[Congressional Record (Bound Edition), Volume 158 (2012), Part 13]
[Senate]
[Pages 18544-18549]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             RULES CHANGES

  Mr. ENZI. Madam President, we are busy patting ourselves on the back 
for avoiding the fiscal cliff. I don't know how much congratulations we 
ought to have for that.
  Yesterday, I was buying some groceries, and the guy at the checkout 
stand had no idea who I was and shouldn't have. He said: What is going 
on, on Capitol Hill? What are those people doing? We ought to fire 
everybody in Congress. They can't get their work done. We have to get 
our work done. They don't have to get their work done.
  He made a good point. I am telling you, it is down to the level of 
grocery store checkout people--and I suspect different levels than 
that, different occupations than that. Americans, because they are kind 
of tuned in to the news media, which is kind of an information media or 
an entertainment media, built this fiscal cliff so it appeared to be 
Niagara Falls with money running over it. It is more of a gradual 
slope. But we have to stop the downward slope we are on. It is 
important we do that. And this is a body that can do that. Congress can 
do that.
  We conduct a war of words around here--of this protecting the 
``rich''--and it sticks. You know, I don't know of anybody who is 
trying to protect the rich. The problem comes with the definition of 
``rich,'' and that is a hard one to explain. Any attempt that looks 
like that, and we go back to the sticky word of ``rich,'' whom nobody 
is trying to protect.
  I used to be in business. I used to be one of those small 
businessmen, and I knew that at the end of the year, the business would 
show a profit. Now, unfortunately, we couldn't take the money out of 
the business if we were going to continue to grow the business, if we 
were going to bring on more people. It also meant we needed to have 
more product, and that meant we had to have more investment in the 
business. So the money we could have taken out that showed as 
``profit'' actually went back into the business.
  We kept saying: How can we have so little money when we make so much 
money?
  Well, that is the position a lot of the small business men and women 
are in around this country. They are having to put all their money back 
into their businesses. And I understand when people say don't protect 
the rich--those making $250,000 or $400,000 or $450,000, whatever the 
amount comes out to be--but the person working in that business, 
probably making $30,000, $40,000, $50,000, or $60,000, says: If all I 
am making is that amount and they are making $250,000, we really ought 
to tax them. You know, it is a fairness issue. But when it gets down to 
the point of what they actually get to take out, what their take-home 
is, it is a lot different. They look really good on paper, they look 
rich on paper, but the money they get to take out is significantly less 
than that, and that is where the divide came in when trying to solve 
this problem. Now, could it have been solved? Yes, it could have been 
solved.
  What we need to do around this institution is to start legislating 
and stop deal-making. We are a legislative body. You can't have 100 
people involved in a deal, and consequently we don't. We have the group 
of 2, as in the case of this one, or a group of 4 or 6 or 9 or maybe as 
many as 12 getting together and putting together some kind of 
comprehensive package to put before this body, and those who aren't in 
the group are really kind of insulted by it. They do not make a big 
deal out of it because that has become the tradition, but that is not 
how it is supposed to work.
  I have been there. I have gotten to legislate. It is one of the 
privileges of this country. The main person with whom I legislated was 
Senator Kennedy. Senator Kennedy was considered one of the most liberal 
people in the Senate, and I have always been considered one of the most 
conservative people in the Senate, but we were able to work together to 
get 38 bills out of committee and through this body, and the worst vote 
we ever got was 15 votes against. How did we do that? Well, we didn't 
try to solve the world's problems

[[Page 18545]]

all in one bill. We took an issue at a time, and we found the common 
ground. We found what we could agree on, and that was usually about 80 
percent of the whole issue. That is pretty good.
  We worked on issues that had been around here 10 or 12 or 15 years 
without passing, having come to the floor numerous times, and mainly 
what we did was we would sit down with the stakeholders, who were 
intensely interested in the bill, who had been lobbying on that bill 
for years and years, and we would say to them: This is what we can get. 
This is what we have to leave out.
  It wasn't compromise. Compromise is when you give up half of what you 
believe in, I give up half of what I believe in, and we wind up with 
something that neither of us believes in. But common ground happens. 
There is common ground on every one of these issues, and that is what 
we have to find--the common ground.
  So we would meet with these stakeholders, and they would say: No, you 
are leaving out the most important part of this whole bill. This is 
what we really want.
  If it was Senator Kennedy's constituency, he would have to make the 
comment, and if it was mine, I would have to make the comment: How long 
have you been working on this?
  They would say: We have been working on this for 10 years.
  I would say: How much of it have you gotten?
  Then they would say: Well, nothing.
  I would say: Here is what we can get for you.
  And I would outline it again, and I would say: Isn't that better than 
nothing?
  The light would come on, and they would say: Oh, that would be good 
progress.
  Then they would quit pushing against us, and they would get together 
with us.
  It is amazing sometimes that the advocates for a bill are really 
sometimes the ones who are stopping the bill from happening, and it is 
over the issues--that 10 percent on each side, which amounts to 20 
percent--that we are not going to get resolved. There are some basic 
values on both sides, and they are important to both sides and they are 
both right, but they are not common ground.
  But this is where we have to go. We have to get to common ground 
again, and the way we do that is by legislating. We put out a bill that 
is 80 percent of the whole issue, not 100 percent of the whole issue 
because that is comprehensive. We need to put out the 80 percent both 
sides agree on and then allow amendments on it. That is something we 
haven't been doing around here for a long time.
  First of all, a bill needs to go to committee. The committee is where 
the people intensely interested in that particular bill preside and 
work and exert their efforts. That is where they want to concentrate.
  When a bill comes to committee, you can have maybe 200 or 300 
amendments in committee, and the chairman and the ranking member--that 
is the name we give to the person with the most seniority in the 
minority--can sit down together and sort through these amendments. Out 
of the 200, there are probably 100 that nobody in their right mind 
would really offer. Out of the remaining ones, you will find there are 
people on both sides who have very similar ideas on how to solve that 
problem, so you get those people to sit down together and take a look 
at all the amendments that are similar to that one and see if they 
can't come up with a single amendment that will solve that part of the 
problem. And you know what. They do. Now, it might not be 100 percent 
of what they want. It is probably, again, only 80 percent of what they 
want. But it is something on which they can all agree.
  Here is the really magnificent part that helps a bill get through 
committee: They can all say: It was my idea. They can all go to the 
media and put out the release that says they solved this particular 
problem, and that helps a lot around here.
  So committee work is extremely important, but when a bill comes out 
of committee, it is not perfect. When Senator Kennedy and I were 
working the bills, we not only recognized they weren't perfect, but we 
were able to talk to those Members whose problems we weren't able to 
solve by the time the amendment process came up in committee, and we 
promised to work with them until the bill got to the floor and not to 
take the bill to the floor until we had a solution to that problem or 
the right for them to offer an amendment. That helped a lot to get the 
bill out of committee.
  Once a bill comes out of committee in a bipartisan way--meaning 
people from both sides of the aisle, Republicans and Democrats and 
Independents, support the bill--then there is a chance of bringing it 
to the floor and actually getting some time to debate. And the debate 
part is important. That is kind of where we bring America along. There 
is coverage during the committee process, but that is a little harder 
to follow. The debate here on the floor is where we bring America along 
on whatever ideas we have, and so the debate here is very important.
  Over time, there has been this process where the leaders have 
invented some things that actually concentrate the power in the hands 
of the leaders rather than the body as a whole, and that is the 
filibuster process, and that filibuster process can be manufactured.
  I have to tell a couple of stories. One bill I worked on around here 
had a solution for health care. I called it small business health 
plans. The idea behind the bill was that small businesses could get 
together through their association or any way they wanted to, across 
State lines, even nationwide, to form a buying group big enough to take 
on the biggest of the insurance companies. Think about that--the power 
to take on the biggest of the insurance companies. Yes, there was some 
opposition to that--call it the insurance companies. But many of them 
worked with us and began to understand how they could participate in 
the process and then went along with it.
  One of the biggest insurance companies in the Nation had some ads out 
of Massachusetts opposing the bill, and eventually that helped to keep 
the bill from ever happening. But the biggest thing that kept the bill 
from happening--Mr. President, I ask unanimous consent to speak for 
another 10 minutes or the right to allow the Senator from California to 
speak and then have it come back to me.
  Mrs. BOXER. I am wondering if the Senator can finish in 5 minutes, 
and then I would speak, and then he can have more time.
  Mr. ENZI. Yes, just a couple more minutes.
  The PRESIDING OFFICER (Mr. Brown of Ohio). The Senator from Wyoming.
  Mr. ENZI. So on this small business health plan, when it came to the 
floor, I had the unfortunate experience of having Senator Frist setting 
a filibuster and filling the tree. ``Filling the tree'' means nobody 
can make another amendment to the bill. But here is the catch: After 
this came out of committee, we got the people together who had a 
problem with the bill, and we had one amendment that would have solved 
those problems. With the tree filled, that one amendment couldn't come 
up. That one amendment couldn't happen.
  So what happened? We talked about the bill and how it lacked this 
particular part. I kept explaining how we had an amendment that would 
take care of that. Everybody in the Chamber knew that amendment was not 
going to happen, and consequently, on a process vote, it was killed 
with just over 40 votes. That is what happened with the filibuster. Had 
that amendment been possible, we would have had one of the things in 
place for health care--just one, but it would have solved a lot of 
things for a lot of businesses, and that is where a lot of people work 
in this country, and that is where jobs are.
  So that is how we can do this job of legislating.
  My second story would be--and this one is much shorter--about the 
year Senator Harkin and I brought an FDA bill to the floor. When it got 
to the floor, we explained to the leader that there were going to be 14 
amendments--8 of them would be brought up

[[Page 18546]]

and would fail, and the other 6 would be withdrawn. A week later we 
finally got to start on the amendments for that bill. There was worry 
that there would be some extraneous ones thrown in. We already had 
agreement, I guess you could say, from the most conservative and most 
liberal from each of our sides that they would not bring up the 
peripheral amendments, and they didn't. So a week later, when we 
finally got to start to vote--and we could have done that the same day, 
although we finished up in a day and a half--we had eight amendments 
that got defeated and six amendments that were withdrawn. So we wound 
up exactly where we knew we were going to be, and the bill passed here 
96 to 1.
  That is how the committee process can work, and that is how not 
having a filibuster can work, and that is what we need to get back to. 
We need to be legislating, not deal-making. And I will talk later about 
some of the deal-making, and we have seen that with the cliff process.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I would like to say to Senator Enzi that I 
agree with so much of what he said. Our being here on New Year's Eve, 
some of us without our families, is nothing to be proud of, and having 
been able to do our work through the committee system, I think he made 
a very good point.
  Enzi and Kennedy were quite a team; Baucus and Grassley had their 
successes; Levin and McCain recently had their success on the Defense 
bill, with lots of amendments; Boxer and Inhofe on the Transportation 
bill. I can tell you, you couldn't find two people more different, and 
yet Senator Inhofe and I were able to do that work and get that done 
and protect 2 to 3 million jobs. And also Stabenow and Roberts in the 
Agriculture Committee.
  So my friend is absolutely right; we can do this in the right way and 
not have to be here in the middle of the night. I don't think that is 
anything to be proud of. However, I do believe what we did early this 
morning was right and very important. I think Senators Durbin and Brown 
laid it out as to why that vote was so critically important: It 
protected our families, it gave certainty to our businesses, and it 
keeps this economy moving forward. All this is true if the House passes 
this bill.
  As Senator Enzi said so eloquently and in such a straightforward 
fashion, this is a deal. Each of us could write our own deal, and each 
of us would be so much happier with a deal that we personally could 
write. But that is not the way it is. We are not a parliamentary system 
where one party controls everything.
  In a parliamentary system that we see in Europe, one party controls 
everything. They have a program. The other party opposition has a 
program. There may be other parties as well but two major parties. One 
of them gets elected, they put together a coalition, they have 
discipline, they have a program. They don't have to sit down with 
people they don't see eye to eye with. They just have to get together 
and pass the program. If the people don't like it, there is a vote of 
confidence and out they go and in comes the opposition. They have a 
channel. That is not the American system. Our system is much more 
difficult in so many ways. So many of us are so passionate on so many 
issues and believe so strongly, and yet we know we have to compromise, 
as Senator Enzi has said.
  When I sat down with Senator Inhofe on the Transportation bill--and I 
will be doing it now with Senator Vitter on the WRDA bill--the water 
resources bill--I laid out the five things I cared most about, he laid 
out the five things he cared most about, and, to be honest, there were 
only a couple things that matched. So we started with those things, and 
then we met each other in the middle with the rest. Then the Senate had 
a chance to work its will.
  When the bill got over to the House, it was stuck. It was trapped. We 
all went over there, all of us together on a bipartisan team, to speak 
to Speaker Boehner and Chairman Mica and say: OK, let's get it done. 
And we did. So it can get done.


                            The Fiscal Cliff

  But we are where we are, where we are. This morning we had a choice, 
and, frankly, I was proud to see the overwhelming vote we had. It was 
amazing, 89 to 8. I don't know what motivated every colleague; I only 
know what motivated me to believe this was an important ``aye'' vote 
for me to cast.
  I will never forget this recession that we are just coming out of 
now, the worst recession since the Great Depression. As Treasury 
Secretary Hank Paulson--who put his head in his hands and was 
overwhelmed with what he actually called the potential collapse of 
capitalism. That is what we faced.
  We have short memories here because our lives are so filled with 
fast-moving events every day. Some of them are wonderful, some of them 
are awful, some of them lift up our hearts, some of them break our 
hearts. So we don't remember the things that happened a couple years 
ago.
  When President Obama took over after a very lifeless economy, as my 
friend Senator Brown said, where only 1 million jobs were being 
created--maybe not even that many--in the private sector over an 8-year 
period, and suddenly there was a collapse brought on by the greed of 
Wall Street and manipulation of securities dealing with housing--a 
crash, a nightmare, and we were losing 800,000 a month. Then the auto 
industry was on its knees.
  Believe me, in the past I haven't been the biggest fan of the auto 
industry for California because I believed they weren't producing the 
cleanest cars they could, the most fuel economy cars they could. I 
believed they were missing out on an opportunity. But let me tell you, 
when I was faced with the issue of whether to let them go bankrupt or 
stand and give them a chance, I chose that chance. And I am proud that 
I did it, and I am proud of this Congress for doing it. I am proud of 
this President for leading the way. That was a critical vote. And this 
vote this morning, I believe, was a critical vote if we really wanted 
to keep this economy moving forward.
  A lot of people say: How did President Obama ever win with that 
unemployment rate so high? All the historians were saying it was never 
going to happen because it has never happened. Well, I will tell you 
why I believe it happened. I believe people understood what we went 
through, what we suffered through, what he inherited, not to mention 
two wars on a credit card that he had to end. So I think people 
understood this. We don't give the people enough credit. They got it. 
They understood it. And I hope they realize this President has led us 
to this point, with the Vice President, with Senator McConnell, with 
Senator Reid, to move this economy forward.
  Let me tell you very quickly why it is so important to my home State. 
A lot of my colleagues roll their eyes when I tell them we have 38 
million people in California. My friend from Wyoming, how many people 
in Wyoming? There are 562,785, and we have 38 million people. All 
right?
  I want to tell you what it means that we voted the way we did. It 
means 400,000 people this morning will lose their unemployment 
insurance unless the House acts. If the House acts as we did, they will 
not lose it.
  What does this mean to people, 400,000 of them? As my friend, the 
Presiding Officer--who is so good on economics--knows, there is a 
multiplier effect. For every dollar we give in unemployment benefits, 
we get a bang for the buck $1.42 in the community because the people on 
unemployment spend it because they are out of work.
  They are about to lose this help. We need to help them, and in this 
package we did--2 million nationwide, 600,000 jobs at stake from the 
multiplier effect, and in my State 400,000 people. Almost as many 
people as reside in the State of Wyoming were about to lose their 
unemployment insurance. Imagine--almost that.
  I ask for an additional 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. So when we talk about our vote this morning, it is not a 
wonky discussion. It is real people. Five million Californians are 
about to

[[Page 18547]]

get trapped into the AMT problem, the alternative minimum tax, which 
was set up for a very fair reason. I wasn't here at that time, but I 
remember reading about millionaires getting away with paying no taxes 
because we had no alternative minimum. They took advantage of the Tax 
Code, got their deductions, and paid nothing. We put it in place, but 
it is imperfect. We had to fix it to make sure it doesn't catch the 
middle class--5 million of my people.
  So this is like a partridge in a pear tree in a way: 400,000 people 
would have lost their unemployment compensation; 5 million would be 
caught in the alternative minimum tax, which would have been an extra 
in taxes right there; and 15 million would have seen their tax rates go 
up on average of $2,200.
  This bill we voted for this morning had real consequences, and I know 
a lot of people are worried about the future and what is coming down in 
30 days, 60 days, and 90 days--and I worry too. But I have been around 
here long enough to know it isn't going to get better if we put this 
off until then and we have twice as many issues on our plates to deal 
with.
  So I believe what we did this morning--and my voice is going because 
it was a very difficult and emotional day for all of us, some being 
away from their families for the first time. I know my friend from 
Rhode Island and I talked about it. It wasn't easy, but we know what we 
are doing here is critical. We are not proud of the fact that it took 
us this long to get it done.
  I agree with my friend from Wyoming. It is nothing to be proud of, 
but it is important what we did. We have certainty for businesses that 
depend upon consumerism. We have an economy that is driven by consumer 
activity, about 70 percent of it. Now the business community knows--if 
the House acts. I have to keep reminding myself it is not done. If the 
House acts, we will give certainty to our families, to our businesses, 
to our low-income people who depend upon refundable tax credits, to our 
energy community that relies on energy tax breaks to keep on moving and 
keep on producing.
  So I don't want to see economic growth derailed. It was too hard and 
painful to sit through this very difficult economic recovery inch by 
inch, every day hoping we would push forward despite the odds. We had 
the economic crisis in New York that weighed on us as well.
  Well, what we did this morning was important. So I want to close by 
saying this to my friends in the House, all of them--Democrats, 
Republican, liberals, and conservatives--this is not the perfect deal. 
We all know it. Each of us can find a piece of it that we really, 
really don't like. But on the whole it will give certainty to this 
economy.
  In many cases, many of the provisions are permanent, such as the AMT. 
It gives certainty, and certainty is critical. We will not go back. We 
will not take billions and billions of dollars out of this economy. We 
can't do that now.
  I would say to my conservative friends over there: Now it is the 
first of the year. You are actually cutting taxes now because as of 
today they went up. So you could take credit for cutting taxes.
  I just hope and pray that the House will do the right thing; that 
Democrats and Republicans will come together as Americans and put the 
country first. I believe they will do this. I pray they will do this.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. ENZI. Mr. President, I want to join the Senator from California 
in the hope that the House will pass the bill that was sent over from 
the Senate last night. It was a tremendous amount of effort that was 
put into it by a number of people over a number of days and weeks, and 
I think it is the best answer that we could come up with at this point 
in time.
  I particularly want to thank Leader McConnell and Vice President 
Biden for working numerous hours; starting, again, yesterday morning at 
6:45 and winding up with something late last night, more than 12 hours 
later, over the last two issues, as I understand it. And, yes, I am 
glad that AMT was fixed. I would remind everybody that AMT is the last 
effort we had to tax the rich, and it backfired to where it now taxes 
everybody or almost everybody. So it desperately needed a fix. Now we 
are talking about taxing the rich again, and I hope we can come up with 
some collective ways that will be certain for the people who are rich 
and that it will last over time instead of just for a few short years.
  In my area of the world, the biggest thing in that bill was the 
estate tax. People who own land in Wyoming that they bought maybe at 
$40 an acre now have land that is worth $2,000 an acre or more, and 
they haven't figured out how to pay the taxes on these few acres they 
were able to scrape together over a period of time if the amount of the 
exemption went down to $1 million, and that is where we were headed. At 
$1 million, they would have to sell off part of the ranch or part of 
the farm in order to pay the taxes when somebody died. All the time 
that land is making a profit people are paying taxes on it. Then when 
they die, they would have to pay taxes on something they would like to 
keep and continue in operation.
  So the estate tax piece of that was a very important part for a lot 
of America, and not just the ones where people are land rich and dollar 
poor.
  Of course, I keep wondering what would have happened if a month ago a 
basic bill would have been put on the floor--perhaps the President's 
proposal--and both sides had been able to do amendments to it, even 
multiple amendments on the same topic, like the Department of Defense 
bill. We did 119 amendments in a day and a half or 2 days. What if that 
had happened on this bill? Would we have been able to come up with a 
package that would, I suspect, be very similar to what we passed last 
night but done it with everybody participating, everybody 
understanding, the American public thinking that Congress is actually 
getting something done? That would be a huge relief. I think we could 
have done that with an open amendment process, limiting it probably to 
relevant amendments.
  There are a lot of different things people would like to bring up 
because they don't know any other way they are going to get votes, but 
I keep reminding my colleagues that when you bring up one of those 
irrelevant amendments, it might make it into the bill, but it will be 
pulled out in conference committee. You still did not win anything. I 
guess you could make a big press release about how you got that into 
the bill to begin with, but it is not in the bill.
  I want to talk today about the questions I hear from Americans who 
say: Why can't politicians in Washington get along? Why is there this 
gridlock?
  Those are questions folks outside the beltway have been asking, but, 
like may questions, the answer is involved. For many, including 
President Obama and Senate Majority Leader Reid, it is easy and 
strategic to oversimplify the answer. They have identified GOP Senators 
as the culprits and the filibuster as the instrument. But as one of 
those GOP Senators, let me give you my side of the story.
  What I think people are missing and what some of the majority wants 
you to miss is why a filibuster happens. You do not hear this from the 
majority leader, but for the last few years many filibusters in the 
Senate have been designed and instigated by him; they have not been 
through the committee process.
  Here is how it works. He has a bill that is popular with his party 
and whose title really sounds great. He knows many of those on our 
side, the minority, would actually agree with many parts of the bill, 
but we would want votes on the items that could potentially be 
politically embarrassing. In order to avoid these votes, he skips the 
committee of jurisdiction and brings the bill directly to the Senate 
floor. Then he uses an arcane Senate parliamentary procedure--he files 
for cloture and fills the amendment tree. That means he prevents 
amendments on the Senate floor, and often because he believes they 
might be embarrassing for Members on his side.
  Our majority leader is no slouch; he picks bills with great titles 
that on the

[[Page 18548]]

surface anyone could support--anyone. Remember, most of these have not 
been to committee. Who could possibly be against students or veterans 
or seniors or women? The problem for the minority is that within these 
great-sounding bills is usually something that deep down, 
philosophically in our bones, many just cannot accept. An example would 
be tying a woman's health care to a mandatory public funding of 
abortions or adding gun control to an otherwise acceptable crime bill. 
These are poison pills that the majority knows the minority won't 
swallow. Best of all politically for the majority, the minority gets 
blamed for filibustering and the majority leadership looks like the 
hero fighting hard for the cause. That is how a filibuster can be 
initiated by the majority leader to make the minority look like 
obstructionists.
  If the majority party brings up a bill containing a poison pill, even 
though the bill has a great title, they should not expect the other 
party to swallow the poison pill without using every delay tactic 
possible. In fact, they don't expect the minority to go along, and they 
use it to their full political advantage.
  Those of us on this side in the minority have been seeing bill after 
bill that did not even go through committee, with great titles, 
containing poison pills, come to the floor directly. We were not 
assured even of a vote to try to take the pill out even though the 
majority had sufficient votes to ensure the poison pill would stay in. 
That is the meaning of majority--enough votes to always win. If you can 
always win, why stop the vote? So stopping the right to vote should and 
has resulted in a filibuster.
  The big, dirty, not-so-secret secret is that a filibuster can be 
controlled by the majority leader. If the leader agrees to allow an 
open amendment process, permission to proceed would be a formality, and 
work could start immediately. That is what happened with the Department 
of Defense authorization we just finished. It was a fresh breeze 
through what the majority has turned into a stale Senate. We worked 
through more than 100 amendments in short order. But if no agreement to 
an open amendment process is agreed to before starting the bill, the 
minority has to believe their amendments will be blocked.
  The majority can vote down any proposal it does not like and with a 
motion to table can do it quickly. Let me say that again. With a motion 
to table, they can do it quickly, they can actually limit debate. That 
is why the minority has been filibustering on motions to proceed and 
also why the majority leader wants to end that process. Delaying action 
on motions to proceed is our best chance to ensure an open amendment 
process. We can slow the bill down to try to get that agreement. The 
majority still does not have to agree, and if they have 60 votes, they 
can move ahead. If they do not have 60 votes, it has to be at least a 
little bit bipartisan--just a little bit.
  The real point gets lost in all this; that is, to be effective, 
Congress has 535 people looking at every proposal--lots of viewpoints, 
lots of experience. If all the decisions are going to be made by the 
majority leader, how does every American's elected leader get to 
represent his or her constituents? The people back home who put their 
faith in their Senators expect to be represented by their Senators, not 
a party or a majority leader who does not know them as their own 
Senators do.
  The majority leader has used the filibuster count to effectively 
falsely claim obstruction by Republicans. Remember, you can manufacture 
a filibuster. Now he wants to weaken the filibuster further. That may 
happen the day after tomorrow. That is damaging America's faith in 
Congress. That is damaging what the Senator from California said was 
one of the basic principles of this body. There are already filibuster 
rules. If used, they would make those objecting spend time on the floor 
explaining themselves, actually talking. That already exists, and in a 
very limited way, each Senator has the right to 1 hour of debate during 
a filibuster--1 hour. They can have other people cede their hours to 
them, but it is still a very limited amount. At any point, if there is 
not somebody on the floor to take more of that hour, the Presiding 
Officer can end that part of the filibuster. So there are already ways 
to shorten the delay involved, but they are not being used.
  Using current rules would be much better than breaking the rules for 
the first time in order to change the rules. We have never done that. 
It has been threatened once before. It did not happen. I hope it does 
not happen during the time I am in the Senate. Breaking the rules to 
change the rules is not the way of the Senate for the history of the 
Senate.
  I know there are amendments on which the majority does not want to 
have a recorded vote. That would put his Members on record. But that is 
the price for being in the majority. I think our side would like to be 
in the majority and have to take those kinds of votes. They are putting 
us on record without the poison bill being obvious in the vote. All we 
are voting on is a bill title. That is the way the people of America 
looked at it, and it worked very well in the last election.
  Going all out to avoid votes is silencing the voices of millions of 
Americans and tearing down the institution of the Senate and 
eliminating transparency. The media usually demands transparency. This 
hides transparency.
  The proposal to weaken the filibuster would only hasten the Senate's 
decline. It is like adding lemon to a recipe that is already too sour. 
We do not need a new recipe. We do not need to change the rule as the 
majority is proposing. We need to use the great system that has been in 
place for hundreds of years. Even now, we get glimpses of it working.
  If the majority leader and those advocating for the weakening of the 
filibuster were in the minority, they would speak out against it. In 
fact, they did. In 2005, when he was in the minority, the GOP started 
talking about challenging the filibuster, and Senator Reid warned of 
grave consequences. I want to quote Senator Reid.

       The time has come for those Senators of the majority to 
     decide where they stand, whether they will abide by the rules 
     of the Senate or break the rules for the first time in 217 
     years. . . . Will they support the checks and balances 
     established by the Founding Fathers?

  That is a quote from the majority leader. He asked if the majority 
would ``silence the minority in the Senate and remove the last check we 
have in Washington against this abuse of power.'' That is a quote from 
leader Harry Reid. I hope he will follow his own advice and that that 
will not be a part of the problem right after we swear in the new 
Members this next week.
  I hope the institution of the Senate will continue to be a Senate. I 
hope we will have more of a committee process where people can work out 
the things there are difficulties with and bring a more consolidated, 
more comprehensive, less compromising area between which neither of 
them believe that will get to the floor and then have an open amendment 
process on the floor, and I guarantee things will happen faster than 
they have been in the Senate. Holding up things a week or 2 weeks while 
we go through the whole filibuster process is a waste of our time. 
Amendments are not a waste of our time. I hope we get back to that 
system.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. WHITEHOUSE. Mr. President, I have the greatest respect for the 
Senator from Wyoming and considerable affection. Indeed, he is my 
ranking member on the HELP Committee, and he has been kind enough to 
offer his perspective on this question of the rules change. I will 
reciprocate by offering my perspective.
  We were in the caucus the other day. Our leader reported that during 
the time Lyndon Johnson was the majority leader, which was a very 
active and disputatious time in the Senate, he faced one filibuster, 
and Leader Reid reported that he had faced 391, I think was the number 
he used. So clearly the use of the filibuster as measured by the

[[Page 18549]]

number of cloture motions is completely out of control.
  The Senator from Wyoming correctly points out that filling the tree 
is a challenge to the minority, but I believe, if I recall correctly--I 
was planning to speak on something else, and I don't have the numbers 
exactly accurate at hand--I believe the number of times the tree has 
been filled is something like 70. So there is a huge disparity between 
the number of times the majority leader has filled the tree and the 
number of times he has been forced to file cloture.
  The reason is that very often there is not agreement on amendments. 
While on a major bill, an open amendment process is good, I believe, 
and we have seen examples of that recently on this floor--Senator 
McCain and his work on the Armed Services bill, along with Senator 
Levin, is an example--there are also times when filibuster by amendment 
takes place and it becomes abusive.
  I can remember sitting in the chair where the distinguished Senator 
from Ohio is now sitting and watching Senator Kennedy on the floor. He 
had a bill that would raise the minimum wage. We often get big, fat 
bills on the floor. This was a bill that I think was literally one 
page. It was the smallest, shortest bill because it was just changing a 
number, basically.
  Hundreds of amendments--literally hundreds of amendments had been 
filed against it. When the majority leader is faced with that--many of 
them were completely nongermane and not relevant--when the majority 
leader is faced with a circumstance where hundreds of amendments are 
filed on a small bill like that, it is easy to see why you have to move 
forward by trying to limit the time because the whole rest of the 
session could have been devoted to that bill if you can't get control. 
If you can't get an agreement--and very often, agreement is withheld as 
to a fixed number of amendments--then you have no choice but to take 
your best shot with the bill by filling the tree.
  Even if I am right that the number is 70, I contend that the number 
of what the minority might consider a malicious filling of the tree 
might be a number considerably smaller than 70. Many of them might be 
made necessary by the actions of the minority by offering hundreds of 
amendments and by refusing to enter into agreements to offer a 
reasonable number.
  I think it is a problem, but I think on balance I stand by the view I 
have expressed before that there is an unprecedented level of 
obstruction in this body, and I say that with some humility because the 
distinguished Senator from Wyoming has been here a bit longer. I have 
been here only for 6 years. But that is what people who have been here 
for many, many years confirm--that there has been really nothing like 
it.

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