[Congressional Record (Bound Edition), Volume 158 (2012), Part 13]
[Senate]
[Pages 18639-18646]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     EXTENSION OF MORNING BUSINESS

  Mr. MERKLEY. Mr. President, I ask unanimous consent that morning 
business be extended until 4 p.m., with all other provisions remaining 
in effect.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MERKLEY. So my colleague from New Mexico has made this powerful 
case about our responsibility and about the opportunity provided under 
the Constitution, and I have been immersed in trying to wrestle with 
the components of how we actually seize that opportunity in terms of 
the substance, the material we put together to make this body work 
better. But the important thing is that tomorrow this begins.
  In that regard, I yield to my colleague from New Mexico, who has 
been, again, at the forefront of calling for us not to bypass this 
opportunity to have this body engage in the debate and figure out how 
we can change the way we work so we can do the people's work as is 
expected.
  Mr. UDALL of New Mexico. I thank my colleague very much, and let me 
say to my colleague from Oregon, who has been a real leader on this, he 
has been diligent, he has studied this, he cares about it, and he has 
been a great partner. The packages that were voted on the last time we 
helped put those together--and there were two very significant votes, 
as Senator Merkley realizes. We came very close. We had 44 votes for a 
package that would make 4 or 5 changes and then his package on the 
talking filibuster, which was included in both packages, received 46 
votes. That showed that if we had the opportunity at the beginning of a 
Congress to change the rules under the Constitution, we were very close 
to the 51 votes.
  I just want to comment on what my colleague from Rhode Island said 
earlier--Senator Whitehouse--and repeat that because we have been 
counting the votes over the last couple months. We have been trying to 
determine if the votes are there in order to be able to change the 
rules, and we know at the beginning of a Congress that we need 51 
votes.
  I also want to respond to several things that were going on here 
earlier on the floor. Several Senators made statements, and several of 
those statements were from the other side. I believe they should be 
responded to because we are in this crucial phase in terms of adopting 
the rules.
  The first issue that comes up is this issue of breaking the rules to 
change the rules. This has been what has been

[[Page 18640]]

repeated numerous times in the last couple months with our Republican 
friends and colleagues coming to the floor. They use the phrase ``break 
the rules to change the rules.''
  In fact, when we use the Constitution, there is no conflict with the 
Senate rules because three Vice Presidents have ruled from the chair, 
where Senator Cardin is now sitting, that at the beginning of a 
Congress, on that first legislative day, we can change the rules, and 
we do it pursuant to the Constitution.
  The Constitution, at article I, section 5, says the Senate can 
determine the rules of its proceedings. Every constitutional scholar I 
know of who has looked at this realizes that is the window--that first 
legislative day--in order to deal with the rules. So when, in fact, we 
legislate on that day in a rules context, we are not breaking the 
rules; we are creating the rules for the coming Congress--in this case, 
the 113th Congress. We are creating the rules that will govern.
  Do I think we should use the Constitution to change the rules every 
couple weeks after we put rules in place? Of course not. That is not 
fair to do. We would never be advocating for adopting rules and then 
changing them every couple weeks or every couple months. In that 
situation, there is a high threshold to change the rules, as it says in 
the Senate rules.
  But I want to engage in this colloquy with my colleague from Oregon, 
first of all, on this issue of the constitutional option and in terms 
of utilizing the constitutional option at the beginning of a Congress; 
putting the rules in place and then following the rules throughout the 
Congress. I ask my colleague: Isn't that the way we are intending to 
move?
  Then, secondly, the heart of the matter--and this is where Mr. 
Merkley, the distinguished Senator from Oregon, has been instrumental 
in terms of helping us deal with the dysfunctional filibuster system we 
have right now--we have a secret filibuster. We have a silent 
filibuster--in fact, we have way too many filibusters. Just to give a 
little comparison, when LBJ--Lyndon Baines Johnson--was majority leader 
for 6 years in the 1950s, he had one cloture motion filed--one 
filibuster. Harry Reid, whose office is just a few feet from here, as 
the President pro tempore knows, comes to the floor and he has had 
close to 400 filibusters in his 6 short years. So they have gotten 
completely out of hand.
  One of the things I want to talk to my good colleague, the Senator 
from Oregon, about, in addition to this constitutional option--the 
small window we have tomorrow on the first legislative day--is also how 
do we remedy this situation in the Senate? Everyone acknowledges the 
Senate has become dysfunctional; that we are not doing the work of the 
American people. We hear our Republican colleagues say they do not like 
the way it is working. So I ask: What is the best way to get to the 
heart of that? Is it the talking filibuster? Is it trying to change the 
rules on the motion to proceed? How do we get at the heart of what the 
problem is?
  I yield for my colleague.
  The PRESIDING OFFICER. Without objection, the colloquy is extended.
  Mr. MERKLEY. I thank my colleague from New Mexico. I am going to be 
very brief, because in 2 minutes I am taking the chair so my colleague 
from Maryland can continue with his schedule.
  Indeed, the silent secret filibuster that is occurring in the Senate 
today is deadly. What it means is that after there has been a vote of 
41 who say we want more debate, there is no more debate because no one 
is required to debate. Instead, they don't want to appear in front of 
the American people and make their case, and that is outrageous. If you 
are voting for more debate and you are going to take up the time of 
this institution, time it could be using to address many of the 
challenges that face America, then you should have the courage of your 
convictions to make your case on this floor before your colleagues, 
before your constituents, before the American public, and engage in 
that dialogue. If you don't feel you want to spend the time and energy 
to do that, then you should stand aside and we should proceed with a 
simple majority vote and address the issue at hand.
  I do think we need to address that silent filibuster, that secret 
filibuster. The American people deserve to know why it is we are not 
getting their work done. And if they can see that it is being blocked 
by a group that is publicly making their case, they can either agree 
with them and say, That person is a hero, they are standing up to some 
core principle and we salute their efforts, or they can say they are a 
bum, because all they are trying to do is paralyze the Senate, they are 
not making any valuable points. And that feedback I think will help us 
resolve some of those filibusters.
  In some cases folks have said, Well, isn't that going to eat up more 
of the Senate's time? And I respond, No, it is not. Because we are 
talking about what is now silent and hidden but paralyzing us being 
done in public, where there is actually a dialogue about the issue at 
hand and the public can participate. It is not the only thing that 
should be done, but it certainly is a key part of the formulation.
  With that, in an hour or so I would be happy to rejoin the 
conversation.
  I yield the floor for my colleague from New Mexico.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.
  Mr. UDALL of New Mexico. Mr. President, I thank the Senator from 
Oregon, because he has elucidated here the real issue that we face as a 
Senate.
  The Senator from Maryland, who is presiding, knows well. He has 
worked on the rules, and I hope he will join me here for a minute to 
talk about the rules situation we are in and where we are headed.
  There are several issues that are before us: How do we move into a 
more deliberative body? How do we move to the point where we get on to 
legislation, that we have amendments, we let everyone be heard, we let 
the minority be heard, and also at the end of the day be able to get to 
a majority vote? That is the way the Senate used to proceed, and now we 
have one Senator holding up the whole show.
  Frequently you will have a Senator who will block hundreds of bills 
with these secret, silent filibusters. We shouldn't be allowed to have 
that kind of situation with any Senator, and we need to give up that 
little bit of power to make the institution itself a better 
institution. This institution is a great institution. It has a lot of 
very capable people in it. But it is not responding to what the 
American people want us to do. That is why we address the rules at the 
beginning of every Congress and why we should address the rules at the 
beginning of every Congress.
  I ask unanimous consent to allow my friend, the Senator from 
Maryland, and I to engage in a colloquy.
  The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so 
ordered.
  Mr. UDALL of Colorado. I yield for the Senator from Maryland.
  Mr. CARDIN. Mr. President, I thank Senator Udall for taking the time 
and for his commitment to this institution so that it operates 
correctly. I thank Senator Merkley for his leadership.
  I agree with both Senators. If you are going to engage in 
extraordinary action such as a filibuster, you should be on the floor 
talking about it. That makes sense, that when the Senate is in session, 
we should be conducting business. We shouldn't have to go through 
extensive quorum calls because a single Senator is objecting to us 
proceeding. We want to get back to the traditions of the Senate where 
this becomes the greatest deliberative body in the world, where we 
debate issues and we resolve issues and we act on issues.
  I was listening to the distinguished Senator from Alabama, and he was 
pointing out how he believes that the Senate is not working the way it 
should and that we should be debating more amendments. I think we 
should be debating more amendments. I think the key we need is that we 
need to change the way the Senate has acted and operated in recent 
times, and that means we need to get more legislation

[[Page 18641]]

more quickly and actually debate bills. We have to have committees able 
to report out legislation that could be acted on on the floor of the 
Senate. We have got to bring issues to conclusion.
  There are two problems here, as I see it: One, we have had individual 
Senators who have used their right to object to a unanimous consent, 
delaying almost indefinitely--in some cases killing--legislation from 
being able to move forward by a single objection, and a lot of times 
they are not even on the floor of the Senate to make that objection. 
They just through their leader say, We don't want this bill to move 
forward; and maybe, yes, we will let it move forward if you will let us 
have 50 amendments. That is the same as killing the bill.
  So we have seen individual Senators exercising their right to object 
who have brought legislation to a standstill on the floor of the 
Senate. That is wrong. And as my distinguished colleague, the Senator 
from New Mexico, pointed out, the majority leader has had to file 
record numbers of clotures to end debate because the minority party, 
for whatever reason, has not allowed us to proceed with legislation for 
debate.
  Normally the majority party has the right to determine the agenda of 
the Senate. They don't have the right to pass bills; that is up to a 
majority of the Senate. But the majority leader should have the right 
to bring a bill to the floor of the Senate. That has been denied over 
and over by the minority party. That is wrong.
  I agree with my friend from Alabama that there should be the right to 
offer amendments. I think we should debate issues. I agree with that. 
But that hasn't been the problem. The problem has been that a certain 
number of Members have used their right to object, working through the 
Republican leader, blocking us from considering a lot of bills on the 
floor of the Senate.
  So what do we need to do? We need to be able to first move 
legislation forward. We need to be able to bring bills out of our 
committees and have them on the floor for debate, get on the amendment 
process.
  We just took up the National Defense Authorization Act. We used that 
process. It worked. That bill passed the Senate by an overwhelming 
number. We considered many amendments. By the way, every amendment was 
considered by a majority vote. That is how this should work. Majority 
rules should rule on the floor of the Senate. I agree with all of that.
  The first order is to be able to bring bills to the floor in a more 
efficient way. The second problem we have, quite frankly, is that the 
Republicans have blocked the ability to orderly consider the 
nominations of the President, whether they are his Cabinet or 
subcabinet positions or whether they are the article III judges. In 
many cases, once we get to the nomination it passes by an overwhelming 
majority. I can't tell you how many nominations have been approved 
basically by voice vote in the Judiciary Committee that have had to 
wait months for consideration on the floor of the Senate. In my State 
of Maryland we had several nominees, not controversial at all, who had 
to wait month after month for confirmation before they could sit as a 
district court judge.
  First of all, it is unconscionable to make people wait when we need 
to have judicial positions filled. Secondly, it is affecting us getting 
the very best people to step forward to serve, because do they really 
want to go through that type of uncertainty, not even clear whether the 
Senate will act on their nomination before it adjourns? So the second 
issue is we have to act on nominations in a more efficient way.
  The third--and I agree with my colleagues here. Ultimately, the 
majority of this body should be able to move legislation. And at a 
minimum, I agree, if you are using an extraordinary measure as a 
minority to block legislation, you should be on the floor of the Senate 
speaking on that issue. Your responsibility should be to talk. If you 
are using a filibuster, you should be there engaged in that filibuster.
  I think these are reasonable reforms that we should try to move 
forward. This body operates on a lot of unanimous consents; we move a 
lot of legislation. We have what is known as the hot line, where at the 
end of the day we try to clear bills and then the leader brings them to 
the floor for consent or voice vote. At times there are Members who put 
a hold on a bill, and we have had Members who put holds on hundreds of 
bills. They should come to the floor to object. In many cases these are 
not broad bills. These are bills that affect perhaps land in New Mexico 
or establishing a national park in Maryland that have gone through the 
whole committee process and we have worked out all the cost issues so 
there is no cost involved. They have passed the committee by 
overwhelming majority votes--in most cases unanimous votes. But now you 
need to move them forward so we put them on the hot line, and we don't 
even in some cases know who is objecting. The Senator who objects 
should come to the floor of the Senate and object and give a reason. I 
know we got rid of the so-called secret holds, but they still exist 
today. We should operate with Members being here on the floor 
conducting business, not in their office either in the Capitol or in 
their home States. They should be here on the floor of the Senate if 
they intend to exercise their right to object, and then give us an 
opportunity to work that out so we could move legislation more 
efficiently.
  The bottom line, what we need to do, is make this system work more 
efficiently. This is the greatest deliberative body in the world. We 
should be debating issues. That means bringing bills to the floor in a 
more timely way, getting on amendments in a faster way, voting and 
debating issues for the American people.
  I applaud the Senators from New Mexico and Oregon. They have taken 
the leadership on bringing this to the attention of the American 
people. I think for too long a period of time Americans didn't focus on 
this issue.
  Well, they are focused on it today. They understand that a lot of the 
bills they wanted to see passed in the 112th Congress didn't get passed 
and they want to know why we didn't even debate those issues.
  Let us reform our rules and procedures on the floor of the Senate to 
reflect the best traditions of the Senate. That is what the Senator 
from Oregon, the Senator from New Mexico, and others are trying to do.
  The Senator from Alabama talked about restoring the traditions of the 
Senate. I hope we can do it in a bipartisan manner. That is the way it 
should be done. We should come together to preserve the institution. It 
should work whether the Democrats are in the majority or the 
Republicans are in the majority. The same rules should work. Whether we 
are in the majority or minority, we should believe that we should come 
to the floor of the Senate to debate the issues that are important to 
our constituents.
  I thank again my friend from New Mexico for allowing me to engage in 
this colloquy with him. I applaud him again for standing up on this 
issue. I know it has been difficult at times when many people come over 
and say, Why are you trying to change the traditions of the Senate? The 
truth is we are not trying to change the traditions of the Senate. We 
are trying to restore the Senate to the type of body it should be. I 
don't think there is a single Member of the Senate who believes that we 
conducted business in the best traditions of the Senate during these 
past 2 years, and that has been because we have seen the abuses of 
individual Senators holding up bills and not being able to debate 
issues. We have to overcome that. I think we have a chance to do that 
at the beginning of the 113th Congress, which will start in less than 
24 hours from now. I am pleased that the three of us will all be in the 
Senate in the 113th Congress, and I hope we will have a chance to 
resolve these issues because I think it is critically important for the 
people we represent in our respective States and in the country.
  Mr. UDALL of New Mexico. The Senator from Maryland hit on a couple of 
incredibly important points here, and I hope he has a minute or two to 
further engage in a colloquy.

[[Page 18642]]

  First of all, we shouldn't be saying all the credit goes to me or to 
the Senator from Oregon. Senator Cardin, the Senator from Maryland, 
participated very actively 2 years ago in the key group of Senators who 
were trying to understand what the rules were all about, why the Senate 
wasn't functioning, and how do we get to the point of drafting a 
package and working out a package to make it happen. I congratulate him 
for that.
  I want to also congratulate the Senators who have worked on this from 
about 2006 on. Those Senators have come in and they have seen the 
Senate not be the way it should, not maintaining those traditions of 
debate and discussion, and then finally, at the end of the day, acting 
on those important problems.
  The Senator from Maryland knows that history. I appreciate exactly 
what he said. It should be bipartisan. As he knows, what frequently 
happens around here is that when you get close to having 51 votes--
which we have today, we have 51 votes, and the majority leader has 51 
votes to be able to walk down here and say: These are the rules we 
want, and to do it. When the reality sets in on the Senate that we have 
51 votes, then people start thinking, how do we want to put this 
together?
  A bipartisan tradition is important. We have--the Senators from 
Oregon, Maryland, myself--we have all invited our Republican friends 
and colleagues forward, saying: Engage with us to get back to the point 
where this Senate can operate in a bipartisan way with respect to the 
rules and with respect to the substantive legislation.
  What I want to ask the Senator from Maryland has to do with the 
President's team. We only have one President at a time. We have Barack 
Obama in as President. He was reelected. He still has people from this 
Congress--a large number of judges, of nominees--who are held up for 
months and months. Does the Senator from Maryland believe that the 
nomination process is broken, that we need to move forward, to find a 
way so we can get up-or-down votes on some of these nominations, 
whether they be judicial, whether they be people who are going to serve 
in these Cabinet agencies?
  Mr. CARDIN. I thank the Senator for raising the issue. Let me tell 
people what happens all too frequently in this body. The President will 
nominate a person to be at a Cabinet-level or sub-Cabinet-level 
position that requires confirmation of the Senate. Individual Senators 
say: I have a problem. Maybe it is the person in the health department. 
I have some problems in the health department that I would like to see 
paid attention to. It has nothing at all to do with the nominee. In 
fact, getting a confirmed person in that position would be very 
important to getting those issues resolved. The Senator uses what is 
known as the courtesy of a hold to hold up that position in order to 
try to get changes made in that agency. That may take a week. That may 
take a month. That may never be resolved. In the meantime, we are not 
acting on many of the positions that require confirmation from the 
Senate.
  I think we are down to about 500 positions now that require Senate 
confirmation. We streamlined that in the last Congress. We eliminated 
some that required the confirmation of the Senate. That was a good 
change we made 2 years ago. That worked. We now have somewhere around I 
think 500 or 600 positions that require Senate confirmation.
  Let me give a little arithmetic here. If the majority leader has to 
bring a cloture motion in order to break an individual hold of a 
Senator on those 500 nominees, the Senate will do nothing but 
nominations. We will not be able to do any other business because, as 
you know, it could take up to 30 hours of postcloture time to consider 
just one nominee. So under the current rules of the Senate, if one 
Senator wants to stop the confirmation process, that Senator can 
basically stop it and bring it to a halt. That has happened. We have 
seen that happen too frequently.
  One of the suggestions that has been made is that when we have these 
confirmations that have been approved by the committee, allow us to 
bring them to the floor and certainly eliminate or restrict the 
postcloture time because it is not used other than for a delay purpose. 
In that way, we can bring forward nominations more efficiently. If 
there is a serious problem, let a Senator register the problem. Let a 
Senator come to the floor and speak about the person. But we have not 
had discussions on the floor.
  It is interesting--when we finally break that hold and the nomination 
comes forward, we finally get a cloture motion passed, the debate time 
is virtually zero. There is no debate time needed for these. It is not 
as though Senators are delaying it because they need debate time. These 
are strictly dilatory actions.
  For the sake of any administration, whether it is a Republican 
administration or Democratic administration, whether it is the first 
term or second term, that President should be able to get his or her 
team in place. Yes, we should take seriously the advice and consent of 
the Senate. That means we should vote on those nominees. If there is a 
serious concern, let's vote on it, and if we want to filibuster it, be 
on the floor debating why.
  We think the minority has a responsibility--or in some cases it could 
be a minority within the majority--to argue why we believe it is 
important to bring this matter to the attention of the American people. 
But don't continue the practice that has been used in recent times 
where nominations are delayed months and sometimes indefinitely because 
of basically unrelated issues or the will of the minority or a number 
of Senators--in some cases, just a handful. That should not happen. We 
should be able to do these more efficiently.
  We have a recommendation for this, and it is very simple: Let's 
eliminate the postcloture time. That way, we would be able to bring the 
nominations to the floor and act on them in a much more timely way if 
there is really an issue about getting a vote on a nominee. There are 
ways we could do that, but it should be part of the reforms of the 
113th Congress.
  I thank Senator Udall for bringing up that issue. That is a very 
important issue for any administration, whether it is a Republican or 
Democratic administration. It is hard to hold an administration 
accountable if they do not have the confirmed top leaders of their 
team.
  Mr. UDALL of New Mexico. The Senator from Maryland has really hit it 
on the head. You do not have to go any further than today's Executive 
Calendar. We all have them on our desks. You pick up the Executive 
Calendar and, talking about approving these nominees and judicial 
nominees, executive nominees, here I see on page 4 that we have people 
who have come out--this is for the judiciary--have come out of 
committee March 29, and they have not gotten a vote. Here is another 
one from April, reported by the committee--April 26, May 17, May 17, 
June 7, June 21. These are nominations where people have stepped 
forward. They want to be public servants. The President has nominated 
them. They have been through the committee process, and they are just 
waiting.
  As the Senator from Maryland said, what ends up happening is that 
good people are discouraged from taking these jobs. My grandfather used 
to say that if you do not have good people in government, the 
scoundrels will take over. We are discouraging good people from getting 
into government. You need good people in public service, and we are 
discouraging them by setting up a process where, as the Senator from 
Ohio told me--he had a judge recently, and he told the gentleman: This 
is a long process, it is laborious, it is tedious, and it will probably 
take you a year if you are willing to go through this. When the judge 
finally agreed, it took 2 years from the time the President put him 
forward until he was actually on the bench.
  I ask the Senator from Maryland, does he think people are going to 
put themselves out there, and doesn't this discourage good people from 
getting into public service? Don't we want the very best and the 
brightest on our benches and in the executive branch working for the 
American people?

[[Page 18643]]


  Mr. CARDIN. I can tell my friend from New Mexico, that is happening 
today. I have talked to people in Maryland who are very reluctant to 
put their names forward because they do not want to put their families 
and themselves through the uncertainty.
  Let me tell you what happens. Let's say you are a distinguished 
attorney in a law firm and we would love to get you as an article III 
judge, so we convince you. You are the most distinguished person for 
this job, the person everybody wants, not partisan at all, no 
controversy. The Bar Association will give you the highest ratings. You 
have already been vetted through the FBI process. There is nothing in 
your background that would raise a concern with anyone. But you look at 
the calendar here and say: If I go through this, I am going to be on 
this calendar for at least 6 months, it looks like. What does that do 
to my law firm? Can I try cases? What do I do for the next 6 months? It 
is not fair to me, it is not fair to my law firm, and it is not fair to 
my family. So you are not going to put yourself forward.
  Let me tell my colleagues about another problem. In many of these 
circuits where these judges are sitting--these nominees are waiting 
month after month, and we have judicial emergencies. We have a chronic 
problem of moving cases in these circuits, where the administrators of 
the courts--these are independent branches of government--tell us they 
cannot do their job because they do not have the manpower to do it. And 
we are holding up confirmations not because of any substantive reason 
but because of the process or because of one person in the Senate who, 
for reasons unrelated to that individual, is holding up all of these 
nominations. That is not right. We are denying our country the very 
best, who cannot step forward under this type of circumstance, and in 
many cases we are denying justice in our circuits because we do not 
have people in place to be able to timely resolve rule-of-law issues, 
which is the basis of our system here in America.
  It is a very serious situation. We need to resolve how we handle the 
Article III confirmation process in the next Congress, which starts 
again in less than 24 hours, as well as the individuals whom we want on 
the boards who need confirmation--the sub-Cabinet and Cabinet 
positions.
  The same thing is true of Cabinet positions. If you are an expert in 
securities issues and we want to get you on the Securities and Exchange 
Commission and you have to be out there for 6 months, what is it going 
to do for your business? Can you do your profession?
  It is just not right. I think people are willing to be subjected to 
the scrutiny of advice and consent. They understand that. What they do 
not understand is dilatory delay, and that is what has to come to an 
end.
  I thank my colleague for raising those issues.
  Mr. UDALL of New Mexico. I thank the Senator from Maryland. He is 
passionate about this, and he has explained it very well. I ask any 
Senator to look at this Executive Calendar today. We are doing exactly 
what my grandfather advised against when he said that if the good 
people do not go into public service, the scoundrels will take over. 
You get second-class government. You don't get good people. We are 
discouraging good people from going into the government with the 
procedures we put them through, with the length of time of this delay. 
This is not what we should be doing in the Senate.
  I yield.
  Mr. CARDIN. I ask my colleague--I daresay most people in this country 
do not know what a motion to proceed is all about. They do not realize 
the majority leader cannot bring a bill. A bill might be reported. We 
might have a farm bill or a Defense authorization bill or we might have 
a bill coming out that reforms some of our judicial codes. It comes out 
of the committee with a bipartisan vote. I think our constituents will 
be surprised to learn that the majority leader cannot bring that bill 
to the floor. It has to go through what is called a motion to proceed.
  What might happen in that motion to proceed? You might just tell us 
the problems we have today because we couldn't get to a lot of motions 
to proceed.
  Mr. UDALL of New Mexico. The Senator from Maryland has hit it on the 
head. Look at what we are talking about on a motion to proceed. I think 
it would surprise the American people to know that if the majority 
leader comes to the floor, now we have--this is not to make it partisan 
in any way--55 Democratic votes. The majority leader says: I see we 
have a serious housing problem. We want to put a housing bill onto the 
floor of the Senate.
  I don't think people realize that the majority leader, if he doesn't 
have any agreement at all, then has to file a motion to proceed to that 
bill. If all the delay and roadblocks and obfuscation are put in front 
of him, it takes him 8 days to get to the bill if he can get 60 votes. 
If he does not, he probably wastes a whole week trying to get to the 
bill, and he doesn't get 60 votes, and then we fold it down and say: 
What is the next issue we should move on to?
  As the Senator from Maryland knows, we have to be able to put bills 
onto the floor and give them the time they deserve. We are wasting all 
this time up front that we could have a bill on the floor, we could 
have amendments, we could have debate, we could have all of those 
things going on that we know are the way the Senate should work.
  I yield.
  Mr. CARDIN. Under current policy, the motion to proceed has to be 
approved before anyone can offer any amendments. My friend from Alabama 
is talking about amendments. We cannot offer any amendments until we 
get the bill to the floor. So the majority leader is trying to bring up 
this bill to deal with housing because we have a housing crisis. It 
came out of the committee, everybody was ready to move on it, but he 
cannot get the motion to proceed approved. Now we are literally in no-
man's land. We cannot offer amendments and cannot proceed on it.
  The majority leader has one of two choices: He could wait for us to 
reach an agreement--if we ever reach an agreement--or file cloture. He 
should not have to do that. He should be able to offer the bill and 
offer amendments and get started. We cannot do that. We have to approve 
the motion to proceed first. So the majority leader tries to condense 
the clock. People complain that we are not getting work done, so he 
files cloture on the motion to proceed. As a result, we have to waste 
one full legislative day before we can get through to the vote on the 
cloture. If we get to the vote on the cloture--this is on the motion to 
proceed. This does not deny the right of any Member to offer any 
amendments, whether germane or not germane.
  Let's say the majority wants to approve the motion to proceed and get 
60 votes on the cloture--and, remember, this is the third legislative 
day. Let's say it is approved 95 to 1, because there was one objection. 
That's why we could not get the motion to proceed done. Now we are on 
the third legislative day and we have 30 hours of postcloture time. 
Another 2 days go by, and we are now on the bill, but we cannot debate 
the bill. We have not even started the amendments.
  My friend from Alabama is saying he wants to deal with amendments. 
Well, I want to deal with amendments. Why do we have to waste all those 
days to get to the bill? That makes no sense at all. A lot of us think 
we should be able to bring up a motion to proceed. We have some 
recommendations on how we can expedite that and guarantee some 
amendments as part of the process. That is all part of what we have all 
been working on: How can we get the Senate back to its traditional way 
of considering legislation in a fair manner and making decisions?
  At the end of the day, this is a democracy and the majority should be 
able to control the policy of this body. At the end of the day, it 
should be able to do that. Certainly those who object should be on the 
floor telling why they are objecting. I think that is what we are 
trying to do. We are trying to get this process to work in a fair 
manner, and I understand we have to protect the rights of the minority.

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  My friend from Alabama raised a very good point. There are no 
guarantees of how long one party will be in the majority. We understand 
that. The political whim of Americans changes over time, political 
preferences change over time, and we have to make sure that the rules 
we operate under protect both the majority and the minority. That is 
absolutely important.
  The Senate is a deliberative body, and we want to make sure that all 
rights are protected, including the minority. However, what is wrong is 
when one, two, or a small group of Senators can basically bring this 
institution to a halt. They have done that over the last couple of 
years at a time when we could have done more business. I think starting 
tomorrow we have a chance to change some of those procedures. I hope we 
will be able to get that done.
  Senator Udall has really brought these issues to light--whether it is 
the motion to proceed so we can start debate or whether it is how we 
can dispose of amendments, handle a filibuster, deal with court and 
other nominations, these are all important issues. How we deal with 
what we call comity, or respect of Senators, how Senators deal with 
objections, how they should be on the floor of the Senate to raise 
those objections, and how objections are done.
  When a committee is considering a bill on the floor and the managers 
are considering that legislation--they have an orderly way to consider 
the amendments--and all of a sudden we hear one Senator objects and 
stops us from moving forward on amendments--well, that should not take 
place. If the Senator is going to object, have the Senator on the floor 
saying why he or she is objecting. Don't do it by saying we can stop 
consideration of the bill and go into a quorum call and lose all that 
valuable time.
  I think there are some commonsense changes. I do hope we can get 
Democrats and Republicans joining together for these reforms. Whether 
Democrats or Republicans are in the majority, that is how the rules 
should work to protect all the Members of this institution.
  Mr. UDALL of New Mexico. To the Senator from Maryland, I have one 
more question if he has time. First I want to respond as to the motion 
to proceed and what he has just talked about. This means we cannot get 
on legislation, as he laid out, for a large number of days. Sometimes 
we burn a week and several more days before we are able to get on to 
the bill.
  The Senator by the name of Senator Pete Domenici, whom everybody 
knows very well, served for 36 years in the Senate and was my 
predecessor. He served on bipartisan study groups to look at the rules. 
We have had many study groups such as that. They have always concluded 
that the motion to proceed should be short and significant, and we 
should get on to the bill.
  Senator Cardin has worked very hard to do the same with a bipartisan 
group to say: How can we make it work better? How do we make this 
institution work better? The reality is we get on to the bill, allow 
amendments, allow debate, and allow discussion. That is the way to 
move. On a number of occasions this has been bipartisan. I hope we can 
join together.
  My question goes to a different part of the rules. As the Senator 
from Maryland knows--and we both served in the House together--today we 
have a Democratic Senate and a Republican House. The way to resolve 
differences between the two is to go to conference. That is the best 
way to bring the expertise of both bodies and the people in the bodies 
who know the substance of the legislation and bring them together if 
there are differences. If they both pass a bill, they get together, 
resolve those differences and then the respective Houses pass them and 
they go on to the President.
  We now have in our rules for the Senate three debatable, 
filibusterable motions to go to conference. We look at them and we say: 
Well, they are basically about going to conference. Let's shrink down 
the proposals we are hearing. Why are we putting a filibuster in place 
to get into conference to try to resolve disputes?
  I know the Senator has looked at this issue. My question is: If the 
Senate is able to pass a bill on housing--to use the housing example--
and they are very different bills, but if we have smart people from the 
Senate and the House who are on the Housing Committee getting 
together--as the Senator from Maryland knows--we can resolve those 
differences. We can find the common ground and move forward.
  I ask the Senator: Aren't our rules a little bit antiquated in terms 
of having three motions to go to conference and allow a filibuster on 
every one of those rules?
  Mr. CARDIN. The Senator is absolutely right. I think when those rules 
were promulgated, the view was they would be done routinely and that 
there would never be a challenge to the action taken. The action is 
going to conference, appointing conferees, and instructing the 
conference. The Senator is absolutely right, they are all the same. It 
is getting us into conference where the House and Senate Members can be 
together, resolve their differences, and report a common bill back to 
both bodies. That is the whole purpose of a conference committee.
  I think it is particularly important today that when we have the 
House controlled by Republicans and the Senate controlled by Democrats, 
we should use regular order. We should meet with our Republican-
controlled delegations with the Senate and try to resolve our 
differences in an open and transparent way that the rules apply.
  Under the current rules, since each one of those is a separate 
action--as Senator Udall pointed out--we can object to it being 
routinely approved. At that point, under the current rules, we can 
force--this is all precloture--a cloture motion being filed on each one 
of those three separate actions.
  I already went over how much time it takes for a cloture motion to 
ripen. Let's assume we can get over that hurdle--which we cannot--each 
one of those cloture votes, even though they may be 99 to 1, will have 
30 hours of postcloture. If we start to add it up, we are going to lose 
over a full week just to get into cloture, which obviously means we 
cannot get it to conference. We cannot use the deliberative process to 
resolve our differences and we cannot use the Senate unless we have 
unanimous consent, basically, and that is wrong.
  So we do have a recommendation, and I am pleased the Senator pointed 
out that we are working with Republicans. We have had a group of 
Democrats and Republicans working together to try to resolve some of 
these differences, and I think there is general agreement to collapse 
those three motions into one motion so that at least we can eliminate 
the extra two votes and potential cloture votes and postcloture time 
which would be required. I think that is a relatively easy change for 
us to make. I don't know of anyone who objects to that. I have not 
heard of anyone who objects to that. I hope we could get that done.
  When we start looking at where we could change the procedures and 
where we hope we could get bipartisan support, I think going to 
conference is one area on which we could get bipartisan support.
  I agree with the Senator in that I have not heard of anyone who 
believes the motion to proceed has been used in the proper way. I think 
we can find a way to condense that. I hope we can. There have been some 
bipartisan recommendations to have orderly ways in which we could go to 
the motion to proceed immediately by certain guaranteed amendments or 
where the two leaders have agreed to go to a bill, so I think we could 
do that.
  I think there has also been some agreement on the nomination to 
shorten the time so we can move that along. I think we have both 
Democrats and Republicans who are in agreement with that. I hope we can 
figure out a better way so we don't have to file all these cloture 
motions and waste a lot of time and those who object on the floor with 
the burden to debate the issue--I think that is the important reform 
that needs to be done.
  Mr. UDALL of New Mexico. The Senator from Maryland has been here a 
little bit longer in the Senate than I

[[Page 18645]]

have. Could the Senator talk about how many conferences we have done? 
The Senator has served in the Maryland Assembly in the legislature. The 
Senator saw conferences all the time. I remember in my early days in 
the House, we had conferences all the time. My sense is the majority 
leader, in looking at this path to get to conference, has said, well, 
that takes too much time.
  Mr. CARDIN. I probably am in a position that most of the Members of 
this body are not in. I have served on one conference committee--I have 
been here 6 years--and it was a successful conference committee. It 
dealt with the payroll tax extensions and some of the other changes. I 
was able to serve on that and we were able to reach a conference 
agreement and we were able to get our work done in a timely way. We got 
it done early by Senate standards and the legislative standards. I am 
trying to think if there were any other conferences that were reported 
back. I think we had one maybe on aviation that was reported back. I 
don't think there were more than a handful of conferences that have met 
in the last several congresses. There were maybe a couple each 
Congress. Think about how many bills were between the House and the 
Senate. It is a rarity. It is virtually not used. Interestingly enough, 
when it is used, we generally get better results, earlier results, and 
more open results.
  I appreciate the Senator mentioning serving in the State legislature. 
I am a former speaker of the State legislature. I think we get better 
laws when we use the legislative process and have a more open process 
where the committees work and bring the bills to the floor, actually 
debate them and amend them on the floor of the Senate. That way when 
there are differences between the House and the Senate, they are worked 
out by the Members. They actually meet and work out their differences.
  We are the ones who are accountable for the legislative process. It 
should not be some supercommittee or bargaining units that are set up 
by the President and the Congress. They should not be the ones. It 
should be the legislators who make these decisions, and that is why I 
think it is so important to get the committees functioning, get the 
floor of the Senate functioning, and get the conference committees 
functioning. I think if we can do that, we are going to get better 
laws, laws that make more sense, better understood, and that will stand 
the test of time. That is what I think all of us are trying to do.
  We seek these jobs because we believe in our system. We believe in 
the richness of an independent legislature where we are held 
accountable for the work we have done. Quite frankly, it is difficult 
for us to get our work done in an accountable way if we don't have an 
open and transparent system. When we don't have conference committees 
that can function or we don't have committee work that can come to the 
floor of the Senate, then we are diminishing our constitutional 
responsibility to the people who elected us.
  Mr. UDALL of New Mexico. I thank very much the Senator from Maryland 
for his commitment to pursue these bipartisan rules changes to make 
sure the rules get changed. I know I reminded him about my predecessor, 
Senator Domenici. Senator Domenici would fight hard, and whenever he 
tried to look for bipartisan solutions, coming down to the motion to 
proceed, Democrats and Republicans said we have to get off this motion 
to proceed and we have to get on the bill. So I thank the Senator from 
Maryland.
  Mr. CARDIN. The Senator from New Mexico has been the one who has 
brought this to us, and I know he has included others and certainly 
Senator Merkley has been in the forefront of this. The Senator from New 
Mexico has taken a real leadership role and he has done it in an open 
way. We want this done with Democrats and Republicans working together 
because we recognize the system only works when Democrats and 
Republicans can come together. That is why he has taken the time today 
on the floor of the Senate, and he has been very open about this issue. 
He has taken it to a lot of groups explaining the impact.
  People ask us all the time: Why can't we do more to help the 
environment? Why can't we do more to help working families? Why can't 
we do more for affordable housing? Why can't we do more for affordable 
health care?
  We say: We can't get that bill to the floor of the Senate.
  They say: What are you talking about? You are a Senator. Bring it up 
on the floor of the Senate.
  We heard Senator Sessions say the Senate can offer an amendment at 
any time. Just try.
  We want the system to work. Whether a person is a Democrat or a 
Republican, we want the system to work. That is why we are taking this 
time today, at the end of the 112th Congress, to say: Look, what 
happens on Senate rules and procedures affects every person in this 
country.
  I have talked to so many people who have come into my office with 
individual concerns, including families who are worried if their 
children will get the type of attention they need if perhaps they have 
a disability and they are working on a bill that will help, and they 
have all these cosponsors of the bill and they hear the committee 
reported it favorably and they are wondering why we can't act on it on 
the floor of the Senate. That is what is at stake. We can say to them: 
Oh, I am a cosponsor of that bill. I voted for that bill, but the bill 
didn't become law because of the process we have now.
  That is what we have to correct. That is going to be our 
responsibility starting tomorrow, at noon, to deal with rules and 
procedures so we are in a position during the next 2 years to end the 
gridlock that has happened on too many issues. Yes, the public 
understood somewhat the gridlock on the fiscal cliff. They don't 
understand the gridlock on that bill that affected that family with a 
child with a disability. They don't understand why that bill couldn't 
make it to the floor of the Senate. We understand that. What the 
Senator from New Mexico is doing is taking action so we can be held 
accountable and do our work in the most efficient way. I am proud to 
join him in these efforts and I urge all my colleagues to do everything 
we can in the next 24 hours so we can get progress made.
  Look, we all know we are not going to get everything we want. This 
institution doesn't work that quickly, but let's make progress, and I 
think we can make progress in the 113th Congress.
  I thank the Presiding Officer and I thank the Senator from New Mexico 
for their leadership.
  Mr. UDALL of New Mexico. I thank the Senator from Maryland for his 
sincere effort to pursue bipartisan rules reform because I think, if we 
all work together, we can make the Senate a much better place.
  I am reminded, when we have these discussions about the great 
traditions of the Senate, of two periods of time when the Senate truly 
stepped to the plate. We had crucial national issues facing us then and 
they were issues of war and peace. They were issues of terrible 
environmental destruction. The fact is the Senate, in its best 
traditions, stepped forward and acted and moved forward. One of those 
great traditions of the Senate acting occurred in the 40 years before 
the Civil War. People may not know it, but it was the Senate and the 
legislation that was passed through the Senate and signed by the 
President that for 40 years held the Union together. They held the 
country together, and they didn't let the country get into Civil War. 
It was people such as Webster and Calhoun and all the Senators at the 
time focusing on what the issues were. Whether it was the Missouri 
Compromise or some other issue that had to do with slavery, they found 
the common ground, and they held the Union together and they did it for 
40 years.
  That, my friends, is in the best traditions of the Senate, thinking 
and figuring out where the common ground is. We can't do that. We can't 
carry out that tradition unless we can get bills on the floor and we 
can amend them and have debate and then eventually get to a majority. 
Of course, we want the minority to be able to be heard, offer 
amendments, but the crucial fact is, at the end of the day, unless 
there is

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such a strong minority in terms of its activity, we get to a majority 
vote.
  The other period of time where the Senate was in its glory days was 
in the 1960s and 1970s and we had huge national problems in terms of 
civil rights. We had lynchings going on, we had discrimination going 
on, including housing discrimination, discrimination in public 
accommodations, and there was a big push to try to get rid of that in 
our society. It was the Senate that stepped forward and crafted civil 
rights legislation that allowed us to move forward.
  Many people will remember in the 1970s, the glory days of the Senate, 
when we had environmental destruction, rivers catching on fire. The 
Wilderness Act, the Clean Water Act, the Clean Air Act, all those 
pieces of legislation were crafted in the Senate by people such as 
Senator Ed Muskie and Senator Stafford and others. They were Democrats 
and Republicans working with each other, but it was because we could 
get the legislation on the floor and work on it and amend it and move 
it forward and allow the deliberative process to work.
  I submit the Senate has been at these two periods--and I am sure 
scholars and our Senate Historian and others can point out other 
periods--but these two periods struck me: the period of the 40 years 
before the Civil War when the Senate, in its deliberative way, held the 
Union together for 40 years and in the 1960s and 1970s when we 
addressed civil rights, environmental legislation, and many of the 
other big national issues we were facing.
  So here we are as a country with the need for having a national 
energy policy, for dealing with issues such as climate change, 
protecting middle-class families, and trying to make sure we have job 
growth and economic development; doing everything we can to bring down 
the cost of health care but making sure our citizens have high-quality 
health care.
  We face tremendous issues, and the Senate, in many cases, has been 
unable to act. We have been unable to act because the rules are being 
abused. This filibuster is not out in the open. It is secret, it is 
silent, and we have the opportunity to act on the first legislative 
day.
  So on that first legislative day, I will offer a motion. It is a very 
simple motion my predecessor, Clinton Anderson, offered. He offered it 
for the 25 years he was in the Senate. On the first legislative day he 
would offer a motion. He would move to adopt the rules of the 
Congress--for him, whatever it was. So this motion dealing with 
tomorrow: move to adopt the rules for the 113th Congress and then we 
focus on it. We focus on what those rules should be.
  I know our Republican friends realize, I know they understand the 
dysfunction and hopefully they will find a way to join with us to make 
the Senate a better place.

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