[Congressional Record (Bound Edition), Volume 158 (2012), Part 13]
[Senate]
[Pages 18551-18554]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            THE FISCAL CLIFF

  Mr. MERKLEY. Mr. President, I want to first address the bill we 
passed in the early hours this morning.
  It is very unusual to be passing a bill in the early hours, certainly 
on the first day of the year. And this bill had a lot in it. This is 
the fiscal cliff bill. There are a number of reasons that I supported 
this bill, but there are a number of concerns I have as well. I thought 
it might be appropriate to just summarize why it was important this 
bill pass last night, but also why we should also be aware that the 
bill has laid out a path that requires us to do substantial additional 
work in order to avoid having that path be one that leads us into a 
thicket.
  First, we do not pass this bill if the House does not get it done. It 
is being considered by the House right now. Then there would be a very 
good probability, economists estimate, that the economy would turn down 
in the coming year by somewhere in the range of about 2 to 3 percent, 
and so we would go into a recession. That means living wage jobs for 
American families would disappear. That is an enormous amount of 
hardship, and this is a self-inflicted political wound. So it was 
important to pass that bill last night to avoid that.
  The second is that one of the immediate impacts would have been the 
end of unemployment insurance for a huge number of families across this 
country. In Oregon, it would be about 30,000 families immediately 
terminated from unemployment insurance, and in the course of January it 
would be another 10,000 families. So if you can imagine a bill that 
would have directly impacted the ability of 40,000 Oregon families to 
pay their car payments, to pay their rent, to pay their heating bills 
in the middle of winter, that was the bill we were considering last 
night. It is a very big reason why it is important that it pass.
  In addition, the bill we addressed last night adjusted the rates in 
terms of the compensation to doctors under Medicare, called the doc 
fix. If the doc fix did not get adopted, and we had roughly a 25-
percent reduction in payments, then what we would see is that folks 
would have a very difficult time getting in the door of a doctor's 
office. We don't really have a Medicare plan if we can't get in the 
door of a doctor's office, and we don't really have medical care at all 
if we can't get in the door of a doctor's office. So it is important 
that we address that--again, affecting thousands of people in my home 
State of Oregon.
  In addition, there was a lot of concern that this fiscal cliff bill 
would do some things that were entirely unacceptable in regard to 
compromising the benefits under Medicare and Social Security. There was 
a proposal to increase the age limit for Medicare from 65 to 67. I 
advocated fiercely that that would be unacceptable. I cannot tell you 
how many townhalls I have gone to and had folks approach me and say: 
You know, I am 62 years old. I have these three conditions I am 
wrestling with. I have no medical care, and I am just trying to stay 
alive until I hit 65 so I can get medical care.
  That is a common situation in a country where many people do not have 
health insurance. To raise the age by an additional 2 years for those 
folks who have no medical care would be cruel at best, and for some it 
would be a death sentence. That was unacceptable.
  Others proposed that instead of making the cost-of-living provision 
in Social Security match better what seniors buy, they proposed making 
it match less well what seniors buy, saving money by inaccurately 
estimating the impacts of cost-of-living increases. It is important to 
recognize that neither of these elements that would have attacked the 
benefits of Medicare and Social Security was in the bill last night. 
Those programs were not on the table.
  Because we needed to avert a recession, because we needed to make 
sure we did not slash unemployment, cut people off at the knees 
overnight, block folks from being able to get in the door of their 
doctor's office, and because the bill did not do some of the things 
that would have been 100 percent unacceptable, it merited support last 
night in this Chamber. I say last night, but it was actually in the 
early hours of this morning, the first day of 2013.
  I supported this bill, but I have grave concerns about certain 
elements. This bill essentially adopted 90 percent-plus of the Bush tax 
cuts. Unless we continue to wrestle with the fact that revenue is at a 
historic low in this country and the gap between revenue and spending 
is very high, we are laying out a path for structural deficits as far 
as the eye can see. That is not in the best interests of this country.
  Folks who are well off got a very good deal last night--a very low 
tax on capital gains, a huge loophole in the estate tax, a very low tax 
on dividends, and only the very top tax bracket for the most wealthy 
among us was touched at all. It was not the $250,000 level President 
Obama had said he was fighting for, it was $400,000-plus. There are not 
many folks who are at that level, and only that top bracket was 
touched. If you are very well off in America, you got a very good deal 
last night, but America got a big problem, which is the potential for 
enduring deficits, structural deficits that undermine the soundness of 
our future finances.
  In addition, the bill we considered last night created some 
additional fiscal cliffs in the very near future, within 2 months--in 
March. One is that it does not address the debt ceiling. The debt 
ceiling is not about what we spend, not about the decisions on what we 
spend, it is whether we are going to pay the bill after the spending 
has been authorized. It is like saying to yourself: When the credit 
card bill comes, I am just not going to pay it because I should not 
have spent so much money. That is what the debt ceiling problem is--not 
to pay the bills we have already incurred.
  What happened the last time we had this controversy was our national 
credit rating was diminished. That means when you borrow money, you 
have to

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pay more. So we shot ourselves in the foot to no purpose.
  The time to make the decision over what you spend is when you are 
making the spending decision, not when the bill arrives later. You have 
already made that commitment. You are already in that boat. You have a 
responsibility to fulfill payment of the bills you have signed up for. 
But we will have that ahead of us in just 2 months.
  In addition, the bill we had in the wee hours this morning pushes off 
the sequester for only 2 months. What is the sequester? The sequester 
is a series of mandatory payment cuts that fall on working people. 
There was a big budget deal a year ago that I voted against because 
what it said is that if the supercommittee does not come up with a good 
plan, we are going to balance the budget on the backs of working 
people. I voted against it. The bill last night did not do that because 
it pushed off the sequester, but it only pushed it off for 2 months. So 
if you are concerned about a nation in which the bonus breaks for the 
best off are untouched while cuts fall on working people, then you 
should be concerned about the battle that is just 2 months ahead.
  In addition, there was a last-minute addition of a farm bill--not the 
Senate's farm bill, not a bill that was adopted in committee process, 
not a bill that was adopted on the floor of this Chamber, it was an 
individual leader's farm bill. The minority leader's farm bill was 
inserted last night.
  Earlier, we had a speech by one of my colleagues, who was saying that 
it is so important that we do the hard work in committee and that we do 
the hard work on the floor with an open amendment process. That is what 
we did with the Senate farm bill. Senator Stabenow from Michigan, the 
chair of the committee, Ranking Member Roberts--they worked very hard 
to have an honest, open, public debate and votes on the individual 
elements. In the course of that, we adopted disaster aid for farmers 
and ranchers across America who were scorched by the worst fires in a 
century and one of the worst droughts in the last century. They should 
have been helped immediately upon those disasters, but they could not 
be helped because the farm bill had expired. Leaders said we will 
quickly reauthorize it. The Senate reauthorized it, we put those 
provisions in, we sent it over to the House, and the House never acted 
on it.
  Then we tried to take those emergency provisions and put them into 
the Hurricane Sandy bill. If we are going to address the disaster for 
Hurricane Sandy, as we absolutely should and must, we should also 
address the disaster of the worst droughts and worst fires in the 
century.
  An area in Oregon the size of Rhode Island burned this last summer. 
The forage burned. The fences burned. Farms and ranches were 
devastated. In other parts of the country, it was drought that was 
devastating. The version of the farm bill stuffed in last night does 
not have those emergency provisions even though this Chamber put them 
in. This Chamber supported them. The committee supported them.
  We also did something else on the floor: We said the historic 
imbalance between those who farm in a more traditional fashion and 
those who farm in an organic fashion is going to be righted. You know, 
under crop insurance there was a provision for organic farmers that 
said: We are going to charge you a lot more for your insurance, but in 
recognition for that, you are going to get the price of organic goods, 
which is higher, if you have a disaster that this covers. But the 
Department of Agriculture never got around to calculating the organic 
price, and therefore the farmers got short shrift, paying high premiums 
on the front end without the compensation we promised on the back end.
  This Chamber fixed that, but last night the minority leader stuffed a 
farm bill into this package that stripped it out. So much for the 
conversation I have been hearing about good committee work and good 
floor work. I absolutely agree with the Senator who spoke earlier today 
about good committee work and good floor work, but that was not honored 
in the farm bill that was stuffed in last night.
  I will tell you there is a lot more to this. Research on specialty 
crops has a big impact on my home State. We have a lot of specialty 
crops. The Willamette Valley grows virtually anything. It is one of the 
best farming places in the country. It is not pure wheat or pure rice 
or pure soy; you can grow a lot of specialty crops. But a lot of that 
research was stripped out. So we did not get the bill this Chamber 
decided upon.
  The chair of Agriculture has come to this floor and expressed extreme 
duress and frustration. She is absolutely right. The Senate actually 
did a very good job of process. It does not often do such a good job of 
process. It went through committee, it went through a floor debate, it 
went through an amendment process, and all of that was ignored. So the 
next time we hear lectures about process, I would like it to be noted 
about what happened last night and how ranchers and farmers across this 
country were betrayed by the farm bill that was stuffed in at the last 
second.
  We have a lot of work to do in this Chamber. The path we were 
starting on last night is one that addresses immediate emergencies, 
people being able to get in their doctors' doors, and folks being able 
to continue to have a coherent unemployment insurance policy while they 
are looking for work while unemployment rates are still high. But we 
have a lot of work to do from here forward or we are going to end up in 
some places that make our path forward as a nation much more difficult.
  I certainly am committed to continuing the effort to put this country 
on a sound financial footing and continuing to try to make the process 
here in the Senate work better. In that context, we have a debate that 
is going to begin in just 2 days about the process in the Senate.
  In the course of my lifetime and in the lifetime of everyone here, 
the Senate has gone from a deliberating chamber, a decisionmaking 
chamber admired around the world, to perhaps one of the most 
dysfunctional legislative chambers to be found anywhere. There are 
still Members who like to think of the Senate with the words ``the 
world's greatest deliberative body,'' but they are the only ones who 
might think that about the Senate because no one else paying attention 
considers the Senate to be a great deliberative body. It has become 
deeply paralyzed.
  The root of this goes partially to the circumstances of the bitter 
partisanship that has dominated our politics, and that is unfortunate. 
But it also goes to the fact that as the social contract unraveled--and 
perhaps related to that partisanship--you have rules that worked well 
in the past that do not work well now. One of those is certainly the 
filibuster.
  In the early Senate, you can imagine 26 Senators, 2 from each State, 
saying: We should have the courtesy of hearing each other out to make 
sure we make great decisions so we get everybody's opinion on the 
table. That is the courtesy of not ending debate until everyone has 
said what they want to say.
  Over time, the Senate grew larger. It became a little more difficult, 
but the principle was honored because when the debate had wound down, 
someone asked unanimous consent to hold a vote, and generally they 
would get unanimous consent and the vote would be held. It was 
understood that this was a simple-majority body. If you were going to 
stand in the way of that final vote after everyone had their say, then, 
in fact, you were interrupting the process by which this Chamber makes 
decisions and helps take this country forward. Certainly the heart of 
it was the understanding that the pathway favored by the most is most 
of the time better than the pathway favored by the few. The majority 
vote is the heart of the democratic process. And we had challenges 
along the way. There were occasionally periods where folks gave long 
speeches and managed to stop a vote before this Senate went on recess, 
but in general it worked pretty well, in part because the individuals 
who might abuse the process realized the rules could be changed by a 
simple majority. If they abused it on one occasion, the

[[Page 18553]]

privilege of being able to express their full views for an extended 
period might be changed by the majority changing the rules. So it kept 
the process in check. There was an understanding that everyone got to 
be heard, everyone got to have their opinion considered, but if it was 
abused there could be a response to that.
  Well, in 1917 it was abused. A small faction blocked the ability of 
the bill to go forward that would put armaments on U.S. commercial 
shipping, and those ships were being sunk by Germany. President Woodrow 
Wilson and Senate leaders were outraged. How could a small faction 
allow our ships to go unarmed in a situation where they are being sunk; 
that is unacceptable.
  Well, that small faction had their reasons. They believed once they 
put armaments onto a ship, they were probably going to be firing shots. 
When they fired shots, they were involved in the war. They wanted to 
block the United States from getting involved in the war, but there was 
only a small group in the Senate who believed we should allow Germany 
to sink our ships with no response.
  So the Senate came together and said: OK. We are going to respond to 
a small faction obstructing the will of this body of not allowing us to 
go forward. They had their say, we heard them out, and they have their 
opinions. We are going to allow two-thirds to shut down debate and get 
to a final vote. That was in 1930. It was the first such motion, and it 
was the cloture motion--as in closing debate. This continued to work 
pretty well. It worked well until about 1970. So for 50 years it worked 
pretty well.
  Why did it work well? In part because there was a big overlap between 
Democrats and Republicans. If I were to chart out those who were the 
most liberal Republicans and the most conservative Democrats, there 
would be a lot of overlap in the middle. It was generally understood 
that this was a simple majority body and there should only be an 
objection to a simple majority vote when everyone had their say. If it 
was a principle that was of a deep and exceptional nature, such as a 
personal principle or an issue affecting a Senator's State, and because 
that Senator was objecting to the ordinary functioning of this body, 
that Senator felt a compulsion to stand and make the case before 
colleagues. In a sense it was because the Chamber had reporters on the 
upper level who followed Senators making their cases before American 
citizens.
  Well, over time, the filibuster, which is an objection to a simple 
majority vote, evolved in two ways. Instead of it being a faction 
standing on principle, it started to be utilized as an instrument of 
the minority party to obstruct the ability of the majority party to put 
forth an agenda. Instead of it being a small group and an important 
principle, it became a legislative tactic of the minority leadership. 
It is true for Democrats and Republicans. There is not one party who is 
more guilty of this, if you will. They both employed this tactic over 
time.
  In addition to the increasing polarization of America, we started to 
get less overlap in the perspective of Democrats and Republicans. 
Twenty years ago we might have had 30 Senators in that span between the 
most conservative Democrat and the most liberal Republican, so normally 
they would have that overlap of 30 Senators so they could still get 
two-thirds of the Senate, and that served as a check on the use by the 
minority of the filibuster as a tactic of penalization.
  As the Senators from World War II started to move out of this 
Chamber, and as those from the House who had adopted kind of a ruthless 
partisan strategy started to move into this Chamber, we saw that social 
cohesion break down, and we started to see more and more use of the 
filibuster.
  I have some charts. The first chart probably sums it up pretty well. 
During the time that Lyndon Johnson was majority leader for 6 years, he 
faced one filibuster. During Harry Reid's 6 years--a week or so ago 
when I made this chart, the filibusters were 387. Now it is in the 
390s. In 2 days I guess we will not have any filibusters, so we may not 
break 400. What a contrast between the amount that Lyndon Johnson had 
when he was majority leader and basically 400 in the 6 years Harry Reid 
has been the majority leader. That is an enormous change.
  In addition, normally the objection to a majority vote was done on 
the final vote of a bill. But starting in about 1970, folks realized 
that on any debatable motion, the same paralysis could be brought. They 
could object to a simple majority vote on a simple debatable motion.
  I will lay out how this has changed over the last 40 years in 
different categories. One change is in nominations. Here we see that 
before approximately 1968 there were virtually no filibusters on 
nominations. In fact, I believe the rule was changed in 1949. There was 
a question raised over whether the filibuster could be used on 
nominations, and after some debate this Chamber decided to change the 
rule and allow it on nominations. So when people say: Well, this is the 
way we have always operated, it is 200 years of history, first, there 
was no cloture motion before 1917. In fact, the simple majority could 
change the rules back then. Also, there were no cloture motions on 
nominations, so we have this new world.
  If I move this podium so everyone can see the far right edge, we can 
see this steady increase in this tactic. Note this very tall bar in 
2012. This impact is not just on this number of these two dozen 
nominations, this affects and creates a whole backlog of unfilled 
positions in the executive branch and the judicial branch. Since 1970, 
this Chamber has essentially said: You know what. There is supposed to 
be three equal branches of the government, but we are going to use our 
advice and consent power under the Constitution to effectively 
undermine and attack the judiciary and executive branches.
  That is not what the Framers had in mind. In the discussions over how 
the Constitution was put together, show me a Federalist Paper where any 
of our Framers argued that advise and consent is designed so that 
Congress can basically damage the executive and judicial branches by 
refusing to consider nominations. So that is one big change.
  Well, let's take a look at motions to proceed. We see back in 1932 
there was a filibuster, and in the early 1960s we see a few 
filibusters. Then in about 1970 we see that it took off. It was not 
thought to be appropriate to filibuster just any debatable motion. The 
idea was there was an issue of deep principle in which a Member had to 
make a stand to block the bill from final passage.
  Now, suddenly, we can paralyze the process by even keeping a bill 
from getting to the floor. What sense does it make to argue that a 
Member is facilitating the debate by blocking the debate from 
happening? Many people come to the floor and say the filibuster is all 
about facilitating debate and making sure everybody has a say. Blocking 
the bill from getting to the floor doesn't facilitate at all. We see 
this as a growing form of paralysis.
  The same story is true on amendments. So on amendments again, we see 
from the early 1970s forward there is big growth. Well, previously it 
was the perspective that the filibuster was going to stop the bill from 
getting enacted. Members didn't know what the bill would be until the 
amendments were fully debated, so a Member didn't block the amendments 
from coming to a vote. Again, the process grew.
  So let's take a look at final passage. Here we see the traditional 
use of the filibuster. One or two was the average during this time 
period, from 1917 until the early 1970s, and then we have this 
explosion. No longer were Members blocking a bill on a deep issue of 
personal value or something that was key to their State that they were 
willing to take to this floor and talk about, but instead it would be 
just a routine obstruction using an instrument not of principle but of 
politics.
  We even have a challenge of getting bills to conference committee. 
This was a case where the Senate and the House passed a bill, and we 
just wanted to start negotiations. How does it facilitate debate in any 
kind of way to block getting it to a conference committee and starting 
those negotiations? That was never done until the

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early 1970s. There we have it, the growth of this measure.
  Once this instrument of obstruction was utilized, then this Chamber 
often decided to forego the conference committee. We gave up on it. 
When I was here in 2009, I would say: Well, let's get the conference 
committee going. Well, they would not do that because it would take 
weeks of this Chamber's time to get the conferees appointed and the 
three debatable motions done to be able to get to a conference 
committee. What? Isn't it outrageous that we cannot even have a 
negotiation with the House? So we have to go through this complicated 
process of sending the bill over to the House, and the House has to 
amend it and send it back to us, and we have to amend it and send it 
back to them.
  Sometimes there are even informal negotiations that are out of public 
view instead of a conference committee that would be in an official 
setting with official recordings of what was being said and what 
amendments were being proposed and how it was being worked out. Instead 
of doing it in public, it was done in a back room. So this is certainly 
damaging to our process.
  We could go on about one other area, which is conference reports--
those reports coming back. This is a little bit more like final passage 
in that this is before something becomes law and goes to the 
President's desk. Again, here we see this was rarely used until the 
early 1970s, and then there was an explosion of this tactic not for 
deep personal principle but for paralysis.
  I have found it quite interesting to hear some of my colleagues say 
this was the constitutional design, the Senate be a supermajority 
chamber. That is beyond out of sync with American history or any facts. 
They say: Well, isn't there a story about George Washington talking to 
Thomas Jefferson where George Washington says: The Senate's meant to be 
the cooling saucer, and, therefore, wasn't the Senate always a 
supermajority body? The answer is, no. It wasn't a supermajority body.
  As I have demonstrated by these charts, it was very rare before 1970 
to oppose a final majority vote; and when it was done, it was done for 
principle. People also took to this floor. They didn't have to, but 
they took to this floor and explained themselves to their colleagues 
and the American public. The Framers were very suspicious of using a 
supermajority in the setting of legislative action. They thought it 
should be used for serious changes in the design of the government.
  For example, they considered that if we are going to pass a treaty, 
it should be a supermajority. They put that into the Constitution. They 
laid out that if we are going to override a veto by the President, it 
should take a supermajority to do that, and they put it into the 
Constitution. They said, if we are going to amend the Constitution 
itself, we should take a supermajority. They put that in the 
Constitution. They didn't put a supermajority for legislating in. Oh, 
they thought about it. They talked about it. They wrestled with it. 
They kept coming back to the belief that the heart of the Democratic 
process is the path the majority chooses as the right path is the path 
that should prevail, not the path chosen by the minority.
  So there were commentaries on this in various of the Federalist 
Papers. Here we have Alexander Hamilton on supermajority rule. He said 
supermajority rule in Congress would lead to ``tedious delays; 
continual negotiations and intrigue; contemptible compromises of the 
public good.'' That is what Hamilton thought. That overlays pretty well 
with a lot of what we see on the floor of the Senate today.
  How about Madison. Madison had commentary on this. He said, ``The 
fundamental principle of free government would be reversed'' if this 
Chamber did legislation by supermajority. Why did he say that? Because 
it would mean the path chosen by the few would prevail over the path 
chosen by the majority.
  There is a lot of nostalgia when people think back to a time when the 
filibuster was an instrument of principle. Many Americans think about 
this. They think about the movie where Jimmy Stewart portrays Jefferson 
Smith, a newcomer to the Senate, and he comes to the well of the Senate 
and he fights for the principle of avoiding the corrupt practices 
regarding a boys camp. He didn't have to take the floor and demand a 
supermajority vote for blocking the simple majority, but he was 
determined to both make his case before the American people as well as 
his colleagues and certainly eat up as much time as he could 
physically, which was another strategy of the standing, talking 
filibuster, so the public would have a chance to respond.
  Many folks say that is just a romantic Hollywood thing. But the 
charts I have shown my colleagues show the filibuster was used only 
rarely. It was viewed as an exceptional instrument of fighting for a 
personal principle when you were willing, when you had the courage to 
stand before your colleagues and make a stand. It was that way when I 
came here in the early 1970s. I came as an intern in 1976. In the 
previous year, there had been a big fight over the filibuster because 
of the early abuses we saw on those charts in the early years of the 
1970s. The attitude changed. The filibuster started to become used as 
an instrument for partisan politics rather than personal principle.
  So they had a debate in 1975, and they said we are going to change it 
from 67 to 60. That is where they ended up. It started with this body 
affirming multiple times that its intent was to use simple majority to 
change the rules as envisioned under the Constitution. It is also the 
way it was envisioned under the rules of the Senate: A simple majority 
could change the rules, until 1970. There are a lot of observations by 
ordinary Americans that the Senate is broken, and we should listen to 
ordinary Americans who expect us to be a legislative body that can 
deliberate and decide.
  This is a cartoon that came out recently by Tom Tolls of the 
Washington Post showing a Senator at the podium and the Senator says: I 
will tell you all the reasons we shouldn't reform the filibuster. No. 
1, it will restrict my ability to frivolously stymie everything. No. 
2--and he thinks for a while and he can't think of any other reason we 
shouldn't reform the filibuster, so he asks the staff: How long do I 
have to keep talking? The little commentary down here: You can read 
your recipes for paralysis.
  The filibuster has become a recipe for paralysis. It is up to us 2 
days from today, when we start a new session of Congress, to take 
responsibility for modifying the rules of the Senate because we have a 
responsibility to the American people to address the big issues facing 
our Nation and we can't do that when this Chamber is paralyzed.
  I thank the Presiding Officer for the time to address this issue. I 
look forward to the debate we are going to have 2 days from today.
  I see our majority leader has come to the floor, and I thank him for 
all the dialogs over the last 2 years on this topic. The majority 
leader may not have seen the chart I put up to start with, but it is 
his picture.
  Mr. REID. I saw it.
  Mr. MERKLEY. He has been suffering, if you will, through these nearly 
400 filibusters in the 6 years he has been majority leader, while so 
many issues in America go unaddressed; each one of these filibusters 
procedurally taking up as much as a week of the Senate's time, even if 
we can get to vote to shut it down.
  We must change the way we do our business in this Chamber to honor 
our responsibility under the Constitution to legislate in order to 
address the big issues facing Americans.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, I did watch the presentation of my friend 
and I appreciate his tenacity and his thoroughness.

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