[Congressional Record (Bound Edition), Volume 159 (2013), Part 1]
[Senate]
[Pages 300-305]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         CHANGING SENATE RULES

  Mr. UDALL of New Mexico. Mr. President, I rise today to talk about 
our efforts to change the Senate rules. As we began the 113th Congress 
on January 3, Senators Merkley, Harkin, and I submitted a resolution to 
reform the Standing Rules of the Senate. Thirteen of my colleagues have 
signed on to cosponsor our resolution.
  When we submitted the resolution, we agreed with the majority leader 
that it would be best to have the debate about reforming our rules 
after the inauguration. I appreciate his willingness to work with us on 
this important issue. Although we postponed the debate, we preserved 
the right of a simple majority of this body to amend the rules in 
accordance with article 1, section 5 of the Constitution.
  Senate Resolution 4, our proposal to reform the rules, is simple, it 
is limited, and it is fair. Again, we are not ending the filibuster. We 
preserved the rights of the minority. Here is what we are proposing: an 
end to the widespread abuse of silent filibusters. Instead, Senators 
would be required to go to the floor and actually tell the American 
people why they oppose a bill or nominee in order to maintain a 
filibuster. Debate on motions to proceed to a bill or to send a bill to 
conference would be limited to 2 hours. Postcloture debate on a 
nominee, other than a Justice of the Supreme Court, would be limited to 
2 hours rather than the current limit of 30 hours.
  These are sensible changes. These are reforms we are willing to live 
with if we are in the minority, and yet we are warned these simple 
reforms will transform the very character of the Senate and leave the 
minority without a voice. These arguments are covers for continued 
abuse of the rules.
  The reforms we propose are modest--some would say too modest--but 
they would discourage the excessive use of filibusters. The minority 
still has the right to filibuster, but not the right of one Senator to 
do so by simply picking up the phone, by simply making an announcement 
and then going out to dinner or, more likely, out to a fundraiser. I 
have listened carefully to the arguments by the other side against 
these changes. Let me say, again, we are not talking about taking away 
the rights of the minority, we are not talking about abolishing the 
right of debate or to filibuster, but there must be change. The abuse 
of the filibuster and other procedural rules has prevented the Senate 
from doing its job. We are no longer the world's greatest deliberative 
body. In fact, we barely deliberate at all. This does not honor this 
institution, and it does not serve the American people.

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  For most of our history the filibuster was used very sparingly, but 
in recent years what was rare has become routine; the exception has 
become the norm. Everything is filibustered, every procedural step of 
the way, with paralyzing effect. The Senate was meant to cool the 
process, not send it into a deep freeze.
  Since the Democratic majority came into the upper Chamber in 2007, 
the Senates of the 110th, 111th, and 112th Congresses have the three 
highest totals of filibusters ever recorded. Lyndon Johnson faced one 
filibuster during his 6 years as Senate majority leader. In the same 
span of time Harry Reid has faced over 390. Lyndon Johnson, 1, Harry 
Reid, 390. Legislation is blocked at every turn. The result is not 
surprising. The Senate of the 112th Congress passed a record low 2.8 
percent of bills introduced. That is a 66-percent decrease from the 
last Republican majority in 2005-2006, and a 90-percent decrease from 
the high in 1955-1956. By every measure, the 112th Congress was the 
most unproductive Congress in our history.
  My Republican colleagues have come to the floor and made many 
impassioned statements in opposition to amending our rules at the 
beginning of this Congress. They say the rules can only be changed with 
a two-thirds supermajority, as the current filibuster rule requires. 
They argue that any attempt to amend the rules by a simple majority is 
breaking the rules to change the rules. This is simply not true. The 
supermajority requirement to change Senate rules is in direct conflict 
with the U.S. Constitution. Article 1, section 5 of the Constitution 
states:

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

  When the Framers required a supermajority, they explicitly said so, 
as they did for expelling a Member. On all other matters, such as 
determining the Chamber's rules, a majority requirement is clearly 
implied. There have been three rulings by Vice Presidents, sitting as 
President of the Senate--where the Presiding Officer is sitting today--
who have ruled on the meaning of article 1, section 5.
  In 1957, Vice President Nixon ruled that:

       The right of a current majority of the Senate at the 
     beginning of a new Congress to adopt its own rules, stemming 
     as it does from the Constitution itself, cannot be restricted 
     or limited by rules adopted by a majority of a previous 
     Congress.

  Vice President Rockefeller and Vice President Humphrey made similar 
rulings at the beginning of later Congresses.
  The Constitution is clear, and there is also a longstanding common 
law principle--upheld in the Supreme Court--that one legislature cannot 
bind its successors. Many of my Republican colleagues have made the 
same argument. For example, in 2003 Senator John Cornyn wrote in a Law 
Review article:

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

  So amending our rules at the beginning of a Congress is not breaking 
the rules to change the rules, it is reaffirming that the U.S. 
Constitution is superior to the Senate rules. When there is a conflict 
between them, we follow the Constitution.
  Some of my colleagues may believe that using the Constitution in this 
way would be harmful to the Senate. But there is an alternative. We do 
not have to reform the rules with only a majority vote. Each time the 
filibuster rule has been amended in the past, a bipartisan majority of 
Senators was prepared to use the constitutional option. But with a 
majority vote on the reforms looming, enough Members agreed on a 
compromise and they passed the changes with two-thirds in favor.
  We could do that again. I know many of my Republican colleagues agree 
with me. The Senate is not working. As I visit with my Republican 
colleagues on the other side of the aisle, they tell me they are 
unhappy with the way things are. I said 2 years ago I would push for 
the same reforms at the beginning of the next Congress regardless of 
which party was in the majority.
  At the time, many people believed the Democrats would lose their 
majority. So let me be clear: If Leader McConnell had become the new 
majority leader in this Congress, I would have asked him to work with 
me on these same reforms.
  I will say again, the proposed changes will reform the abuse of the 
filibuster. They will not trample the legitimate rights of the minority 
party. I am willing to live with all the changes we are proposing, 
whether I am in the majority or the minority.
  The other side has suggested a change in the rules is an affront to 
the American people. But the real affront would be to allow the abuse 
of the filibuster to continue.
  We have to change the way we do business. We have to govern. It is 
time for us to pay attention to jobs and the economy and what matters 
to American families--what they talk about around the kitchen table. 
That was the message that was sent us from this election, and we would 
do very well to listen to it.
  Under the abuse of the current rules, all it takes to filibuster is 
one Senator picking up the phone. That is it--does not even have to go 
to the floor and defend it--just a phone call by one Senator: no muss, 
no fuss, no inconvenience, except for the American public, except for a 
nation that expects and needs a government that works, a government 
that actually works together and finds common ground.
  Maybe some of my colleagues believe the Senate is working as it 
should, that everything is fine. We do not take that view. It is not 
working and it needs change. The American people of all persuasions 
want a government that actually gets something done. The challenges are 
too great, the stakes are too high for a government of gridlock to 
continue.
  The New York Times yesterday and several of the local newspapers in 
my home State have editorialized about moving forward with reform and 
how important that is. I ask unanimous consent that an editorial from 
the New York Times and an editorial from the New Mexican be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Jan. 21, 2013]

                       A Chance To Fix the Senate

       For six years, Democrats in the Senate have chafed at an 
     unprecedented abuse of the filibuster by Republicans, who 
     have used the practice to hold up nominees high and low and 
     require a supermajority for virtually every bill. But now 
     that they finally have an opportunity to end much of this 
     delay and abuse, Democrats are instead considering only a few 
     half-measures.
       When the Senate returns on Tuesday, it will still 
     technically be in the first legislative day of the session, 
     which means only a simple majority is necessary to change the 
     rules for the rest of the session.
       With the support of 51 senators, the rules could be changed 
     to require a ``talking filibuster,'' forcing those objecting 
     to a bill to stand and explain their reasons, at length. The 
     current practice of routinely requiring a 60-vote majority 
     for a bill through a silent objection would end, breaking the 
     logjam that has made the chamber a well of inefficiency and 
     frustration.
       Several younger senators, led by Jeff Merkley of Oregon and 
     Tom Udall of New Mexico, say that if pressed, a majority of 
     the Senate would support their plan for the talking 
     filibuster. But older senators aren't so sure, and have 
     reportedly persuaded Harry Reid, the majority leader, to back 
     off the idea. With the experience of having been in the 
     minority themselves, these Democrats are fearful of losing a 
     powerful tool should Republicans ever return to power in the 
     chamber.
       That would squander a moment for change. Supermajorities 
     were never intended to be a routine legislative barrier; they 
     should be reserved for the most momentous bills, and the best 
     way to make that happen is to require that objectors work 
     hard for their filibuster, assembling a like-minded coalition 
     and being forthright about their concerns rather than hiding 
     in the shadows or holding up a bill with an e-mailed note.
       Currently there are six opportunities to filibuster most 
     bills, and Republicans have exploited them all. Mr. Reid 
     wants to reduce those opportunities and speed things up, 
     primarily by ending the filibuster on motions to proceed to 
     debate on bills.

[[Page 302]]

       That change alone could cut a week of delay on most 
     measures. He also wants to curb filibusters that prevent 
     conference committees from meeting and that hold up some 
     presidential nominations.
       A faster-moving Senate would be useful, but that should not 
     be the only goal. The best way to end the Senate's sorry 
     history of inaction is to end the silent filibuster, forcing 
     lawmakers to explain themselves if they want to block 
     legislation supported by the majority.
                                  ____


                  [From the New Mexican, Jan. 5, 2013]

                   Filibuster Reform: We Need It Now

       The first day of the 113th Congress took place last week. 
     But fortunately, for the hopes of filibuster reform in the 
     U.S. Senate, opening day will continue later this month, 
     likely Jan. 22. It is, after all, on the opening day of a 
     session that the Senate can revise its rules with a simple 
     majority of 51 votes--and a rules revision to make it easier 
     to do the people's business is desperately needed.
       New Mexico Sen. Tom Udall, a Democrat, has been a leader in 
     the efforts to reform the U.S. Senate, a move that should not 
     be seen as partisan. Should easing the logjam of holds on 
     bills and appointments help the Democratic majority right 
     now, a rules change could assist Republicans in the future. 
     In politics, no majority is permanent, after all. However, 
     Udall and others--notably U.S. Sen. Jeff Merkley, an Oregon 
     Democrat--are right to keep pressing for substantive reform 
     in how the contemplative Senate does its work. The problem 
     facing the Senate is this: Obstructionists in the minority 
     have essentially made it impossible to do business without a 
     supermajority. To pass legislation, the Senate routinely 
     needs 60 votes--the number that can overcome a filibuster--
     rather than a simple majority. With their reform, Udall and 
     Merkley want any senator who puts a hold on a bill to have to 
     get up and actually filibuster. That is, talk and talk and 
     talk, without stopping, so that the whole world sees who is 
     gumming up the works. Anonymous holds would stop, whether on 
     legislation or appointments that require Senate confirmation. 
     This seems like common sense. A senator who wants to make a 
     stand should have to stand up and tell the country why.
       What is common sense in flyover country is controversial in 
     Washington, D.C., where lawmakers enjoy exercising secret 
     holds out of the light of day. Even instituting the reform 
     will be difficult. Normally, changing Senate rules takes 67 
     votes; on the first day of Congress, though, 51 votes will do 
     the job. Senate tradition--and boy, is the Senate 
     traditional--frowns upon changing rules with such a narrow 
     margin. Doing so is called the ``nuclear'' option by 
     detractors, and the ``constitutional'' option to those hoping 
     to break open stifling Senate culture. In recent days, a 
     different Senate rules change package has been discussed, one 
     proposed by Democratic Sen. Carl Levin of Michigan and 
     Republican Sen. John McCain of Arizona and backed by others. 
     We like its bipartisan origins, but unfortunately, the 
     senators' proposal appears too watered down to fix gridlock. 
     It would make it tougher for the minority to block debate, 
     but by guaranteeing minority members two amendments, could 
     serve up another method of killing legislation.
       We are encouraged that Majority Leader Harry Reid of Nevada 
     chose to recess, rather than adjourn, the Senate on its first 
     day of the session, thus giving Udall and Merkley time to 
     garner support for their substantive rules reform. The right 
     for a single senator to stand on principle, holding up 
     legislation out of strong conviction, must be protected--and 
     asking a politician to talk, after all, is no heavy penalty. 
     What must go by the wayside is the ability of any senator to 
     stall appointments, or hold up necessary legislation, just 
     because.
       When the Senate continues its first day later this month, 
     we urge Majority Leader Reid to go for broke. Seek true 
     reform, allowing the filibuster to remain only if senators 
     will stand up and speak for their positions out loud where 
     all can see. If need be, institute the reform with 51 votes. 
     Otherwise, the Senate will not be able to conduct the 
     essential business of the country--again. And whether 
     approving Cabinet secretaries or ambassadors or judges, or 
     passing necessary laws on immigration and gun control, the 
     nation needs a Senate that can move legislation through in a 
     timely, thoughtful but never cumbersome fashion.

  Mr. UDALL of New Mexico. Three of my Senate colleagues who have just 
been elected are in the Chamber. I think one of the best things about 
this new class of Senators who have come into the Senate is they have 
studied this issue, they understand this issue, they have been out 
there with the American people and listened to them. The American 
people are demanding change.
  So it is a real pleasure to see in the chair the Senator from Hawaii, 
who is the Presiding Officer, and on the floor the Senator from North 
Dakota and also the Senator from Maine. I know shortly we will be going 
into our caucus and having a very lively debate about which way to move 
forward, how we do reform.
  I am convinced we are going to reform these rules. I hope we do it 
working with our colleagues on the other side of the aisle. But if they 
will not come with us, we are in a position where we are in the 
majority, and we have to make this institution work for the American 
people.
  With that, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. MERKLEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Heitkamp). Without objection, it is so 
ordered.
  Mr. MERKLEY. Madam President, I am rising today to talk about the 
vision we have ahead for the next 2 years and how this Senate can 
fulfill its responsibilities under the Constitution to do its 
legislative responsibilities addressing the big issues facing America.
  I don't think anyone is unaware that for the last 2 years this 
Chamber has seen simply inaction and paralysis. It has been rated as 
one of the worst 2-year sessions in the history of the U.S. Government.
  Well, what are we going to do differently? How is it that we only 
address 1 out of 24 appropriations bills over the last 2 years? How is 
it that so many important bills never made it to the floor of the 
Senate, bills such as the replacement for No Child Left Behind, which 
was a bipartisan vision that came out of committee.
  How is it that so many bills came to this floor to never see a final 
vote? These are bills, such as the DISCLOSE Act, which would have 
eliminated secrecy in campaign donations; the DREAM Act, which would 
have honored creating a future for those who know only America as their 
home; the President's jobs package, which would have helped put America 
back to work; and the closing of loopholes for the biggest, most 
wealthy oil companies. Those funds could be put to use reducing our 
deficit or funding critical programs for working Americans.
  On issue after issue after issue, we saw inaction. What we heard 
yesterday at the start of this next 2 years was a call from the 
President for action. In his inaugural speech he said:

       For now decisions are upon us, and we cannot afford delay. 
     We cannot mistake absolutism for principle, or substitute 
     spectacle for politics, or treat name-calling as reasoned 
     debate. We must act, knowing that our work will be imperfect. 
     We must act, knowing that today's victories will be only 
     partial.

  The President echoed, if you will, the thought that he brought into 
his first 4 years, the urgency of now. We have big issues facing 
America, and it is time for the executive branch and the legislative 
branch to work together to address those issues.
  In this call for action, we must ask how much action can there be if 
we see more than 100 filibusters in the next 2 years? How much action 
can there be if on every request for a vote an objection is heard that 
creates a day of delay in this Senate? The contrast is enormous from 
the time that Lyndon B. Johnson was President of the Senate.
  Lyndon B. Johnson, during 6 years of presiding over this body, saw 
one filibuster. Harry Reid, in his 6 years of presiding over this 
Senate, has seen 391 filibusters.
  Let me convey that even when we have the votes to end a filibuster, 
the fact that it is launched creates enormous paralysis. Imagine you 
are debating a bill, and you continue debating through the end of the 
week. When you come in the following Monday to debate, and nobody has 
anything left to say, then someone says: I ask unanimous consent that 
we have a final vote on this bill. Now, you see, we don't have a 
previous question on this floor, so one has to ask unanimous consent. 
Any of the 100 Senators can weigh in and say no.
  When they weigh in and say no on that Monday, then on Tuesday a 
petition is put forward with 16 Senators saying: Let's have a vote on 
closing debate. That vote can't happen until Thursday, under the rules.

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  If it is successful on a Thursday, we have to have 30 hours more of 
debate before we can hold the final vote. That takes us into Saturday. 
Monday through Saturday is lost based on an objection on Monday by one 
Senator.
  If we have 391 of these objections that waste a week of our time in 
the course of a 6-year period, then we basically waste every 
legislative week because there are not 391 weeks in a 6-year period.
  It becomes pretty simple to see why we only were able to get one 
appropriations bill done in the last 2 years, and why so many bills 
never made it to the floor of the Senate for consideration even though 
they were essential to restoring the economic vitality of our Nation 
and putting people back to work. I, for one, find this absolutely 
unacceptable.
  Over our history there have been three basic forms of filibusters. 
The first only worked in an age when transportation didn't work very 
well, and at any given moment there were a number of Members who 
couldn't get here to the floor of the Senate because they were 
traveling from their farms and the axle on their wagon broke or the 
train broke down or so on and so forth. Sometimes those journeys would 
take many weeks and things happened along the way. In that situation, a 
quorum of 50 percent plus 1 was sometimes in doubt, and those seeking 
delay could say: You know what. Let's deny a quorum.
  Well, that was an effective tool only through that period. Then, as 
that changed, folks said: You know, we have the respect here of hearing 
everyone out. Therefore, if I can get to the floor of the Senate, I may 
delay this Senate as long as I am able to speak.
  Well, it is through this effort that we have a number of famous 
filibusters, folks such as Strom Thurmond holding forth for 24 hours. 
We have, however, seen that a person can only delay the Senate for 24 
hours. Then someone else can seek the floor, and you may proceed. So 
that was a fairly modest strategy.
  In both the case of the denying quorum and in the case of speaking as 
long as you could, you had to spend time and energy. You had to 
organize, and it was visible before this body. It was visible before 
the reporters gathered in the balcony. Therefore, the American people, 
long before there was a television camera here, could see what you were 
doing, and the public could provide feedback on that.
  But now we come to the modern era, from 1970 forward, in which it has 
become popular to start using the objection as an instrument of party 
warfare, the objection to a final vote. If we turn back before 1970, we 
had an overlap between the parties of perhaps 30 Members. So if you had 
used this objection, you would have a good sense that you would be able 
to get cloture. Furthermore, there was a social contract that you only 
interrupted the workings of this body on an issue of deep principle. 
You only blockaded the operations of the Senate on an issue of profound 
concern to your State, not as a routine instrument of party politics.
  But that has changed over the last 43 years, since 1970 forward, and 
now the minority party can say: Let's show that the majority can't even 
get an agenda onto the floor of the Senate, and then let's complain 
about them not acting. This is not a philosophy that serves America. It 
is not a philosophy that was embraced through the extent of our 
history. You came here with the responsibility to contribute in 
committee, to contribute on the Senate floor, to try to make bills 
better, and to try to get issues addressed. You were not trying to 
paralyze this body so issues don't get addressed that may be contained 
on that side. That, quite frankly, is an unacceptable theme that has 
started to haunt this Hall, and we need to do something about it.
  Indeed, if we look at the modern era where the parties have become so 
divided, we no longer see that overlap of 30 Senators. Therefore, any 
minority group, be it the Democrats, be it the Republicans, has the 
ability to bring this Chamber to a halt. But is it right to do so? If 
we cannot persuade our colleagues it is wrong to do so, then we need to 
change the rules of the Senate. We need to insist if someone is going 
to throw a shoe into the gears, if someone is going to blockade the 
ability of the Senate to deliberate and decide, then that Senator needs 
to take responsibility here on the floor of the Senate.
  Yes, we should get rid of the filibuster on the motion to proceed. 
Filibustering on whether to get to a bill does not enhance deliberation 
on the bill itself. We should make that decision in a crisp fashion and 
get on to the work, not waste weeks trying to decide if we are going to 
do the work of the people.
  Second, we should get rid of the filibuster on going to a conference 
committee. Both Chambers have decided. They have voted in favor of the 
bill. It has been passed in different forms. Nothing should impede 
getting to conference and having a negotiation. Indeed, out of those 
negotiations, even if starting with one Chamber having a dramatic view 
different from the other, there is a coming together that takes steps 
forward that both Chambers can agree to. So nothing should impede that 
negotiation from going forward. We recognize a bill can still be 
filibustered when it comes back from committee, so why impede getting 
to the conference committee in the first place?
  We should greatly reduce the number of hours after we have gotten 
cloture on debate. On nominations, by the time we vote on closing 
debate, our Members know how they are going to vote on that nominee. So 
we could have a final 2 hours but not a final 30 hours. Thirty hours is 
another wasted set of days we can ill afford. And certainly it makes 
sense to say, whenever possible, we should cut down that 30 hours on 
bills after we have reached cloture. We can do it by unanimous consent, 
and we often do that now. We can do it by requiring Senators to proceed 
to a vote if they do not stand and talk, but that is postcloture.
  Here is the thing: When 41 Senators say they want additional debate, 
they want to delay the decisionmaking process here in the Senate, they 
should be willing to stand and make their case before their colleagues 
and the American people. It takes time and energy if you go that 
direction. It doesn't become a freebie where one Senator spends no 
time, no energy, and can go off to dinner or on vacation while 
paralyzing the Senate. You should have to spend the time and energy to 
be here to make your case.
  Not only is that important in stripping away frivolous filibusters, 
it also means the American people get to weigh in. I am absolutely 
convinced if we were to go back to the debate on the DISCLOSE Act, 
which stripped away secrecy in campaign donations, and we had 59 votes 
to close debate--we needed a sixtieth--if those who voted for 
additional debate, and who fled this Chamber fearful of making their 
case before the American people, had been required to stand and defend 
secrecy and foreign donations in our campaign system, the American 
people would not have said they were heroes but they were bums. They 
would have weighed in and said to their own Senators: Join the effort 
to close debate, because to stand in the way of a final vote over 
secrecy in campaign donations does great damage to our democracy. Maybe 
the pressure and common sense of the citizens would have helped address 
the bitter partisanship that guides this body.
  At a minimum, the citizens of this Nation have the right to know what 
is happening to legislation here on floor. The idea it is being 
paralyzed by the secret filibuster is unacceptable, so we should 
include the talking filibuster in any package we bring to modify the 
rules of the Senate.
  I see my colleague from New Mexico has come to the floor, and he 
spoke earlier. He has put forward the vision that we must, at the start 
of every 2 years, evaluate how the Senate is working, and if it has 
problems we need to pass changes in the rules to address those 
problems.
  This is not some remote concept of inside baseball. This is about 
American citizens having a legislature that can address the big issues 
facing our Nation. So I praise him for his leadership in putting this 
forward, which has led

[[Page 304]]

to this day. And it is the second time. We were here 2 years ago making 
this case, making this argument that we owe it to our citizens to 
improve the workings of the Senate, and we are here again today.
  There is a saying about the Senate, that the Senate is the world's 
greatest deliberative body. If only it were so. It has been, at various 
points in its history, a thoughtful Chamber, a deliberative Chamber. 
But not today. It is driven by deep partisan differences, those being 
converted into strategies of paralysis, that prevent deliberation. We 
must change that. It is our responsibility as Senators to change that. 
The American people expect it. Let's make it so.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. UDALL of New Mexico. Madam President, I ask unanimous consent to 
engage in a colloquy with my friend, the Senator from Oregon.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. UDALL of New Mexico. Madam President, once again let me say at 
the beginning it is a real pleasure to see my old attorney general 
colleague, now the Senator from North Dakota, Heidi Heitkamp, in the 
chair presiding over the Senate, and also to see the Senator from 
Maine, Angus King, here--our new Senators. I think Senator Merkley 
would agree with this, that our new Senators bring an energy to this 
that we don't necessarily have. We are 4 years from our last campaign. 
We ran in 2008. I love hearing their stories and what they have heard 
and how they have visited with people in townhall meetings.
  The American people get this. I don't think there is any doubt that 
they really get this. I know my colleague has done a number of 
townhalls on this issue. I just hope, as we have the chance to discuss 
this, both in our caucus and on the floor and with other Senators, that 
we can capture the energy of the Senators who have arrived here and 
have been out with the people in their States, with their constituents, 
and what they bring to this.
  But I wanted to ask the Senator because, among many of our Senators, 
he does regular townhall meetings--and I have also done a number in my 
career--is this kind of rules change something that is so arcane that 
people don't understand it? Are they saying: Why are you bothering with 
procedure or do people get it? Do they get it in Oregon when you are in 
a meeting?
  Mr. MERKLEY. To my colleague from New Mexico, I would say they most 
adamantly get it. In fact, I had 13 townhall meetings 2 weeks ago, in 
conservative parts of the State, in more liberal parts of the State. 
And in every setting--every setting from conservative to liberal--folks 
said: Please, please continue this effort to address the filibuster and 
the paralysis, and the simple notion behind the talking filibuster.
  If a Senator is voting for more debate--that is to delay the workings 
of the Senate--then he or she should be making their case on the floor 
so the citizens get to see what is going on and they get to decide 
whether they support it or oppose it. That idea resonates with people. 
It is the way folks think the Senate works, and they often think the 
rules that required it in the past have been changed so it does not 
happen now. So it is a chance I have to explain to them that what has 
changed is the social contract; that when people objected to the Senate 
proceeding with its business in the past, they wanted to make their 
views known on the Senate floor. They wanted to take responsibility 
because they realized it was a very high privilege to be able to delay 
the Senate and they had a responsibility to do so only for deeply 
principled or large issues and to make their case known.
  So I do see overwhelming support. I feel as though the American 
people are so far ahead of maybe our own Chamber in understanding how 
broken we are and how much it needs to be fixed.
  Mr. UDALL of New Mexico. The Senator made some nice comments about 
me--he was probably a little too generous--and I wanted to also thank 
him for all the work he has done on this issue. He has been a 
passionate voice for change, and he and I have both reached out to our 
friends across the aisle and tried to get things done.
  I always bring this back to the question of why are we doing this. We 
are doing this so government can tackle the issues the American people 
care about. And I think there are two times in history--I am sure there 
are many others--where for me the Senate was in its glory days. We 
should always remember we have that potential. We see little bits of 
light every now and then here, such as with the passage of a 
transportation bill or a farm bill out of the Senate where 
bipartisanship exists and we come together, but I wish to talk very 
briefly about two time periods that I consider to be the glory days of 
the Senate.
  One was before the Civil War. In the 40 years before the Civil War, 
the Senate was grappling with how do we hold the Union together. There 
was tremendous discussion, and Senators such as Daniel Webster and John 
Calhoun and others would work with each other and have heated debate, 
but for that 40 years before the Civil War, they held the country 
together. It was the Senate that fashioned those compromises that 
allowed the country to stay out of the Civil War. They didn't 
completely prevent it, but most people, looking at history, say those 
were some of the glory days of the Senate.
  The second period was in the 1960s and 1970s, with Senators such as 
Muskie and Stafford and Chafee--giants in this body--who stepped 
forward on civil rights, stepped forward on environmental issues, 
stepped forward on the pressing issues of the time. So the Senate, once 
again in that time period, passed laws.
  I remember; I was a kid here in Washington, and my father was 
Secretary of the Interior, when the wilderness law, the Clean Water 
Act, the Clean Air Act, and the Environmental Protection Agency was set 
up. Those were big laws--big, bold laws--that were dealing with our 
problems. So once again, they are glory days of the Senate.
  I think we have that potential. As I see the new Senators coming in, 
the folks who were elected with us, and the Senators who arrived in the 
last 5 or 10 years, I think we have the ability to respond in a big, 
bold way to the crises that face us.
  I know Senator Merkley came here as a young man with Senator 
Hatfield, I believe, and he saw a different Senate. Maybe he could talk 
about that. We don't want to stay; I know we are going to a caucus and 
we have our generous chair here--our presiding officer--so we don't 
want to keep her up here too long.
  Anyway, I yield to the Senator.
  Mr. MERKLEY. I think my colleague from New Mexico is absolutely right 
in pointing out there were periods when the Senate really worked to 
face the big issues of America. And it wasn't that there weren't 
profound differences. There were fierce differences, emotional 
differences, deep differences, but folks came to this floor, they 
conversed, they laid out their arguments and, ultimately, they made 
decisions about which way to go. They didn't bring the attitude: Well, 
let's paralyze this Chamber from doing anything. Had they done that, 
there would never have been the set of changes that addressed 
significant issues in either of those periods.
  My colleague is right that a part of the reason I feel so strongly 
about restoring the functioning of this Senate is that when I came here 
as an intern at age 19 for Senator Hatfield, I had the very good 
fortune to be assigned to the Tax Reform Act of 1976, and then I had 
the even better fortune that it came up on the floor of the Senate. So 
during the many days it came before the body, I sat up in the staff 
gallery and watched as amendment after amendment was raised and debated 
and voted on. And since in those days there was no camera or e-mail, 
the member of the Senate team who was responsible for it would run down 
from the staff gallery, intercept their Senator, and tell them what the 
issue was, what was said about it, what the folks back home thought 
about it, what the set of

[[Page 305]]

motions was that had been dealt with on it, and so it was a legislature 
at work. And rarely, rarely, did the thought that anything would not be 
decided by 51 pass the minds of Senators. Again, that objection for 51 
was reserved for very special, very rare occasions. It might happen 
once or twice in your career.
  I do feel that the conversation we have before us is so important 
that I thought I would put up this chart. As my colleague can see, this 
just dramatizes it. It is a picture of Lyndon B. Johnson showing his 
one filibuster in 6 years, one time that he needed to get a cloture 
motion to try to shut down debate; otherwise, there was a courtesy that 
people said what they had to say and then stood aside and took votes. 
And here we have Harry Reid in his 6 years--it says ``387 and 
counting.'' It hit 391 before we completed his sixth year. So there is 
an enormous difference.
  The work we are engaged in right now of trying to find a way to have 
every voice heard and then to be able to proceed to be accountable and 
transparent before the public is so important.
  As the Senator and I have engaged in this conversation, sometimes we 
have heard criticism from across the aisle saying: You are trying to 
silence the voice of the minority. Does the Senator see anything in the 
proposals that we have been advocating that in any way silences the 
voice of the minority?
  Mr. UDALL of New Mexico. In looking at this, I do not see anything in 
the proposals, and I think we, in working on this together, tried to 
bring a discipline to it that said we want to preserve the best 
traditions of the Senate, we want the minority to be heard, we want the 
minority to have amendments, and we want them included in the process. 
What we don't want is the tyranny of the minority. And the Founders 
talked about the tyranny of the minority. They talked about the fact 
that if you allowed a small minority to govern and block the governing 
of the majority, that was the tyranny of the minority, and they feared 
that.
  So I think that when we consider this and we talk about the 
filibuster and our institution today, our Senate, where many times the 
Republican leader has come to the floor and said that it is going to 
take 60 votes, everything takes 60 votes, that isn't the way the 
Founders designed it. The Founders actually had very strong language 
for what they thought of supermajorities.
  Everybody remembers their history. The Founders came off the Articles 
of Confederation. It was a supermajority. It didn't work. It was 
broken. So they only put into the Constitution in five places 
supermajorities--things such as expelling a Member and ratifying a 
treaty--but otherwise it was simple majorities. And when the history is 
going to be written, it is hard to tell how this happened. But to have 
a leader of the Senate stand and say that everything takes 60 votes--
the Founders never contemplated that. When they adopted rule XXII in 
1917, that wasn't what they were trying to do, and the rule has 
actually been turned on its head.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Madam President, I would like to follow up on the last 
point Senator Udall of New Mexico made about our Founders.
  I have in my hand three of the Federalist Papers, Federalist Papers 
22, 75, and 58. These are by Madison and Hamilton, and they explore 
this issue of the supermajority. It was a very conscious decision that 
a supermajority was not put into the Constitution for decisions of 
these Chambers. And the reason why--and they explained it more 
eloquently--is essentially that if you take the path that the minority 
thinks is the right path rather than the path the majority thinks is 
the right path, then over time you make a series of worse decisions. 
The minority might be right on occasion, but most of the time the 
viewpoint brought by those representing the greatest number of States 
in this case or the greatest number of citizens on the House side is 
the path that makes sense. And they warned about the supermajority as 
an instrument that would bring paralysis. It is almost as if they could 
look forward 200 years to this moment and say: Don't do that because 
you will end up with paralysis.
  This is from Federalist Paper No. 22 by Alexander Hamilton. He wrote 
this in 1787, and he notes in commenting about the issue of a simple 
majority that ``there is commonly a necessity for action. The public 
business must, in some way or other, go forward. If a pertinacious 
minority can control the opinion of a majority, respecting the best 
mode of conducting it, the majority, in order that something may be 
done, must conform to the views of the minority; and thus the sense of 
the smaller number will overrule that of the greater, and give a tone 
to the national proceedings. Hence, tedious delays; continual 
negotiation and intrigue; contemptible compromises of the public 
good.''
  Let me read that last set of words about what Hamilton said would 
happen if you had a supermajority requirement in the Senate: ``tedious 
delays; continual negotiation and intrigue; contemptible compromises of 
the public good.'' I think anyone watching the proceedings of the 
Senate for the last 2 years would say that Hamilton was right on the 
mark in that regard. And, of course, he was not alone. There was not a 
single Federalist Paper written arguing that there should be a 
supermajority in the Senate or the House because of the experience that 
had been had previous to forming the strategy embodied in the 
Constitution.
  Let's turn to James Madison. In Federalist 58, James Madison said:

       It has been said that more than a majority ought to have 
     been required for a quorum . . .

  He goes on to discuss it in various views, and he said:

       Lastly, it would facilitate and foster the baneful practice 
     of secessions; a practice which has shown itself even in 
     States where a majority only is required; a practice 
     subversive--

  And here is the key language--

       a practice subversive of all the principles of order and 
     regular government; a practice which leads more directly to 
     public convulsions, and the ruin of popular governments, than 
     any other which has yet been displayed among us.

  He also made the point that we would end up with equitable sacrifices 
to the general weal--or general good.
  So as we turn to our conversations in our respective caucuses and to 
the dialog here on the floor of the Senate, I ask my colleagues to 
search your hearts about our responsibility to the citizens of the 
United States of America to address the big issues facing America, 
which means that we don't paralyze this body in secret. If my 
colleagues have points to make, then make them as was done during the 
periods of great debate on the floor of the Senate: Make them on the 
floor of the Senate, engage in that debate, and when no more is to be 
said, when all 100 Senators say: We have had our full input, then let's 
make a decision.
  Madam President, I yield the floor.

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