[Congressional Record (Bound Edition), Volume 159 (2013), Part 1]
[Senate]
[Pages 615-619]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     EXTENSION OF MORNING BUSINESS

  Mr. CARDIN. Mr. President, I ask unanimous consent that the period of 
morning business be extended until 6:30 p.m. today, and that all 
provisions of the previous order remain in effect.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARDIN. Mr. President, first, let me compliment Senator Harkin 
for his incredible leadership in bringing to the attention of this body 
something I think everyone understands; that is, with the procedures of 
the Senate and the way it is operating today, there is a problem. There 
is a very serious problem.
  All one needs to do is to turn on C-SPAN to see the Senate in a 
quorum call for hours to know there is a better way for us to operate. 
All one has to do is to look at a week that goes by where there are 
very few recorded votes to know there is opportunity for debate and 
action that is being lost in the Senate. We can do better. The 
procedures we are following today, the way that is being honored by the 
Members of the Senate, we need to change the rules and procedures of 
the Senate.
  I want to thank the majority leader and the Republican leader for 
negotiating and getting together to understand the frustrations that 
are out there in both of our caucuses and to try to come up with 
reasonable changes in our rules. I see Senator McCain is on the floor, 
and I acknowledge his leadership, along with that of Senator Levin. I 
was honored to work with that group, along with Senators Pryor, 
Schumer, Barrasso, Alexander, and our former colleague, Senator Kyl. We 
sat for hours debating, and it was very educational for me, Mr. 
President, because I listened to the concerns of my Republican 
colleagues--and it was a lot different than what I heard in the 
Democratic caucus--and I think we both learned a lot from each other.
  But there was general agreement that there is a real problem in the 
operation of the Senate, and we have an obligation to take a look at 
our rules and see whether we can't modify the rules so we can have the 
type of deliberation, debate, and voting that is expected of the 
Senate.
  One of the problems that became very apparent to all of us is that 
individual Senators are able to block the consideration of amendments 
and bills on the floor of the Senate indefinitely. That is wrong. My 
colleague from Arizona pointed out that someone could be in their home 
State and offer an objection, and a bill could be brought to a 
standstill. That is not how the Senate should operate. We should be 
able to consider legislation, and individual Senators should not be 
able to block the consideration of that legislation.
  I could give examples of hundreds of bills that have been reported 
out of our committees in the Senate that have never reached the floor 
of the Senate. Quite frankly, the reason is an individual Senator 
blocked consideration, and it would take the majority leader too much 
time to go through cloture motions in order to bring those issues to 
the floor of the Senate.
  We also have seen an abuse of the 60-vote threshold. The 60-vote 
threshold shouldn't be the standard working procedure of the Senate. A 
simple majority should control our actions. Yet in too many cases we 
have used the 60-vote threshold in order to move legislation forward.
  We have also seen that it is very difficult to bring amendments up 
for consideration. It has been very difficult to get action on 
individual amendments on the floor of the Senate. So we need to change 
our procedures. We need to be the great deliberative body which 
historically the Senate has been.
  I want to compliment many of my colleagues--I already mentioned the 
group that worked on some suggested rules changes and made those 
recommendations to the majority leader and the Republican leader--but I 
also want to thank my colleague, Senator

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Harkin, who just spoke, for his leadership on this issue, as well as 
Senators Merkley and Tom Udall, who have been leaders on this matter. 
We have brought this to the attention not only of our colleagues but to 
the attention of the American people, and they expect us to take action 
to improve the operation of the Senate.
  Let me talk a moment about the negotiated agreement between the 
Democratic leader and the Republican leader--between the majority and 
minority leaders--and what I understand will be recommended to us very 
shortly, and I hope we can act on it as early as this evening.
  First, one of the frustrations is that we find it difficult to bring 
a bill to the floor of the Senate in a motion to proceed. The threat of 
a filibuster on the motion to proceed has denied us the opportunity to 
even start debating an issue. Under the agreement I expect will be 
brought forward, the majority leader will have two additional 
opportunities to start debate on an issue.
  First, if the Republican leader is in agreement, they can bring that 
bill to the floor immediately, without any preconditions. That could 
particularly work well on institutional issues that need to be dealt 
with, such as appropriations bills, so that we can get onto 
appropriations bills a lot sooner than we can today.
  There is then another opportunity where the majority leader could 
bring a bill to the floor without the fear of a filibuster, without 
having to file cloture, by offering amendments. There would be a 
guaranteed right to offer up to four amendments: two by the minority, 
two by the majority. That gets us started on legislation.
  Now, it is very interesting, if one looks at the process that has 
been used where bills come to the floor and where we are most pleased 
by how the process has worked--such as in the case of the national 
defense authorization bill, postal reform, and the Agriculture bill in 
the 112th Congress--in each of those cases the committees voted on the 
bills, they came to the floor with the managers, we started on the 
bills, and we completed the bills. I think we were all pretty proud 
with the manner in which those issues were handled on the floor of the 
Senate.
  Under this process, the majority leader could get us started. The 
managers can get us started on legislation. Once we start on 
legislation, once we start debating the issues, we can see what 
amendments are out there, and we can try to manage the time 
appropriately and actually get action and debate and votes on the floor 
of the Senate on the amendments and on final passage.
  I do think this empowers our committees. We all spend a lot of time 
in our committees. We are there for the hearings, we want to see 
committee markups, but we also like to see the products we bring up in 
the committee be the major work on the floor of the Senate. Well, now, 
with this reform and the ability of the leader to bring forward a bill 
that has come out of our committees, our committee products will be 
more respected, and we will have a better legislative process because 
we are using the products that come out of our committee. We are 
respecting the work of our committees. We are rewarding our chairmen 
and ranking members working together and bringing legislation to the 
floor of the Senate.
  I think that is a real major improvement and something that will 
allow the Senate to operate in the way it should.
  We also allow for conference committees to be formed in a more 
expedited way. Right now it could take three cloture votes to get into 
conference. We contract that into one. I think that is going to be the 
recommendation.
  I had the honor in the 112th Congress to serve on a conference 
committee that dealt with the payroll tax extension. We got our work 
done, brought a bill to the floor of the Senate and the House, and got 
it enacted into law because we were able, in a very open and 
transparent way, to work with our colleagues in the other body, resolve 
our differences, and bring legislation forward. I might be wrong, but I 
think that was the only conference committee that operated in the 112th 
Congress. There haven't been many. I think most Members of this body 
would be hard-pressed to remember when they last served on a conference 
committee. Yet we know there are significant differences between the 
products that come out of this body and the products that come out of 
the other body. We need to reconcile those differences. Being able to 
go into conference allows us the opportunity to let the legislative 
process work the way it should.
  One of the procedures the majority leader is going to talk about is 
that once cloture is invoked, if you have to use cloture, you have 30 
hours. But you don't guarantee 30 hours. That 30 hours is the maximum. 
Each Member is entitled to only 1 hour to speak, and a quorum call 
during postcloture can be considered dilatory if we have already 
established a quorum.
  The majority leader and the minority leader are going to talk about 
the fact that postcloture, if you want to speak, come to the floor and 
speak. If you don't, the Presiding Officer should put the issue to the 
membership for vote so we can expedite issues and not waste a full day 
letting the 30 hours expire.
  There will also be recommendations to deal with nominations. We were 
extremely frustrated. I served on the Judiciary Committee. I had the 
opportunity to recommend to the President several appointments to the 
Federal bench. It took months for these noncontroversial nominees to be 
approved on the floor of the Senate. It truly affects our ability to 
recruit the very best to serve on our courts.
  The same thing is true with the President on his team to have in 
place, and there will be recommendations to shorten the postcloture 
time if a cloture vote is needed on judicial nominations to, I think, 2 
hours, and sub-Cabinet appointments to around 8 hours. That allows the 
leader to be able to bring these issues to the floor without the threat 
that it would tie us up for weeks to take up just a couple 
appointments.
  These are all major improvements. Let me make it clear. If I were 
writing the rules of the Senate, I would go a lot further. I know I 
might be in the minority in this body, but I happen to believe in 
majority rule. I happen to believe the majority should make the 
decisions. I think there should be adequate time for debate, et cetera. 
The Senate is different than the House. I accept that. But at the end 
of the day, I am in favor of majority rule. But I am also in favor of 
trying to get our rules done in a bipartisan manner because, quite 
frankly, the Democrats may not be in the majority forever.
  If we look since 1981 through the end of this Congress, but for 
Senator Jeffords' decision in May of 2001 to become an Independent and 
caucus with the Democrats, the Senate would have been divided as 
follows: Sixteen years under Democratic control, 16 years under 
Republican control, and 2 years split 50-50.
  I think it is very important we all understand these rules need to 
work regardless of which party is in the majority. That is why it is 
the right thing to do to negotiate between the Democrats and 
Republicans rules that can withstand the test of time and be fair to 
both the majority and the minority.
  Once again, I would have majority rule. That is what I believe and I 
know there will be a chance to vote on that and that is how I will 
express my vote. But I do believe it is best for us to work together, 
Democrats and Republicans, and come together with a true compromise on 
the rules changes. I think that is exactly what Leader Reid and Leader 
McConnell have done. They have taken the recommendations of many of us, 
they have listened to a lot of us, they have listened to both caucuses, 
and they will come forward with recommendations that will allow this 
body to carry out its responsibilities in a more effective way--in a 
way that is better understandable to the American people, where we can 
get on legislation a lot sooner, debate issues a lot quicker, take up 
amendments and actually vote on amendments and be able to move 
legislation that comes out of our committee and approve

[[Page 617]]

nominations in a much more efficient way.
  To me, that gives us an opportunity for a new start in the Senate as 
we begin the 113th Congress. Let's hope the cooperation we see 
developing on the changes of the rules will allow us to work together 
to deal with the problems of the Nation in a more collegial way, 
recognizing that compromise is how this country was formed, listen to 
each other, and move legislation in the best traditions of the Senate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, before the Senator from Maryland leaves 
the floor, I would like to tell him how much I appreciate the remarks 
he just made. I think he gave a very accurate depiction of the 
agreement we reached after many hours of always pleasant conversation. 
The fact is we showed our colleagues and many others it is still 
possible for a group of us to join together on a very difficult issue 
and a very complex one.
  The Senator from Maryland stated his preference just a minute ago 
that he is for majority rule. But he also understood that in order for 
us to come together, that we had to move--each of us--in a more 
centrist direction. Without his input, his efforts, and his 
willingness, in my view, it is very likely we would not have agreed.
  I ask unanimous consent that the Senator from Maryland and I engage 
in a colloquy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. I think the Senator from Maryland and I would agree that 
even though this is not a headline-grabbing issue and a lot of people 
in America have no real idea what was at stake, that if we hadn't 
reached this agreement amongst us, it could have had repercussions for 
a very long period of time in the Senate; would the Senator agree to 
that?
  Mr. CARDIN. I certainly agree with my friend from Arizona. They may 
not have understood what caused the problems, but when they see the 
type of gridlock where the Senate can't take up amendments for 1 week 
or can't take up a bill for 2 weeks or debating how to proceed on a 
motion to proceed, not only on substance, they wonder what is going on 
here. So the Senator is absolutely right.
  Also, we are going to be in a much better start to this Senate with 
Democrats and Republicans agreeing on the rules collectively. That is 
certainly a better place for us to start to work with this Congress, 
and it gives us the opportunity to work together with more confidence, 
beyond just rules but also dealing with the difficult issues this 
country faces.
  Mr. McCAIN. Wouldn't the Senator from Maryland agree that the whole 
purpose of this is not to block? In fact, with our numerous meetings 
with the Parliamentarians, I think we reached a greater and fuller 
understanding that if someone really, really wants to block progress in 
the Senate, given the incredible--if the word isn't ``arcane,'' it is 
certainly ``detailed''--rules of the Senate, they can.
  But the real purpose of this and the outcome that the Senator from 
Maryland and I and Senator Kyl, Senator Barrasso, Senator Levin, 
Senator Schumer, Senator Pryor--and I note the presence of the Senator 
from Michigan on the floor; I think he would agree that this fix, this 
compromise we have all now agreed to--and hopefully we will agree to 
and pass shortly--is also intended to change an attitude in the Senate.
  Instead of blocking everything moving forward and blocking 
amendments, perhaps we could create a new environment in the Senate 
where we will let the minority have their amendments, but also the 
minority party will let the process move forward. I think that is the 
tradeoff that was the fundamental aspect of the negotiations we 
continued in the office of the Senator from Michigan for many days and 
many hours.
  I think the Senator from Michigan and the Senator from Maryland would 
agree; if someone wants to block the Senate from moving forward, they 
can at least do it for some short period of time. What has happened, 
looking back 10, 15 years ago, the tree wasn't filled. But at the same 
time, on the other side, amendments were not produced by the hundreds. 
I believe the object and I believe the outcome of this hard-earned 
compromise will be that there will be a greater degree of comity in the 
Senate which would allow us to achieve the legislative goals that all 
of us seek.
  I ask unanimous consent that the Senator from Michigan join the 
Senator from Maryland and me in this colloquy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, first, let me thank my dear friend from 
Arizona for helping to lead this bipartisan effort, where eight of us 
spent weeks to try to come up with a bipartisan proposal to our 
leaders. Senator Cardin was one of the eight, and I am grateful to him 
and to all the eight Members, including one who has now left, Senator 
Kyl.
  Its purpose was twofold. The first purpose was to address the 
specific hurdles that have created gridlock, the specific mechanisms 
which have been overused in this Senate that have led to gridlock. 
There are a number of things that have led to gridlock, but the most 
significant problem we have faced is the excessive use of the threat of 
the filibuster on the motion to proceed to a bill.
  The reason it was used--according to many Members of the minority--
was because of a fear that the tree would be filled by the majority 
leader and then there would be no opportunity to offer amendments. So 
what the eight of us strived to do was to find a balance where we could 
protect the minority's rights to offer some amendments at the same time 
that we finally got rid of a roadblock which was being abused, which 
was a threat to filibuster a motion to proceed. So we devised this 
approach which is now part of the leadership proposal to do exactly 
that.
  The other purpose is the one which my friend from Arizona has just 
identified; that if we could come together, the eight of us, four 
Democrats and four Republicans--Senator Schumer is now on the floor and 
he was one of the eight. If we could come together and come up with a 
bipartisan proposal on this issue, we could hopefully begin to change 
the dynamic that has so divided this Senate. That is, hopefully, a very 
important and, I hope, successful outcome of those discussions and of 
the leadership then coming together, because those two leaders have to 
come together if this Senate is to come together and be able to move 
legislation in the ordinary course.
  I agree with Senator McCain's assessment as to the second goal we 
had, which was to show that on the thorniest procedural issue we face, 
that four Democrats and four Republicans, meeting in a very thorough 
and personal way, without a lot of staff around, could find a way 
through this procedural thicket and then make recommendations to the 
majority and to the Republican leader. I do agree with the Senator from 
Arizona.
  Mr. McCAIN. I think my friend from Maryland would also agree that we 
have found, for example, on the Defense authorization bill, that once 
we get onto a bill and once we have some amendments--in the case of our 
agreement it was four--that now the Members are sort of invested in 
moving the process forward. The logjam has always appeared before the 
bill is ever taken up for debate and amendments. By expediting that 
process, without depriving Members of their rights but expediting that 
process, hopefully, we will get onto the bill and some amendments that 
are already--four in one option--are already agreed to, and then we can 
move forward.
  I would like to point out one other thing, and I think my two 
colleagues would agree; that is, we are fairly well paid around here, 
and maybe sometimes we should work a 5-day workweek; and maybe, if 
absolutely necessary, God forbid, a 6-day workweek. We should be taking 
up legislation and completing that legislation before the end of the 
week or, depending on how massive the legislation is, at least 2 weeks. 
But there should be dates certain. It is funny how this body operates

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when there are deadlines as opposed to just extended periods of debate 
and amending.
  Mr. CARDIN. Could I inquire because I want to use the two Senators as 
the example. They did that on the Defense Authorization Act. They were 
able to get the bill to the floor. They started on the bill, had a 
little rough start, but started on the bill and then set up a series of 
votes. We were able to vote on I don't know how many amendments. But it 
is interesting, if my memory is correct, there was no requirement for a 
60-vote threshold on any of those amendments. You voted them all on 
majority so there was no need for a cloture vote because we started on 
it and people believed the process was fair. They had the opportunity, 
they had a chance to debate. So we had full and open debate on many 
issues.
  National defense authorization opens a whole host of issues which are 
very controversial: What do we do with detainees? What do we do with 
our civil liberty rights? What do we do with our troop levels? There 
were a lot of issues that could have divided us, and we had the type of 
debate that I think was in the best interests of the Senate and we 
completed that bill in a timely way.
  I think the way the two Senators were able to come forward--there are 
a lot of other committees. I serve on the Senate Foreign Relations 
Committee. We talked today, yesterday, during--Senator McCain is also 
on that committee. We talked--Secretary Clinton--wouldn't it be nice to 
get a State Department authorization bill on the floor of the Senate?
  Mr. McCAIN. It is a disgrace that we have not--in how many years?
  Mr. CARDIN. A long time. Certainly, I have not been in the Senate 
since that happened. But I do think now we have a better opportunity. 
If our committee could mark up a Defense authorization bill--and maybe 
it would take a week or two. Maybe we would have to work Friday or 
Saturday to get it done, but we should do that. But we now have the 
opportunity for the leader to bring that to the Senate floor 
immediately and allow the amendment process to start. Once it starts, 
normally we can get the type of consideration by all of us as to a 
reasonable number of amendments, and we can get the bill, hopefully, 
through the Senate. That is what I think is the real plus of the type 
of reforms we are talking about that allow the right legislative 
process to work.
  As I said, it doesn't cover everything I wanted to cover. I would 
have gone further. But I do think it does give us a chance, allows us 
to do our work in the way that we should.
  Mr. McCAIN. I, again, would like to express my appreciation to 
Senator Schumer and Senator Cardin, Senator Pryor and my Republican 
colleagues, Senator Kyl and Senator Barrasso. But I would especially 
like to thank Senator Levin. We have known each other and worked 
together now for many years. We had very spirited and open and honest 
disagreements, but there is a level of trust and friendship that allows 
us, when committed to the same goal, to be able to--I believe, 
hopefully, in a very short period of time--achieve it.
  Maybe I am being a little bit too optimistic. Hopefully, because of 
this, we can start moving legislation through the Senate. The record 
that we have achieved over the last 2 years is less than admirable. We 
know that filling the tree has dramatically increased, but we also know 
the objections to moving forward also have. I am not placing any 
responsibility on either side. I am placing the responsibility on both 
sides. Maybe we can start a new day, take up some legislation, pass it, 
and do the people's will. Maybe we would improve our favorability 
ratings to exceed that of--I saw a poll the other day; I don't know if 
my colleagues did. A colonoscopy is more favorable than Members of the 
Congress. I don't know if they saw that.
  I hope we can at least raise it to some level above that. By getting 
things done around here I think that will probably enhance our chances 
of regaining some more favorability amongst the American people.
  Again, I thank the Senator from Maryland and my friend from Michigan 
and, hopefully, in a couple of hours we will have achieved something 
that, in my view, could avert a fundamental change in the Senate which 
maybe could never have been repaired. I view it with the utmost 
seriousness. I have never been involved in an issue that impacted this 
body to the degree that the nuclear option would have caused. We would 
have regretted it for a long time. Hopefully, in a few hours we will 
have avoided it.
  I just want to remind my friend from Maryland and the Senator from 
Michigan, this is going to be for 2 years. So we are in kind of an 
experimental phase. If we are unable to do the things that we aspire 
to, then I think you could see further Draconian measures considered by 
the majority. It is up to both sides to make this work.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, first of all, let me comment on what 
Senator Cardin said about one of the purposes of this effort, which is 
to get a bill to the floor so the managers can work on it.
  As we have proven in the last couple of months on a number of bills, 
and the Senator has pointed this out, if we can get the bill to the 
floor for the managers to be able to work with our colleagues on 
amendments, we can legislate. The problem has been that we have not 
been able to get bills to the floor because of this blockage, the 
blockage caused by the overuse of the filibuster and, more accurately, 
the threat of a filibuster on the motion to proceed, which, in turn--
and my Republican friends believe this very keenly--was caused by the 
use of filling the tree, which meant that they would not have the 
opportunity to offer amendments. So they would then use that threat of 
a filibuster in order to try to gain assurance that they would be able 
to offer some amendments.
  That is the heart of the compromise we proposed. There are a lot of 
other aspects to it, including trying to get rid of these filibusters 
on going to conference; including these filibusters that tied up 
nominations with postcloture 30-hours, nominations that were going to 
pass with votes of 90 to 0.
  There are a lot of other parts to the recommendations and what the 
leaders are recommending to us, but the key thing--and Senator Reid 
said it to us repeatedly--the key thing that this compromise addresses, 
and it is a bipartisan approach, is trying to overcome that barrier to 
getting legislation to the floor. We know--the Senator from Maryland 
has pointed out and Senator McCain knows it because we have lived it--
if you can get a bill to the floor with managers, they can work out 
amendments, sometimes by the hundreds.
  I think Senator McCain and I probably had over 100 amendments filed 
to our bill.
  Mr. McCAIN. I think it was about 383.
  Mr. LEVIN. OK. I am glad I exaggerated in the downward direction. In 
any event, we were able not to work through all of them but to deal 
with that challenge, to probably deal with about 100 of them, as I 
remember. We did it in about 3 days.
  That doesn't mean we are magicians. It means we are capable, all of 
us are capable, if we can get the bill to the floor. Particularly when 
the bill has come out of committee with broad bipartisan support, we 
can get bills passed here. So the heart of what we have proposed to the 
leadership, this group of 8, and what they have adopted and 
incorporated in their bipartisan approach to the Senate and to the 
country, is exactly what Senator Cardin has talked about: getting bills 
to the floor. We can then watch the momentum work.
  I want to add one other thing. Senator McCain just made reference to 
it. That has to do with the so-called nuclear option, or the 
constitutional option, depending on what your view of it is. I have 
always believed the threat of that option was troublesome. I was 
troubled by it because it is inconsistent with the rules of the Senate 
which require a two-thirds vote for amendments to the rules and because 
we are a continuing body, not just by

[[Page 619]]

our rules but by even a Supreme Court opinion which so ruled.
  I believe if the constitutional or the nuclear option were utilized 
here, if we ended up with the utilization of that option, that what we 
now have, which is gridlock, would have resulted instead in a meltdown. 
I want to remind my Democratic friends and folks around the country 
that not too many years ago when the Republicans threatened to use a 
constitutional option, the reaction on this side of the aisle was 
intense. The words of Senator Kennedy, Senator Biden, Senator Byrd 
resonated through this Chamber in strong opposition to the use of a 
nuclear option.
  I have just a few examples of what our reaction was on this side of 
the aisle when there was a threat to use the nuclear option when it was 
threatened relative to judges. What I am not going to do tonight is go 
through the history of the constitutional or the nuclear option, what 
happened over the century when it has been threatened, how it has not 
been adopted by the Senate. It is a long, detailed history.
  I know some of my colleagues have argued that the constitutional 
option is based on the Constitution. It is very much the opposite in 
terms of the history of this Chamber and the rejection of any idea that 
the Constitution somehow requires that at the beginning of a session of 
a Senate that rules can be amended by majority vote. It is a long 
history.
  I want to just quote, if I can find these quotes, what the reaction 
was on this side of the aisle when there was a threat on the Republican 
side of the aisle to use this approach of getting a ruling from the 
Chair, somehow, that the rules, although they say they can only be 
amended by two-thirds, can in fact be amended by a majority.

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