[Congressional Record (Bound Edition), Volume 157 (2011), Part 1]
[Senate]
[Pages 972-998]
[From the U.S. Government Publishing Office, www.gpo.gov]




AMENDING THE STANDING RULES AND PROCEDURE OF THE SENATE--S. RES. 8, S. 
       RES. 10, S. RES. 21, S. RES. 28, AND S. RES. 29--Continued

  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I call up S. Res. 28, the Wyden-Grassley-
McCaskill resolution to end secret holds.
  The PRESIDING OFFICER. The resolution is pending.
  Mr. WYDEN. Mr. President, with the passage of this resolution, no 
longer will it be possible for a Senator to engage in the 
unconscionable practice of secretly blocking a piece of legislation 
that affects millions and millions of Americans.
  The fight for more sunshine in the way the Senate does business feels 
like it has been the longest running battle since the Trojan War. 
Today, after scores of battles, the cause of open government is going 
to prevail.
  Over the years, Senator Grassley and I, with the strong support of 
Senator McCaskill, have been able to secure leadership agreements to 
end secrecy. We have been able to pass amendments to end secrecy and 
send them to conference committees--where they would then magically 
disappear. We actually, at one time, got a watered-down version of our 
law passed. In each case, the defenders of secrecy have found a way to 
keep sunshine out and obstruct the public interest. When this proposal 
passes, we believe there will be real change.
  There are three reasons why we believe our bipartisan proposal to end 
secret holds will be different from previous approaches.
  First, now with any hold here in the Senate, there would be a public 
owner. Every single hold would have a Senator who is going to be held 
accountable for blocking a piece of legislation.
  Second, there will be consequences. In the past, there have never 
been any consequences for the Senator who objected anonymously. In 
fact, the individuals who objected would usually send somebody else out 
to do their objecting for them, and they would be completely anonymous. 
Essentially, the person who would be doing the objecting would sort of 
say: I am not involved here. I am doing it for somebody else. So the 
entire Senate lacked transparency with respect to who was actually 
responsible.
  Third, the Wyden-Grassley-McCaskill proposal would deal with all 
holds, whether they reach the point of an objection on the floor or are 
objected to when the bill or nomination is hotlined. Our approach 
requires objections to a hotline be publicly disclosed, even for bills 
or nominations that never get called up on the floor. This is a 
particularly important provision.
  Senator Grassley and Senator McCaskill feel very strongly about this 
as well because most holds never reach the point that there is an 
objection on the floor, and that is something I think has been lacking 
in this debate. They hear about discussions of people objecting on the 
floor. Most holds never reach that point. Typically, what happens is, a 
Senator who objects to a bill or nomination tells the Senator's leader 
that the matter should not be allowed to come up for a vote, and then 
the leader objects to bringing up the bill when it is hotlined. Because 
of that objection, the bill or nomination never actually gets called up 
on the floor. That type of hold effectively kills the bill or 
nomination long before it gets to the point of an objection on the 
floor. So we want to make it clear this is an important distinction 
and, for the first time, we would not just be talking about objections 
that are made on the floor.
  I see my friend and colleague, Senator McCaskill, who has crusaded 
relentlessly for this. Senator Grassley and I--I say to Senator 
McCaskill we sort of feel like we have been at it as part of the 
longest running battle since the Trojan War. I say to the Senator, your 
energy has been absolutely crucial in this fight.
  I would also point out--and I think we know--the defenders of secrecy 
will always try to find a way around anything that passes. We think we 
have plugged the holes. We think we finally made the crucial 
differences. But the fact that the Senator has been such a relentless 
watchdog for the public interest, an opponent of secrecy, has been a 
tremendous contribution. I thank my colleague from Missouri and welcome 
her remarks.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mrs. McCASKILL. Mr. President, very briefly, I am proud to join 
Senator Grassley and Senator Wyden in their long crusade on this issue. 
I am giddy, frankly. I cannot believe it. I cannot believe we are this 
close to amending the Senate rules by a wide margin. I will predict 
this will be a very lopsided vote, which is ironic. I do not think 
there has ever been anything that has taken as long as this has that is 
going to win by as big a margin as this is going to win because people 
were stubborn about holding on to their secrecy. It is a lot easier to 
do business, a lot easier to get your deals if you do not have to be 
public about it.
  So there are very few things that you can grab a hold of in the 
Senate and actually see to the finish line, and I believe this will be 
the finish line. But let me say one warning. If anyone thinks they can 
figure out a way around this, all of us who have worked on this are not 
going to give up. So 6 months from now, if something is not moving and 
no one knows why and we figure out that one person has decided to own 
the holds, such as the minority leader--I will just own all the holds--
that is not going to work, because we will come right back and we will 
point out to the American public: Believe it or not, they are trying to 
get around this rule.
  So a warning to everyone: If we are going to amend the rule, be 
prepared to live by it because it is the right thing to do. I think our 
stock will rise with the American people. I think the transparency is 
essential.
  I am very proud that it appears--I will keep my fingers and toes 
crossed because it has not happened yet--we have bipartisan agreement 
that this nonsense is going to end.
  I wish to thank my colleague from Tennessee, Senator Alexander, 
because I think he has been essential in these negotiations as it has 
related to an amending of the rules as it relates to the secret holds.
  Thank you, Mr. President. I yield the floor.
  Mr. WYDEN. Mr. President, I thank our colleague, our invaluable ally 
in this fight.
  Senator Grassley, I believe, is on his way. But the Senator from 
Tennessee has had many discussions on this topic with me and other 
Senators, and I wish to thank him for all the time and effort he has 
put into it. I yield him whatever time he would like.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, Senator Grassley and Senator Wyden and 
more recently Senator McCaskill, have pointed out the obvious fact that 
so-called holds that Members of the Senate place on nominations or 
legislation should be public. I think that is a good idea. That has 
bipartisan support. I believe today we will change the rules to make 
that clear, and I congratulate Senators Wyden, Grassley, and McCaskill 
for their perseverance and persistence in pushing this ahead.
  I have always been glad to be public with my holds. I remember when 
Senator Reid filibustered my TVA nominee by putting a hold on him, so I 
filibustered one of his Nevada citizens by putting a hold on him. Then 
we were able to work it out. But Senator Reid and I made our objections 
public. I

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knew what he was doing and he knew what I was doing. That is important 
to build confidence in the Senate.
  Senator Grassley is on his way over and he has been the partner with 
Senator Wyden on reforming holds for some time. I would like to say to 
Senators Wyden and McCaskill and others--as I have already said to 
Senators Udall and Merkley--that the efforts they have made to change 
the rules of the Senate have created a window of opportunity which I 
believe those of us on both sides of the aisle believe will make the 
Senate a better functioning forum. These Senators will not succeed in 
all the changes they are seeking to make but this window of opportunity 
will allow the Senate to better function as a place to discuss serious 
issues.
  The majority leader and the Republican leader earlier today said they 
were going to do their best to see that most bills come to the floor 
after first going to committee. Then once bills get here we will have 
amendments. I think that is what most of us want. We want a chance to 
represent the views we have and those we are elected to represent. 
Sometimes our views are in the minority. Sometimes we are very solitary 
with our views. Maybe we are the only one who has a particular view. 
But we want a chance to be heard and a chance to offer amendments to 
express our views.
  I think we are preserving the Senate as a forum in which that can be 
done, but at the same time we are making it a more effective place in 
which to do that. I congratulate Senator Wyden and his colleague, 
Senator Grassley, and others for their efforts.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, while we wait for Senator Grassley, who, as 
Senator Alexander has mentioned, has been relentlessly pursuing this 
with us for years--again and again, Senator Grassley would come to the 
floor and make the point that a Senator simply ought to have the guts, 
just ought to have the guts, to stand and say: Look, this is important 
to me. I am the individual who ought to be held accountable. Senator 
Grassley, in that inimitable Midwestern way, always manages to get 
these issues down to what they are truly all about. It is about 
accountability and, as Senator Grassley says, it is about guts.
  I would also mention, what is striking about the secret hold is this 
astounding power. I think it is only fair to describe it that way. I 
know of few powers that an elected official has that resemble the 
ability to anonymously block a bill or a nomination that affects 
millions of people. It is an astounding power, and for years and years 
it has never been written down anywhere.
  As part of the ethics legislation that was passed a few years ago, we 
were able to get a watered-down version of secret holds reform in 
there. But literally to think that a power such as this--so sweeping, 
almost unrivaled in terms of the powers an elected official has--could 
be exercised in secret is something worth reflecting about in and of 
itself.
  I will also tell colleagues that for those who want to get into the 
history of this, there are all kinds of holds. There was the revolving 
hold. There were a number of different ones. But my favorite over time 
was the ``Mae West'' hold, which came to also be known as the ``come 
look me over'' hold, which was almost as if a Senator was declaring 
that they were not sure what they wanted to do with their hold, but 
somebody ought to come up and see them sometime.
  It just goes to show you, these kinds of practices--and this is what 
has been good about the work done by Senator Schumer and Senator 
Alexander, my friend and colleague from Oregon, Senator Merkley, and 
Senator Udall, which has been so important--because, for the first 
time, they have brought out into real debate what these rules are all 
about. My hope is, this will just be the beginning of the discussion 
about how, in the days ahead, it will be possible to bring more 
sunshine and more transparency to the Senate.
  But Senator Grassley, who has made this point in the past about doing 
business in public--that the principle at stake is accountability and 
transparency--has made the case for a long time and has additionally 
told Senators that since he--and there have been a number of us who 
have always put our holds in the Congressional Record; I have not used 
them very often. Senator Grassley has made the point that colleagues 
will find, when they do it, it does not hurt at all. In fact, not only 
do they not suffer any detrimental consequences, but they do it and the 
public thinks more of them.
  One final point as we wait for Senator Grassley is that I am 
particularly interested in having holds reform enacted as part of our 
work today because the secret hold is a huge bonanza for the lobbyists. 
The lobbyists can, as we have seen year after year, go to a Senator and 
say: It would be a big favor to me if you would put a hold on something 
so we can get a little more time to have a chance to make our case. 
Sometimes we have competing lobbyists asking for secret holds, so we 
have one Senator putting a secret hold on a piece of legislation and 
making a whole array of lobbyists happy. Sunshine will be good for the 
Senate, and it will certainly be good because it will shine the hot 
light on some of these lobbyists' practices that we have been trying to 
discourage here on the floor of the Senate.
  I have just been notified that Senator Grassley is unavoidably 
detained. He is not going to make it to the floor at this time.
  On behalf of myself, Senator Grassley, and Senator McCaskill, at this 
time I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second. There is a sufficient 
second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I first wish to commend Senator Wyden, 
Senator Grassley, and Senator McCaskill for their incredible 
determination to get this done. We thought we did it when our class of 
Senators came in. We thought we had gotten rid of the secret hold, but 
lo and behold, people found a way to work around it, and their 
determination has meant we are finally going to do this and we are 
going to do it right.
  Secondly, I wish to thank Senator Alexander as well as Senator 
Schumer of the Rules Committee for negotiating a number of these 
changes, as well as Senator Reid and Senator McConnell. When I think 
back over the last few months and what has happened, we had an 
incredibly productive lameduck session at the end of the last Congress. 
We all know there is a lot of work to be done, but in the closing 
months of this year, we showed people--I think to their surprise--that 
we could truly get some things done on a bipartisan basis. When the 
American people unite and see a clear issue--whether it was the nuclear 
arms treaty, whether it was the vote on the repeal of don't ask, don't 
tell, or whether it was the first responders after 9/11--and they see 
what is happening in this Chamber because they actually see a debate, 
they see someone standing up and making their points as the Presiding 
Officer does so well on so many issues, then they can make a decision. 
That is all we are talking about, when we talk about these sometimes 
complicated and convoluted rules changes, is getting things out in the 
open. Obviously, the first thing is to get rid of the secret holds and 
permanently end them.
  The second important thing is filibuster reform. It is a longstanding 
tradition in the Senate that one Senator can, if she chooses, hold the 
floor to explain her objections to a bill. We always think of Jimmy 
Stewart's character Jefferson Smith in ``Mr. Smith Goes to 
Washington.'' This is where Senator Udall--and by the way, I always 
think his voice sort of sounds like Jimmy Stewart--and Senator Merkley 
have done such a tremendous job of pushing these filibuster reform 
issues, as well as Senator Tom Harkin, who has been working on this 
long before our group ever came to the Senate.
  A group of us got together with the smart proposals made by Senators

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Harkin, Udall, and Merkley to determine the best reforms and what are 
the ones we can truly get through; what is a package we can go to the 
other side of the aisle with and talk about what we need to do to get 
it done. The agreement that has been reached includes some of the 
important changes we want. The first I mentioned is to get rid of 
secret holds, but of course critical reforms to the filibuster are 
still necessary as far as I can see. One of the things I hope we 
reconsider as we go down this road is the idea that we could actually 
make people stand to filibuster, so that they are in this Chamber, they 
are discussing why it is so important that they hold up something, 
whether it is a judge, whether it is the assistant secretary of Oceanic 
Affairs, whether it is a major bill or a minor bill. People should be 
able to hear the arguments and then make their own decision. By the 
way, if they have a good argument for filibustering something or if a 
group of Senators has a good idea, the American people will say OK, I 
can understand why this is happening. If they are just doing it for 
reasons that don't make any sense to the people of this country, then 
they are going to be seen for what they are doing, and that is slowing 
down the progress of this country at a time when there are so many 
major issues we need to deal with in this Chamber.
  So I am happy we have been able to reach agreement on a number of 
these important issues. It would not have happened without the 
determination of the people who are here today, and I look forward to 
more changes and agreements in the future.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I rise to continue the debate on this set 
of rule proposals, but specifically to talk about the talking 
filibuster.
  There is one scene from an American movie that captures everyone's 
attention, and that is the scene of Jimmy Stewart here in the well of 
the Senate holding forth to make his case before his colleagues and 
before the American people to stop a corrupt act designed to destroy a 
camp for children. That is Jimmy Stewart in the role of Jefferson Smith 
in ``Mr. Smith Goes to Washington.'' He wasn't making some behind-the-
scenes move, some backroom deal; he was out in front of the American 
people. That is why we have brought both the end of secret holds and 
the end of secret filibusters to the floor today.
  The concept of the talking filibuster is that the American people 
believe when you filibuster, you are making a personal action, a 
courageous action, a public action, with personal time and energy, to 
stand up and say what you think needs to be said and to fight for what 
you need to fight for to make your State or this Nation or this world a 
better place. But this is not what the filibuster has become in modern 
times. Folks object to closing debate and they go off to dinner, have a 
glass of wine or two while they paralyze the Senate. It happened 136 
times in the last 2 years. Each one of those filibusters proceeded to 
paralyze this body for a week, and yet those folks would not stand 
before the public here on the floor of the Senate and make their case.
  The secret filibuster must go. It is an issue the American people 
understand, since they believe we will make our case before them when 
we wish to stall the Senate on an important issue. Let's make it so. 
Let's make it so with the vote that will take place here in this 
Chamber within the next couple of hours.
  I wish to note that hundreds of thousands of people have signed 
petitions across this country. They have heard about this on the Web 
and other places. CREDO Action, Common Cause, Daily Kos and the Sierra 
Club, just those four groups generated almost 200,000 signatures 
calling for accountability, calling for transparency, calling for us to 
make our case before the American people so the American people can 
weigh in as to whether we are heroes or bums.
  When we hold the vote on the talking filibuster today--I understand 
there has been a lot of pressure applied for there to be a unanimous 
party-line vote across the aisle against it. It troubles me. A number 
of our new Senators campaigned on transparency. They campaigned on 
accountability. They campaigned on changing the broken ways of 
Washington, and one of the first votes their leadership is asking them 
to do is toss away accountability, toss away transparency, and not help 
fix the broken Senate.
  There are some who said we must make sure we protect the rights of 
the minority. The talking filibuster does exactly that. We still need 
60 votes to close debate. My colleague from Oregon, Senator Wyden, was 
just here. If there were an issue affecting Oregon that we must oppose, 
the two of us alone could take and hold this floor back and forth to 
make sure this body doesn't run over the rights of Oregon as long as we 
have the 40 colleagues with us to avoid cloture. That is the way it is 
now and that is the way it will be under the talking filibuster.
  I am not going to belabor this. There are others who wish to speak 
and we want to hear them. But let me say this: When we have gotten to 
the point that we could not get a single appropriations bill done in 
2010, when we cannot address 400 House bills that lie collecting dust 
on the floor, when we have 100 nominations in which we did not fulfill 
our constitutional responsibility to advise and consent, then we have a 
responsibility to work together to change the conduct of this Senate, 
to change the rules of this Senate, so those rules are not abused in a 
fashion that undermines our performance under the Constitution.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, the Senator from Oregon has talked 
about the number of nominations that couldn't be considered. I am sure 
the Senator from Oregon remembers that there cannot be a filibuster on 
a motion to proceed to a nomination. All the majority leader has to do 
is bring it up. You can't debate that. If he should bring up the motion 
to proceed to a nomination, and if a Senator over here or over there 
objected, then the motion can be put to a simple majority vote. When I 
was nominated by President George H.W. Bush to be Education Secretary, 
a secret hold was placed on my nomination. Senator Metzenbaum, as it 
turned out, had a hold on my nomination for 3 months when all it would 
have taken for me to be confirmed was for the majority leader to bring 
my name to the floor. Then if we had gotten 60 votes for it, we could 
have debated for 30 hours and had a final vote on my nomination.
  What would happen during the 30 hours? We don't have Senators going 
out to dinner except on the other side of the aisle. Because under the 
current rules, in those 30 hours, one Senator gets 7 hours to speak. We 
know a Senator can do that because a distinguished Senator from Vermont 
demonstrated very capably that he was capable of doing that not long 
ago. He did a great job. People all over the country saw it, wrote him, 
and he became a little bit of a celebrity for that day. Senators are 
still capable of that. But if a Senator had wanted to take the whole 30 
hours in a postcloture period, he then has to get 23 more Senators to 
join him in taking an hour of that 30 hours. Without getting into the 
complications of it, if Senators fail to talk, then the majority leader 
can say those are dilatory tactics and force any Senator who wants to 
extend the debate to be very uncomfortable. That Senator would have to 
get up to 23 Senators to come join him at some time during the speech 
and take 7 hours himself. The reason why that hasn't been done is 
because the majority didn't want to do it.
  Now I am not just saying that. The master of the Senate rules, 
Senator Byrd, said it in his last testimony before our Rules Committee 
last May.
  He said this:

       Forceful confrontation to a threat to filibuster is 
     undoubtedly the antidote to the malady.

  Senator Byrd was talking about what some considered the abuse of a 
filibuster. Most recently, before he died, Senator Byrd said:

       Senate Majority Leader Reid announced that the Senate would 
     stay in session around

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     the clock and take all procedural steps necessary to bring 
     financial reform legislation before the Senate. As 
     preparations were made and cots rolled out, a deal was struck 
     within hours and the threat of a filibuster was withdrawn. I 
     heartily commend the majority leader for this progress, and I 
     strongly caution my colleagues as some propose to alter the 
     rules to severely limit the ability of a minority to conduct 
     a filibuster.
       I know what it is to be majority leader, and wake up on a 
     Wednesday morning in November, and find yourself a minority 
     leader.

  Senator Byrd said the Senate rules provide the means to break a 
filibuster. He went on to describe that.
  Mr. President, I don't want to suggest to the distinguished whip, who 
knows the rules of the Senate much better than I, or to Harry Reid, the 
majority leader, how to break a filibuster that he thinks is an abuse. 
But they know how to do it. That takes a little trouble. You cannot go 
out to dinner and have a glass of wine, as the Senator from Oregon was 
talking about. You have to sit on that side of the floor and have 50 
Senators ready. You can sit there and say: I would like for the Senator 
from Tennessee to assert himself. And you can stay all night. I imagine 
if you do that once or twice, or if we voted on more than zero Fridays, 
which was the number of Fridays we voted on last year, you could 
confront filibusters.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. ALEXANDER. After I finish my sentence, I will yield the floor to 
the Senator from Illinois.
  I say to my friends, what we are trying to do today is to move past 
this time where we point out that the majority leader has cut off our 
right to amend and debate six times more than recent majority leaders. 
That is what gets everybody stirred up over here. It is like telling us 
we can join the Grand Ole Opry, but we can't sing.
  We are here to let people know what the people in Tennessee and other 
States think. We might be in the minority, but we are in the Senate 
where the minority is supposed to have a voice.
  When, time after time, you bring a bill to the floor and cut it off, 
and you call that a filibuster--that is why we are upset. You are upset 
because as a result of that you didn't get to bring as many bills to 
the floor as you would like. We are trying to put that all behind us 
today. This window of opportunity has produced what I think is 
important. These rules changes we are going to adopt are good and will 
move us in the right direction.
  The real value of this whole effort has been to cause us to think 
about how the Senate operates and realize the best way to do it is for 
most bills to go to committee, come to the floor, and for most Senators 
to get to offer most of the amendments they want to offer and get them 
voted on. We might have to vote on a Friday--maybe even a Thursday 
night or maybe even a Saturday. It might be that the majority has to 
confront a filibuster by saying: Senator so-and-so, if you are going to 
slow us down, we are going to make you use that 30 hours. You are going 
to have to talk your 7 hours and get 23 other Senators, and we are 
going to be here to see that you do it.
  My guess would be that you do that about once, maybe twice, and that 
would end that particular problem. My real guess is if this general 
attitude that the majority and minority leaders talked about earlier 
today occurs, then you will see very few uses of the filibusters you 
think are inappropriate. The Leaders described an attitude which is 
that we are going to do our best to see that most bills come to the 
floor, that most Senators get to offer the amendments they want, and 
that Senators get the votes on those amendments they want. If you think 
inappropriate filibusters are occurring, according to Senator Byrd, you 
have the means to confront them.
  My hope is that this whole exercise not only is producing some rules 
changes that are valuable but a change in behavior on both sides of the 
aisle which will be valuable. We will wait and see.
  I am happy to yield to my friend from Illinois.
  Mr. DURBIN. Mr. President, I see others standing. I will be brief and 
just say a few words in support of the so-called talking filibuster. In 
the world of the most arcane things that people can concentrate on, 
this book would be on the top 10 best-seller list. It is the Senate 
Manual with the rules of procedure and the rules of precedents of the 
Senate. Unless you live here and work here and follow the Senate, most 
people never, ever have any glancing occasion to even observe these 
rules, let alone pay any attention to them.
  Why are we doing this when we have all these people unemployed in 
America and we have so many challenges at home and abroad? Why are we 
taking the time of the Senate to talk about this book and the rules 
included? Many of us, including my friend--and that term is sometimes 
used loosely here but I mean it literally, know what happens on the 
floor of the Senate has an effect on America and the world. If we do 
our job well, we are going to solve some of the problems of the world. 
If we do it poorly, the exact opposite is the case.
  What my colleagues from Colorado and Oregon and New Mexico have urged 
us to do is to think about whether we can do things better in the 
Senate. The history of the filibuster in the Senate is an interesting 
one. There was a time when any Senator could stand up and object and 
stop the proceedings of the Senate. Then Woodrow Wilson, as President, 
suggested that we should arm the Merchant Marine so that our ships 
could fire back if the Germans and others fired at them. He asked for 
legal authority for that. He brought that issue to the Senate before 
World War I, and two or three pacifist Senators stood up and said: No, 
we don't want these ships to have guns because that will drag us into a 
war.
  At that point, Wilson said: I want to take that issue to the American 
people. Three Senators should not be able to stop that from a vote. He 
got his way.
  At the end of the day, the rule was initiated--the cloture rule--that 
said two-thirds of the body could decide to move forward even if one or 
more Senators objected. That cloture rule of two-thirds guided the 
Senate until the 1960s, and the civil rights debate ended up amending 
that rule from 67, under that day's count, to 60. So 60 has been the 
guiding way to end a filibuster. It has been that way the entire time I 
and the Senator from Tennessee have served in the Senate.
  What is being suggested is fundamental. I would at least say I 
disagree in principle with the Senator from Tennessee, respectfully, 
and here is what I believe. I think the movants of this idea believe 
this: If the Senator from Tennessee believes in his heart of hearts 
that something is so bad, so controversial, so wrong that he wants to 
stop the business of the Senate in considering and debating an 
amendment or a bill--if he feels that strongly about the value or 
principle that would lead him to want to stop the Senate, what we are 
being told is that he ought to be willing to stand here and say why.
  Currently, you can initiate a filibuster and close down the Senate, 
where for 30 hours nothing happens except the drone--the lovely drone--
of quorum calls. People across America tune in and say: What is 
happening there? Are they going to actually pay these men and women for 
doing nothing another day?
  A person who initiates a filibuster can literally leave the floor and 
head out for dinner, and the Senate is stopped cold. What is being 
suggested is that if you believe it, if it is important enough to stop 
the business of the Senate, for goodness' sakes, stand up and tell us 
why. Defend yourself. Stand up for your principles.
  I remind the Senator from Tennessee--I think he was a Member at this 
time--that one of our colleagues, who will go unnamed but is from his 
side of the aisle, initiated a filibuster once which forced us to come 
in on a Saturday--as you say, it is a rare occurrence here--and to be 
here and have over 60 votes because of his filibuster. That Senator 
didn't show up. He initiated the filibuster and didn't stick around. He 
was asked later about it, and he said: I had something important to do 
back home.

[[Page 976]]


  Mr. ALEXANDER. Will the Senator yield for a question?
  Mr. DURBIN. After I explain my position I will.
  That is a classic illustration of someone who initiates a filibuster 
and then takes a powder--goes out to dinner or goes home to attend an 
event and says: Just let the Senate burn up 30 hours. I will be back 
later.
  What we are hearing is that it is better to say to that Senator, if 
it means that much to stop the Senate it should mean enough for that 
Senator and that Senator's colleagues to stand up and fight for that 
right. Is it worth it? Will the Senator at least take the floor and 
speak to it?
  The Senator from Tennessee says there is a better way: to force the 
entire Senate, during a filibuster, to be here--all of us. So any one 
Senator can change and affect the lives of all Senators by saying we 
are going to stay all night. We will have live quorum calls and we will 
sleep on cots in the marble room, and that is the way to stop the 
filibuster. Think about that, I say to my friend from Tennessee. Is 
this a punishment to the person who initiates the filibuster? Does it 
even put responsibility on the person who initiates it? The answer is 
clearly no. The burden, under the defense of your position, falls on 
the entire Senate to sit here all night long because one Senator 
objects.
  I think this talking filibuster is much more reasonable. If it means 
enough to object to the Senate moving forward on the debate of an 
amendment or a bill, then, for goodness' sakes, have the courage and be 
open enough to stand at your desk and defend your position. That is not 
unreasonable. If you find that you cannot hold a number of colleagues 
to your position, let's move on. If you don't want to stand and debate 
the issue but want to go out to dinner with your buddies, fine. But 
don't stop the Senate while you are on your way to a nice dinner--not 
you personally, but the person who would move the filibuster.
  I support the talking filibuster, not because of Jimmy Stewart, who 
created this mental image, but I think the principle is sound and what 
our colleagues recommend would help the Senate.
  Mr. ALEXANDER. Mr. President, since the distinguished whip has 
apparently renamed this amendment the ``which side of the aisle goes 
out to dinner'' amendment, let me ask him this: Isn't it true that if 
your side didn't go out to dinner--since you asked to be elected to the 
Senate, you raised a lot of money, and you worked hard and defeated 
some Republican to get here--if you really think somebody over here is 
abusing their minority rights by filibustering, then why would you go 
out to dinner, and why would you not want to be here and hear that 
person talk and respond to him? Why would you not do that?
  Isn't it true that Senator Byrd said that forceful confrontation to 
the threat of a filibuster is undoubtedly the antidote to the malady? 
He did not want us tampering with this 60-vote procedure we have that 
forces consensus.
  My question to the majority whip is this: Why did you go out to 
dinner so often--through the Chair--when instead, you could have been 
here, under the rules as Senator Byrd suggested, dealing with abuses to 
the filibuster or what you consider they were?
  Mr. DURBIN. The obvious question is, what do we accomplish by staying 
here all night? Every 15 minutes or every hour the majority leader 
could ask for a live quorum and Members could be asked to come vote. If 
they don't, their voting record would reflect that. So the body would 
pay the price of applying pressure--the confrontation that Senator Byrd 
speaks of.
  What the Senators proposing this suggest is that the person who wants 
to stop the Senate should have the burden of explaining why or standing 
and defending his or her position. I don't think that is unreasonable.
  The PRESIDING OFFICER. The Senator from Oregon is recognized.
  Mr. MERKLEY. Mr. President, I want to correct the record on something 
that has been said on the other side of the aisle; that is, the abuse 
of the filibuster has been a response to filling the tree. In the last 
2 years, we had the tree filled once. We had 33 filibusters. In 
response to those filibusters, the tree was filled 9 times. We had 34 
filibusters, the tree filled 6 times, and a filibuster 36 times. 
Obviously, 36 times was not a response to 6 times filling the tree.
  That myth created by the opposing side is actually a myth. So while 
it is a convenient argument, it happens to be a wrong one. I think that 
is important to know.
  I also wish to note that my colleague from Tennessee was talking 
about postcloture discussions for 30 hours, thereby confusing the 
conversation about the filibuster on the motion to proceed, the 
filibuster on amendments, the filibuster on a bill with a 30-hour 
requirement on nominations. Actually, we had a proposal to reduce those 
30 hours to 2 hours. That proposal is in S. Res. 10 that will be voted 
on today.
  I do hope my colleague, in support of the principle he was putting 
out, which is that those hours should be reduced, will support S. Res. 
10, noting that is a very logical way to reduce the delay of the 
Senate.
  My colleagues wish to speak. I will close with this comment: If you 
have the courage of your convictions and you want to exercise the 
privilege of shutting down the Senate for a week, then stand up and 
make yourself accountable to the American people.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. UDALL of Colorado. Mr. President, I rise to speak on a particular 
proposal we will consider later today, but I wish to associate myself 
with the Senator from Oregon, who has been tireless in pushing for 
commonsense reforms in the way the Senate operates.
  The majority whip made the comment in his remarks before the Senator 
from Oregon spoke that we want to make these changes so the Senate can 
respond to the changing nature of the world around us and in particular 
focus on our economy and getting Americans back to work. If the Senate 
is tied in knots, we are not going to put the policies in place that 
these stalwart, committed Senators, including the Senator from Iowa, 
Mr. Harkin, and the Senator from New Mexico, Mr. Udall, so compellingly 
presented to us.
  I know there are others who wish to speak, so I will briefly speak to 
the proposal I have submitted that would bring us a step closer to 
fixing some of the redundancy in the rules that slow down our progress 
here and I think ultimately make not just our constituents in our 
individual States frustrated but Americans all across our country. Put 
simply, this proposal would encourage Senators to file their amendments 
72 hours in advance of a vote to ensure we all have a chance to review 
that amendment. But then it would also discourage the practice of 
delaying a final vote by calling for an out-loud reading of the 
amendment. I have heard concerns from Members of both parties about 
this particular practice. We all want to have an opportunity to read 
the provisions in amendments and broader bills, but it has become 
increasingly obvious to me that we need to make changes in our rules, 
as I said, to ensure the process works smoothly.
  My proposal would encourage Senators to file amendments 72 hours in 
advance, and it would prevent any Senators from creating a logjam on 
the Senate floor by forcing the text of that amendment to be read aloud 
if it is made available in advance.
  Mr. President, you and I have been around long enough to know that in 
the days before copy machines and the Internet, if one was serving in 
the Senate, it was probably helpful to sit here and hear the text of 
each amendment read out loud. That practice is outdated, and it is not 
the way the Senate operates today. Instead, our technology allows us 
instant access to the text of amendments, and therefore there is no 
crucial need to hear them read aloud at the last minute. Most of the 
time, in fact, we just waive the reading and move to the final vote. 
When a full reading, however, has been forced, it largely brings this 
place to a halt, as Senator Durbin pointed out earlier. The effect has 
been to tie the Senate in knots, and it creates a spectacle when the 
hard-working clerks, who are actually the people who make

[[Page 977]]

this Senate run, have to stand here and read amendments, sometimes for 
hours, to an empty Chamber. That said, there have been cases in which 
one party believes the text of a rather large amendment has been 
withheld from them in order to deny them adequate time to review it. I 
do not want to take that power away from the minority to reasonably 
voice their opinions on the floor to get the information they need, 
which is why my proposal is a balanced way of fixing the Senate rules.
  This resolution is designed to help us find common ground and prevent 
needless delays by allowing us to prevent the live reading of an 
amendment when the text has been available long enough for everyone to 
have studied it in advance. Instead of allowing an individual Senator 
to put the Senate on hold literally for hours by forcing an amendment 
to be read, a simple majority of Senators would be able to collectively 
vote to dispense with the reading, provided that it was filed on time. 
This is a commonsense approach. It seeks to address the concerns of 
those who want more time to read amendments and those who see the 
forced reading of amendments as needlessly obstructive. It is a simple 
approach, and I believe later today the Senate will approve such a 
rules change.
  In ending my remarks, I wish to acknowledge the work of Chairman 
Schumer and Senator Alexander. There is an agreement, as I understand 
it, and we will vote on it later today. I applaud their work and offer 
my very sincere thanks.
  I also acknowledge Leader Reid and Leader McConnell for helping bring 
this package to the floor today and for reaching their own agreement on 
how to improve the way the Senate works.
  Finally, as I did in my beginning remarks, I wish to acknowledge 
Senator Tom Harkin, Senator Tom Udall, and Senator Jeff Merkley for 
bringing true attention to a concern so many Americans have had on this 
particular issue. Senator Merkley and Senator Durbin spoke to the fact 
that this may seem an obscure topic to many constituents. This is 
historic progress we are going to make today that ultimately will make 
the Senate function together. I know that is the mission of these three 
outstanding Senators.
  I ask unanimous consent that Senator Merkley be listed as a cosponsor 
of the resolution I am offering today.
  The PRESIDING OFFICER (Mrs. McCaskill). Without objection, it is so 
ordered.
  Mr. UDALL of Colorado. Madam President, I close on this note: I urge 
my colleagues to vote for the simple commonsense reform of the Senate 
rules.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, I rise to support the Wyden-Grassley-
McCaskill public hold proposal. I apologize to my two colleagues from 
Oregon and Missouri that I was not on the floor at the proper time. It 
is all my fault.
  I am pleased to see this day come where the Senate will finally have 
the opportunity for an up-or-down vote on our freestanding Senate 
resolution to require public disclosure of holds. Senator Wyden and I 
have been at this for a long time. We have made progress at times, and 
we have also had many disappointments where things did not quite work 
out the way we had hoped and what we thought the Senate had spoken on 
through even rollcall votes.
  It has also been good to have Senator McCaskill join us in helping 
push this issue to the forefront easily. She did that--I shouldn't say 
``easily'' but recently because it has not been easy. Ending secret 
holds seems like a simple matter, doesn't it. But that has not proved 
to be the case because secret holds are an informal process. It is 
easier said than done to push them out into the open using formal 
Senate procedures. It is kind of like trying to wrestle down a greased 
hog. However, after a lot of thought and effort, two committee 
hearings, and many careful revisions, I think this resolution does a 
pretty good job of accomplishing our simple goal. That goal is to bring 
some more transparency into how the Senate does its business and, with 
transparency, more accountability.
  This is not the only proposal we are considering today related to 
Senate procedure, and I do not want there to be any confusion. This 
proposal is not about altering any balance of power between the 
majority party and the minority party; neither does our resolution 
alter the rights of any of the 100 Members of this Senate.
  Over the time I have been working on this issue, I have occasionally 
encountered arguments purporting to defend the need for secret holds. 
However, the arguments invariably focus on the legitimacy of holds, not 
on the subject of secrecy. I want to be very clear that secrecy is my 
only target and the only thing this resolution eliminates. I fully 
support the fundamental right of individual Senators to hold or 
withhold his or her consent when unanimous consent is requested. 
Senators are not obligated to give their consent to anything they do 
not want to, and no Senator is entitled to get any other Senator's 
consent to their motion.
  I think the best way to describe what we seek to do with this 
resolution is to explain historically how holds came into being, as 
Senators have heard me do before.
  In the old days, when Senators conducted much of their business in a 
daily way from their desks on the Senate floor, it was a simple matter 
to stand up and say ``I object'' when necessary. These days, most 
Senators spend most of their time off the Senate floor. We are required 
to spend time in committee hearings, meetings with constituents, and 
attending to other duties that keep us away from this Chamber. As a 
result, we rely on our respective party leaders in the Senate to 
protect our rights and prerogatives as individual Senators by asking 
them to object on our behalf.
  Just as any Senator has the right to stand up on the Senate floor and 
publicly say ``I object,'' it is perfectly legitimate to ask another 
Senator to object on our behalf if we cannot make it to the floor when 
consent is requested. By the same token, Senators have no inherent 
right to have others object on their behalf while keeping their 
identity secret. If a Senator has a legitimate reason to object to 
proceeding to a bill or nominee, then he or she ought to have the guts 
to do so publicly.
  We need have no fear of being held accountable by our constituents if 
we are acting in their interest as we were elected to do. Transparency 
is essential for accountability, and accountability is an essential 
component of our constitutional system. Transparency and accountability 
are also vital for the public to have faith in their government. As I 
have said many times, the people's business ought to be done in public. 
In my view, that principle is at stake.
  I see my colleague from Oregon. If he will indulge me, I ask 
unanimous consent to engage in a colloquy with the Senator from Oregon 
to get his thoughts as well.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN. Madam President, as Senator Grassley has said, Senator 
Grassley, Senator McCaskill, and I have always maintained that there is 
no legitimate reason for Senators to keep holds they have placed with 
their leaders secret for any period of time. In fact, for quite some 
time, we have made a practice of immediately disclosing any hold we 
place in the Congressional Record, and that has been at the heart of 
our resolution, in my judgment. Would my friend from Iowa agree?
  Mr. GRASSLEY. Absolutely correct. One of the defects of the watered-
down secret holds provision that was included in the ethics reform bill 
in the 110th Congress was that it allowed for large windows of secrecy 
before disclosure was required. Our resolution states that the leaders 
shall recognize holds placed with them only if two conditions are met: 
if the Senator first submits the notice of intent to object in writing 
to the appropriate leader and grants in the notice of intent to object 
permission for the leader or designee to object in the Senator's name 
and, secondly, not later than 2 session

[[Page 978]]

days after submitting the notice of intent to object to the appropriate 
leader, submits a copy of the notice of intent to object to the 
Congressional Record and to the legislative clerk for inclusion in the 
applicable calendar section.
  Mr. WYDEN. I thank the Senator because I think that is an important 
point because the bipartisan resolution clearly establishes the 
responsibility of all Senators to go public with their holds and the 
understanding that the leaders will not honor secret holds.
  In addition, a concern that has been expressed is the lack of an 
enforcement mechanism in case there is a breakdown in this process, 
that it does not work as intended. Will the Senator from Iowa address 
that point? I believe our resolution addresses that concern as well.
  Mr. GRASSLEY. It certainly does. Even if the process we talked about 
is not followed, once a hold comes to light in the form of an 
objection, someone will be required to own up to that hold. It will no 
longer be possible for a leader or their designee to object but claim 
it is not their objection. They can say on whose behalf they are 
objecting and why not.
  We also require Senators placing a hold to give their permission to 
object in their name. Still, if a Senator objects and does not name 
another Senator as having the objection, and another Senator does not 
promptly come forward claiming the objection, the Senator making the 
objection will be listed in the relative section of the Senate calendar 
as having placed that hold.
  I yield, for a final conclusion, to the Senator from Oregon.
  Mr. WYDEN. I thank the Senator from Iowa, because with this colloquy 
he has laid it out very well. The fact is we have been at this so that 
it sometimes feels as though it has been the longest running battle 
since the Trojan War, given the fact we have had leadership agreements, 
we have had amendments, and we have had a watered-down version of the 
law. Today, we finally have an opportunity to ensure this 
unconscionable practice of secrecy that keeps the American people, 
millions of Americans, from learning about who is blocking a bill or a 
nomination, and that practice is finally eliminated, and I thank my 
colleague. It has been a long fight and a pleasure to work with my 
friend from Iowa and to have the energy and enthusiasm of Senator 
McCaskill, who has given this cause a huge push.
  Madam President, I ask unanimous consent to add Senator Merkley as a 
cosponsor to the bipartisan Senate resolution eliminating secret holds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN. I appreciate the hard work of the leadership and my 
partners in this effort, Senator Grassley and Senator McCaskill. We 
would not be here today without them. We have a strong, bipartisan bill 
that will bring greater transparency to the process of holds.
  There are a few matters that we wanted to clarify to ensure there is 
no confusion during the implementation. First, subsection (d) notes 
that when a Senator makes an objection, but within 2 session days, no 
Senator submits a Notice of Intent to Object to the Record, then the 
clerk should add to the Notice of Intent to Object calendar the name of 
the Senator who actually made the objection. Obviously, the calendar 
should also note the name of the matter actually objected to, as well 
as the date that the objection was made on the floor. Is that my 
colleague's understanding, as well?
  Mr. GRASSLEY. My colleague is correct and that is pretty 
straightforward. The Notice of Intent to Object calendar should reflect 
all of the matter necessary to understand holds. If no other Senator 
has come forth and claimed the objection, then the Senator who actually 
made the objection should be credited with holding the matter objected 
to. It is also worth noting that this approach saves a Senator who 
actually made an open objection on the floor on his or her own behalf 
the trouble of filing the ``Notice of Intent to Object'' with the 
clerk.
  Mr. WYDEN. Yes, the Senator from Iowa makes a good point. Our 
resolution turns the Notice of Intent to Object calendar into a one-
stop shop for recording information about objections made to covered 
requests. At the same time, some have asked us--what happens if a 
matter that had been objected to later passes? Shouldn't the clerk just 
remove the relevant information from the Notice of Intent to Object 
calendar in that situation? It seems to me that makes sense and such 
action by the clerk would be keeping with the intent of our resolution.
  Mr. GRASSLEY. I agree. If something has passed the Senate, then 
obviously it is not being held. The Notice of Intent to Object calendar 
should be updated to reflect that development. Some of my colleagues 
have raised another small wrinkle on this issue with me--what if the 
matter passes after an objection has been made but before the 2 session 
days have elapsed? It seems to me that in that case, the clerk does not 
need to go through the ministerial motion of adding an item to the 
Notice of Intent to Object calendar, only to immediately remove it. 
Again, if a matter has passed the Senate, there obviously is no hold.
  Mr. WYDEN. That seems like a commonsense approach to me. I thank my 
colleague for his help on secret holds. We are achieving a big victory 
for transparency at the beginning of this Congress.
  Mr. GRASSLEY. Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Madam President, people across this country are 
feeling pressures from so many points of view--job loss, threatened 
losses in the future as pressure exists on businesses, particularly 
small businesses across our country. They look to us in the Senate and 
in the House to help them solve their problems, but what they have seen 
has resulted in an attitude, to a certain degree, of disdain about 
those of us who serve in the Senate and the House of Representatives. 
The reason it has developed that way is because they think we are not 
doing our job. If they watch television or listen to what is going on, 
it further confirms the fact they have in mind that we are not doing 
our jobs; that we are wasting time; that we are not paying attention to 
the country's needs.
  That kind of a picture is appropriately formed, with the situation as 
it is. The Senate has been a roadblock to progress in our country. I 
salute my colleagues, Senators Udall of New Mexico and Merkley of 
Oregon, for the work they are doing, and the others who are associated 
with it, and I commend the Senator from Tennessee on the other side for 
his willingness, for his interest in establishing a consensus of view 
about how we can improve the functioning of our body. I salute him and 
commend him for it, and I have mentioned that to him privately. We have 
all been wrestling with this problem. But finally, I think we are 
coming to a time when we can solve it.
  I have spent the past year trying to improve Senate rules so we 
improve our functioning; that we show the people in the country we are 
actively trying to solve their problems, and they will understand that 
when they see people on the floor debating the issues and not seeing a 
clock working without any action to support it.
  Last year, and again this month, I introduced the Mr. Smith Act, to 
require filibustering Senators to come to the floor and actually 
filibuster. The filibuster is a right that is reserved for Senators 
when they object to a piece of legislation that we are dealing with, 
and if they are able to get the floor, to keep it until such time as 60 
votes develop, which says, let us end this debate. So we know that at 
the moment that is a tool the minority has used regularly and it brings 
the Senate to a halt. But if the plurality--the majority--shifts, the 
same thing is liable to happen but with the Democrats then using the 
filibuster for dilatory reasons.
  What we are going to do will make the body more transparent. It will 
reduce the practice of grinding the Senate to a halt for no good 
reason. Today, we will have the opportunity to vote on

[[Page 979]]

a couple of resolutions that include proposals based on the Mr. Smith 
Act. Everybody knows what the Mr. Smith situation was. Jimmy Stewart 
came to Washington and he stood for hours--an unimaginable length of 
time--to try to get something done. It was a heroic gesture and it has 
lasted as an icon for the American people.
  Like my bill, which we entitled the Mr. Smith bill, the proposals put 
forward by Senators Merkley and Udall come down to a simple idea: 
Senators who want to delay action on a bill or a nomination must stand 
up here and explain why we are delaying responding to the needs of the 
American people. An empty Senate Chamber can't help put Americans back 
to work, protect people from dangerous weapons, or improve our 
country's schools. We can't invest in our railways, roads and bridges, 
other infrastructure needs, and help struggling Americans to stay in 
their homes if there is no Senator willing--sent here after, I am sure 
in every case, an arduous election, even though the numbers might not 
say that--to debate the issues. Why aren't they at work? We would have 
no tolerance for schoolchildren if they continued in their absence from 
their classrooms doing their homework. Why in the Senate should it be 
allowed without intervention?
  We want people to be able to see that there are Senators in this 
Chamber debating the issues; that they are not clock watching and doing 
nothing to take care of the needs of the country. We are not making 
progress on vital issues because the rules of the Senate are being 
abused. Some of our colleagues are conducting silent filibusters, which 
is a disguise for inaction. Under these silent filibusters, Senators 
are allowed to object to a bill or a nomination without ever having to 
defend their position. Instead of explaining to their colleagues and 
the American people why they oppose a bill, they are able to skip off 
to dinner, leaving this Chamber to total gridlock. Is it any wonder so 
many Americans have such a low opinion of Congress? When people look at 
the Senate and they see us stuck in a morass of dilatory activities, 
they do not appreciate it, they do not like it, and they want action. 
They want the people whom they have sent here, whom they voted for, 
whom they depend upon, to do something on their behalf. If there is a 
disagreement about whether one path is right, they will understand that 
at least we are trying to do something.
  That is why I have spent so many months in trying to improve the way 
we conduct business. Passing these resolutions today will assure the 
American people that we are here to do their business.
  In addition to the Merkley-Udall resolutions, we will be voting on 
other important reforms to the Senate rules today. For example, I 
support the measure of the Senator from Oregon, Senator Wyden, to end 
secret holds, because the American people, again, deserve to know who 
is holding up important legislation. Transparency is something we talk 
about constantly around here. Yet we are not willing to put it in front 
of the people. This is a much-needed reform.
  But we need to do more to make the Senate a more effective and more 
efficient Chamber. The Senate--and I have been here a long time--was 
once known as the world's greatest deliberative body. At some point we 
decided--some years ago--that in order to bring the message more 
clearly to the American people we would allow television cameras to be 
here so the American people could watch us at work. They could see us 
at work--maybe even call it supervise us at work. Well, when they see a 
beautiful facility such as the Senate Chamber with no action going on, 
it gets to be quite depressing as far as they are concerned, and as far 
as we here are generally concerned.
  As I said, the Senate was known as the world's greatest deliberative 
body--the place where national conversations began and the major issues 
of the day were debated. Many of my colleagues and I want to see the 
Senate regain the respect of the American people and restore our 
reputation for serious debate and civil discourse, but we will never 
achieve this if we continue to allow our own rules to be abused. So I 
urge my friends and colleagues to join in supporting these resolutions, 
because if we want to help the American people get back to work, if we 
want to restore their confidence, if we want to let them know 
government is here to help and not delay, then we have to get back to 
work too. The fact is time is being spent, but it is not being spent on 
behalf of progress for the country.
  With that, Madam President, I yield the floor, and I thank my 
colleague from Iowa, Senator Harkin, who agreed to let me intervene 
with my remarks before he spoke at the time that was agreed to.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant editor of the Daily Digest proceeded to call the roll.
  Mr. HARKIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Madam President, exactly 16 years ago, in January of 
1995, for the first time in 8 years I found myself as a member of the 
minority party here in the Senate. At the beginning of that Congress, 
Republicans outnumbered Democrats 53 to 47; the exact same majority-to-
minority ratio that exists today, just in reverse order. Yet even 
though I was opposed at that time to the majority party's agenda, I 
introduced legislation to change the Senate rules regarding the 
filibuster.
  My plan would have ensured ample debate and deliberation, which I 
always hear is the stated purpose of the filibuster, but would also 
have allowed a bill or a nominee to eventually receive a yes-or-no 
vote. Again, my proposal didn't pass.
  I first proposed this at a conference of our Democratic Senators that 
was held in 1994, because at that time I saw and I predicted--and it is 
in the Congressional Record that I had predicted this at that time--
there was an escalating use of the filibuster that was being used not 
for debate purposes, not just to slow things down, but to actually 
provide for a veto of pending legislation by the minority.
  I predicted, at that time, if this arms race were not nipped in the 
bud, it would escalate because it had been escalating since the 1980s. 
Democrats were in power. Republicans would have X number of 
filibusters, and then when the Republicans were in power, the Democrats 
would do the same to the Republicans. Then the Republicans would come 
back in power and the Democrats would do the same to them and back and 
forth, but each time it escalated--an escalating arms race.
  I predicted, at that time, if we did not do something about it, it 
was going to get worse. Unfortunately, my prediction became all too 
true. In the intervening years, because of the extraordinary use of the 
filibuster, the ability of our government to legislate and to address 
the critical problems has been severely jeopardized.
  Sixteen years after I first introduced my proposal, it is even more 
apparent that for our government to properly function, we must reform 
the use of the filibuster. There are those who have criticized me and 
argued that Senator Harkin would not be doing this if he were in the 
minority. Well, again, that is not true. I repeat. In 1995, when I was 
a member of the minority party, I first introduced my proposal.
  The truth is, in the future, whether the Chamber is controlled by 
Democrats or Republicans, I will continue to work to accomplish a 
couple things. One, to provide that if there is going to be a 
filibuster, that it is a real filibuster; that the filibuster is used 
to slow down processes, to give the minority ample time to debate and 
discuss and to amend, but in the end the majority rule must come to the 
Senate.
  I thank Senator Schumer and Senator Alexander for the effort they 
made to negotiate a package of badly needed reforms. Of course, 
eliminating secret holds is long overdue. It is wrong that not only can 
the minority block the majority from acting, but, too often, it does it 
secretly and without any public accountability. So

[[Page 980]]

eliminating that and eliminating the confirmations of many low-level 
executive branch nominees I think is meaningful movement in the right 
direction.
  While I fully support these steps, they are far from the meaningful 
reforms that I think are essential to make the Senate a properly 
functioning legislative body. Keep in mind, we are a legislative body. 
The filibuster was once an extraordinary tool, used in the rarest of 
instances. Across the entire 19th century, there were only 23 
filibusters. From 1917, when the Senate first adopted rules on this 
until 1969, there were fewer than 50 in that whole timespan--less than 
one a year.
  During the 104th Congress, in 1995, when I first introduced my 
resolution, there were 82 filibusters. But it was not until the 110th 
and 111th Congresses that the abuse of the filibuster would spin wildly 
out of control. In the 110th Congress, there were an astonishing 139 
motions to end filibusters. In the 111th Congress just ended, there 
were 136. That is 275 filibusters in just over 4 years. It has spun out 
of control.
  This is not just a cold statistic of 275 filibusters. It means the 
filibuster, instead of a rare tool to slow things down, has become an 
everyday weapon of obstruction, of veto. On almost a daily basis, one 
Senator is able to use just the threat of a filibuster to stop bills 
from even coming to the floor for debate and amendment, let alone a 
final vote.
  In the last Congress, the filibuster was used to kill many pieces of 
legislation that enjoyed majority and often bipartisan support. The 
reality is, because of the way the filibuster is abused today, the 
minority--the minority--has unchecked veto power over public policy. 
When I say minority, I do not say Republicans, I say the minority. It 
could be the Democrats, it could be the Republicans.
  Think about this. We are a legislative body, elected by the voters of 
this country every 6 years to legislate, to pass legislation with the 
House, to send it to the President or to defeat legislation, one way or 
the other, through our votes.
  But it would seem to me that reason alone--reason alone--would 
suffice to say that legislation should be able to be passed with a 
majority vote. But that is not what has happened in the Senate. The 
power to pass legislation has been given to the minority. Reason alone 
would dictate there is something inherently wrong and inherently 
unconstitutional about this.
  As James Madison noted when rejecting a supermajority requirement to 
pass legislation, here is what James Madison said: ``It would no longer 
be the majority that would rule: the power would be transferred to the 
minority.''
  Unfortunately, Madison's prediction has come true. We are the only 
democratic body in the world--and I challenge anyone, I challenge 
anyone, to contradict me on this with proof--we are the only democratic 
body in the world where the minority, not the majority, controls.
  In today's Senate, democracy, of which we all claim to be such strong 
supporters, democracy is turned on its head. The minority rules; the 
majority is blocked. The majority has responsibility and accountability 
but lacks the power to govern. The minority has power but lacks 
accountability or responsibility.
  This means, as we have seen recently, that the minority can block 
bills that would improve the economy, create jobs, and then turn around 
and blame the majority for not fixing the economy. The minority can 
block popular legislation, then accuse the majority of being 
ineffective.
  Again, I wish to note that when I refer to the minority, I am not 
saying Republicans, I am saying the minority. Both parties have abused 
the filibuster in the past and both will, absent real reform, abuse the 
filibuster in the future. Although Republicans are currently in the 
minority, there is no question that control of this body will change 
again at some point, as it always does periodically.
  Some have argued that filibuster reform is nothing more than a 
``power grab'' by a Democratic Senator reacting to the recent elections 
in which his party lost seats. I have heard that said. Well, it is true 
it is now harder for either party to obtain the 60 votes needed to pass 
legislation. But I wish to make clear that the reforms I advocate are 
not about one party or one agenda gaining an unfair advantage, it is 
about the Senate, as an institution, operating more fairly, 
effectively, and democratically.
  I wish to repeat, I first introduced this in 1995 when I was in the 
minority. So as we say in law school, in the court of equity, I come 
with clean hands. The truth is, as it is situated right now with 
Republicans controlling the House, any final legislation will need to 
be bipartisan, with or without a filibuster.
  Let me also say, again, that for a bill to become law, it has to be 
passed by the House and the Senate in the same form--in the same form. 
Then it must go to the President. The President can veto it and then it 
takes a two-thirds vote to override a veto. There are a lot of checks 
and balances out there. So the need for the check on legislation by the 
minority with the ultimate power to veto that is not needed--not 
needed; in fact, inimical to a democratic institution.
  It was former majority leader Bill Frist who said, when he normally 
shut down the body over the use of filibusters to block a handful of 
judges, again by Democrats, ``This filibuster is nothing less than a 
formula for tyranny by the minority.''
  Further, I wish to make it clear it is not those of us who seek 
reform who are engaged in a power grab. It is those who insist on 
hanging on to an antiquated rule who are grabbing for power. It is 
those who have taken an extraordinary tool, once used sparingly, to 
ensure ample debate and deliberation and turned it into a monstrosity, 
destroying the power of the majority to govern, turning over effective 
control of the Senate to the party that failed to elect a majority of 
Senators.
  That is the real power grab. That is the real power grab. Moreover, 
despite the dire predictions of opponents of reform, filibuster reform 
does not mean the end of minority rights in the Senate. Senators of all 
parties will continue to have ample time to make arguments, attempt to 
persuade the public or a majority of their colleagues.
  The reform proposals that are being considered fully protect the 
rights of the minority to full and vigorous debate and deliberation, 
maintaining the hallmark of the Senate.
  Presently, Republicans have stated the filibusters were necessary 
because Democrats employed a procedural maneuver to deprive them of the 
right to offer amendments, the so-called filling of the tree. Well, 
notwithstanding the rejoinder that Republican abuse amendments, such as 
offering amendments totally unrelated to the pending matter--and there 
again this is where you get into the chicken and egg, who did it first 
to whom? Nonetheless, I am sympathetic to the argument that the 
minority ought to have the right to be able to offer amendments. That 
is why I have included in my resolution guaranteed rights to offer 
germane amendments--germane amendments, not an amendment dealing with 
something totally unrelated to the legislation on the floor--to offer 
legitimate, germane amendments which the minority feels would improve 
or change, to the minority's liking, whatever legislation, amendment or 
bill might be on the floor.
  Too many people, I believe, confuse minority rights with minority 
winning. Having the right to debate and to deliberate and to offer 
amendments does not mean you have the right to get your way. Being 
allowed to vote on your amendment does not mean you have a right to win 
the vote. The minority does not deserve the right to prevail in every 
instance.
  The minority obviously can convince some of the majority to join 
them. Then they become the majority on a given issue or given 
amendment. That used to happen all the time around here. There is 
nothing wrong with that. But the minority, I submit, does not deserve 
the right, under our Constitution, nor under any reasonable 
interpretation of a Democratic legislative

[[Page 981]]

body--they do not have the right to systematically block action by the 
majority and to veto, to have veto power, over what can even be 
considered on the floor of the Senate.
  The fact is, provided that the minority is vested with ample 
protections, as it is in my proposal, at the end of ample debate, the 
majority should be allowed to act. What is so radical? What is so 
strange about the notion that in a legislative body, the peoples' 
representatives should vote up or down on legislation or a nominee?
  As Senator Henry Cabot Lodge stated many years ago: ``To vote without 
debating is perilous, but to debate and never vote is imbecile.''
  I think at the heart of this debate is a central question that we are 
not coming to grips with. Do we truly believe in democracy? Do we truly 
believe the issues of public policy should be decided at the ballot box 
and not by the manipulation of archaic procedural rules? I think the 
truth is, both parties appear to be afraid of majority rule, afraid of 
allowing a majority of Senators to work their will.
  At its heart, those who hang on to this outdated rule, those who 
vigorously oppose the majority having the ability to govern fear the 
American people. They fear that the people's choices and wishes will be 
translated into action here in Washington.
  The central question for this body is clear: Do we or do we not 
believe in democracy and majority rule? Elections should have 
consequences. After ample protections for minority rights, the majority 
party in the Senate, whether Democratic or Republican, duly elected by 
the American people, should be allowed to carry out their agenda and be 
allowed to govern.
  Should I be opposed to reform of the filibuster because I am afraid 
Republicans someday will become the majority party in the Senate and 
proceed to enact their agenda? No. I believe in democracy for 
Republicans and Democrats alike. I believe in majority rule for 
Republicans and Democrats alike.
  The distinguished minority leader said recently in regard to this 
proposal that Democrats ought to be concerned because a couple years 
from now Republicans might take over this place and would be able to 
undo a lot of the things we did--fear that somehow the Republicans will 
get the majority and be able to enact their agenda. I say to my 
friends, God bless them. If they win the election and become the 
majority party, they ought to govern. What are the checks and balances? 
We don't know whether the President will be a Democrat or a Republican. 
We don't know what the House is going to be. There are still a lot of 
internal checks and balances in the committee structure.
  The minority, under my proposal, can still slow things down. I read 
in the paper that one Senator said it ought to be the right of the 
minority to slow things down. I believe that. I believe that in the 
Senate the minority ought to have the right to slow things down. That 
is why my proposal provides for that. There is ample opportunity to 
slow things down, throw some sand in the gearbox of the majority. But 
in my proposal, at the end of a period of time of 8 days, the majority 
can govern. So one can slow it down--slow down everything, every 
amendment, every bill--so compromise negotiations would still go on.
  I hear from my side: What if the tea party gains a majority in the 
Senate? We will need to filibuster to stop them. I say to my friends on 
this side and others, it is a sad day in America when the only way we 
can stop the tea party or any other extreme group is through 
subterfuge, through filibusters, secret holds, and parliamentary 
trickery. We have to have a fundamental confidence in democracy and the 
good sense of the American people. We have to have confidence in our 
ability to make our case to the American people and to prevail at the 
ballot box. We must not be afraid of the American people. We must not 
be afraid of how they cast their votes or for whom. I am not afraid of 
the will of the people expressed at the ballot box. That is what sent 
me to this Chamber. I should note, that used to be the operating 
principle of this body, but over the years, especially recently, it has 
become grossly distorted.
  We all have our views on the recent election and what the American 
people said. Everybody has a view on that. I will say what my view is. 
The American people spoke loudly that they are fed up and angry with 
Washington, with government, and with Congress. They want change, and 
they want an end to the dysfunction in this city. In too many critical 
areas--job creation, energy, the economy--people see a Congress that is 
unable to respond effectively to the urgent challenges of our time.
  My proposal is basically the same as I offered 16 years ago. It would 
amend the Standing Rules of the Senate to permit a decreasing majority 
of Senators over a period of 8 days to invoke cloture on a given 
matter. A determined minority could slow things down for 8 days. 
Senators would have ample time to make arguments and attempt to 
persuade the public and a majority of their colleagues. This protects 
the right of the minority to full and vigorous debate and deliberation, 
again maintaining the hallmark of the Senate. At the end of ample 
debate, however, there would be an up-or-down vote on an amendment, a 
bill, a nominee. My proposal would restore a basic and essential 
principle of representative democracy: majority rule in a legislative 
body.
  I also think there is another advantage--that it would lead to 
greater compromise. Many have argued that it is the filibuster that 
forces compromise and collaboration. I disagree. The fact is, right now 
the minority has no real incentive to compromise. Why should they if 
they can totally block something and then go out and campaign on a 
message that the majority just couldn't get anything done? Again, the 
minority has a great deal of power but zero incentive on compromise.
  I believe my proposal would encourage a more robust spirit of 
compromise. If the minority knows that at the end of the day, at the 
end of 8 days, 51 votes will be enough to bring a bill to the floor or 
to end debate on an amendment or a nominee, it seems they would be more 
willing to come to the table and compromise. And for the majority, the 
reason to compromise is because for the majority party in the Senate--
either one, Democratic or Republican--one of the most valuable things 
is time, allocation of time. The majority always wants to save time. So 
rather than chew up 8 days on a nominee or an amendment, the majority 
would like to get it done in a day or so. The minority, knowing that at 
the end of 8 days, 51 votes can pass something, will say: Maybe we 
ought to compromise now and get what we can out of it without dragging 
it out 8 days. Right now, there is literally zero incentive to 
compromise.
  I also strongly encourage colleagues to support the talking 
filibuster proposal of Senator Merkley. They claim it is about 
silencing the minority. The fact is, the filibuster has nothing to do 
with debate and deliberation. It is used to prevent consideration. 
Rather than serve to ensure the representation of minority views and to 
foster deliberation, the minority uses the filibuster to prevent debate 
and deliberation. The filibuster has been used to defeat bills and 
nominees without their receiving a discussion on the floor. So the 
world's greatest deliberative body has now become the world's greatest 
nondeliberative body.
  I think a ``yes'' vote today on a vote for reform, for change, and 
for a government that can effectively address our Nation's challenges 
is a vote to move ahead. It is a vote for progress--or we can vote for 
continued gridlock, continued obstruction, and broken government. This 
body does not function the way it is supposed to.
  To be sure, the Founders put in place a system of checks and balances 
that makes it enormously difficult to enact legislation. It must pass 
both Houses of Congress. It has to go through committees first. It must 
pass both Houses of Congress, go to a conference committee, then it 
goes to the President. He can veto it. And then it can be challenged in 
court. All are very significant checks.
  I often hear opponents of reform claim that what I am proposing would

[[Page 982]]

turn the Senate into the House of Representatives because at the end of 
8 days, 51 votes could move something. I ask my friends: When did the 
Senate become defined by Senate rule XXII, which is the filibuster 
rule? I thought the Senate was defined in the Constitution. Rule XXII, 
the filibuster rule, is not the essence of the Senate. Regardless, the 
Senate will continue to be totally different from the House. We have 
two Senators from small States, two Senators from large States. We are 
elected every 6 years. We have sole jurisdiction over treaties, 
impeachments. And the Senate operates, as we know, in so many instances 
based on unanimous consent. That will continue. So the power of one 
single Senator remains to object to any unanimous consent request. 
Eliminating the filibuster will not change the basic nature of this 
body, nor the constitutional structure of the Senate.
  For most of the Senate's history, there were very few filibusters--at 
most one or two a year. Can someone suggest that the Senate of Henry 
Clay or Daniel Webster, Lyndon Johnson, Everett Dirksen, that that 
Senate was the same as the House of Representatives? Even in my short 
time here--26 years--we used to have amendments on the floor that we 
would debate and vote, and if you got 51 votes, you won. We don't do 
that anymore. Under the present structure of the Senate, under the 
present rule XXII, the way it is being used today, every measure that 
passes the Senate must have 60 votes. Whatever happened to the idea of 
majority rule? Now one has to have 60 votes.
  I have heard some say that if we have to have 60 votes, this 
encourages compromise to get to the 60 votes. I am all for compromise. 
I have brought a lot of legislation to the floor in my time here, and 
some has been adopted 100 to nothing. Farm bills, appropriations bills, 
others that I have brought to the floor, both in the majority party and 
in the minority party as the ranking member on a committee--and we 
didn't need 60 votes. If someone offered an amendment, they had the 
right to offer an amendment and get 51 or 52 or 53 votes and win. I 
have never stood at that desk, either as a committee chair or as 
ranking member, and insisted that a bill we had on the floor had to 
have 60 votes in order to pass. But that is what has happened in the 
Senate now.
  Some say that promotes compromise. Anyone who has a bill or an 
amendment wants to get the most votes possible, right? They want to get 
more votes. That is the nature of legislation. But sometimes there is a 
bill or an amendment that does not lend itself to easy compromise. It 
may be contentious. We may have to take a hard vote. Maybe it only gets 
51 votes. Should that amendment go down to failure because it got 51 or 
52 or 53 or 54 or 55 or 58 or 59 votes? Go out and explain that to the 
American people. Go to the next townhall meeting and say: No matter 
what happens, you can't pass anything with 51 votes. You have to have 
60 votes to pass anything in the Senate. That gives the minority the 
right to veto anything. See how people react to that. When they 
understand it, they say: That is nuts.
  We all stand for election every 6 years. If we only get 52 percent of 
the vote, maybe we shouldn't be here because obviously there was no 
consensus among the people who voted for us that we should represent 
them if we didn't get 60 percent of the vote. Is that what is coming, 
that we have to have 60 percent of the vote to even serve in the 
Senate? I know I am taking it to its extreme. I know no one is 
suggesting that. But boiled down to its essence, what we are saying is, 
without adopting reform of the filibuster, yes, we as a U.S. Senate 
believe a minority has the right to veto anything in this Senate.
  I would much rather be on the side that says the minority has a right 
to slow things down, the minority has the right to debate, the minority 
has the right to amend, and the minority has a right to win those 
amendments with 51 votes. But a minority should not have the right to 
veto and stop legislation.
  That is what my proposal does: adequate time for debate, adequate 
time for amendments, ensuring that the minority can offer an amendment, 
but, in the end, the majority would rule. It was never intended--never, 
never intended--that a supermajority of 60 votes would be needed to 
enact any piece of legislation, any amendment, or confirm a nominee.
  Indeed, the Framers of our Constitution were very clear about where a 
supermajority was required. There were only five to the original 
Constitution: ratification of a treaty, overriding a veto, votes of 
impeachment, passage of a constitutional amendment, and expulsion of a 
Member.
  It may come as a shock to many people, but the filibuster is not in 
the Constitution of the United States. In fact, historically, the first 
Senate, when it met, included a rule that permitted the majority to end 
debate and bring a measure to a vote with a majority. It was called 
``invoking the previous question.'' But they had the right to do that. 
It was done away with by Aaron Burr, then-Vice President of the United 
States. We know what happened to him. But that was done away with.
  So the Senate embarked upon a little over 100 years of having no 
rules. But, then again, the Senate did not do much. They really did not 
do much. However, in the 21st century, as a major superpower, with 
things happening with lightning speed around the world, we have to be 
able to react a little bit more rapidly than how we reacted in the 19th 
century.
  Moreover, reform of filibuster rules stands squarely within a 
tradition of updating Senate rules as needed to foster an effective 
government that can respond to the challenges of the day. The Senate 
has adopted rules that forbid the filibuster in numerous circumstances, 
such as war powers and the budget. Think about that. For some reason, 
the Senate, at some point in time, said you cannot filibuster the 
budget. Imagine that. You can filibuster other things, but you cannot 
filibuster the budget. How about war powers? What could be more 
important than whether or not we go to war? It is a power granted to 
the Congress by the Constitution, but you cannot filibuster it. Think 
about that.
  So we have rules that forbid the filibuster. We have passed four 
significant reforms of the filibuster since 1917. Today, unfortunately, 
it has become abundantly clear that we cannot govern a 21st-century 
superpower when a minority of 41 Senators can dictate action or 
inaction to a majority of the Senate and a majority of the American 
people--a majority of the American people.
  We had a bill here last year; it was called the DISCLOSE Act. The 
House passed it twice overwhelmingly. They sent it to the Senate. Now, 
what did the DISCLOSE Act say? All it did is say the Supreme Court 
decision in Citizens United, that allowed corporate money to be 
funneled into campaigns to defeat or support an opponent and did not 
have to be accounted for, did not have to be made public. Many people 
suspected there was foreign money coming in through various sources to 
influence campaigns in the United States because they did not have to 
report it. So the bill came through that did not overturn the Supreme 
Court decision. It just said: If you are going to do this, you have to 
disclose where you got the money.
  It passed the House. Polls showed it was supported by well over 80 
percent of the people, a majority of Republicans and Democrats around 
the country. It came to the Senate twice. It got 59 votes. Why isn't it 
law today? Because you need 60 votes--60 votes. Go back and explain 
that at your town meetings. Go back and tell them: We don't have that 
today. We don't have that sunshine law because we need 60 votes, even 
though we got 59.
  This is not the kind of representative democracy the Founders 
envisioned. It is not the kind of representative democracy that our 
sons and daughters have fought and died for for over 200 years. How 
many of our young men and women in uniform today--risking their lives 
in Afghanistan, Iraq, around the globe--how many of them know they are 
risking their lives for minority rule--for minority rule, not majority

[[Page 983]]

rule--minority rule? Very few, I submit. Very few.
  It is time to end the paralysis, the drift, and the decline in the 
Senate. Yes, let's commit ourselves to debate and deliberation. There 
is nothing wrong with that, nothing wrong with extended debate. There 
is nothing wrong with having compromises. There comes a time when maybe 
a compromise is not in the cards. But should that mean we cannot vote 
on it, I say to my friends? Should that mean if we cannot get 60 votes, 
we do not even deserve to have 51 or 52 or 53 votes? Is that what we 
are saying?
  I have heard my friends on the other side--I think I heard; I do not 
know exactly who it was today--say: Well, the 60 votes promotes 
compromise. I am all for that. But what if we cannot get the 
compromise, I say? Then are we saying we cannot have a vote because we 
cannot get 60 votes? That is, in essence, what they are saying. It is 
not the bedrock of democratic principle to deny the majority to rule, 
to finally have a vote.
  So there may be a lot of misinterpretations of the amendment I am 
offering: Oh, it is going to make us like the House. Nonsense. It is 
going to take away minority rights. Nonsense. It is going to take away 
the right of the minority to slow things down. Nonsense.
  What my amendment does is it says, finally, at some point in time, we 
are going to exercise our constitutional obligation.
  I will close on this: Every 6 years we have an election and we go 
down here and hold up our right hand and we swear an oath. We swear an 
oath to uphold and defend the Constitution of the United States against 
all enemies, foreign and domestic, and to bear true faith and 
allegiance to the same.
  I submit we are not living up to our oath of office in terms of 
bearing true faith and allegiance to the Constitution when, on the 
other hand, we enact rules that deny the majority the right to govern--
when we deny the majority the right to govern.
  So I say every Senator has a lot of power here. The power of a 
Senator comes not from what we can do but from what we can stop. I have 
often said that is kind of the dirty little secret of the Senate.
  Well, I think it is time for each of us to give up a little bit of 
our power, to give up a little bit of our power for the good of the 
country, to give up a little bit of our power of being able to stop 
something in order that the majority--whomever that majority may be--
can carry out their agenda on behalf of the American people.
  I do not fear--I do not fear--the voters. I do not fear the ballot 
box. What I fear is this Senate will continue to be dysfunctional, it 
will not be able to act, we will continue to drift, we will not be able 
to respond to the exigencies of our time, the American people will get 
more and more frustrated and disappointed in the workings of our 
government, and the end result will be a decline in America.
  Look, I am not Pollyannaish. I know none of these proposals will 
succeed. It takes 67 votes, they say, to change the rules of the 
Senate. I believe that is inherently unconstitutional. Can one Congress 
bind another? Can one Congress bind all future Congresses? Can one 
Senate bind all future Senates? Can one Senate in a moment of time say 
we need 90 votes to pass anything here because 90 Members happen to be 
of one party, so they enact a rule and they say we have to have 90 
votes to change any rule, knowing it will probably never happen again?
  As Senator Byrd said one time--I know he is being quoted a lot around 
here today and when it comes to these debates--we should not be bound 
by the dead hand of the past--the dead hand of the past.
  I believe it is the inherent right of the Senate to change its rules 
by a majority vote at the beginning of any Congress. That is what it 
says in the Constitution. Each House shall make its rules. It does not 
say each House makes its rules and every succeeding House must abide by 
those rules. It does not say that.
  So I think we are left with a situation where the Senate--where the 
Senate--cannot live up to its constitutional obligation. I think it is 
almost inherently impossible for the Senate to do so. Therefore, I 
think we must now have to look to the courts to provide some relief in 
this matter, just as the Supreme Court decided in Baker v. Carr that 
legislatures could not reapportion themselves. So, therefore, they 
found it unconstitutional.
  I, quite frankly, think a case can be made to the courts that the 
Senate rules, as they are now applied with the 67-vote threshold, 
prevent me, a Senator from Iowa, prevent a Senator from Georgia, 
prevent a Senator from Oregon from fulfilling his or her constitutional 
obligations to their constituents, to the people who elected them, to 
try to get legislation passed on a majority basis.
  So, like I said, I am not Pollyannaish. I know where the votes are 
today. I do not know--I know my proposal will not get many votes. It 
did not get many in 1995 either. And people say: Well, Harkin, why are 
you doing this? Why do you do it when you know you do not get many 
votes? I do it because I believe in it. I believe with all my heart and 
all my soul that the Senate is not operating constitutionally right 
now. So I feel this fight must continue.
  As I said, I now come to that point in time where I believe that 
perhaps we must look to the courts for their decision on whether the 
Senate is capable of fulfilling its constitutional responsibilities and 
obligations.
  So I hope we do not have to go there. I hope we could adopt some of 
these reforms, such as the Merkley amendment or my proposal. Quite 
frankly, at the essence of it is the proposal by the Senator from New 
Mexico. That is the heart of it. Can a majority of the Senate change 
its rules at the beginning of a Senate? I believe it is 
constitutionally not only permissible, but I think we are obligated by 
the Constitution every 2 years to adopt the rules of the Senate by a 
majority vote and not by 67 votes.
  So I close my part of the debate by appealing to the conscience of 
our Senators to think about majority rule, think about the rights of 
the minority but think about the rights of the American people to have 
their voices heard here by a majority vote and not by a supermajority. 
I believe that is our constitutional obligation.
  Madam President, I yield the floor.
  The PRESIDING OFFICER (Ms. Klobuchar). The Senator from Georgia is 
recognized.
  Mr. ISAKSON. Madam President, I rise briefly to address a few remarks 
made by the senior Senator from Iowa and to compliment my colleague 
from Tennessee. But first, regarding all of these talks about our 
Founding Fathers and our Constitution, if our Founding Fathers had not 
intended for supermajorities to determine certain acts of this 
Congress, why would two-thirds of us have to vote to pass a 
constitutional amendment and three-fourths of the States have to vote 
to ratify one? I think that showed the intent. If our Founding Fathers 
had not intended for minority representation to exist, I wouldn't have 
two Senators like California; everybody would have a proportionate 
number of Senators. Finally and most importantly, with regard to the 
notion that we are the only democracy in the world to have a rule where 
majority rules, the fact is, that may be true. We are also the richest, 
safest, most prosperous democracy in the world, and that has a lot to 
do with the way we govern ourselves. So I wanted to make those three 
points.
  I wish to congratulate Senators Wyden, McCaskill, and Grassley on 
what I think is a very appropriate amendment to make sure we have total 
transparency in our process of holds in the Senate. I think that is 
right, and I think that is exactly what the American people would 
express.
  Lastly, I wish to thank the Senator from Tennessee and the Senator 
from New York. In the last few weeks, they have done a lot of good 
work--yeoman's work, as a matter of fact--to make sure this Senate 
doesn't rush to judgment and make a mistake that would not be in the 
interests of the institution or the American people. The

[[Page 984]]

Senate in the end is all about Senators putting their shoulders to the 
grindstone and making things work, and I think in this case the Senator 
from Tennessee has done exactly that, and I wish to compliment him on 
his work.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. UDALL of New Mexico. Madam President, I wish to thank all of the 
Senators who have come down for this debate. These are just a couple of 
cleanup, housekeeping things I need to do.
  First of all, the charge was made that we are trying to make the 
Senate like the House. Rather than get in a long debate here, I ask 
unanimous consent to have printed in the Record Federalist Paper No. 62 
and a letter from a number of scholars who testified before the Rules 
Committee.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                         The Federalist Papers


                           FEDERALIST No. 62

                               The Senate

                  Alexander Hamilton or James Madison

       To the People of the State of New York:
       HAVING examined the constitution of the House of 
     Representatives, and answered such of the objections against 
     it as seemed to merit notice, I enter next on the examination 
     of the Senate.
       The heads into which this member of the government may be 
     considered are:
       I. The qualification of senators;
       II. The appointment of them by the State legislatures;
       III. The equality of representation in the Senate;
       IV. The number of senators, and the term for which they are 
     to be elected;
       V. The powers vested in the Senate.
       I. The qualifications proposed for senators, as 
     distinguished from those of representatives, consist in a 
     more advanced age and a longer period of citizenship. A 
     senator must be thirty years of age at least; as a 
     representative must be twenty-five. And the former must have 
     been a citizen nine years; as seven years are required for 
     the latter. The propriety of these distinctions is explained 
     by the nature of the senatorial trust, which, requiring 
     greater extent of information and stability of character, 
     requires at the same time that the senator should have 
     reached a period of life most likely to supply these 
     advantages; and which, participating immediately in 
     transactions with foreign nations, ought to be exercised by 
     none who are not thoroughly weaned from the prepossessions 
     and habits incident to foreign birth and education. The term 
     of nine years appears to be a prudent mediocrity between a 
     total exclusion of adopted citizens, whose merits and talents 
     may claim a share in the public confidence, and an 
     indiscriminate and hasty admission of them, which might 
     create a channel for foreign influence on the national 
     councils.
       II. It is equally unnecessary to dilate on the appointment 
     of senators by the State legislatures. Among the various 
     modes which might have been devised for constituting this 
     branch of the government, that which has been proposed by the 
     convention is probably the most congenial with the public 
     opinion. It is recommended by the double advantage of 
     favoring a select appointment, and of giving to the State 
     governments such an agency in the formation of the federal 
     government as must secure the authority of the former, and 
     may form a convenient link between the two systems.
       III. The equality of representation in the Senate is 
     another point, which, being evidently the result of 
     compromise between the opposite pretensions of the large and 
     the small States, does not call for much discussion. If 
     indeed it be right, that among a people thoroughly 
     incorporated into one nation, every district ought to have a 
     PROPORTIONAL share in the government, and that among 
     independent and sovereign States, bound together by a simple 
     league, the parties, however unequal in size, ought to have 
     an EQUAL share in the common councils, it does not appear to 
     be without some reason that in a compound republic, partaking 
     both of the national and federal character, the government 
     ought to be founded on a mixture of the principles of 
     proportional and equal representation. But it is superfluous 
     to try, by the standard of theory, a part of the Constitution 
     which is allowed on all hands to be the result, not of 
     theory, but ``of a spirit of amity, and that mutual deference 
     and concession which the peculiarity of our political 
     situation rendered indispensable.'' A common government, with 
     powers equal to its objects, is called for by the voice, and 
     still more loudly by the political situation, of America. A 
     government founded on principles more consonant to the wishes 
     of the larger States, is not likely to be obtained from the 
     smaller States. The only option, then, for the former, lies 
     between the proposed government and a government still more 
     objectionable. Under this alternative, the advice of prudence 
     must be to embrace the lesser evil; and, instead of indulging 
     a fruitless anticipation of the possible mischiefs which may 
     ensue, to contemplate rather the advantageous consequences 
     which may qualify the sacrifice.
       In this spirit it may be remarked, that the equal vote 
     allowed to each State is at once a constitutional recognition 
     of the portion of sovereignty remaining in the individual 
     States, and an instrument for preserving that residuary 
     sovereignty. So far the equality ought to be no less 
     acceptable to the large than to the small States; since they 
     are not less solicitous to guard, by every possible 
     expedient, against an improper consolidation of the States 
     into one simple republic.
       Another advantage accruing from this ingredient in the 
     constitution of the Senate is, the additional impediment it 
     must prove against improper acts of legislation. No law or 
     resolution can now be passed without the concurrence, first, 
     of a majority of the people, and then, of a majority of the 
     States. It must be acknowledged that this complicated check 
     on legislation may in some instances be injurious as well as 
     beneficial; and that the peculiar defense which it involves 
     in favor of the smaller States, would be more rational, if 
     any interests common to them, and distinct from those of the 
     other States, would otherwise be exposed to peculiar danger. 
     But as the larger States will always be able, by their power 
     over the supplies, to defeat unreasonable exertions of this 
     prerogative of the lesser States, and as the faculty and 
     excess of law-making seem to be the diseases to which our 
     governments are most liable, it is not impossible that this 
     part of the Constitution may be more convenient in practice 
     than it appears to many in contemplation.
       IV. The number of senators, and the duration of their 
     appointment, come next to be considered. In order to form an 
     accurate judgment on both of these points, it will be proper 
     to inquire into the purposes which are to be answered by a 
     senate; and in order to ascertain these, it will be necessary 
     to review the inconveniences which a republic must suffer 
     from the want of such an institution.
       First. It is a misfortune incident to republican 
     government, though in a less degree than to other 
     governments, that those who administer it may forget their 
     obligations to their constituents, and prove unfaithful to 
     their important trust. In this point of view, a senate, as a 
     second branch of the legislative assembly, distinct from, and 
     dividing the power with, a first, must be in all cases a 
     salutary check on the government. It doubles the security to 
     the people, by requiring the concurrence of two distinct 
     bodies in schemes of usurpation or perfidy, where the 
     ambition or corruption of one would otherwise be sufficient. 
     This is a precaution founded on such clear principles, and 
     now so well understood in the United States, that it would be 
     more than superfluous to enlarge on it. I will barely remark, 
     that as the improbability of sinister combinations will be in 
     proportion to the dissimilarity in the genius of the two 
     bodies, it must be politic to distinguish them from each 
     other by every circumstance which will consist with a due 
     harmony in all proper measures, and with the genuine 
     principles of republican government.
       Secondly. The necessity of a senate is not less indicated 
     by the propensity of all single and numerous assemblies to 
     yield to the impulse of sudden and violent passions, and to 
     be seduced by factious leaders into intemperate and 
     pernicious resolutions. Examples on this subject might be 
     cited without number; and from proceedings within the United 
     States, as well as from the history of other nations. But a 
     position that will not be contradicted, need not be proved. 
     All that need be remarked is, that a body which is to correct 
     this infirmity ought itself to be free from it, and 
     consequently ought to be less numerous. It ought, moreover, 
     to possess great firmness, and consequently ought to hold its 
     authority by a tenure of considerable duration.
       Thirdly. Another defect to be supplied by a senate lies in 
     a want of due acquaintance with the objects and principles of 
     legislation. It is not possible that an assembly of men 
     called for the most part from pursuits of a private nature, 
     continued in appointment for a short time, and led by no 
     permanent motive to devote the intervals of public occupation 
     to a study of the laws, the affairs, and the comprehensive 
     interests of their country, should, if left wholly to 
     themselves, escape a variety of important errors in the 
     exercise of their legislative trust. It may be affirmed, on 
     the best grounds, that no small share of the present 
     embarrassments of America is to be charged on the blunders of 
     our governments; and that these have proceeded from the heads 
     rather than the hearts of most of the authors of them. What 
     indeed are all the repealing, explaining, and amending laws, 
     which fill and disgrace our voluminous codes, but so many 
     monuments of deficient wisdom; so many impeachments exhibited 
     by each succeeding against each preceding session; so many 
     admonitions to the people, of the value of those aids which 
     may be expected from a well-constituted senate?
       A good government implies two things: first, fidelity to 
     the object of government,

[[Page 985]]

     which is the happiness of the people; secondly, a knowledge 
     of the means by which that object can be best attained. Some 
     governments are deficient in both these qualities; most 
     governments are deficient in the first. I scruple not to 
     assert, that in American governments too little attention has 
     been paid to the last. The federal Constitution avoids this 
     error; and what merits particular notice, it provides for the 
     last in a mode which increases the security for the first.
       Fourthly. The mutability in the public councils arising 
     from a rapid succession of new members, however qualified 
     they may be, points out, in the strongest manner, the 
     necessity of some stable institution in the government. Every 
     new election in the States is found to change one half of the 
     representatives. From this change of men must proceed a 
     change of opinions; and from a change of opinions, a change 
     of measures. But a continual change even of good measures is 
     inconsistent with every rule of prudence and every prospect 
     of success. The remark is verified in private life, and 
     becomes more just, as well as more important, in national 
     transactions.
       To trace the mischievous effects of a mutable government 
     would fill a volume. I will hint a few only, each of which 
     will be perceived to be a source of innumerable others.
       In the first place, it forfeits the respect and confidence 
     of other nations, and all the advantages connected with 
     national character. An individual who is-observed to be 
     inconstant to his plans, or perhaps to carry on his affairs 
     without any plan at all, is marked at once, by all prudent 
     people, as a speedy victim to his own unsteadiness and folly. 
     His more friendly neighbors may pity him, but all will 
     decline to connect their fortunes with his; and not a few 
     will seize the opportunity of making their fortunes out of 
     his. One nation is to another what one individual is to 
     another; with this melancholy distinction perhaps, that the 
     former, with fewer of the benevolent emotions than the 
     latter, are under fewer restraints also from taking undue 
     advantage from the indiscretions of each other. Every nation, 
     consequently, whose affairs betray a want of wisdom and 
     stability, may calculate on every loss which can be sustained 
     from the more systematic policy of their wiser neighbors. But 
     the best instruction on this subject is unhappily conveyed to 
     America by the example of her own situation. She finds that 
     she is held in no respect by her friends; that she is the 
     derision of her enemies; and that she is a prey to every 
     nation which has an interest in speculating on her 
     fluctuating councils and embarrassed affairs.
       The internal effects of a mutable policy are still more 
     calamitous. It poisons the blessing of liberty itself. It 
     will be of little avail to the people, that the laws are made 
     by men of their own choice, if the laws be so voluminous that 
     they cannot be read, or so incoherent that they cannot be 
     understood; if they be repealed or revised before they are 
     promulgated, or undergo such incessant changes that no man, 
     who knows what the law is to-day, can guess what it will be 
     to- morrow. Law is defined to be a rule of action; but how 
     can that be a rule, which is little known, and less fixed?
       Another effect of public instability is the unreasonable 
     advantage it gives to the sagacious, the enterprising, and 
     the moneyed few over the industrious and uniformed mass of 
     the people. Every new regulation concerning commerce or 
     revenue, or in any way affecting the value of the different 
     species of property, presents a new harvest to those who 
     watch the change, and can trace its consequences; a harvest, 
     reared not by themselves, but by the toils and cares of the 
     great body of their fellow-citizens. This is a state of 
     things in which it may be said with some truth that laws are 
     made for the FEW, not for the MANY.
       In another point of view, great injury results from an 
     unstable government. The want of confidence in the public 
     councils damps every useful undertaking, the success and 
     profit of which may depend on a continuance of existing 
     arrangements. What prudent merchant will hazard his fortunes 
     in any new branch of commerce when he knows not but that his 
     plans may be rendered unlawful before they can be executed? 
     What farmer or manufacturer will lay himself out for the 
     encouragement given to any particular cultivation or 
     establishment, when he can have no assurance that his 
     preparatory labors and advances will not render him a victim 
     to an inconstant government? In a word, no great improvement 
     or laudable enterprise can go forward which requires the 
     auspices of a steady system of national policy.
       But the most deplorable effect of all is that diminution of 
     attachment and reverence which steals into the hearts of the 
     people, towards a political system which betrays so many 
     marks of infirmity, and disappoints so many of their 
     flattering hopes. No government, any more than an individual, 
     will long be respected without being truly respectable; nor 
     be truly respectable, without possessing a certain portion of 
     order and stability.

     PUBLIUS.
                                  ____

                                                 December 2, 2010.
       Dear Members of the Senate: As you know, the Senate has 
     debated the merits of the filibuster and related procedural 
     rules for over two centuries. Recently, several senators who 
     are advocating changes to Senate Rule XXII have renewed this 
     discussion. We write this letter today to clarify some of the 
     common historical and constitutional misperceptions about the 
     filibuster and Rule XXII that all too often surface during 
     debates about Senate rules.
       First, many argue that senators have a constitutional right 
     to extended debate. However, there is no explicit 
     constitutional right to filibuster. In fact, there is ample 
     evidence that the framers preferred majority rather than 
     supermajority voting rules. The framers knew full well the 
     difficulties posed by supermajority rules, given their 
     experiences in the Confederation Congress under the Articles 
     of Confederation (which required a supermajority vote to pass 
     measures on the most important matters). A common result was 
     stalemate; legislators frequently found themselves unable to 
     muster support from a supermajority of the states for 
     essential matters of governing. In the Constitution, the 
     framers specified that supermajority votes would be necessary 
     in seven, extraordinary situations--which they specifically 
     listed (including overriding a presidential veto, expelling a 
     member of the Senate, and ratifying a treaty). These, of 
     course, are all voting requirements for passing measures, 
     rather than rules for bringing debate to a close.
       Second, although historical lore says that the filibuster 
     was part of the original design of the Senate, there is no 
     empirical basis for that view. There is no question that the 
     framers intended the Senate to be a deliberative body. But 
     they sought to achieve that goal through structural features 
     of the chamber intended to facilitate deliberation--such as 
     the Senate's smaller size, longer and staggered terms, and 
     older members. There is no historical evidence that the 
     framers anticipated that the Senate would adopt rules 
     allowing for a filibuster. In fact, the first House and the 
     first Senate had nearly identical rulebooks, both of which 
     included a motion to move the previous question. The House 
     converted that rule into a simple majority cloture rule early 
     in its history. The Senate did not.
       What happened to the Senate's previous question motion? In 
     1805, as presiding officer of the Senate, Vice President 
     Aaron Burr recommended a pruning of the Senate's rules. He 
     singled out the previous question motion as unnecessary 
     (keeping in mind that the rule had not yet routinely been 
     used in either chamber as a simple majority cloture motion). 
     When senators met in 1806 to re-codify the rules, they 
     deleted the previous question motion from the Senate 
     rulebook. Senators did so not because they sought to create 
     the opportunity to filibuster; they abandoned the motion as a 
     matter of procedural housekeeping. Deletion of the motion 
     took away one of the possible avenues for cutting off debate 
     by majority vote, but did not constitute a deliberate choice 
     to allow obstruction. The first documented filibusters did 
     not occur until the 1830s, and for the next century they were 
     rare (but often effective) occurrences in a chamber in which 
     majorities generally reigned.
       Finally, the adoption of Rule XXII in 1917 did not reflect 
     a broad-based Senate preference for a supermajority cloture 
     rule. At that time, a substantial portion of the majority 
     party favored a simple majority rule. But many minority party 
     members preferred a supermajority cloture rule, while others 
     preferred no cloture rule at all. A bargain was struck: 
     Opponents of reform promised not to block the rule change and 
     proponents of reform promised not to push for a simple 
     majority cloture rule. The two-thirds threshold, in other 
     words, was the product of bargaining and compromise with the 
     minority. As has been typical of the Senate's past episodes 
     of procedural change, pragmatic politics largely shaped 
     reform of the Senate's rules.
       We hope this historical perspective on the origins of the 
     filibuster and Rule XXII will be helpful to you as matters of 
     reform are raised and debated. Please do not hesitate to 
     contact us if we can provide additional clarification.
       Very truly yours,
       Sarah Binder, Senior Fellow, Governance Studies, The 
     Brookings Institution; Professor of Political Science, George 
     Washington University.
       Gregory Koger, Associate Professor of Political Science, 
     University of Miami.
       Thomas E. Mann, W. Averell Harriman Chair & Senior Fellow, 
     Governance Studies, The Brookings Institution.
       Norman Ornstein, Resident Scholar, American Enterprise 
     Institute for Public Policy Research.
       Eric Schickler, Jeffrey & Ashley McDermott Endowed Chair & 
     Professor of Political Science, University of California, 
     Berkeley.
       Barbara Sinclair, Marvin Hoffenberg Professor of American 
     Politics Emerita, University of California, Los Angeles.
       Steven S. Smith, Kate M. Gregg Distinguished Professor of 
     Social Sciences & Professor of Political Science, Washington 
     University.
       Gregory J. Wawro, Deputy Chair & Associate Professor of 
     Political Science, Columbia University.


[[Page 986]]

  Mr. UDALL of New Mexico. Time and time again last year, during the 
Rules Committee hearings on rules reform, my Republican colleagues said 
that any attempt to change the filibuster would make the Senate no 
different than the House. They said reforming the filibuster would be 
contrary to our Founders' intent to make the Senate a more deliberative 
body.
  This argument makes little sense to me. 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.
  A letter from seven prominent political science scholars, six of whom 
testified in last year's Rules Committee hearings, states the 
following:

       [T]here is no explicit constitutional right to filibuster. 
     In fact, there is ample evidence that the framers preferred 
     majority rather than supermajority voting rules. The framers 
     knew full well the difficulties posed by supermajority rules, 
     given their experiences in the Confederation Congress under 
     the Articles of Confederation (which required a supermajority 
     vote to pass measures on the most important matters). A 
     common result was stalemate; legislators frequently found 
     themselves unable to muster support from a supermajority of 
     the states for essential matters of governing.

  But we do not have to rely on today's scholars to tell us that the 
Senate's uniqueness is not premised on the filibuster and unlimited 
debate. Our Founders explained their vision for our Republic in the 
Federalist Papers, and Federalist No. 62 explained quite clearly the 
ways the Senate is unique from the House of Representatives.
  In Federalist 62, Alexander Hamilton and James Madison wrote the 
following:

       The qualifications proposed for senators, as distinguished 
     from those of representatives, consist in a more advanced age 
     and a longer period of citizenship. A senator must be thirty 
     years of age at least; as a representative must be twenty-
     five. And the former must have been a citizen nine years; as 
     seven years are required for the latter.

  They go on to explain about how Representatives will be directly 
elected by the people, but Senators will be appointed by the State 
legislatures. This of course was changed in 1913 by the 17th amendment, 
which established direct election of Senators by popular vote.
  This, I would argue, is a far more drastic change to the Senate than 
anything we could do with rules reform, yet even that change did not 
turn the Senate into the House.
  But perhaps the most important distinction between the bodies is whom 
we represent.
  Federalist 62 explains that the equality of representation in the 
Senate was the:

     result of compromise between the opposite pretensions of the 
     large and the small States. . . . [T]hat among a people 
     thoroughly incorporated into one nation, every district ought 
     to have a proportional share in the government, and that 
     among independent and sovereign States, bound together by a 
     simple league, the parties, however unequal in size, ought to 
     have an equal share in the common councils . . . [and] the 
     government ought to be founded on a mixture of the principles 
     of proportional and equal representation.

  It is this fact that makes the Senate very different than the House. 
As a Senator from New Mexico, I represent just over 2 million people. 
Senators Feinstein and Boxer represent over 37 million constituents in 
California. And Senators Barrasso and Enzi, representing Wyoming with a 
population of just over half a million, actually have fewer 
constituents than members of the House.
  Yet we all have the same vote in the Senate. This is what makes this 
body unique. Our founders did not intend to protect a minority party 
from being steamrolled by a majority party, but instead to protect 
small States from being run over by the large States.
  Federalist 62 goes on to discuss how the number of Senators, and the 
duration of their term, is another key distinction between the bodies. 
Unlike the House, who are always facing reelection less than 2 years 
away, two-thirds of the Senate is always free from the same worry.
  Coupled with the fact that senators were appointed by the State 
legislatures, the Founders believed that the Senate would be a check on 
the House against legislation that was passed too quickly and without 
sufficient consideration. But they intended the structure of the Senate 
to make us a more deliberative body, not the rules that govern us.
  So whatever changes we might make to our standing rules, whether 
minor or significant, the Senate will always be distinct from the House 
of Representatives. The cloture rule was only implemented in 1917--any 
changes we make to it today cannot destroy the uniquely deliberative 
nature of this body.
  So to speak more generally now, today we come to the floor as a body 
to debate changes to the rules that guide this institution. All of the 
proposals we consider today have merit, in my opinion, and all deserve 
an up-or-down vote by this prestigious body.
  Each proposal is important, but as we consider them one-by-one, we 
must remind ourselves what brought us to this point in the first place.
  The reason we are here is simple: This Senate is broken. Because of 
partisan rancor and our own incapacitating rules, this body is 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 prevents the Senate from getting its 
work done. It prevents us from doing the job the American people sent 
us here to do.
  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 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.
  That is what I--along with my colleagues and friends Senator Merkley 
of Oregon and Senator Harkin of Iowa--have been trying to do these past 
weeks. We have been trying to restore the uniquely deliberative nature 
of this body--while also allowing it to function more efficiently.
  On Tuesday, Senator Harkin, Senator Merkley and I each were denied 
unanimous consent to bring up our resolutions for immediate debate in 
accordance with article 1, section 5 of the Constitution.
  Denying us the ability to debate the important constitutional issue 
of how this body adopts its rules was unprecedented.
  Ten times previous to this--from 1917 to as recently as 1975--the 
Senate debated reforms to the use of the filibuster, as well as the 
underlying constitutional issue of adopting reforms by a simple 
majority at the beginning of a Congress.
  The results of these debates varied. But the point I make today is 
this: each and every time a rules change was proposed, this Senate 
never denied those Senators the right to debate their proposals through 
the constitutional option.
  During many of these debates, the reform proposal was defeated, often 
by tabling it--but they had the debate.
  1975 was the last time we had a major reform to our filibuster rules.
  On three occasions that year, the Senate voted by a simple majority 
to table points of order against Senator Mondale and Senator Pearson's 
reform proposal--a proposal that would have amended the cloture 
threshold from ``two-thirds to three-fifths present and voting.''
  It was these votes by a simple majority of the Senate that forced the 
compromise reform that changed the Senate's cloture threshold to the 
present rule ``three-fifths duly chosen and sworn.''
  We are here today debating the substance of several different 
proposals, all of which share a goal of restoring debate, deliberation, 
and transparency

[[Page 987]]

to this great body. And this afternoon, we will have votes on these 
proposals.
  But, we will have those votes under thresholds that I strongly 
believe the Constitution does not require. To deny us the right to have 
that debate about the constitutional question was unprecedented and, I 
believe, a mistake.
  But, however misguided I believe that decision to be, that decision 
has been made, and it is one we have to live with.
  Now we must seize the opportunity that remains, and that opportunity 
is the chance for the most substantive debate of the Senate rules in 35 
years.
  I believe this debate is fundamentally important to the health of 
this institution. Reform is badly needed. We have a responsibility to 
the American people to come together and fix the Senate.
  Whether that is through the constitutional option--as I believe we 
have the right and the responsibility--or through other means, I 
welcome the debate.
  As I said more than a year ago when I first proposed the 
constitutional option: It is time for reform. There are many great 
traditions in this body that should be kept and respected, but 
stubbornly clinging to ineffective and unproductive procedures should 
not be one of them.
  Mr. President, I want to close by saying this.
  Since the beginning of this process, my actions have been guided by 
the great respect I have for the institution of the U.S. Senate, my 
reverence for the many great men and women who have served here, and my 
sincere affection for my colleagues.
  That remains true today. I want to thank my colleagues for their 
consideration of our proposals, for their willingness to listen, and 
for their friendship.
  And I want to make clear to all those who have supported this 
effort--our work is not complete: our cause endures. History has made 
clear that substantial rules reform is--more often than not--the work 
of many Congresses, not just one.
  The debate that began in this Congress will serve as a foundation for 
reform moving forward. And I commit to doing all I can to ensure that 
the Senate is not a graveyard for good ideas--but instead remains a 
shining light of Democracy around the world.
  So now we come to the concluding point in the debate where I think it 
is very appropriate to thank staff. My two staff members who have 
worked the hardest--all my staff have worked very hard on this, but 
Matt Nelson and Tim Woodbury deserve individual recognition for their 
tireless work. I know that as a result of this, we put a lot of 
pressure on the Rules Committee. Jean Boudwich and her whole crew over 
there have done a great job and the Parliamentarian shop headed by Alan 
Frumin. We have also had great assistance from them in terms of 
answering questions and working with them, so I applaud Alan and all of 
the Parliamentarians.
  At several places in the Record, a variety of different items were 
mentioned. To clarify the Record, I ask unanimous consent to have 
printed, No. 1, a New York Times editorial from January 25; No. 2 
includes quotes from constitutional scholars and conservative scholars 
on the constitutional option; and No. 3 is an op-ed from the Washington 
Post entitled ``Fixing a Broken Set of Rules.''
  I also commend to my colleagues a Harvard Law and Policy Review 
article entitled ``The Constitutional Option: Reforming the Rules of 
the Senate to Restore Accountability and Reduce Gridlock.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Jan. 25, 2011]

                         Make Them Work for It

       Senate Democrats now have a rare opportunity to reduce the 
     abuse of the filibuster and increase the chances that the 
     people's work actually gets done. Instead, they are close to 
     an agreement on a watered-down package of changes that will 
     have only a modest effect on the chamber's gridlock.
       Over the last four years, Republicans have more than 
     doubled the number of filibusters from the previous period, 
     requiring 60-vote supermajorities for virtually every measure 
     to move forward. In most, a single senator has raised an 
     objection, bringing progress to a halt.
       A group of Democratic senators--led by Tom Udall of New 
     Mexico and Jeff Merkley of Oregon--came up with a reasonable 
     proposal to reduce this practice while preserving the 
     minority's right to wage a fight. It would require 10 
     senators to start a filibuster and then speak continuously on 
     the floor to keep it going. If an issue is important enough 
     to block, then senators should be willing to work for it and 
     explain themselves to the public.
       Democrats could have passed this rule change with a simple-
     majority vote. But Senate aides say several Democrats are 
     afraid the new rules will put them at a disadvantage should 
     their party fall to a minority. That misses a much more 
     important point. The rules need to be changed not to cripple 
     one party or the other but to improve the efficiency of the 
     Senate no matter who is in power. There is no excuse for even 
     routine budgets and spending bills to languish for lack of 60 
     votes.
       The agreement being negotiated by the leadership of both 
     parties would at least make it harder to block presidential 
     nominations with anonymous holds and would reduce the number 
     of positions needing Senate confirmation--welcome changes.
       The two parties are also expected to reach a ``handshake 
     agreement'' to cut back on filibusters and allow the minority 
     party a greater chance to offer amendments to bills. But such 
     agreements can easily fall apart in the chamber's charged 
     environment.
       Senator Harry Reid, the majority leader, said Tuesday that 
     the matter would be settled shortly. That means there is 
     still a chance for the Senate to adopt real rules, allowing 
     majority votes to prevail in most circumstances and reserving 
     delaying tactics for unusual cases. Without this reform, the 
     Senate will remain dysfunctional.

            Conservatives Support the Constitutional Option

       In 1957, when the Constitutional Option was attempted on 
     the first day of Congress, Vice President Nixon issued the 
     following opinion while presiding in the Senate:
       [W]hile the rules of the Senate have been continued from 
     one Congress to another, the right of a current majority of 
     the Senate at the beginning of a new Congress to adopt its 
     own rules, stemming as it does from the Constitution itself, 
     cannot be restricted or limited by rules adopted by a 
     majority of a previous Congress. Any provision of Senate 
     rules adopted in a previous Congress which has the expressed 
     or practical effect of denying the majority of the Senate in 
     a new Congress the right to adopt the rules under which it 
     desires to proceed is, in the opinion of the Chair, 
     unconstitutional.
       In 2005, Senator Orrin Hatch (R-UT) wrote:
       ``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 simple majority.''
       In 2003, Senator John Cornyn (R-TX) wrote:
       ``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.''
       Senator Cornyn also held a hearing in 2003 when he was 
     Chairman of the Subcommittee on the Constitution, Civil 
     Rights and Property Rights of the Judiciary Committee (S. 
     HRG. 108-227). Some of the nation's leading conservative 
     constitutional scholars testified or submitted testimony at 
     that hearing, and all of it supports the principle that a 
     previous Senate cannot enact a rule that prevents a majority 
     in a future Senate from acting. Below is a sample of those 
     quotes:
       Steven Calabresi, a professor of law at Northwestern 
     University School of Law, former law clerk for Justice 
     Antonin Scalia, and co-founder of the Federalist Society 
     testified that:
       ``The Senate can always change its rules by majority vote. 
     To the extent that Senate Rule XXII purports to require a 
     two-thirds majority for rules changes, Rule XXII is 
     unconstitutional. It is an ancient principle of Anglo-
     American constitutional law that one legislature cannot bind 
     a succeeding legislature. This principle goes back to the 
     great William Blackstone, who said in his commentary, `Acts 
     of Parliament derogatory from the power of subsequent 
     Parliaments bind not.'''
       Douglas Kmiec, then Dean of the Columbus School of Law at 
     Catholic University, testified about the unconstitutional 
     entrenchment of supermajority rules and stated:
       ``We currently have in play a process where carryover 
     rules, rules that have not been

[[Page 988]]

     adopted by the present Senate, are requiring a supermajority 
     to, in effect, approve and confirm a judicial nominee. As you 
     know, to close debate, it requires 60 votes; in order to 
     amend the rules, it requires 67. These are carryover 
     provisions that have not been adopted by this body and by 
     virtue of that, they pose the most serious of constitutional 
     questions because, as I quote, Senator, the Supreme Court has 
     long held the following: `Every legislature possess the same 
     jurisdiction and power as its predecessors. The latter must 
     have the same power of repeal and modification which the 
     former had of enactment, neither more nor less.'''
       Dr. John Eastman, a professor of Constitutional Law at 
     Chapman University School of Law, said at the hearing that 
     ``the use of supermajority requirements to bar the change in 
     the rules inherited from a prior session of Congress would 
     itself be unconstitutional.''
       Testimony submitted to the Committee for this hearing also 
     supports this principle. Professor John C. McGinnis of 
     Northwestern University and Professor Michael Rappaport of 
     the University of San Diego School of Law stated in their 
     written testimony that:
       ``[The Constitution does not permit entrenchment of the 
     filibuster rule against change by a majority of the Senate. 
     Although the filibuster rule itself is a time-honored 
     senatorial practice that is constitutional, all entrenchment 
     of the filibuster rule, or of any other legislative rule or 
     law, that would prevent its repeal by more than a majority of 
     a legislative chamber, is unconstitutional. Therefore, an 
     attempt to prevent a majority of the Senate from changing the 
     filibuster rule, through a filibuster of that proposed change 
     in the Senate rules, would be unconstitutional.''
       Finally, renowned constitutional law scholar Ronald Rotunda 
     stated in written testimony: ``The present Senate rules that 
     create the filibuster also purport not to allow the Senate to 
     change the filibuster by a simple majority. However, these 
     rules should not bind the present Senate any more than a 
     statute that says it cannot be repealed until 60% or 67% of 
     the Senate vote to repeal the Statute. . . . I do not see how 
     an earlier Senate can bind a present Senate on this issue.''
                                  ____


                [From the Washington Post, Jan. 4, 2011]

      A Senate New Year's Resolution: Fixing a Broken Set of Rules

                             (By Tom Udall)

       Many of us have made new year's resolutions, thinking back 
     on the year that has recently ended and pledging to strive 
     for progress and self-improvement to overcome our 
     shortcomings.
       Unfortunately, this sort of self-reflection is not a 
     tradition familiar to the U.S. Senate. It is a tradition, 
     however, that I and several of my Senate colleagues hope to 
     institute on Wednesday, when the 112th Congress convenes.
       On that day, my colleagues and I will introduce common-
     sense proposals to fix the source of our dysfunction--our 
     broken Senate rules. Reform will make the Senate a better 
     legislative body by instituting the transparency and 
     accountability the American people deserve.
       Over the past few years, open and honest debate has been 
     replaced too often with secret backroom deals and partisan 
     gridlock. Up-or-down votes on important issues have been 
     unreasonably delayed or blocked entirely at the whim of a 
     single senator. In the past two years alone, more than 400 
     House-passed bills went unnoticed by the Senate. Stalled 
     judicial and executive nominations left more key government 
     posts vacant longer than during any other period in our 
     country's history. We couldn't even properly fund the 
     government.
       We need to bring the workings of the Senate out of the 
     shadows and restore accountability within the chamber.
       Under the Constitution, the Senate and the House each ``may 
     determine the rules of its proceedings.'' On the first day of 
     the new session, the rules can be changed under a simple, 
     rather than two-thirds, majority. It is past time for 
     senators to reflect on our rules, how they incentivize 
     obstructionism; how they inhibit, rather than promote, 
     debate; and how they prevent bipartisan cooperation. We then 
     have an obligation to the American people to implement 
     logical reforms to confront these challenges--reforms along 
     the lines many of my colleagues have submitted over the past 
     year.
       Ultimately, such changes will not reward one political 
     party over another. Instead, reform will pull back the 
     curtain on those who obstruct the Senate's business for no 
     reason other than to score political points. Rules reform is 
     about restoring good-faith legislating for the betterment of 
     the country. We need to take the backroom deals out of the 
     legislative process and rein in rampant obstruction from 
     individuals; this means no more secret holds and endless 
     delays by threat of filibuster.
       With reform, we will ensure that all senators have a full 
     and fair opportunity to debate legislation, offer amendments 
     and evaluate nominees. We will respect the Senate's unique 
     history of unfettered debate and ensure that the minority's 
     voice is heard. But we also will prevent the chamber's rules 
     from being manipulated to allow a small minority to silently 
     obstruct the will of the majority.
       The last Congress produced amazing achievements of which we 
     can be extremely proud--health-care reform, Wall Street 
     reform and repeal of ``don't ask, don't tell'' are just a 
     few. But the Senate also failed in many of its key 
     responsibilities, by, for example, not passing a single 
     appropriations bill, keeping critical government posts empty 
     and leaving hundreds of House bills to die. It also failed by 
     too often keeping the debate behind closed doors while the 
     chamber sat empty.
       I hope that this is the year we make the Senate accountable 
     to the American people again. It's no wonder constituents are 
     fed up with the way business is done in Washington. The 
     first, fundamental step toward changing that culture lies in 
     exercising our constitutional authority to reexamine the 
     stagnant rules that have allowed dysfunction to thrive. I 
     urge my colleagues to recognize the obstruction that has 
     prevented us from doing our jobs and join me in reforming 
     Senate rules for the good of our country.

  Mr. UDALL of New Mexico. Finally, once again, I wish to thank our 
leaders. Lamar Alexander and Chuck Schumer, both working on the Rules 
Committee, have done a remarkable job in terms of negotiating. Leader 
Reid and Leader McConnell have made a decision which was announced 
earlier today, and that decision was to change some of the rules, to 
let us vote on some changes to the rules. And also, I think one of the 
most significant things--and I know Senator Alexander has mentioned 
this--is to try to change behavior. More than anything, I think that 
could be very significant. They talked and decided they would like to 
do this differently. We would like to get back to the Senate 
functioning where we bring things up, we debate them, we allow robust 
debate, we allow the amendment process to work forward. I know Senator 
Alexander addressed this at one point in his Heritage speech, saying 
the Senate is a shadow of itself. We want to get back to that Senate 
with the robust debate and amendment process, and I think both sides 
have tried to pull that together.
  So I very much hope this is a new day in the Senate.
  Mr. LEVIN. Madam President, I wanted to take a moment to commend and 
thank several of my colleagues for their work to end the abuses of the 
Senate rules. Senators Schumer, Harkin, Merkley, Udall of New Mexico, 
Udall of Colorado, and many others dedicated time and effort to this 
cause. Without their effort, the Senate would not be voting on these 
resolutions today. I want to briefly outline my views on the five 
measures we will vote on shortly.
  While I believe there are superior ways to end the use of the secret 
hold, I intend to support the Wyden-McCaskill-Grassley resolution.
  I oppose the use of the secret hold, which is a notice by an 
anonymous Senator of his or her intention to object to proceeding to a 
measure or matter. Under current Senate practice, a Senator can place a 
hold on a measure or matter by notifying the Senate leadership of his 
or her intention to object. Such a notice does not prevent Senate 
leadership from moving to a particular measure or matter. The problem 
is that the threat of a filibuster of the motion to proceed is allowed. 
It should not be. But if Senators threaten to filibuster, that should 
be made public so they should have to openly defend their threat.
  Nowhere in the Standing Rules of the Senate is there any mention of a 
hold. The hold, secret or otherwise, ends when the leader moves to 
proceed. I believe the most effective way to end secret holds would be 
to amend the rules to simply say: ``No Senator may object on behalf of 
another Senator without disclosing the name of that Senator.'' But the 
Wyden proposal is useful nonetheless.
  The resolution by the Senator of Colorado, Mr. Udall, would establish 
a non-debatable motion to waive the reading aloud of an amendment if 
that amendment has been filed at least 72 hours before the motion and 
is printed in the Record. I support the resolution which is designed to 
end an abuse of the rules where Senators force or threaten to force the 
reading aloud of amendments, not to advance their position, but only to 
delay and prevent debate.

[[Page 989]]

  The Harkin resolution would permit a decreasing majority of Senators 
to invoke cloture. I believe the Harkin resolution goes too far in 
weakening the fundamental minority rights. The Harkin resolution would 
allow limited germane amendments during postcloture consideration of a 
measure, but in my opinion the germane standard is too technical and 
restrictive. The Harkin resolution would deny the minority the right to 
offer relevant amendments and therefore I will vote against it.
  The substitute amendment to S. Res. 10 offered by Senator Tom Udall, 
Senator Harkin, Senator Merkley and others makes important improvements 
to a measure designed to end abuses of the rules that have prevented 
the Senate from doing its work in recent Congresses. I support most of 
the provisions in this resolution. I support ending filibusters on 
motions to proceed; I support limiting postcloture consideration of 
nominations; and, I support the elimination of secret holds in the 
manner prescribed in this resolution.
  Those meritorious provisions would go a long way towards ending 
current abuses of the Senate rules. Those improvements to Senate 
procedure offset my concern with the extended debate provision. I will 
address this point in more detail when discussing the Senator from 
Oregon's provision.
  In spite of my concerns with the extended debate provision, I believe 
this resolution would end many of the common abuses of the rules and 
deserves support.
  Senator Merkley has put together a thoughtful proposal to address the 
abuses of the rules in recent Congresses where a few Senators with too 
little effort have prevented the Senate from doing its work. However, 
it does not protect the minority adequately. Under the provisions of 
his resolution, a simple majority could offer a bill, fill the 
amendment tree, and file cloture on the bill. If there are more than 50 
but fewer than 60 votes to invoke cloture--that is, if cloture is not 
invoked--once the minority is eventually exhausted, the Senate would 
proceed to a simple majority vote on the bill without the minority 
having the opportunity to offer amendments. Because the Merkley 
resolution does not protect the right to offer amendments, under the 
rules of the Senate the minority could be precluded from offering 
amendments. I am concerned that the Merkley resolution, which is 
designed to end abuses of the minority, could thereby become a tool of 
abuse by the majority.
  Under the current practices and procedures of the Senate, I believe 
there is too much protection for the minority. However, before the 
rules are changed for ending debate, sufficient protections in the 
rules must be provided to the minority to offer relevant amendments. I 
do not believe this resolution provides those protections and I, 
therefore, will vote against it.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, I have already congratulated Senator 
Udall, Senator Wyden, Senator Merkley, and Senator Harkin for 
stimulating a good, full discussion about two objectives. No. 1 is, how 
do we make the Senate the best possible place to deal with serious 
issues that come before our country, because we have plenty of them 
right now, starting with our national debt and the high unemployment 
rates. They have done a good job on that. They have led us today to 
adopt what I believe are two important steps, one having to do with 
secret holds and another having to do with taking time away, that might 
otherwise be better used, by having the clerk read an amendment.
  This debate has also produced a couple of other things. One is to 
create broader support than we have had over a number of years on 
dealing with the persistent problem of the difficulty a President has 
in staffing the government. Senator Reid and Senator McConnell, when 
they were whips, tried to deal with this issue. We had three bipartisan 
breakfasts on this, working with the White House, 2 years ago. Senator 
Lieberman and Senator Collins, who are the committee chairs, have tried 
to deal with this issue. And we have all failed so far.
  But Senator Schumer and I will be introducing a bill which we will be 
discussing with committee chairmen and ranking members especially, and 
it will have the support of the leaders, Senators McConnell and Reid. 
It will have the active involvement of Senator Lieberman and Senator 
Collins. What we hope to do is two things. One is to reduce the number 
on Senate confirmed positions--Senator Harkin spoke about this a little 
earlier. He has been a ranking member and a chairman. He basically said 
that we don't need to spend our time here having Senate confirmation of 
hundreds of part-time boards and commission members or the public 
relations official for some department. We should focus our attention 
on issues that affect the American people such as jobs, debt and 
terror.
  The second thing we should do is to end this practice of making it so 
that the citizens who are invited by the President of the United States 
to serve in our government are innocent until nominated. We drag them 
through a maze of conflicting forms, many of them created by the 
executive branch and many of them created by the Senate. These nominees 
fill out forms that trap them and trick them and embarrass them. It is 
surprising that anybody will accept the opportunity to serve. I 
remember majority leader Howard Baker was nominated by President Bush 
to go to Japan as Ambassador. Everybody in the Senate knew him very 
well. He was voted ``Most Admired Senator'' by Senators on both sides 
of the aisle in the 1980s. It cost him $250,000 to fill out the forms 
so that he could be the Ambassador to Japan. I could give many examples 
of similar difficulties.
  Washington, DC, has become the only place where you hire a lawyer, an 
accountant, and an ethics officer before you find your house and put 
your kid in school if you come to work here. We need good people in the 
government. We need to be able to attract them here. We should fix the 
current system. I greatly appreciate the work Senators Schumer, Reid, 
McConnell, Lieberman, Collins and others have done. I hope our 
colleagues will join us in bringing this forward in an expedited way.
  I ask unanimous consent to include at the end of my remarks, remarks 
I made on March 9, 2009, on the Senate floor entitled ``Innocent Until 
Nominated.''
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. ALEXANDER. Madam President, only two other things.
  I wish to congratulate Senator McConnell and Senator Reid for leading 
us in this way. Changing rules is an important step forward. I do not 
in any way want to diminish what I believe we are about to do, but we 
need a change in behavior more than we need a change in rules. This 
debate has caused us to talk across party lines about what we want, and 
I think what we want is what Senator Udall said as a whole. We would 
like most bills to come through committee and then come to the floor. 
We want to have a chance for most Senators to be able to offer most of 
their amendments and then to get votes. That is what we should try to 
do most of the time. Sometimes the Republicans will want to repeal the 
health care law, and the Democrats will use all of their resources to 
defeat our efforts. Sometimes the Democrats in the House will send over 
a bill to repeal the secret ballot in union elections, and Republicans 
will try to defeat that. We will use all of our resources in those 
instances. But that won't be most of the time. Most of the time, we 
will be able to do our jobs better to represent the people who sent us 
here.
  I hope those who have provoked this discussion feel a sense of 
satisfaction about what they have done, even though I know that in 
every case they didn't get exactly what they want.
  Finally, I ask unanimous consent that a long response to Senator 
Harkin's excellent comments on his amendment which he has been fighting

[[Page 990]]

for for 16 years, be printed in the Record at the conclusion of my 
remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. ALEXANDER. Senator Harkin is very straightforward about his 
difference of opinion. He believes we ought to bring every debate 
eventually to 51 votes. So I would respectfully term his amendment as 
sort of a ``hang me now or hang me later.'' We know that eventually it 
is not 60 votes we are going to require, it is 51, and he says that is 
the way it ought to be. I disagree. So do many others.
  I will just cite two distinguished Senators who spoke on the floor of 
the Senate about 5 years ago when a number of Republicans got it in 
their minds that they would like to change the filibuster rule as it 
affects judges. This is what Senator Harry Reid said then:

       The filibuster is far from a procedural gimmick. It is part 
     of the fabric of this institution that we call the Senate. 
     For 200 years we've had the right to extend the debate. It's 
     not a procedural gimmick. Some in this Chamber want to throw 
     out 214 years of Senate history in the quest for absolute 
     power. They want to do away with Mr. Smith as depicted in 
     that great movie being able to come to Washington. They want 
     to do away with the filibuster. They think they are wiser 
     than our Founding Fathers. I doubt that's true.

  The then-Senator from Illinois, Barack Obama, referring then to the 
Republican majority:

       Then if the majority chooses to end the filibuster, if they 
     choose to change the rules and put an end to Democratic 
     debate, then the fighting and the bitterness and the gridlock 
     will only get worse.

  I would suggest that, as a result of this discussion, we preserve the 
Senate as an institution, a forum for deliberation where minority 
rights are protected.
  But we have also taken some important steps forward--or are about 
to--with rules changes to make them function better. We have reached a 
consensus among ourselves--informally, anyway--that is represented by 
the colloquy that will be placed in the Record by Senator Reid and 
Senator McConnell. They said what we want is an opportunity to 
represent the American people the way they sent us here to do it, which 
is to take legislation, bring it through committee, bring it to the 
floor, and for us to have a chance to amend, debate, and vote. That 
would be most of the time. Some of the time we will exercise our 
minority and majority rights to defeat a bill, because that is also 
what we are sent here to do.
  I thank the Senators for this spirited debate. As far as I know, 
there are no more speakers on the Republican side.

                               Exhibit 1

Floor Remarks of U.S. Senator Lamar Alexander (R-TN), ``Innocent Until 
                              Nominated''

                            (March 9, 2009)

       Mr. President, in the midst of much talk about 
     bipartisanship and not much to show for it, I have a 
     nomination for an issue upon which we can work together, and 
     that is this: review the maze of conflicting forms, FBI 
     investigations, IRS audits, ethics requirements, and 
     financial disclosures to make it possible for President Obama 
     and future Presidents to put together promptly a team to help 
     them solve big problems.
       This is an urgent problem today because during the worst 
     banking crisis since the Great Depression, the man in charge 
     of fixing the crisis, Treasury Secretary Timothy Geithner, 
     apparently is sitting in his office without much help, at 
     least from any Obama Presidential appointees.
       According to news accounts, among the key vacant positions 
     at the Treasury Department are the Assistant Secretary for 
     Tax Policy; the Deputy Assistant Secretary for Tax Policy; 
     the Deputy Assistant Secretary for Tax Analysis; the Deputy 
     Assistant Secretary for Tax, Trade, and Tariff Policy; and 
     the Deputy Assistant Secretary for International Tax Affairs. 
     The first choice for Deputy Secretary of the Treasury appears 
     to have withdrawn her name from consideration.
       Four months after the President's election, according to 
     TheBigMoney.com, the list of vacancies on the Treasury 
     Department Web site shows that ``Main Treasury Building is a 
     lonely place, conjuring up visions of Geithner signing dollar 
     bills one by one . . ., watering the plants, and answering 
     the phones when he's not crafting a bank rescue plan.''
       Of course, there are the career employees available and at 
     least one holdover Assistant Secretary and various czars in 
     the White House--but even one of the czars has expressed 
     concern about the slow pace of filling Treasury Department 
     jobs at a critical time.
       Part of the problem may be attributed to the Treasury 
     Secretary's boss, our impressive new President, who is 
     nevertheless subject to the criticism that he is living over 
     the store but not minding it.
       Presidents have many problems to solve, but no one ever 
     suggested that the wisest course is to try to solve them all 
     at once. There is a tradition that Washington, DC, can only 
     do one thing well at a time. And Presidents are supposed to 
     exclude from the White House the merely important issues so 
     they may deal with the truly Presidential problems, which 
     surely must not include being distracted by debates with 
     radio talk show hosts.
       President Eisenhower, who knew something about leading 
     complex organizations, said in 1952: ``I will go to Korea.'' 
     The country relaxed and elected him, confident that the 
     general would end the Korean war.
       We need for President Obama to say in Eisenhower fashion 
     ``I will fix the banks''--and then stay home long enough to 
     do it. Then the country might relax a little and gain some 
     confidence that this might actually happen, which is the 
     first step and perhaps the main step in economic recovery.
       But the President needs a team at Treasury to help persuade 
     the American people that he can and will get the job done.
       The President has brought on himself some of the difficulty 
     of putting together a team. In addition to having too many 
     balls in the air at once, in my opinion, his standards for 
     hiring sometimes seem to have the effect of disqualifying 
     people who know something about the problem from being hired 
     to solve the problem.
       But another part of the President's difficulty in filling 
     jobs--one that has afflicted every President since 
     Watergate--is the maze of investigations and forms that 
     prospective senior officials must complete and the risk they 
     run that they will be trapped and humiliated and disqualified 
     by an unintentional and relatively harmless mistake.
       I voted against the nomination of Secretary Geithner 
     because I thought it was a bad example for the man in charge 
     of collecting the taxes not to have paid them. And I thought 
     his excuse for not paying was not plausible. But that does 
     not mean that we should disqualify every Presidential nominee 
     for minor tax discrepancies that result from the complexity 
     of our Byzantine Tax Code, a Tax Code which has reached 3.7 
     million words, according to a January report by the National 
     Taxpayer Advocate, and which is badly in need of reform.
       I suspect very few Americans with complex tax returns can 
     go through a multiple-year audit without finding something 
     with which the IRS might disagree.
       Take the case of former Dallas mayor Ron Kirk, President 
     Obama's nominee to be U.S. Trade Representative, who 
     headlines report paid back taxes primarily because he failed 
     to list as income--and then take a charitable deduction on--
     speaking fees that he gave away to charity. Common sense 
     suggests, and his tax preparer thought, what Mr. Kirk did was 
     appropriate. After all, he did not keep the money. The IRS 
     apparently has a more convoluted rule for dealing with such 
     things. In any event, the matter is so trivial as to be 
     irrelevant to his suitability to be the trade nominee.
       Tax audits are only the beginning. There is the FBI full 
     field investigation during which friends of the nominee are 
     asked such questions as: Does he live be and his means?
       When I was nominated for Education Secretary a few years 
     ago, one of my friends replied to the FBI agent: Don't we 
     all?
       There are Federal financial disclosures. Then there is the 
     White House questionnaire, and, of course, the questions from 
     the confirming Senate committee. The definition of what 
     constitutes ``income'' on some forms is different than the 
     definition of ``income'' on others. It is easy to make a 
     mistake.
       This is not as bad as it could be. We have a Democratic 
     President and a Democratic Congress with big majorities in 
     both Chambers. So the nominees have gone through fairly 
     quickly. But when the Congress is of a different party than 
     the President, the congressional questionnaires expand and 
     sometimes delay the nomination for more weeks.
       Washington, DC, has become the only place where you hire a 
     lawyer, an accountant, and an ethics officer before you find 
     a house and put your kid in school.
       The motto around here has become: ``Innocent until 
     nominated.''
       Every legal counsel to every President since Nixon would, I 
     suspect, agree that in the name of effective government, this 
     process needs to be changed. Most have tried to change it, 
     but in Washington style, new regulations pile up on top of 
     old ones, creating a more bewildering maze. So I have this 
     suggestion--and one of the Senators to whom I want to make 
     the suggestion is here today, the Senator from Connecticut. I 
     suggest Senator Lieberman and Senator Collins, who are the 
     chairman and ranking member of the committee with 
     jurisdiction over this mess

[[Page 991]]

     and who have a tradition of working well together, should set 
     as a goal to clean it up by the end of the year. Invite all 
     the former White House counsels of both parties to give their 
     opinions. Consolidate and simplify the forms so we learn only 
     what we need to know.
       To help with this, I suggest that Senators Lieberman and 
     Collins form one of those ``gangs'' that we occasionally form 
     in the Senate, maybe a dozen or more Senators equally divided 
     among both parties--some from the Homeland Security and 
     Governmental Affairs Committee and some not--in order to 
     limit the possibility that everyone will run away from the 
     final recommendations because they fear someone might think 
     Senators are not interested in ethical and good government.
       Good government right now means fixing the banks and having 
     the best possible team to do it.
       As a Washington Post editorial writer said yesterday of the 
     President:
       As he convened his ``health care summit'' at the White 
     House . . . the stock market was hitting another 12-year low, 
     General Motors was again teetering on the brink of insolvency 
     and the country was still waiting to hear the details of the 
     Treasury's proposal to bail out banks. Maybe we can make this 
     grand bargain with our new President: If you will keep your 
     eye on the ball--in this case, fixing the banks so the 
     economy will get moving again--we will work in a bipartisan 
     way to make it easier for you and for future Presidents to 
     promptly assemble a team and govern us properly.
       I thank the Chair. I yield the floor.
                                  ____


                               Exhibit 2

The Filibuster: ``Democracy's Finest Show . . . The Right to Talk Your 
                               Head Off''


        Address by Senator Lamar Alexander, Heritage Foundation

                           (January 4, 2011)

       Voters who turned out in November are going to be pretty 
     disappointed when they learn the first thing some Democrats 
     want to do is cut off the right of the people they elected to 
     make their voices heard on the floor of the U.S. Senate.
       In the November elections, voters showed that they remember 
     the passage of the health care law on Christmas Eve, 2009: 
     midnight sessions, voting in the midst of a snow storm, back 
     room deals, little time to read, amend or debate the bill, 
     passage by a straight party line vote.
       It was how it was done as much as what was done that 
     angered the American people. Minority voices were silenced. 
     Those who didn't like it were told, ``You can read it after 
     you pass it.'' The majority's attitude was, ``We won the 
     election. We'll write the bill. We don't need your votes.''
       And of course the result was a law that a majority of 
     voters consider to be an historic mistake and the beginning 
     of an immediate effort to repeal and replace it.
       Voters remembered all this in November, but only 6 weeks 
     later Democratic senators seemed to have forgotten it. I say 
     this because on December 18, every returning Democratic 
     senator sent Senator Reid a letter asking him to ``take steps 
     to bring [Republican] abuses of our rules to an end.''
       When the United States Senate convenes tomorrow, some have 
     threatened to try to change the rules so it would be easier 
     to do with every piece of legislation what they did with the 
     health care bill: ram it through on a partisan vote, with 
     little debate, amendment, or committee consideration, and 
     without listening to minority voices.
       The brazenness of this proposed action is that Democrats 
     are proposing to use the very tactics that in the past almost 
     every Democratic leader has denounced, including President 
     Obama and Vice President Biden, who has said that it is ``a 
     naked power grab'' and destructive of the Senate as a 
     protector of minority rights.
       The Democratic proposal would allow the Senate to change 
     its rules with only 51 votes, ending the historical practice 
     of allowing any senator at any time to offer any amendment 
     until sixty senators decide it is time to end debate.
       As Investor's Business Daily wrote, ``The Senate Majority 
     Leader has a plan to deal with Republican electoral success. 
     When you lose the game, you simply change the rules. When you 
     only have 53 votes, you lower the bar to 51.'' This is called 
     election nullification.
       Now there is no doubt the Senate has been reduced to a 
     shadow of itself as the world's greatest deliberative body, a 
     place which, as Sen. Arlen Specter said in his farewell 
     address, has been distinctive because of ``the ability of any 
     Senator to offer virtually any amendment at any time.''
       But the demise of the Senate is not because Republicans 
     seek to filibuster. The real obstructionists have been the 
     Democratic majority which, for an unprecedented number of 
     times, used their majority advantage to limit debate, not to 
     allow amendments and to bypass the normal committee 
     consideration of legislation.
       To be specific, according to the Congressional Research 
     Service:
       1. the majority leader has used his power to cut off all 
     amendments and debate 44 times--more than the last six 
     majority leaders combined;
       2. the majority leader has moved to shut down debate the 
     same day measures are considered (same-day cloture) nearly 
     three times more, on average, than the last six majority 
     leaders;
       3. the majority leader has set the record for bypassing the 
     committee process--bringing a measure directly to the floor 
     43 times during the 110th and 111th Congresses.
       Let's be clear what we mean when we say the word 
     ``filibuster.'' Let's say the majority leader brings up the 
     health care bill. I go down to the floor to offer an 
     amendment and speak on it. The majority leader says ``no'' 
     and cuts off my amendment. I object. He calls what I tried to 
     do a filibuster. I call what he did cutting off my right to 
     speak and amend which is what I was elected to do. So the 
     problem is not a record number of filibusters; the problem is 
     a record number of attempts to cut off amendments and debate 
     so that minority voices across America cannot be heard on the 
     floor of the Senate.
       So the real ``party of no'' is the majority party that has 
     been saying ``no'' to debate, and ``no'' to voting on 
     amendments that minority members believe improve legislation 
     and express the voices of the people they represent. In fact, 
     the reason the majority leader can claim there have been so 
     many filibusters is because he actually is counting as 
     filibusters the number of times he filed cloture--or moved to 
     cut off debate.
       Instead of this power grab, as the new Congress begins, the 
     goal should be to restore the Senate to its historic role 
     where the voices of the people can be heard, rather than 
     silenced, where their ideas can be offered as amendments, 
     rather than suppressed, and where those amendments can be 
     debated and voted upon rather than cut off.
       To accomplish this, the Senate needs to change its 
     behavior, not to change its rules. The majority and minority 
     leaders have been in discussion on steps that might help 
     accomplish this. I would like to discuss this afternoon why 
     it is essential to our country that cooler heads prevail 
     tomorrow when the Senate convenes.
       One good example Democrats might follow is the one 
     established by Republicans who gained control of both the 
     Senate and House of Representatives in 1995. On the first day 
     of the new Republican majority, Sen. Harkin proposed a rule 
     change diluting the filibuster. Every single Republican 
     senator voted against the change even though supporting it 
     clearly would have provided at least a temporary advantage to 
     the Republican agenda.
       Here is why Republicans who were in the majority then, and 
     Democrats who are in the majority today, should reject a 
     similar rules change:
       First, the proposal diminishes the rights of the minority. 
     In his classic Democracy in America, Alexis de Tocqueville 
     wrote that one of his two greatest fears for our young 
     democracy was the ``tyranny of the majority,'' the 
     possibility that a runaway majority might trample minority 
     voices.
       Second, diluting the right to debate and vote on amendments 
     deprives the nation of a valuable forum for achieving 
     consensus on difficult issues. The founders knew what they 
     were doing when they created two very different houses in 
     Congress. Senators have six-year terms, one-third elected 
     every two years. The Senate operates largely by unanimous 
     consent. There is the opportunity, unparalleled in any other 
     legislative body in the world, to debate and amend until a 
     consensus finally is reached. This procedure takes longer, 
     but it usually produces a better result--and a result the 
     country is more likely to accept. For example, after the 
     Civil Rights Act of 1964 was enacted, by a bipartisan 
     majority over a filibuster led by Sen. Russell of Georgia, 
     Sen. Russell went home to Georgia and said that, though he 
     had fought the legislation with everything he had, ``As long 
     as it is there, it must be obeyed.'' Compare that to the 
     instant repeal effort that was the result of jamming the 
     health care law through in a partisan vote.
       Third, such a brazen power grab by Democrats this year will 
     surely guarantee a similar action by Republicans in two years 
     if Republicans gain control of the Senate as many believe is 
     likely to happen. We have seen this happen with Senate 
     consideration of judges. Democrats began the practice of 
     filibustering President Bush's judges even though they were 
     well-qualified; now Democrats are unhappy because many 
     Republicans regard that as a precedent and have threatened to 
     do the same to President Obama's nominees. Those who want to 
     create a freight train running through the Senate today, as 
     it does in the House, might think about whether they will 
     want that freight train in two years if it is the Tea Party 
     Express.
       Finally, it is hard to see what partisan advantage 
     Democrats gain from destroying the Senate as a forum for 
     consensus and protection of minority rights since any 
     legislation they jam through without bipartisan support will 
     undoubtedly die in the Republican-controlled House during the 
     next two years.

                                 * * *

       The reform the Senate needs is a change in its behavior, 
     not a change in its rules. I have talked with many senators, 
     on both sides of the aisle, and I believe most of us want the 
     same thing: a Senate where most bills are

[[Page 992]]

     considered by committee, come to the floor as a result of 
     bipartisan cooperation, are debated and amended and then 
     voted upon.
       It was not so long ago that this was the standard operating 
     procedure. I have seen the Senate off and on for more than 
     forty years, from the days in 1967 when I came to the Senate 
     as Sen. Howard Baker's legislative assistant. That was when 
     each senator had only one legislative assistant. I came back 
     to help Sen. Baker set up his leadership office in 1977 and 
     watched the way that Sen. Baker and Sen. Byrd led the Senate 
     from 1977 to 1985, when Democrats were in the majority for 
     the first four years and Republicans were the second four 
     years.
       Then, most pieces of legislation that came to the floor had 
     started in committee. Then that legislation was open for 
     amendment. There might be 300 amendments filed and, after a 
     while, the majority would ask for unanimous consent to cut 
     off amendments. Then voting would begin. And voting would 
     continue.
       The leaders would work to persuade senators to limit their 
     amendments but that didn't always work. So the leaders kept 
     the Senate in session during the evening, during Fridays, and 
     even into the weekend. Senators got their amendments 
     considered and the legislation was fully vetted, debated and 
     finally passed or voted down.
       Sen. Byrd knew the rules. I recall that when Republicans 
     won the majority in 1981, Sen. Baker went to see Sen. Byrd 
     and said, ``Bob I know you know the rules better than I ever 
     will. I'll make a deal with you. You don't surprise me and I 
     won't surprise you.''
       Sen. Byrd said, ``Let me think about it.''
       And the next day Sen. Byrd said yes and the two leaders 
     managed the Senate effectively together for eight years.
       What would it take to restore today's Senate to the Senate 
     of the Baker-Byrd era?
       Well, we have the answer from the master of the Senate 
     rules himself, Sen. Byrd, who in his last appearance before 
     the Rules Committee on May 19, 2010 said: ``Forceful 
     confrontation to a threat to filibuster is undoubtedly the 
     antidote to the malady [abuse of the filibuster]. Most 
     recently, Senate Majority Leader Reid announced that the 
     Senate would stay in session around-the-clock and take all 
     procedural steps necessary to bring financial reform 
     legislation before the Senate. As preparations were made and 
     cots rolled out, a deal was struck within hours and the 
     threat of filibuster was withdrawn . . . I also know that 
     current Senate Rules provide the means to break a 
     filibuster.''
       Sen. Byrd also went on to argue strenuously in that last 
     speech that ``our Founding Fathers intended the Senate to be 
     a continuing body that allows for open and unlimited debate 
     and the protection of minority rights. ``Senators,'' he said, 
     ``have understood this since the ``Senate first convened.''
       Sen. Byrd then went on: ``In his notes of the 
     Constitutional Convention on June 26, 1787, James Madison 
     recorded that the ends to be served by the Senate were 
     `first, to protect the people against their rulers, secondly, 
     to protect the people against the transient impressions into 
     which they themselves might be led . . . They themselves, as 
     well as a numerous body of Representatives, were liable to 
     err also, from fickleness and passion. A necessary fence 
     against this danger would be to select a portion of 
     enlightened citizens, whose limited number, and firmness 
     might seasonably interpose against impetuous councils.' That 
     fence,'' Sen. Byrd said in that last appearance, ``was the 
     United States Senate. The right to filibuster anchors this 
     necessary fence. But it is not a right intended to be 
     abused.''
       ``There are many suggestions as to what we should do. I 
     know what we must not do. We must never, ever, ever, ever 
     tear down the only wall--the necessary fence--this nation has 
     against the excess of the Executive Branch and the resultant 
     haste and tyranny of the majority.''
       What would it take to restore the years of Sens. Baker and 
     Byrd, when most bills that came to the floor were first 
     considered in committee, when more amendments were 
     considered, debated and voted upon?
       1. Recognize that there has to be bipartisan cooperation 
     and consensus on important issues. The day of ``we won the 
     election, we jam the bill through'' will have to be over. 
     Sen. Baker would not bring a bill to the floor when 
     Republicans were in the majority unless it had the support of 
     the ranking Democratic committee member.
       2. Recognize that senators are going to have to vote. This 
     may sound ridiculous to say to an outsider, but every Senate 
     insider knows that a major reason why the majority cuts off 
     amendments and debate is because Democratic members don't 
     want to vote on controversial issues. That's like 
     volunteering to be on the Grand Ole Opry but then claiming 
     you don't want to sing. We should say, if you don't want to 
     vote, then don't run for the Senate.
       3. Finally, according to Sen. Byrd, it will be the end of 
     the three-day work week. The Senate convenes on most Mondays 
     for a so-called bed-check vote at 5:30. The Senate during 
     2010 did not vote on one single Friday. It is not possible 
     either for the minority to have the opportunity to offer, 
     debate and vote on amendments or for the majority to 
     forcefully confront a filibuster if every senator knows there 
     will never be a vote on Friday.
       There are some other steps that can be taken to help the 
     Senate function better without impairing minority rights.
       One bipartisan suggestion has been to end the practice of 
     secret holds. It seems reasonable to expect a senator who 
     intends to hold up a bill or a nomination to allow his 
     colleagues and the world know who he or she is so that the 
     merits of the hold can be evaluated and debated.
       Second, there is a crying need to make it easier for any 
     President to staff his government with key officials within a 
     reasonable period of time. One reason for the current delay 
     is the President's own fault, taking an inordinately long 
     time to vet his nominees. Another is a shared responsibility: 
     the maze of conflicting forms, FBI investigations, IRS 
     audits, ethics requirements and financial disclosures 
     required both by the Senate and the President of nominees. I 
     spoke on the Senate floor on this, titling my speech 
     ``Innocent until Nominated.'' The third obstacle is the 
     excessive number of executive branch appointments requiring 
     Senate confirmation. There have been bipartisan efforts to 
     reduce these obstacles. With the support the majority and 
     minority leaders, we might achieve some success.
       Of course, even if all of these efforts succeed there still 
     will be delayed nominations, bills that are killed before 
     they come to the floor and amendments that never see the 
     light of day. But this is nothing new. I can well remember 
     when Sen. Metzenbaum of Ohio put a secret hold on my 
     nomination when President George H.W. Bush appointed me 
     education secretary. He held up my nomination for three 
     months, never really saying why.
       I asked Sen. Rudman of New Hampshire what I could do about 
     Sen. Metzenbaum, and he said, ``Nothing.'' And then he told 
     me how President Ford had appointed him to the Federal 
     Communications Commission when he, Rudman, was Attorney 
     General of New Hampshire. The Democratic senator from New 
     Hampshire filibustered Rudman's appointment until Rudman 
     finally asked the president to withdraw his name.
       ``Is that the end of the story?'' I asked Rudman.
       ``No,'' he said. ``I ran against the [so-and-so] and won, 
     and that's how I got into the Senate.''
       During his time here Sen. Metzenbaum would sit at a desk at 
     the front of the Senate and hold up almost every bill going 
     through until its sponsor obtained his approval. Sen. Allen 
     of Alabama did the same before Metzenbaum. And Sen. John 
     Williams of Delaware during the 1960's was on the floor 
     regularly objecting to federal spending when I first came 
     here forty years ago.

                                 * * *

       I have done my best to make the argument that the Senate 
     and the country will be served best if cooler heads prevail 
     and Democrats don't make their power grab tomorrow to make 
     the Senate like the House, to permit them to do with any 
     legislation what they did with the health care law. I have 
     said that to do so will destroy minority rights, destroy the 
     essential forum for consensus that the Senate now provides 
     for difficult issues, and surely guarantee that Republicans 
     will try to do the same to Democrats in two years. More than 
     that, it is hard to see how Democrats can gain any partisan 
     advantage from this destruction of the Senate and invitation 
     for retribution since any bill they force through the Senate 
     in a purely partisan way during the next two years will 
     surely be stopped by the Republican-controlled House of 
     Representatives.
       But I am not the most persuasive voice against the wisdom 
     of tomorrow's proposed action. Other voices are. And I have 
     collected some of them, mostly Democratic leaders who wisely 
     argued against changing the institution of the Senate in a 
     way that would deprive minority voices in America of their 
     right to be heard:
       [Video--transcript follows]

                  [From Mr. Smith Goes to Washington]

       Jimmy Stewart: Wild horses aren't going to drag me off this 
     floor until those people have heard everything I've got to 
     say, even if it takes all winter.
       Reporter: H.V. Kaltenborn speaking, half of official 
     Washington is here to see democracy's finest show. The 
     filibuster--the right to talk your head off.

  [Sen. Robert Byrd's final appearance in the Senate Rules Committee.]

       SENATOR ROBERT BYRD: We must never, ever, ever, ever, tear 
     down the only wall, the necessary fence, that this nation has 
     against the excesses of the Executive Branch.
       SEN. CHUCK SCHUMER: The checks and balances which have been 
     at the core of this Republic are about to be evaporated. The 
     checks and balances which say that if you get 51% of the 
     vote, you don't get your way 100% of the time.
       FORMER SEN. CLINTON: You've got majority rule. Then you've 
     got the Senate over here where people can slow things down 
     where they can debate where they have something called the 
     filibuster. You know it seems like it's a little less than 
     efficient, well that's right, it is. And deliberately 
     designed to be so.

[[Page 993]]

       SEN. DODD: I'm totally opposed to the idea of changing the 
     filibuster rules. I think that's foolish in my view.
       SEN. BYRD: That's why we have a Senate, is to amend and 
     debate freely.
       SEN. ALEXANDER: The whole idea of the Senate is not to have 
     majority rule. It's to force consensus. It's to force there 
     to be a group of Senators on either side who have to respect 
     one another's views so they work together and produce 60 
     votes on important issues.
       SEN. DODD: I can understand the temptation to change the 
     rules that make the Senate so unique and simultaneously so 
     terribly frustrating. But whether such temptation is 
     motivated by a noble desire to speed up the legislative 
     process or by pure political expediency, I believe such 
     changes would be unwise.
       SEN. ROBERTS: The Senate is the only place in government 
     where the rights of a numerical minority are so protected. A 
     minority can be right, and minority views can certainly 
     improve legislation.
       SEN. ALEXANDER: The American people know that it's not just 
     the voices of the Senator from Kansas or the Senator from 
     Iowa that are suppressed when the Majority Leader cuts off 
     the right to debate, and the right to amend. It's the voices 
     that we hear across this country, who want to be heard on the 
     Senate floor.
       SEN. GREGG: You just can't have good governance if you 
     don't have discussion and different ideas brought forward.
       SEN. DODD: Therefore to my fellow Senators, who have never 
     served a day in the minority, I urge you to pause in your 
     enthusiasm to change Senate rules.
       SEN. REID: The Filibuster is far from a ``Procedural 
     Gimmick.'' It's part of the fabric of this institution that 
     we call the Senate. For 200 years we've had the right to 
     extend the debate. It's not a procedural gimmick. Some in 
     this chamber want to throw out 214 years of Senate history in 
     the quest for absolute power. They want to do away with Mr. 
     Smith, as depicted in that great movie, being able to come to 
     Washington. They want to do away with the filibuster. They 
     think they're wiser than our Founding Fathers, I doubt that's 
     true.
       FORMER SEN. OBAMA: Then if the Majority chooses to end the 
     filibuster, if they choose to change the rules and put an end 
     to Democratic debate; then the fighting and the bitterness 
     and the gridlock will only get worse.

  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. SCHUMER. Madam President, I am the last speaker after this very 
good debate, which was preceded by months and months of serious 
discussion. I think every one of us is better for going through this 
process. We understand the Senate better. We have deeper feelings about 
this hallowed institution, about what it has done, what it can do, and 
what is wrong with it as well. I think every one of us agrees that the 
Senate needed to be fixed, and we also agree that we did a lot last 
year, despite the fact that it was broken. We had different paths to 
fix it, but fix it we must and fix it we will.
  I will say this: Obviously, there are going to be some rules changes 
and some statutory changes. But a lot of what will make this work is 
the agreement--informal but serious--between Senators Reid and 
McConnell, which Senator Alexander and I were part of. I say to my 
colleagues, hopefully, we are opening up a bit of a new era, where 
bills are allowed to come to the floor, except under extraordinary 
circumstances, where amendments are allowed to be added to those bills, 
except under extraordinary circumstances, and there is vigorous debate.
  I ask my colleagues to forbear--it is easy for any Senator to stand 
up and bollix up the whole works. The spirit of the new agreement says 
think twice, or maybe three times, before you do, because that was the 
path that led us to the dysfunction.
  I, too, want to salute my colleagues, Senators Harkin, Udall, and 
Merkley for the great job they did. Senator Wyden and Senator McCaskill 
and Senator Grassley will have a dream of theirs enacted into the rules 
momentarily. This has been a fine debate. I don't think the talking 
filibuster cuts against anything my colleagues on the other side of the 
aisle have said. I am going to proudly vote for that provision, and 
maybe--miracle of miracles--it will get two-thirds. But at least there 
will be a vote, and maybe we can work toward that in the future.
  I also do believe that the proposal to not invoke the constitutional 
option for this Congress and next Congress gives us some time to figure 
all this out, without closing the door on it forever, because some on 
our side, I know, were worried about that.
  Let us go forward in the spirit of comity that we have seen since the 
lameduck session. Let us go forward in a bipartisan way that we have 
worked on these rules changes and move forward in the next few months 
and try to legislate in the way many of us who have been here longer 
than a few years used to love, enjoy, and relish. If we can bring those 
times back, the Senate will be a better place for every one of us, no 
matter our party or ideology.
  I thank all of my colleagues, including my colleague from Tennessee 
and the two leaders, who stepped to the plate, and the so-called young 
turks, some of whom have been here much longer than I have been, for 
importuning us to act.
  I yield the floor.


                    direction of the 112th congress

  Mr. REID. Madam President, over the past few months, Democrats and 
Republicans have had many positive discussions about the direction of 
the 112th Congress. There are many important issues facing our country 
and solutions will require bipartisan cooperation. In particular, there 
has been a lot of discussion lately about the Senate rules. Many of my 
colleagues have spoken to me about the way the Senate operated during 
the last Congress. I think my friend from Kentucky would agree with me 
that there was great frustration on both sides of the aisle.
  The Senate was always intended to be, has always been, and should 
always remain, the saucer that allows the boiling tea to cool to ensure 
rash actions do not get enacted into law; to ensure that laws reflect 
the cold rationality of reason and not the heat of perhaps misplaced 
passion. But, there has been concern in recent years that the Senate 
rules have been abused--that a very few have turned rules designed to 
ensure careful examination into a simple bottleneck for parochial 
purposes. Some have even expressed concern that the Senate is broken.
  Now, I wouldn't say the Senate is broken, as I am proud to say that 
the last Congress was historic in its achievements. But the Senate 
Republican leader, my friend from Kentucky, and I have heard concerns 
from many different Senators about Senate rules and processes, and we 
have discussed the issue with each other at length. Senators Schumer 
and Alexander have been an important part of this discussion. Together, 
we have made important progress on a number of important areas.
  Mr. McCONNELL. I thank the Senator. Senators in both of our parties 
agree that there has been a significant breakdown in the Senate, though 
I am sure there are different perspectives on the causes of the 
breakdown. We both recall that in the not too distant past, when the 
minority and majority were reversed, we both had somewhat different 
perspectives on these issues. But know that the majority leader and I 
both care about this institution and the vital role it plays in our 
democracy.
  I am happy about the reforms that we will be adopting today. The 
rules create many rights--for individual Senators, for the minority, 
and for the majority leader. But, with rights come responsibilities and 
Senator Reid and I have discussed how to ensure that we return to a 
better balance between those two this Congress, and that the twin 
hallmarks of the Senate--the right to debate and amend legislation--are 
restored.
  Mr. REID. Yes, we both would like to see a different Senate this 
year--with fewer filibusters and procedural delays and more 
opportunities for debate and amendments. In many cases, the problem is 
not necessarily in the Senate rules, it is in the lack of restraint in 
the exercise of prerogatives under the rules. Toward that end we will 
now enter into a colloquy to discuss some of these issues. I have 
discussed with Senator McConnell that many Senators in the majority 
have been very unhappy at the excessive use of the filibuster the last 
two Congresses, particularly on motions to proceed but also at other 
times when a matter that has bipartisan support is filibustered purely 
for delay.
  Mr. McCONNELL. And, in my caucus, I have many Senators who have

[[Page 994]]

complained that the majority leader has abused his ability to ``fill 
the amendment'' tree, preventing Senators from offering and debating 
amendments that they believe are important, especially when a matter 
has not gone through committee or cloture is filed too quickly.
  Mr. REID. As we have discussed, in the interests of comity and more 
open process in the Senate, we have agreed that we should use these 
procedural options of filling the amendment tree and filibustering the 
motion to proceed infrequently. And we will do our best to ensure that 
other members of our caucuses respect this colloquy, as well.
  Mr. McCONNELL. I agree that both sides should do their best to 
reinstitute regular order, where bills come to the floor and Senators 
get amendments. Of course, there will be times when there is no 
consensus and when either side may want to use all its rights to defeat 
a bill. But we should endeavor to work together to follow the regular 
order where practicable and use our procedural options with discretion. 
And, I will do my best to ensure that other members of my caucus 
respect this.
  I want to close by clearly reaffirming my view that if we are going 
to change Senate rules, we must do so within those rules. As rule 5 
states, the Senate is a continuing body, and the rules continue unless 
changed within the parameters of the rules.
  I strongly reject this notion that a simple majority can muscle their 
way to new rules at the beginning of a new Congress. I believe this is 
a flawed approach. Majorities come and go. My Democratic colleagues 
should be wary of attempting this maneuver because they will not always 
be in the majority. The Senate is not the House of Representatives, and 
our Founding Fathers never intended it to be. What some of my 
colleagues in the majority propose would damage the institution and 
turn the Senate into a legislative body like the House where a simple 
majority can run roughshod over the minority. I would oppose such an 
effort to change the rules with a simple majority in this Congress or 
the next Congress, regardless of which political party is in the 
majority. I ask the majority leader to join me in rejecting this 
effort.
  Mr. REID. The minority leader and I have discussed this issue on 
numerous occasions. I know that there is a strong interest in rules 
changes among many in my caucus. In fact, I would support many of these 
changes through regular order. But I agree that the proper way to 
change Senate rules is through the procedures established in those 
rules, and I will oppose any effort in this Congress or the next to 
change the Senate's rules other than through the regular order.
  And I hope and expect that we will have a more deliberative and 
efficient Senate this Congress. In particular, I hope we can reach an 
agreement to move nominees in regular order. One important reform to 
the nominations process is reducing the number of Senate confirmed 
positions. Our offices are working with Senators Schumer, Alexander, 
Lieberman, and Collins to draft a bill to accomplish this goal. This 
bill will be introduced in short order and we will work to get it 
enacted as quickly as possible.
  Many of these positions are part-time boards and commissions or 
various agency positions that are unrelated to the management of that 
agency. They could be Presidentially appointed rather than going 
through the Senate. Although similar efforts have been proposed in the 
past, I think all of my colleagues realize the need to address this 
situation as soon as all the details are finalized.
  Mr. McCONNELL. I agree that the Senate spends too much time dealing 
with a growing number of nominees. It makes sense to reduce the number 
of positions confirmed and free up committee staff to focus on other 
nominees or legislation. I appreciate the work of these Senators and 
look forward to passing this legislation as soon as it is complete.
  Mr. REID. I look forward to putting into practice the sentiments in 
this colloquy. Finally, I hope Senators of good will in both parties 
will continue discussions as to how we can make the Senate a better 
institution.
  Our discussion today is in a spirit of bipartisan cooperation to 
express hope and anticipation that the 112th Congress will be different 
in many ways than the 111th. We look forward to greater comity on both 
sides of the aisle so that we can move legislation and nominees that 
have bipartisan support from the majority of Senators in this body. 
There are areas that we can and should work together to achieve 
progress for the American people.
  Mr. McCONNELL. I agree with the majority leader that this Congress 
should be more bipartisan than the last Congress. I do support the idea 
that the Senate should be able to move forward and complete action on 
matters with broad bipartisan support. Neither party has all of the 
solutions to the problems our Nation faces. Many of the successes of 
past Congresses have been the result of bipartisan cooperation and 
input. I look forward to such cooperation and input in this Congress.
  Mr. REID. Madam President, I ask unanimous consent that all remaining 
time be yielded back and that there be 2 minutes of debate, equally 
divided, prior to each vote; further, that all rollcall votes after the 
first one be for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Have the yeas and nays been ordered?
  The PRESIDING OFFICER. Yes, they have been.
  Mr. REID. I yield the floor.
  The PRESIDING OFFICER. The pending measure is S. Res. 28. Under the 
previous order, a vote of 60 is required for adoption of this 
resolution. There will now be 2 minutes of debate, equally divided.
  The Senator from Oregon is recognized.
  Mr. WYDEN. Madam President, there has been much discussion about the 
proposed rules reforms and how far they go. To those who say that this 
resolution doesn't go far enough, I ask, why have the friends of 
secrecy fought so hard for so long to allow Senators to anonymously 
block legislation and nominations?
  The fact is this resolution deals with a sweeping, almost 
unparalleled legislative power--the ability of one Senator to 
anonymously block a bill or a nomination from going forward. That is 
not right. Senator Grassley, Senator McCaskill, and I have worked with 
colleagues on both sides of the aisle to say that if you want to 
exercise that extraordinary power, you ought to do it in the sunlight. 
There ought to be public disclosure. There ought to be transparency.
  I yield the remainder of our time to Senator Grassley, who has 
championed this cause along with Senator McCaskill.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, the time has come to end secrecy on 
the floor of the Senate. The time has come for Senators who think they 
ought to put a hold on a bill to be able to continue to put a hold on a 
bill or a nomination, but it is also time to show that you have guts 
enough to let the people know who you are and, more importantly, to let 
your colleagues know who you are. So if there is something wrong with a 
piece of legislation or a nomination, we can find out what it is and 
move the business of the Senate ahead.
  This is something that is going to make the Senate a much more 
efficient place to work and get the people's business done, and it will 
do what is most important--the public's business in public.
  I yield the floor.
  The PRESIDING OFFICER. The question is an agreeing to the resolution.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. 
Feinstein) and the Senator from Hawaii (Mr. Inouye) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Texas (Mrs. Hutchison) and the Senator from Arizona (Mr. McCain).

[[Page 995]]

  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays were announced--yeas 92, nays 4, as follows:

                       [Rollcall Vote No. 2 Leg.]

                                YEAS--92

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     Durbin
     Enzi
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--4

     DeMint
     Ensign
     Lee
     Paul

                             NOT VOTING--4

     Feinstein
     Hutchison
     Inouye
     McCain
  The PRESIDING OFFICER. On this vote the yeas are 92, the nays are 4. 
The 60-vote threshold having been achieved, the resolution is agreed 
to.
  Mr. CARDIN. Madam President, I move to reconsider the vote by which 
the resolution was agreed to and to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The resolution (S. Res. 28) was agreed to, as follows:

                               S. Res. 28

       Resolved,

     SECTION 1. ELIMINATING SECRET SENATE HOLDS.

       (a) In General.--
       (1) Covered request.--This standing order shall apply to a 
     notice of intent to object to the following covered requests:
       (A) A unanimous consent request to proceed to a bill, 
     resolution, joint resolution, concurrent resolution, 
     conference report, or amendment between the Houses.
       (B) A unanimous consent request to pass a bill or joint 
     resolution or adopt a resolution, concurrent resolution, 
     conference report, or the disposition of an amendment between 
     the Houses.
       (C) A unanimous consent request for disposition of a 
     nomination.
       (2) Recognition of notice of intent.--The majority and 
     minority leaders of the Senate or their designees shall 
     recognize a notice of intent to object to a covered request 
     of a Senator who is a member of their caucus if the Senator--
       (A) submits the notice of intent to object in writing to 
     the appropriate leader and grants in the notice of intent to 
     object permission for the leader or designee to object in the 
     Senator's name; and
       (B) not later than 2 session days after submitting the 
     notice of intent to object to the appropriate leader, submits 
     a copy of the notice of intent to object to the Congressional 
     Record and to the Legislative Clerk for inclusion in the 
     applicable calendar section described in subsection (b).
       (3) Form of notice.--To be recognized by the appropriate 
     leader a Senator shall submit the following notice of intent 
     to object:
       ``I, Senator ___, intend to object to ___, dated ___. I 
     will submit a copy of this notice to the Legislative Clerk 
     and the Congressional Record within 2 session days and I give 
     my permission to the objecting Senator to object in my 
     name.''. The first blank shall be filled with the name of the 
     Senator, the second blank shall be filled with the name of 
     the covered request, the name of the measure or matter and, 
     if applicable, the calendar number, and the third blank shall 
     be filled with the date that the notice of intent to object 
     is submitted.
       (4) Notices on the senate floor.--The requirement to submit 
     a notice of intent to object to the Legislative Clerk and the 
     Congressional Record shall not apply in the event a Senator 
     objects on the floor of the Senate and states the following:
       ``I object to ___, on behalf of Senator ___.''
       (b) Calendar.--
       (1) Objection.--Upon receiving the submission under 
     subsection (a)(2)(B), the Legislative Clerk shall add the 
     information from the notice of intent to object to the 
     applicable Calendar section entitled `Notices of Intent to 
     Object to Proceeding' created by Public Law 110-81. Each 
     section shall include the name of each Senator filing a 
     notice under subsection (a)(2)(B), the measure or matter 
     covered by the calendar to which the notice of intent to 
     object relates, and the date the notice of intent to object 
     was filed.
       (2) Objection on behalf.--In the case of an objection made 
     under subsection (a)(4), not later than 2 session days after 
     the objection is made on the floor, the Legislative Clerk 
     shall add the information from such objection to the 
     applicable Calendar section entitled ``Notices of Intent to 
     Object to Proceeding'' created by Public Law 110-81. Each 
     section shall include the name of the Senator on whose behalf 
     the objection was made, the measure or matter objected to, 
     and the date the objection was made on the floor.
       (c) Removal.--A Senator may have a notice of intent to 
     object relating to that Senator removed from a calendar to 
     which it was added under subsection (b) by submitting to the 
     Legislative Clerk the following notice:
       ``I, Senator ___, do not object to ___, dated ___.'' The 
     first blank shall be filled with the name of the Senator, the 
     second blank shall be filled with the name of the covered 
     request, the name of the measure or matter and, if 
     applicable, the calendar number, and the third blank shall be 
     filled with the date of the submission to the to the 
     Legislative Clerk under this subsection.
       (d) Objecting on Behalf of a Member.--Except with respect 
     to objections made under subsection (a)(4), if a Senator who 
     has notified his or her leader of an intent to object to a 
     covered request fails to submit a notice of intent to object 
     under subsection (a)(2)(B) within 2 session days following an 
     objection to a covered request by the leader or his or her 
     designee on that Senator's behalf, the Legislative Clerk 
     shall list the Senator who made the objection to the covered 
     request in the applicable ``Notice of Intent to Object to 
     Proceeding'' calendar section.

  The PRESIDING OFFICER. The question is on the adoption of S. Res. 29. 
Under the previous order, 60 votes are required for adoption.
  Who yields time? The Senator from Colorado.
  Mr. UDALL of Colorado. Madam President, the resolution before us, 
which I introduced, would encourage Senators to file their amendments 
72 hours in advance of a vote to ensure that Members have time to 
review it, but it would also delay the practice of calling for an 
outloud reading of the amendment in front of us.
  It addresses a concern I think we all have about the amendment 
process. When a full reading of the amendment has been called for, it 
ties our Senate into knots. It is a spectacle, with the clerks standing 
here reading amendments for hours to an empty Chamber. My amendment 
would prevent needless delays by waiving the live reading of an 
amendment when the text has been available long enough for all of us to 
look it over. It would have to be submitted 72 hours in advance.
  So I ask for the yeas and nays, and I hope for an overwhelmingly 
bipartisan approval of this important change to the Senate rules.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. ALEXANDER. Madam President, this amendment puts into effect what 
the Republicans called in the health care debate the Bunning rule, 
which is, if it is not on the Internet and not available for 72 hours, 
it shouldn't be brought up.
  We think this is a sensible--I think this is a sensible amendment, 
and I urge a ``yes'' vote.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. UDALL of Colorado. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  The question is on agreeing to the resolution.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. 
Feinstein), and the Senator from Hawaii (Mr. Inouye) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Texas (Mrs. Hutchison) and the Senator from Arizona (Mr. McCain).
  The PRESIDING OFFICER (Mr. Franken). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 81, nays 15, as follows:

[[Page 996]]



                       [Rollcall Vote No. 3 Leg.]

                                YEAS--81

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Durbin
     Enzi
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hoeven
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--15

     Coburn
     Cornyn
     Crapo
     DeMint
     Ensign
     Hatch
     Inhofe
     Lee
     Paul
     Risch
     Rubio
     Sessions
     Thune
     Toomey
     Vitter

                             NOT VOTING--4

     Feinstein
     Hutchison
     Inouye
     McCain
  The PRESIDING OFFICER. On this vote, the yeas are 81, the nays are 
15. The 60-vote threshold having been achieved, the resolution is 
agreed to.
  The resolution (S. Res. 29) was agreed to, as follows:

                               S. Res. 29

       Resolved,

     SECTION 1. READING OF AMENDMENTS.

       (a) Standing Order.--This section shall be a standing order 
     of the Senate.
       (b) Waiver.--The reading of an amendment may be waived by a 
     non-debatable motion if the amendment--
       (1) has been submitted at least 72 hours before the motion; 
     and
       (2) is available in printed or electronic form in the 
     Congressional Record.

  The PRESIDING OFFICER. The question is on the adoption of S. Res. 8. 
Under the previous order, an affirmative vote of two-thirds of the 
Senators voting is required for adoption. There is 2 minutes evenly 
divided.
  The Senator from Iowa.
  Mr. HARKIN. Mr. President, this is the same resolution I offered 16 
years ago. I continue to offer it. If you believe the minority ought to 
have the right to slow things down, that is fine. But if you believe 
the minority should have the right to veto anything that comes on the 
floor, you don't want to vote for my resolution.
  What my resolution says is that basically you need 60 votes. Then, if 
you don't get it, 3 days later you have another vote, it would be 57 
votes; 3 days later, 54 votes; after 8 days, 51 votes could move a 
nominee, an amendment, or a bill. So it gives the minority the right to 
slow things down, the right to amend, the right to debate, the right to 
make their voices heard, but in the end it gives the majority the right 
to move legislation. We are a legislative body. The majority ought to 
have the right to move legislation. The minority should not have the 
right to veto.
  Right now in the Senate you have to have 60 votes to pass anything. 
We used to be able to bring up amendments here and get 51 or 52 votes 
and pass it. That no longer happens.
  If you believe in democracy, trust the American people, trust the 
ballot box. I am not afraid. I am not afraid of the majority enacting 
its will as long as I have the right to debate an amendment.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Who yields time in opposition? The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, this amendment might be called the ``if 
you are going to hang me later, hang me now'' amendment. This would 
eliminate the filibuster by making certain that it only took 51 votes, 
eventually, to pass a bill. This filibuster, according to the current 
majority leader in 2005, ``is a part of the fabric of this institution 
we call the Senate.'' Former Senator Obama said in the same year, ``If 
the majority,'' he then referred to the Republicans, ``chooses to end 
the filibuster, if they choose to change the rules and put an end to 
democratic debate, then the fighting and the bitterness and the 
gridlock will only get worse.''
  We have agreements today that will begin to end fighting and 
gridlock, bring bills to the floor, having more amendments.
  I urge a ``no'' vote on the proposal.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the resolution.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. 
Feinstein), and the Senator from Hawaii (Mr. Inouye) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Texas (Mrs. Hutchison) and the Senator from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 12, nays 84, as follows:

                       [Rollcall Vote No. 4 Leg.]

                                YEAS--12

     Begich
     Blumenthal
     Durbin
     Gillibrand
     Harkin
     Kerry
     Kohl
     Lautenberg
     Lieberman
     Mikulski
     Shaheen
     Udall (NM)

                                NAYS--84

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Bennet
     Bingaman
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Franken
     Graham
     Grassley
     Hagan
     Hatch
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kirk
     Klobuchar
     Kyl
     Landrieu
     Leahy
     Lee
     Levin
     Lugar
     Manchin
     McCaskill
     McConnell
     Menendez
     Merkley
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schumer
     Sessions
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--4

     Feinstein
     Hutchison
     Inouye
     McCain
  The PRESIDING OFFICER. On this vote, the yeas are 12, the nays are 
84. Two-thirds of those voting for adoption not having voted in the 
affirmative, the resolution is rejected.
  Mr. KERRY. Mr. President, I am necessarily absent for the votes today 
on S. Res. 10 and S. Res. 21. If I were able to attend these vote 
sessions, I would oppose S. Res. 10 and would support S. Res. 21.
  The PRESIDING OFFICER. The question is on the adoption of S. Res 10. 
Under the previous order, an affirmative vote of two-thirds of the 
Senators voting is required for adoption.
  The substitute amendment is agreed to.
  There is now 2 minutes of debate, equally divided.
  The Senator from New Mexico.
  Mr. UDALL of New Mexico. Mr. President, S. Res. 10 does five simple 
things: limits debate on the motion to proceed to 2 hours; eliminates 
secret holds; No. 3, guarantees the majority and minority three 
amendments with a 60-vote threshold; No. 4, institutes a talking 
filibuster; and, No. 5, shortens postcloture debate on nominations, 
both executive and judicial, from 30 hours to 2 hours.
  I would ask my colleagues to support the resolution. I yield back.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, in his last appearance before the Rules 
Committee, Senator Byrd quoted James Madison's description of this body 
as a necessary fence against rulers and transient impressions and said 
the right to filibuster anchors this necessary fence and we must never, 
ever tear down the only wall, the necessary fence, that the Nation has 
against these excesses.
  This amendment does not tear down that fence, but it seriously 
weakens it. I recommend a ``no'' vote.

[[Page 997]]

  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. UDALL of New Mexico. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the resolution.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. 
Feinstein), the Senator from Hawaii (Mr. Inouye) and the Senator from 
Massachusetts (Mr. Kerry) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay.''
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Texas (Mrs. Hutchison) and the Senator from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 44, nays 51, as follows:

                       [Rollcall Vote No. 5 Leg.]

                                YEAS--44

     Akaka
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Coons
     Durbin
     Franken
     Gillibrand
     Hagan
     Harkin
     Johnson (SD)
     Klobuchar
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Whitehouse
     Wyden

                                NAYS--51

     Alexander
     Ayotte
     Barrasso
     Baucus
     Blunt
     Boozman
     Brown (MA)
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Hatch
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Kohl
     Kyl
     Lee
     Lugar
     McConnell
     Moran
     Murkowski
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Snowe
     Thune
     Toomey
     Vitter
     Webb
     Wicker

                             NOT VOTING--5

     Feinstein
     Hutchison
     Inouye
     Kerry
     McCain
  The PRESIDING OFFICER. On this vote the yeas are 44, the nays are 51. 
Two-thirds of those voting for adoption not having voted in the 
affirmative, the resolution, as amended, is rejected.
  The question is on agreeing to S. Res. 21, as amended. Under the 
previous order, an affirmative vote of two-thirds of the Senators 
voting is required for adoption of the substitute amendment, as agreed 
to.
  There is now 2 minutes of debate equally divided.
  The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I thank Senator Lautenberg for 
introducing the concept of a talking filibuster 2 years ago, and I 
thank all colleagues who have worked to end the abuse of our current 
filibuster. The fact is, we have not done any appropriations bills in 
2010. We left 100 nominations without our advise and consent or 
opposition, and we left 400 House bills collecting dust on the Senate 
floor. The American people believe the filibuster is an act of personal 
courage. Let's make it so. They believe those who filibuster should 
make their case before the public. Let's make it so. They believe when 
41 Senators want additional debate, let's make it so. Let's end the 
secrecy and obstruction of the silent filibuster and establish the 
accountability of the talking filibuster.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, in his last appearance before the Rules 
Committee, Senator Byrd said:

       Forceful confrontation to a threat to filibuster is 
     undoubtedly the antidote to the malady.

  He also said:

       I also know that current Senate rules provide the means to 
     break a filibuster.

  If Senator Byrd, who knew the rules better than any of us, thought 
that, we don't need to change the rules.
  I urge a ``no'' vote.
  The PRESIDING OFFICER. The question is on agreeing to S. Res. 21 as 
amended.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. 
Feinstein), the Senator from Hawaii (Mr. Inouye), and the Senator from 
Massachusetts (Mr. Kerry) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea.''
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Texas (Mrs. Hutchison) and the Senator from Arizona (Mr. McCain).
  The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 46, nays 49, as follows:

                       [Rollcall Vote No. 6 Leg.]

                                YEAS--46

     Akaka
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Coons
     Durbin
     Franken
     Gillibrand
     Hagan
     Harkin
     Johnson (SD)
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Lieberman
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Reed
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--49

     Alexander
     Ayotte
     Barrasso
     Baucus
     Blunt
     Boozman
     Brown (MA)
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Hatch
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Kyl
     Lee
     Levin
     Lugar
     McConnell
     Moran
     Murkowski
     Paul
     Portman
     Pryor
     Reid
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Snowe
     Thune
     Toomey
     Vitter
     Wicker

                             NOT VOTING--5

     Feinstein
     Hutchison
     Inouye
     Kerry
     McCain
  The PRESIDING OFFICER. On this vote, the yeas are 46 and the nays are 
49. Two-thirds of those voting for adoption not having voted in the 
affirmative, the resolution, as amended, is rejected.
  Mr. KERRY. Mr. President, earlier today I supported S. Res 8 because 
I believe additional action to change existing Senate rules to limit 
filibusters are needed.
  I very much appreciate the work of Majority Leader Reid and Minority 
Leader McConnell in developing a colloquy printed in the Record today. 
Specifically, I support the pledges to limit the use of filibusters on 
motions to proceed and to fill the amendment tree on legislation only 
when necessary.
  Unfortunately, I do not believe that these pledges alone go far 
enough to address the dysfunction the--epic dysfunction--of the last 
years.
  Frankly, the extraordinary measure of a filibuster has become an 
ordinary expedient. Today it's possible for 41 Senators representing 
only about one-tenth of the American population to bring the Senate to 
a standstill. The filibuster has its rightful place. I used it to stop 
drilling for oil in the Arctic Wildlife Refuge because I believed that 
was in our national interest--and 60 or more Senators should be 
required to speak up on such an irrevocable decision. But we have 
reached the point where the filibuster is being invoked by the minority 
not necessarily because of a difference over policy, but as a political 
tool to undermine the Presidency. Consider this: in the entire 19th 
century, including the struggle against slavery, fewer than two dozen 
filibusters were mounted. Between 1933 and

[[Page 998]]

 the coming of World War II, it was attempted only twice. During the 
Eisenhower administration, twice. During John Kennedy's presidency, 
four times--and then eight during Lyndon Johnson's push for civil 
rights and voting rights bills. By the time Jimmy Carter and Ronald 
Reagan occupied the White House, there were about 20 filibusters a 
year.
  But in the 110th Congress of 2007-2008, there were a record 112 
cloture votes. And in the 111th Congress, there were 136, one of which 
even delayed a vote to authorize funding for the Army, Navy, Air Force 
and Marine Corps during a time of war. That is not how the Founders 
intended the Senate to work--and that's not how our country can afford 
the Senate not to work.
  Chris Dodd said it best in his farewell address just a few weeks 
ago--a speech the Republican leader called one of the most important in 
the history of the Chamber. Chris sounded a warning: ``What will 
determine whether this institution works or not, what has always 
determined whether we will fulfill the Framers' highest hopes or 
justify the cynics' worst fears, is not the Senate rules, the calendar, 
or the media. It is whether each of the one hundred Senators can work 
together.''
  That was a speech that needed to be heard. But the question now isn't 
whether it was heard; it is whether we really listened to it. Because 
when it comes to the economy, our country really does need 100 Senators 
who face the facts and find a way to work not just on their side, but 
side by side.
  It was with Chris's words in mind that I supported Senator Harkin's 
effort to reform the filibuster rules even though I have concerns about 
how the provision would affect debate in the Senate by moving to a 
majority vote. I did so because I believe it is important to protest 
the actions by the minority over the past four years and make a 
statement that we must have an end to the unprecedented disruption that 
has occurred.
  Ultimately, Leader Reid is right--the question is not the rules, but 
our decisions about how to abuse those rules. I hope the minority will 
end this needless obstructionism as we move forward in the 112th 
Congress.
  The PRESIDING OFFICER. The Senator from Delaware.

                          ____________________