is happening that 
is benefiting them.
  So when we see this low public opinion from Americans all across the 
country, it is because they do not believe we are getting things done 
that they sent us here for. Each one of us who has been elected, I do 
not care how popular or how remote, the fact is, you had to work hard 
to get elected and so proud--and I look today, as I saw person after 
person hold up their hand to take the oath. I have done it five times 
here and each time was a thrill. Even as I watched colleagues walk up 
there and heard their names called and saw them raise their hand, and 
to feel the pride they felt, I do not care Republican or Democrat, to 
feel the pride

[[Page 53]]

they felt, to be able to take this job on their hands, to get the 
support of the public in their States, enough to win an election, and 
then we show the public a lack of activity.
  We have been through discussions, speeches made earlier, good ones, 
describing the number of times the filibuster has been used. If I might 
ask the majority whip, is it the record number of filibusters ever in 
the history of the Senate? The Senator from Illinois confirms that. 
Here we are, and the need has never been greater to get something done 
to let the American people know their government is there to help them 
through a crisis, to help them regain their jobs and regain their pride 
in themselves.
  Make no mistake about it; the absence of progress in the Senate 
promotes bitterness and anger among the American people. Make no 
mistake; an empty Senate Chamber is no way to respond to the public's 
needs. All too often this is what happened because the minority now has 
simply been abusing Senate rules. They can do it. But it is an abuse of 
the process.
  Last year we were locked in a constant struggle to help jobless 
Americans. Several times we attempted to bring legislation to the floor 
to extend unemployment benefits for millions of people who had no other 
source of income, who were in jeopardy of losing their homes and losing 
their opportunity to care for their families and being personally 
humiliated and disgraced about that and we could not get an agreement 
to pass an unemployment benefits bill until it was included with other 
legislation that had to pass.
  Back in June, 59 Senators wanted to restore aid for those workers who 
had gone without income for weeks. Our colleagues on the other side of 
the aisle objected and delayed the vote, then left town for a week-long 
break. By the way, I keep on reminding those hearing me that this is 
under the disguise of a filibuster, a legal process that is permitted 
by the Senate rules to be engaged in when there is a disagreement about 
a piece of legislation or a process that has to take place.
  We left more than 1 million Americans in limbo for several agonizing 
weeks. Our opponents said they were simply filibustering the bill. In 
other words, they wanted to talk more about the substance. But they did 
not want to talk about the substance. They did not want the public to 
hear the truth about their views. But they did not even want to talk on 
the floor. They just left the Senate empty and silent.
  That is why I reintroduced my ``Mr. Smith'' bill. I brought this up 
initially last March. It is almost a year now since I brought Mr. Smith 
back to this Chamber. As we know, the legislation is named for Jimmy 
Stewart's character in the classic movie, ``Mr. Smith Goes to 
Washington.'' Frankly, we now look, the names are different, the 
mission is the same. There are those who want to make progress and 
those who want to do nothing more than delay progress.
  As I said earlier, Mr. Smith wanted to make a point, spoke for 23 
hours. These days, Senators simply object to the proceeding, walk away, 
and leave an empty Chamber behind. How are we supposed to create jobs 
in an empty Chamber? How are we supposed to increase educational 
opportunities in an empty Chamber? How are we supposed to help keep 
people in their homes in an empty Chamber?
  The ``Mr. Smith'' Act will bring deliberations back to purportedly 
the world's greatest deliberative body. It will make lawmaking more 
transparent and Senators more accountable. Members of this body will no 
longer be able, if we pass this rule change, to be able to launch a 
filibuster and then skip town, leaving the Senate in a stalemate.
  If you have the courage, stand and explain to the American people why 
you are objecting to things that can help the average family. This is 
still a recession. Yes, there are a lot of people at the top making 
lots and lots of money. We have seen it in the newspapers. We have seen 
the list of billionaires who make that much money in a single year. But 
we do not see the same pictures of people who are forlorn because they 
cannot help themselves, and they look to the government to be there 
with them.
  I know from personal experience that my life changed radically when I 
got out of the Army and was afforded the GI bill. My father died after 
I enlisted. My mother was a 37-year-old widow. My father was sick for 
13 months with cancer. At the time, there were not the products that 
make pain less acute or that provide more help for recovery. It was not 
there.
  So we had not only the loss of a father--I had joined the Army. When 
I was 18 years old, I enlisted--we had bills and bankruptcy and life 
was miserable. The GI bill made the difference in my life. I was able 
to join two other people in my home city, friends of mine, in creating 
a company, three of us.
  Now it employes 45,000 people. The company is called Automatic Data 
Processing, better known as ADP, because I got help when we desperately 
needed it, when my family and I could never think about my going to 
college. I wound up going to Columbia University, something so far out 
of sight I never dreamed it was possible. But it was there. There are 
times when people across the country say to our leadership: Please, 
give us a chance. Give us a chance to stay in our home. Give us a 
chance to educate my son and my daughter. They can learn. We do not 
have the money.
  Make sure health care is available, that no matter what your 
condition of being is, you cannot be precluded from getting insurance. 
That is what is proposed in the health care bill that right now is in 
danger of being repealed, if the House takes the action as purported.
  So what we are talking about, to summarize, is that we have to get 
busy and show the people across the country that this is not just a 
ring for showing how clever a speech can be or cute an idea might be, 
when all that is being done is stopping progress. Progress. They object 
to bills being even moved along so they can be considered--anything 
they can do to obstruct movement.
  So we may be unable to bring Mr. Smith back, but we can write real 
accountability for filibusters and for the sake of a functioning 
democracy--more than a functioning democracy, a degree of dignity and 
hope for people who have been hurt by an unemployment record never 
before seen in the country, with the number of people out of work in 
the multiple millions, and they say: Mr. Senator, help us. Be there to 
help us now. We are not looking for charity. We are looking for a hand 
that will get us started, get this economy going. We owe it to them.
  I say to those who want to obstruct it, be brave enough to stand and 
tell the people here or the people on television or those who read 
about what we are doing, tell them why it is you are objecting, and 
then we will restore a degree of confidence in those who serve here, 
those who work so hard to be elected, and those who can represent the 
people well.
  But we cannot sit in silence, just wasting time. I hope we will come 
to our senses, make the changes in the rules that will stop the 
filibuster from being a disguise for inaction.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Merkley.) The Senator from Illinois.
  Mr. DURBIN. Mr. President, I rise to speak to the issue which has 
been considered on the floor today by my colleagues. I thank, 
especially, the Senators from Utah, Oregon, and Colorado, as well as 
many others, for their leadership in discussing the procedures of the 
Senate.
  When I went home over the break, I spent my time back in Illinois 
with my wife in my hometown of Springfield and a lot of time around the 
house and a lot of things had to be considered. I left the decisions of 
war and peace behind in Washington, DC, and went home to face the real 
decisions: Are we going to change our cable TV service? Are we paying 
too much for the Internet? Things that my wife finally put in front of 
me and said: We need some decisions here.
  As I considered those weighty decisions, particularly when it came to

[[Page 54]]

cable television and what we would receive in Springfield, I could not 
help but reflect on the fact that, similar to many Americans, we like 
to have C-SPAN so we can follow the House and Senate.
  You may know in West Virginia, as I know in Illinois, there are 
people who are obviously suffering from insomnia who watch C-SPAN all 
the time and find it very restful and sleep inducing.
  If they watch the Senate, it is something else. It is not only sleep 
inducing because of so little activity on the floor of the Senate, it 
is, in fact, an unfair economic situation that someone is paying a 
cable TV bill for C-SPAN covering the Senate when we do so little. They 
ought to get a refund. Families across America are entitled to a refund 
if they tune in to C-SPAN, Senate version, and watch us day after weary 
day, with our delightful and talented staff people slowly reading the 
quorum call and names of the Senators. That is it. If you have watched 
C-SPAN in the Senate for the last several years, you will see that more 
often than not, a lot of people say to me: Senator, why is not anything 
going on in the Senate? When you talk in the Senate, why isn't anybody 
there? Basic questions an average person might ask. They reflect on 
what has happened to the Senate, and that is why we are here with this 
discussion this evening. I thank the Senators who have been involved, 
including Senator Lautenberg.
  One of the things that surprised me when I first came to the Senate, 
I heard this was the world's most deliberative body. This was the place 
to come to debate the big issues. Today when there was a swearing in of 
the Senator from North Carolina, one of his predecessors was here, 
Senator Lauch Faircloth. He was the first Senator I faced off with on 
the floor over an issue when I was elected 14 years ago. It was an 
issue involving tobacco which I had been following pretty closely in my 
congressional career, and he was from the State of North Carolina where 
tobacco is a big issue. He didn't like my amendment, and he came to the 
floor. I was offering my first amendment. There was a lady who worked 
in the Senate named Lula Davis. I had served in the House for 14 years, 
but I didn't quite know the Senate procedures as well.
  I said to her: How much time do I have?
  She said: You have 1 hour.
  I said: Is that equally divided?
  She said: No, Senator, you have 1 hour.
  House Members don't get an hour for anything. Five minutes is the 
usual course, 15 minutes if it is a great deal or if they want to stick 
around until midnight, they might get a special order for an hour.
  Here I was with an hour on the Senate floor to debate my amendment. 
Senator Faircloth sat on the other side. I stumbled through it. I asked 
unanimous consent to allow the time to be equally divided between 
myself and Senator Faircloth so we could debate the amendment. I 
thought that was fairly reasonable. Senator Faircloth said: I object.
  I was stunned. Clearly, here I am with my amendment being as fair as 
can be, and he is not interested in the debate.
  I am not going to pick on him because he reflected the feelings of 
many Senators here: that they are here on the floor to give speeches, 
many of them written by very talented staff people, and then leave the 
floor and go off and do something else. There is very little debate on 
the floor of the Senate, real debate. I could count on one hand the 
times I have in 14 years engaged another colleague in an actual debate 
that went back and forth over the merits of an issue.
  One of the things we are discussing tonight is what to do with the 
rules of the Senate so we engage in more debate--we need it--so that we 
have less time that is being wasted in the Senate, fewer hours that are 
being ticked off a clock to reach 30 hours or whatever it happens to be 
on a cloture motion, and more actual debate so Senators with differing 
points of view can state their points of view and debate them back and 
forth and other Senators can then listen, certainly the public can 
listen and those in the gallery and can decide who has the merits of 
the debate.
  Debate isn't something we should shy away from. It is an important 
part of the Senate that we should value and that we should honor to 
make sure the rules create that opportunity.
  The Presiding Officer from the State of Oregon has suggested, along 
with others, that we have more debate and more votes. I think we 
should. For a time there was this feeling that we had to protect 
Members of the Senate from controversial votes. That is behind a lot of 
the decisionmaking that has taken place and brought us to this moment 
in the history of the Senate.
  Perhaps I have a different view of it. But having been on Capitol 
Hill for a long time in the House and the Senate, I have stacked up 
many controversial votes, tens of thousands of them. It will be fair 
game. For any political opponent ever running against me in the future, 
there is plenty to work with. I don't need to give them something new 
to beat me over the head with. I have plenty of votes in my past. I 
think I can defend them for the most part, and I am prepared to do so. 
I am not afraid of tomorrow's controversial vote. In fact, I think it 
is part of why we are here.
  There was a man who served here many years ago from Oklahoma, Mike 
Synar of Muskogee. He was one of my closest friends. Synar was an 
unusual character in the House. He was one who, faced with the choice 
between taking an easy, noncontroversial way out or a controversial, 
confrontational approach, would always choose the confrontational 
approach. He would walk right into the wall of fire and welcome it 
because he thought it was part of what he was elected to the House to 
do. He used to stand up in the caucuses of House Democrats when they 
would be whining and crying over the thought of facing a controversial 
vote and say to them: What is wrong with you people? If you don't want 
to fight fires, don't become a firefighter. If you don't want to cast 
controversial votes, don't run for the House of Representatives or, in 
this case, the Senate.
  I think the same is true today. Although some of my colleagues face 
tough election campaigns in tougher States than my home State of 
Illinois, the fact is, coming here and casting tough and even 
controversial votes is part of why we were elected and why the people 
expect us to come and face the music on difficult issues.
  Bringing debate back to the floor, bringing more votes to the floor 
certainly is a move in the right direction.
  I say to the Senators from New Mexico, Oregon, and others that their 
proposal that would allow germane amendments as part of the regular 
order of the Senate is a move in the right direction. That way the 
minority and majority get an opportunity to amend a bill. Can it be 
abused? It can. But making these germane and relevant amendments makes 
a difference. I can recall one colleague on the other side of the aisle 
who kept coming to the floor repeatedly, day after day and week after 
week, to offer the same amendment over and over, even when he was 
passing the amendment. Sometimes he would pass it; sometimes he 
wouldn't. But he couldn't help himself. He just had to keep offering it 
over and over. As he offered this amendment, it didn't enhance the 
bill. It didn't enhance the debate. It gave him a chance to put out a 
press release.
  One can abuse that process. So making sure the amendments are limited 
to those that are relevant certainly is a reasonable thing to do.
  Let me say a word about the 60-vote margin. The 60-vote margin, as 
former Vice President Mondale wrote in his guest column recently--I 
believe, in the Washington Post--was a compromise. In days gone by it 
took 67 votes to end a filibuster, to bring cloture. Then in the 1970s, 
Vice President Mondale, then a Senator, joined with others on a 
bipartisan basis and lowered that to 60 votes. But it was still a rare 
and unusual thing to do, to filibuster and need a cloture vote of 60 
votes. Unfortunately, that 60-vote standard has been corrupted into a 
new standard for passage of legislation.

[[Page 55]]

  Allow me to give two examples. We considered a Wall Street reform 
bill. There were dozens of amendments offered. The Senator from Oregon 
had a controversial amendment and waited for days, maybe weeks, for a 
chance for his day on the floor of the Senate. After about 25 
amendments had been offered and considered to the Wall Street reform 
bill with a standard of a majority vote, I had an amendment relative to 
interchange fees on debit cards, a controversial amendment. Credit card 
companies and big banks hated it.
  At that point the announcement was made unilaterally, incidentally, 
the Durbin amendment will require 60 votes. Everything else had been a 
majority vote to that point. There was no way for me to challenge that. 
If I wanted my amendment to come to the floor, I had to accept a higher 
margin to pass it than all the other amendments that had preceded it.
  Why? Because the threat of a filibuster was there, a filibuster 
against my amendment. That threat alone raised the margin and standard 
for that vote to 60. From the other side's point of view, many of whom 
opposed my amendment, it is a pretty easy thing to start a filibuster 
if you don't have to engage personally or make a personal commitment to 
it. They tossed it out as a standard. Sixty votes became the 
requirement. Fortunately for me, I had 64 votes and passed it.
  The same is not true of another provision which means an awful lot to 
me, the DREAM Act. The DREAM Act is a reform of our immigration laws 
that is long overdue for children brought to the United States who are 
asking for a chance to become legal. They can do it through military 
service or by education, achieving at least 2 years of college. I have 
tried for 10 years to pass this measure and repeatedly have had 
majority support on the floor of the Senate. It has been ruled not 
enough. You need 60 if you are going to pass the DREAM Act. Just in the 
last 3 weeks, we had it considered again. It failed by not reaching 60 
votes but had 55 votes. So the fact is, establishing this new 60-vote 
margin has become too commonplace for anything that anyone wants to 
brand as controversial that might require a filibuster. That has to 
change. Sixty-vote requirements should be rare in this body. They 
should be used sparingly, and they should not be applied on a daily 
basis to any amendment or bill that I or any other Senator at any given 
moment objects to.
  Let me also say when it came to unemployment insurance, I had a 
little debate with the former Senator from Kentucky, Jim Bunning, now 
retired, and insisted that he stay on the floor as I repeatedly asked 
for unanimous consent to extend unemployment benefits. Some Republicans 
came to the floor and charged that was unfair to ask the Senator from 
Kentucky to stay on the floor so that he could object to my unanimous 
consent requests. I am sorry. There were millions of Americans who were 
not receiving unemployment benefits, and I think it is not unfair to 
say to the Senator who is objecting to those benefits: Stick around, 
miss that basketball game you want to see tonight, which he had 
announced on the floor. Stick around and suffer a little bit because 
you happen to believe that is the right thing to do.
  Eventually, after a matter of days, unemployment benefits were 
extended. But the point I am getting to is that we have reached a point 
here that is way beyond the protection of the minority. It is the 
protection of what I consider to be an indolent approach to the Senate 
where we want the easiest way around things. We don't want to debate 
them. We don't want to vote on them. We don't want to face a majority 
vote that we might lose. So we have contrived a new set of standards, 
procedures, and rules that we are addressing today as part of this 
reform conversation.
  Many times when Senators file a cloture motion or an objection that 
is noted by their side of the aisle and then the clock starts to run, 
the 30 hours, before there is a vote, many times those Senators leave. 
Before the Senator from Oregon arrived in this body there was one 
Senator who objected to our moving to a measure, forcing the Senate to 
stay in session until Saturday, when in the afternoon the time expired 
and a vote was called. The Senator who objected didn't show up. He 
wasn't there. We asked where he was. He had to go to a wedding. Really? 
The rest of us stayed here and waited for the vote that he demanded 
while he went off to a family social obligation. That is not right.
  The good part of the rules changes that are being discussed now would 
require Senators like that Senator, if they believe the business of the 
Senate should stop or be delayed, to invest themselves personally in 
the conversation--to be here. Is that too much to ask? As the Senator 
from Pennsylvania once said: Earn it and own it. If you believe the 
business of the Senate should come to a halt for 30 hours, then for 
goodness' sake have at least the decency and the personal commitment to 
park yourself at your desk and argue your point of view. If you are too 
tired to do it or too distracted or can think of something better to do 
with your time, be my guest and walk through the doors and let the 
Senate proceed with its business. But if it is important enough for you 
to stop the business of the Senate, I happen to agree with those who 
are calling for rules reforms; we should have that change.
  We should make those who are invested in it stay and invest their 
time, their personal commitment to that undertaking.
  Finally, the nomination process has been corrupted to a point I don't 
even recognize. When Chief Justice Roberts chastises the Senate for all 
of the judicial vacancies in America, I know what he is talking about. 
In my home district of Illinois, the central district, in normal times 
there are four district court judges. Currently, we have three 
vacancies. One judge, Mike McCuskey, is running all over downstate 
Illinois from courthouse to courthouse to try to keep the criminal 
calendar going. I am afraid he has little or no time for the civil 
calendar because of three vacancies.
  Two of those vacancies the President nominated judges to fill. The 
judges were considered by the Senate Judiciary Committee, reported 
unanimously by the Senate Judiciary Committee to the Executive 
Calendar, and I literally begged the Republican side of the aisle and 
leadership to allow these two to come up for a voice vote since there 
was no controversy attached with them and a judicial emergency existed 
in that central Illinois district. They refused. They refused, despite 
repeated efforts.
  I then went to the other side and said: All right, you must have 
Republican Senators facing the same thing in their States. I found 
Senator Cornyn of Texas, with exactly the same circumstance. I said: 
John, you have a noncontroversial nominee. Let's team up together, make 
it bipartisan so there is no question that we are trying to do anything 
for a partisan advantage. He said: I am with you. It was not enough. 
The Republican leadership still objected to filling these vacancies 
when a judicial emergency existed, though I asked for it repeatedly. 
That to me is an abuse of the process. If either of those nominees had 
been controversial, if this was a situation where it was a new, extra 
judge, some question of whether it was needed, that is another story 
completely. But we need a nomination process where those who are not 
controversial are brought up and considered in a timely fashion.
  I commend my colleagues because I think each and every one of them 
has added to this conversation--Senators Wyden, Grassley, and 
McCaskill, on a bipartisan basis, to do away with Senate holds. Senator 
Udall of New Mexico, Senator Harkin of Iowa, and Senator Merkley of 
Oregon, who is now presiding, I think have had an excellent proposal 
here of five different changes that would make this a more effective 
Senate. Senator Lautenberg, who spoke just moments ago, had his own 
proposal. Senator Udall of Colorado and Senator Harkin each have a 
proposal.
  It is time for us to sit down on a bipartisan basis to protect the 
rights of the minority within the Senate, but to

[[Page 56]]

bring the Senate procedure into a more efficient and more effective 
way, not just so C-SPAN viewers are not shortchanged when they sign up 
for C-SPAN Senate and all they get is an occasional ``Akaka'' or some 
other name being listed in the quorum call, but actually hear the 
Senate working for its money.
  We can do better. I know what is going to happen now. We are likely 
to recess for some period of time, and an opportunity presents itself 
for the leaders on both sides to come together. There is room for us to 
reach agreement. We can say to the minority: You are going to get your 
chance for amendments. You always want that. You are going to get it. 
And we can say to our side: You are going to face some votes on 
amendments, like it or not. That is part of why we are here. We can 
have some real debate. We can have an investment in the cloture process 
that means it is real and personal, and that those who believe in it 
are taking the time to make sure the Senate continues to function as a 
responsible part of our government.
  Mr. President, at this point I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. UDALL of New Mexico. Mr. President, let me first say to our 
majority whip, Mr. Durbin of Illinois, that I very much appreciate his 
long-term effort in looking at rules. I know he signed on to several 
proposals today. I know he is on the one Senator Merkley and I are on, 
and he is also on the Harkin proposal.
  The Senator was here back in those days, and he has seen how much the 
Senate has changed. So we really appreciate the Senator's contribution 
to this effort and the remarkable job he has done trying to lead us in 
these difficult times we are in. It must be tough for somebody like 
him, who came to a Senate and saw it change over time, and change in 
the wrong way and get hyperpartisan. I want to say that to the Senator.
  I also want to say several of our speakers mentioned things, and I 
think it is very appropriate to put them in the Record because I think 
when people read the Congressional Record, and things are mentioned, it 
is important they be able to find them quickly.
  So the first one is from George Packer, who is a writer with the New 
Yorker magazine. He wrote a piece called ``The Empty Chamber'' dated 
August 9, 2010. I commend to my colleagues that article. It was 
mentioned in the course of the debate and it is an excellent article. 
He is a very good writer.
  Secondly, one of the big scholars on Congress--there are a couple of 
people out there who study Congress over and over and write books and 
articles and monitor what we are doing, and one of them is a gentleman 
by the name of Norm Ornstein. Norm wrote--this was also mentioned in 
the course of the debate by one of the Senators--and Norm wrote a piece 
in the New York Times called ``A Filibuster Fix.'' That was on August 
27, 2010. I ask unanimous consent that article be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Aug. 27, 2010]

                            A Filibuster Fix

                          (By Norman Ornstein)

       Washington.--After months of debate, Senate Democrats this 
     summer broke a Republican filibuster against a bill to extend 
     unemployment benefits. But the Republicans insisted on 
     applying a technicality in the Senate rules that allowed for 
     30 more hours of floor time after a successful vote to end 
     debate. As a result, the bill--with its desperately needed 
     and overdue benefits for more than 2 million unemployed 
     Americans--was pointlessly delayed a few days more.
       The Senate, once the place for slow and careful 
     deliberation, has been overtaken by a culture of 
     obstructionism. The filibuster, once rare, is now so common 
     that it has inverted majority rule, allowing the minority 
     party to block, or at least delay, whatever legislation it 
     wants to oppose. Without reform, the filibuster threatens to 
     bring the Senate to a halt.
       It is easy to forget that the widespread use of the 
     filibuster is a recent development. From the 1920s to the 
     1950s, the average was about one vote to end debate, also 
     known as a cloture motion, a year; even in the 1960s, at the 
     height of the civil rights debates, there were only about 
     three a year.
       The number of cloture motions jumped to three a month 
     during the partisan battles of the 1990s. But it is the last 
     decade that has seen the filibuster become a regular part of 
     Senate life: there was about one cloture motion a week 
     between 2000 and 2008, and in the current Congress there have 
     been 117--more than two a week.
       Even though there might be several motions for cloture for 
     each filibuster, there clearly has been a remarkable increase 
     in the use of what is meant to be the Congressional 
     equivalent of a nuclear weapon.
       Filibusters aren't just more numerous; they're more 
     mundane, too. Consider an earlier bill to extend unemployment 
     benefits, passed in late 2009. It faced two filibusters--
     despite bipartisan backing and its eventual passage by a 98-0 
     margin. A bill that should have zipped through in a few days 
     took four weeks, including seven days of floor debate. Or 
     take the nomination of Judge Barbara Milano Keenan to the 
     United States Court of Appeals for the Fourth Circuit: she, 
     too, faced a filibuster, even though she was later confirmed 
     99 to 0.
       Part of the problem lies with today's partisan culture, in 
     which blocking the other party takes priority over passing 
     legislation or confirming candidates to key positions. And 
     part of the problem lies with changes in Senate practices 
     during the 1970s, which allowed the minority to filibuster a 
     piece of legislation without holding up other items of 
     business.
       But the biggest factor is the nature of the filibuster 
     itself. Senate rules put the onus on the majority for ending 
     a debate, regardless of how frivolous the filibuster might 
     be.
       If the majority leader wants to end a debate, he or she 
     firsi calls for unanimous consent for cloture, basically a 
     voice vote from all the senators present in the chamber. But 
     if even one member of the filibustering minority is present 
     to object to the motion, the majority leader has to hold a 
     roll call vote. If the majority leader can't round up the 
     necessary 60 votes, the debate continues.
       Getting at least 60 senators on the floor several times a 
     week is no mean feat given travel schedules, illnesses and 
     campaign obligations. The most recent debate over extending 
     unemployment benefits, for example, took so long in part 
     because the death of Senator Robert Byrd, a Democrat from 
     West Virginia, left the majority with only 59 votes for 
     cloture. The filibuster was brought to an end only after West 
     Virginia's governor appointed a replacement.
       True, the filibuster has its benefits: it gives the 
     minority party the power to block hasty legislation and force 
     a debate on what it considers matters of national 
     significance. So how can the Senate reform the filibuster to 
     preserve its usefulness but prevent its abuse?
       For starters, the Senate could replace the majority's 
     responsibility to end debate with the minority's 
     responsibility to keep it going. It would work like this: for 
     the first four weeks of debate, the Senate would operate 
     under the old rules, in which the majority has to find enough 
     senators to vote for cloture. Once that time has elapsed, the 
     debate would automatically end unless the minority could 
     assemble 40 senators to continue it.
       An even better step would be to return to the old ``Mr. 
     Smith Goes to Washington'' model--in which a filibuster means 
     that the Senate has to stop everything and debate around the 
     clock--by allowing a motion requiring 40 votes to continue 
     debate every three hours while the chamber is in continuous 
     session. That way it is the minority that has to grab cots 
     and mattresses and be prepared to take to the floor night and 
     day to keep their filibuster alive.
       Under such a rule, a sufficiently passionate minority could 
     still preserve the Senate's traditions and force an extended 
     debate on legislation. But frivolous and obstructionist 
     misuse of the filibuster would be a thing of the past.

  Mr. UDALL of New Mexico. Let me finally say to the Senator from 
Oregon, the Presiding Officer, that I very much appreciate his support 
both in working with me on the constitutional option and sorting out 
the details and making sure we have things right and also for his 
incredible work in terms of pulling together the talking filibuster 
part of this. I was here today when he showed his charts, and he took 
our five ideas and, in the most simple form so the American people 
could understand it, capsulized those in those five charts.
  I have been telling my staff--and you need to do this by the end of 
the debate--we need to find a way to shrink those and put those in the 
Record also because here we are sitting on the floor and we have these 
charts and we need to somehow have those be a representation also.
  So with that, I yield the floor.

                          ____________________