[Congressional Record (Bound Edition), Volume 158 (2012), Part 11]
[Senate]
[Pages 15659-15660]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       REFORMING THE SENATE RULES

  Mr. UDALL of New Mexico. Mr. President, I wish to talk about our 
efforts to change the Senate rules. There has been a great deal of 
comment on this subject lately.
  I have listened with great interest to the arguments against these 
changes by the other side. Let me just say at the outset: Senators 
Merkley, Harkin, and I are not talking about taking away the rights of 
the minority. We are not abolishing the filibuster.
  But there must be change. The unprecedented use and abuse of the 
filibuster and other procedural rules has prevented the U.S. Senate 
from doing its job. We are no longer the world's greatest deliberative 
body. In fact, we barely deliberate at all.
  For most of our history, the filibuster was used very sparingly. But 
in recent years, what was rare has become routine. The exception has 
become the norm. Everything is filibustered, every procedural step of 
the way, with paralyzing effect. The Senate was meant to cool the 
process, not send it into a deep freeze.
  For some reason, ever since the Democratic majority came into the 
upper Chamber in 2007, the Senates of the 110th, 111th, and current 
112th Congress have witnessed the three highest totals of filibusters 
ever recorded. A recent report found the current Senate has ``passed a 
record-low 2.8 percent of bills introduced in that chamber, a 66 
percent decrease from the last Republican majority in 2005-2006, and a 
90 percent decrease from the high in 1955-1956.''
  Our proposal to reform the rules is simple, it is limited, and it is 
fair. Again, we are not ending the filibuster. We preserve the rights 
of the minority. We are only proposing that, No. 1, Senators should be 
required to go to the floor and actually tell the American people why 
they oppose a bill or nominee in order to maintain a filibuster; and 
No. 2, motions to proceed to a bill or to send a bill to conference 
should be nondebatable. These are sensible changes. Yet we are warned 
that these simple reforms will transform the very character of the 
Senate, will leave the minority without a voice. These arguments are 
covers for continued abuse of the rules.
  The reforms are modest--some would say too modest. But they would 
discourage the excessive use of filibusters. The minority still has the 
right to filibuster, but not the right to do so by simply making an 
announcement and then going out to dinner or, more likely, to a 
fundraiser.
  Nevertheless, the other party insists we are attacking the rights of 
the minority. But there seems to be another message, too, with a truly 
odd logic. They say that if we make any reasonable changes in January, 
they may make radical ones in the future. In short, if we dare to 
reform any rule, they might throw out all of them when they are in the 
majority. How this comports with their stated concern for the rights of 
the minority is unclear.
  It is also being argued that we are breaking the rules to change the 
rules. This has been repeatedly charged by the minority leader. We 
disagree. We are reforming the rules to save the Senate. The status quo 
is abusing the rules and debasing the Senate. It is a choice between 
rules reform and rules abuse.
  History contradicts the minority leader as well. Members of the other 
side have agreed with changing the rules when they have been in the 
majority. The Record is already chock full with their past remarks, 
fervent in their support for changing the rules with a simple majority 
vote.
  This reminds me of a story my Uncle Mo used to tell. A former Senator 
once said of himself that ``never has the clammy hand of consistency 
rested upon my shoulder.'' He meant it too. On one occasion, he 
introduced a bill, and he pushed very hard for it. Then, seeing the 
tide was turning, he led the fight against his own bill. A constituent 
sent him a telegram that read ``I thank God for your courageous 
stand.'' And he replied, ``Which one?''
  And so the question: how to change the rules? The Constitution is 
clear on this point. The Senate rules reforms can be accomplished by a 
simple majority at the start of the new Congress in January. This is 
the ``constitutional option,'' not a ``nuclear option.'' That is 
something else, and I will speak to it in a moment.
  This has been a heated topic of debate this week on the Senate floor, 
particularly between the majority and minority leaders. I have followed 
the debate carefully, and I would like to address some of the 
distinguished minority leader's concerns.
  Earlier this week, Leader McConnell said the following:

       This small group of primarily senate sophomores is now 
     proposing that when the Senate gavels in at the beginning of 
     the new Congress, a bare majority of senators can disregard 
     the rule that says changes to the Senate's rules can only be 
     approved on the same broad bipartisan basis we reserve for 
     approving treaties and overriding presidential vetoes, a 
     supermajority-plus.

  I am glad he framed our argument in this way. Why do treaties and 
veto overrides require a supermajority vote? Because those requirements 
are enshrined in our Constitution. The Constitution is very specific 
about when a supermajority is needed and, just as clearly, when it 
isn't.
  Article I, section 5 of the U.S. Constitution states:

       Each House may determine the Rules of its Proceedings, 
     punish its Members for disorderly Behavior, and, with the 
     Concurrence of two thirds, expel a Member.

  When the Framers required a supermajority in the proceedings of 
Congress, they explicitly stated so in the Constitution, as they did 
for expelling a Member. On all other matters, such as determining the 
Chamber's rules, a majority requirement is clearly implied.
  The constitutional option has been used numerous times since the 
cloture provision was adopted in 1917, the last being in 1975 when it 
was the catalyst for amending the filibuster rule to its current form.
  In 1957, then-Vice President Richard Nixon noted 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

[[Page 15660]]

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.''
  Current Republican Senators agree. Senator John Cornyn said in 2003:

       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.''

  And Senator Orrin Hatch noted in 2005 that a

     simple majority can invoke cloture and adopt a rules change 
     it is clear that the Senate, at the beginning of a new 
     Congress, can invoke cloture and amend its rules by simple 
     majority.

  As I said earlier, some on the other side of the aisle have drawn a 
false equivalency between the constitutional option and the 
Republicans' threatened nuclear option of 2005. Yet this misses a 
crucial distinction. The nuclear option sought to change Senate rules 
in midsession. The constitutional option follows Senate precedent and 
would change the rules only at the start of the new Congress.
  We don't have to reform the rules with only a majority vote in 
January. That is up to my colleagues on the other side of the aisle. 
Each time the filibuster rule has been amended in the past, a 
bipartisan group of Senators was prepared to use the constitutional 
option. But they didn't have to. With the inevitability of a majority 
vote on the reforms looming, enough Members agreed on a compromise and 
passed the changes with two-thirds in favor.
  We could do that again in January. I know many of my Republican 
colleagues agree with me. The Senate is not working. I said 2 years ago 
that I would push for the same reforms at the beginning of the next 
Congress--regardless of which party was in the majority. If Leader 
McConnell was going to be the majority leader in January, I would ask 
him to work with me on implementing these reforms.
  I will say again that the proposed changes will reform the abuse of 
the filibuster, not trample the legitimate rights of the minority 
party. I am willing to live with all of the changes we are proposing, 
whether I am in the majority or minority.
  The other side has suggested that a change in the rules is an affront 
to the American public but the real affront would be to allow the abuse 
of the filibuster to continue.
  It has also been suggested that ``the campaign is over.'' Well, this 
effort to change the rules has something to do with the results of the 
campaign. The American people sent us a message. We have to change the 
way we do business. We have to govern and pay attention to jobs and the 
economy and the things that matter to American families. That was their 
message, and we would do well to listen to it.
  As to the comment that some of the reformers are ``sophomores,'' true 
enough. Senator Merkley and I are relatively new to this Chamber, but I 
don't think the American people think that is a bad thing because we 
came here to find solutions, to actually get things done for the 
American people. But what we found was a graveyard of good ideas. No 
real debate. No real consideration.
  Under the abuse of the current rules, all it takes to filibuster is 
one Senator picking up the phone, period. Doesn't have to even go on 
the floor and defend it. Just a phone call by one Senator. No muss. No 
fuss. No inconvenience. Except for the American public. Except for a 
nation that expects and needs a government that works, a government 
that actually works together and finds common ground.
  Maybe some of my colleagues believe that the Senate is working as it 
should that everything is fine. Well, Mr. President, we sophomores do 
not take that view. It isn't working. It needs to change, and I know 
plenty of experienced Senators agree.
  The American people, of all political persuasions, are clamoring for 
a government that actually gets something done. The challenges are too 
great, the stakes are too high, for a government of gridlock to 
continue.

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