[Congressional Record (Bound Edition), Volume 158 (2012), Part 12]
[Senate]
[Pages 16652-16655]
[From the U.S. Government Publishing Office, www.gpo.gov]




 TRANSACTION ACCOUNT GUARANTEE PROGRAM EXTENSION ACT--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the motion to proceed on S. 3637, which the 
clerk will report.
  The assistant legislative clerk read as follows:

       Motion to proceed to the consideration of Calendar No. 554, 
     S. 3637, a bill to temporarily extend the transaction account 
     guarantee program, and for other purposes.

  The PRESIDING OFFICER. Under the previous order, the time until 12:30 
p.m. will be equally divided and controlled between the two leaders or 
their designees.
  The Senator from New Mexico.
  Mr. UDALL of New Mexico. Mr. President, I would ask to speak as if in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Senate Rules Changes

  Mr. UDALL of New Mexico. Mr. President, there has been much 
discussion about the need to reform the Senate rules, and I have 
listened closely to the arguments against these changes by the other 
side. Today I rise to address some of their concerns. My Republican 
colleagues have made impassioned statements in opposition to amending 
our rules at the beginning of the next Congress. They say the rules can 
only be changed with a two-thirds supermajority. They say any attempt 
to amend the rules by a simple majority is breaking the rules to change 
the rules. This simply is not true.
  Repeating it every day on the Senate floor doesn't make it true. The 
supermajority requirement to change Senate rules is in direct conflict 
with the U.S. Constitution. The Constitution is very specific about 
when a supermajority is required and just as clearly when it isn't 
required.
  Article I, section 5 of the 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 require a supermajority, they explicitly said so. 
For example, for expelling a Member. On all other matters, such as 
determining the Chamber's rules, a majority requirement is clearly 
implied.
  There have been three rulings by Vice Presidents sitting as President 
of the Senate. Sitting up where the Presiding Officer is sitting, three 
Vice Presidents have sat there. And the meaning of article I, section 
5, as it applies to the Senate, this is what they were interpreting. In 
1957, Vice President Nixon ruled definitively, and I quote from his 
ruling:

       While 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

[[Page 16653]]

     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.

  That was Vice President Nixon. Vice Presidents Rockefeller and 
Humphrey made similar rulings at the beginning of later Congresses.
  I have heard many of my Republican colleagues quote Senator Robert 
Byrd's last statement to the Senate Rules Committee. The Presiding 
Officer knew Senator Byrd well. He is from his State of West Virginia. 
Senator Byrd came to that Rules Committee. I was at that Rules 
Committee, and I was at the hearing where he appeared--and I have great 
respect for Senator Byrd. He was one of the great Senate historians. He 
loved this institution, but we should also consider Senator Byrd's 
other statements and the steps he took as majority leader to reform 
this body.
  In 1979 it was argued that the rules could only be amended in 
accordance with the previous Senate rules. Majority Leader Byrd said 
the following on the floor:

       There is no higher law, insofar as our Government is 
     concerned, than the Constitution. The Senate rules are 
     subordinate to the Constitution of the United States. The 
     Constitution in Article I, Section 5, says that each House 
     shall determine the rules of its proceedings. Now we are at 
     the beginning of Congress. This Congress is not obliged to be 
     bound by the dead hand of the past.

  That was Senator Robert Byrd. This Congress is not obliged to be 
bound by the dead hand of the past.
  As Senator Byrd pointed out, the Constitution is clear. There is also 
a longstanding common law principle upheld in the Supreme Court that 
one legislature cannot bind its successors. For example, the Senate 
cannot pass a bill with a requirement that it takes 75 votes to repeal 
it in the future. That would violate this common law principle and be 
unconstitutional. Similarly, the Senate of one Congress cannot adopt 
procedural rules that a majority of the Senate in the future cannot 
amend or repeal.
  Many of my Republican colleagues have made the same argument. In 2003 
Senator John Cornyn wrote in a Law Review article--as many of you know, 
Senator Cornyn was an attorney general in Texas, was a distinguished 
justice. Senator Cornyn said the following in this Law Review article:

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

  That was Senator John Cornyn.
  Amending our rules at the beginning of a Congress is not breaking the 
rules to change the rules, it is reaffirming that the U.S. Constitution 
is superior to the Senate rules. And when there is a conflict between 
them, we follow the Constitution.
  I find some of the rhetoric about amending our rules particularly 
troubling. We have heard comments that any such reforms, if done by a 
majority, would ``destroy the Senate.'' Again, I can turn to my 
Republican colleagues to answer this accusation.
  In 2005 the Republican Policy Committee released a memo entitled 
``The Constitutional Option: The Senate's Power to Make Procedural 
Rules by Majority Vote.'' That memo supports the same arguments I make 
today for reform by a majority, and it also refutes many of the recent 
claims about how the Senate will be permanently damaged.
  One section of the memo titled, ``Common Misunderstandings of the 
Constitutional Option'' is especially interesting and enlightening. It 
responds to the argument that ``the essential character of the Senate 
will be destroyed if the constitutional option is exercised,'' and it 
responds with the following words:

       When Majority Leader Byrd repeatedly exercised the 
     constitutional option to correct abuses of Senate rules and 
     precedents, those illustrative exercises of the option did 
     little to upset the basic character of the Senate. Indeed, 
     many observers argue that the Senate minority is stronger 
     today in a body that still allows for extensive debate, full 
     consideration, and careful deliberation of all matters with 
     which it is presented.

  What is more important about the Republican memo is the reason they 
believed a change to the rules by a majority was justified. Because of 
what Republicans saw as a break in longstanding Senate tradition. They 
claimed they weren't using the constitutional option as a power grab, 
they were using it as a means of restoring the Senate to its historical 
norm.
  This is exactly where we find ourselves today. Back then, the 
Republicans argued the constitutional option should be used because 10 
of President Bush's judicial nominees were threatened with a 
filibuster. I believe the departure from Senate tradition now is far 
worse.
  Since Democrats became the majority party in the Senate in 2007, we 
have faced the highest number of opposition filibusters ever recorded. 
Lyndon Johnson faced one filibuster during his 6 years as Senate 
majority leader. In the same span of time, Harry Reid has faced 386.
  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.
  Since the Democratic majority came into the upper Chamber in 2007, 
the Senates of the 110th, 111th, and current 112th Congresses have 
witnessed the three highest total of filibusters ever recorded. A 
recent report found the current Senate has passed a record low 2.8 
percent of bills introduced. That is a 66-percent decrease from the 
last Republican majority in 2005 and 2006 and a 90-percent decrease 
from the high in 1955 and 1956.
  So the Republicans argued in 2005, ``[a]n exercise of the 
constitutional option under the current circumstances would be an act 
of restoration.'' An act of restoration. I cannot improve on that 
statement. We must return the Senate to a time when every procedural 
step was not filibustered.
  I respect the concerns some of my Republican colleagues have 
regarding the constitutional option, but there is an alternative. We 
don't have to reform the Senate rule with a majority vote in January. 
This 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 with 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 that the Senate 
is not working. Some say we don't need to change the rules, we need to 
change behavior. But we tried that--the changing of behavior--with a 
gentleman's agreement at the beginning of this Congress. It failed. So 
now it is time to make some real reforms.
  This is not a ``power grab,'' as some have charged. We want to make 
the Senate a better place--a place where real debate happens for both 
parties. So I ask my friends on the other side of the aisle to bring 
their own proposals to the table. Let's work together to restore the 
deliberative nature of the Senate where all sides have the opportunity 
to debate and be heard.
  I said 2 years ago I would push for reforms at the beginning of the 
next Congress regardless of which party was in the majority. I will say 
again that our goal is to reform the abuse of the filibuster, not 
trample the legitimate rights of the minority party. I am willing to 
live with all the changes we are proposing whether I am in the majority 
or the minority.
  The American people, of all political persuasions, want a government 
that actually gets something done, that actually works. We have to 
change the way we do business. The challenges are too great, the stakes 
are too high, and we do not want a government of gridlock to continue.
  I thank the Chair for the time, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page 16654]]

  The assistant legislative clerk proceeded to call the roll.
  Mr. NELSON of Florida. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                         Release Johnny Hammar

  Mr. NELSON of Florida. Mr. President, a very disturbing thing has 
happened in Mexico with one of my constituents--a U.S. marine who 
served honorably.
  Johnny Hammar fought in Fallujah and was honorably discharged in 
2007. He and another marine, both having suffered under posttraumatic 
stress disorder, were taking advantage of the fact they were surfers to 
lessen their stress. They had surfed up and down the east coast. This 
is a marine whose family lives in Miami, so they had gone to Cocoa 
Beach, and they were going to others. They wanted to go to Costa Rica 
to catch the big waves in the Pacific, and so Johnny bought a camper 
and entered Mexico at Matamoros.
  As they crossed the border, he checked with United States Customs 
because he had a shotgun that was an antique that had been owned by his 
great-grandfather. He registered the weapon with U.S. Customs so that 
when he returned Customs would have a record of it. But when he went 
from the American side of the U.S.-Mexico line into Mexico, and openly 
showed his great-grandfather's antique shotgun, the Mexican authorities 
arrested him.
  His companion, another marine, after interrogation was released, but 
they put Cpl Johnny Hammar, now age 27, in the general prison 
population in Matamoros, Mexico.
  This case came to my attention last August, and I immediately 
responded. As a result of my contacting the Mexican Government, they 
moved him from the general population of the jail into an individual 
jail cell. But as they have gone in to interrogate him, they have 
manacled him, shackled him, and at one point they had him chained to 
the bed.
  This has gone on long enough. If it is against the law to take a gun 
into Mexico, even though he had already declared it at U.S. Customs, 
the Mexican authorities could have, when they released his fellow 
marine to go back into the United States, sent him back into the United 
States and told him don't bring your great-grandfather's shotgun into 
Mexico. If that is against Mexican law. But they didn't. They have put 
a U.S. Marine, who has honorably served his country, in a Mexican jail, 
and he has been there since last August.
  Enough is enough. I called my friend Arturo, the great and well-
respected Mexican Ambassador, yesterday and I can't get a return call 
from the Mexican Ambassador, so I am bringing this to the attention of 
the Senate so we can further get through to the Mexican Government and 
indicate to them they have made a bureaucratic mistake.
  Obviously, if it is against Mexican law to take a weapon in, then 
under these circumstances, this young U.S. marine does not deserve the 
treatment he is getting--holding him in a Mexican jail at the border of 
the United States for the past 5 months.
  I hope cooler heads will prevail. If it requires me speaking on the 
Senate floor day in and day out to keep this issue alive, I will do so. 
Clearly, it has been in the press. It has been in the Miami Herald 
several times, a much more detailed account of his background, his 
service to the country, and his struggling with PTSD ever since he got 
home.
  Mr. President, I thank the Chair for the opportunity to bring this to 
the attention of my colleagues, and once again I say to the Mexican 
Government: Send this marine home. Now that you have a new President 
installed in Mexico, relations with the United States are especially 
important and United States citizens who are peaceful in their intent, 
innocent in their observation of the Mexican laws, where no harm has 
been done, should be treated respectfully. Send that U.S. marine back 
to America and back to his family in Miami.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. JOHNSON of South Dakota. Mr. President, I ask unanimous consent 
that the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. JOHNSON of South Dakota. Mr. President, I want to express my 
support for S. 3637, a temporary extension of the Transaction Account 
Guarantee, or TAG, Program.
  The program, which is administered by the FDIC for insured depository 
institutions and the NCUA for credit unions, provides unlimited 
insurance for non-interest-bearing accounts at banks and credit unions. 
These transaction accounts are used by businesses, local governments, 
hospitals, and other nonprofit organizations for payroll and other 
recurring expenses, and this program provides certainty to businesses 
in uncertain times.
  These accounts are also important to our Nation's smallest financial 
institutions. In fact, 90 percent of community banks with assets under 
$10 billion have TAG deposits. This program allows these institutions 
to serve the banking needs of the small businesses in their 
communities, keeping deposits local. In my State of South Dakota, I 
know that the TAG Program is important to banks, credit unions, and 
small businesses.
  Our Nation's economy is certainly in a different place than it was in 
2008 at the height of the financial crisis when this program was 
created, but with concerns about the fiscal cliff in the United States 
and continued instability in European markets, I believe a temporary 
extension is needed. Therefore, I believe that a clean 2-year extension 
makes the most sense and provides the most certainty for business and 
financial institutions and also provides time to prepare for the end of 
the program in 2 years.
  I wish to note that this legislation has a cost recovery provision 
that ensures no taxpayer is on the hook for this insurance. Financial 
institutions pay for the coverage. This is not and never will be a 
bailout. This is simply additional insurance paid for by the banks to 
ensure these accounts remain stable.
  I thank Leader Reid for making this issue a priority in the lameduck 
session. I also thank Senator Sherrod Brown for being a great partner 
for many months on this important topic. The administration has just 
issued a SAP in support of TAG, and I ask unanimous consent to have it 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Executive Office of the President, Office of Management 
           and Budget,
                                Washington, DC, December 11, 2012.

                   Statement of Administration Policy


   S. 3637--Transaction Account Guarantee Program Temporary Extension

                           (Sen. Reid, D-NV)

       The Administration supports Senate passage of S. 3637, 
     which would temporarily extend the unlimited deposit 
     insurance coverage for noninterest-bearing transaction 
     accounts. The Transaction Account Guarantee (TAG) Program 
     played an important role in maintaining financial stability 
     and banking system liquidity for consumers and businesses 
     during the financial crisis. While the Administration 
     supports a temporary extension of the program, it remains 
     committed to actively evaluating the use of this emergency 
     measure created during extraordinary times and a responsible 
     approach to winding down the program. The Administration 
     looks forward to working with the Congress to move forward 
     other measures that will support small businesses and 
     accelerate the economic recovery.

  Mr. JOHNSON of South Dakota. I ask my colleagues to support the 
extension of TAG.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. JOHNSON of South Dakota. Mr. President, I ask unanimous consent 
that the order for the quorum call be rescinded.

[[Page 16655]]

  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________