[Congressional Record (Bound Edition), Volume 159 (2013), Part 8]
[Senate]
[Pages 11278-11289]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              NOMINATIONS

  Mr. HATCH. Madam President, last month I spoke here about the 
confirmation process and how the majority was committing filibuster 
fraud.
  The leaders on the other side of the aisle, including the majority 
leader and the majority whip, voted for judicial filibusters more than 
20 times by this point in the previous administration.
  They succeeded. There were five times as many judicial filibusters at 
that time during the Bush administration as there have been today. 
Looking at executive branch nominations, those same Democratic leaders 
voted to filibuster President Bush's nominees to be Assistant Secretary 
of Defense and EPA Administrator, and twice voted to filibuster his 
nominee to be U.N. Ambassador. They must have thought very differently 
then about whether the President deserves his team. Their actions then 
spoke more loudly than their words do today whether they think all 
nominees do deserve an up-or-down vote.
  The Senate recently confirmed the Directors of OMB and the CIA, the 
U.S. Trade Representative, the Secretaries of Energy, Interior, 
Treasury, State, Transportation, and Commerce this year by a collective 
vote of 816 to 61. That does not sound like a Senate that is in 
jeopardy or trouble. In fact, it does not sound like they even have a 
case to make to do what they have alleged they are going to do.

[[Page 11279]]

  The Congressional Research Service says the Senate is considering 
President Obama's executive nominees faster than during President 
Bush's second term, but none of that is good enough for this majority. 
They not only want more, but it appears they are willing to get it by 
any means necessary.
  According to media reports, the majority leader is being pushed by 
political interests to use a parliamentary gimmick to limit or abolish 
filibusters. In other words, his political base, especially Big Labor, 
wants him to put short-term partisan politics ahead of the integrity 
and tradition of the Senate itself. If simply saying that is not enough 
to show how dangerous it is, we are in more trouble than I thought.
  Thomas Jefferson called the Capitol the first temple to the 
sovereignty of the American people. The people established our 
Constitution with its separation of powers. They designed the 
legislative branch with an action-oriented House and a deliberation-
oriented Senate. We call ours a system of government because it 
includes all of these parts designed to be different and yet to work 
together.
  Many people bemoan the division and conflict in Congress, the 
partisanship and on and on. Yes, there will be conflict over the 
important issues facing our country. Men and women of different 
perspectives, views and ideologies and serving different States serve 
in Congress. But I always thought we should be of one mind about the 
long-term integrity of the system of our institutions.
  For more than two centuries, the Senate has been designed to play its 
own particular part in the legislative process. Form follows function, 
they say. So our rules reflect our role. For more than two centuries 
the minority has had some basic rights in this body, including the 
right to debate. That right has always annoyed the majority and 
empowered the minority. I know that from experience, as I have been 
among the annoyed, just as today I am among the empowered.
  The majority knows it too. A decade ago when they were in the 
minority they began for a time using that right to debate to defeat 
judicial nominees who otherwise would have been confirmed. Now back in 
the majority, they want to ban the very tools they found so useful just 
a few years ago. Now that the majority leader is done using the 
opportunity for extended debate, he wants to make sure no one else can 
use it.
  Why? For one simple reason. Because they want their way every time. 
They think they are entitled to it, and if they cannot get it the old-
fashioned way, by persuading their colleagues and the American people, 
then they will simply rig the rules.
  This short-term power grab, however, will cause long-term damage to 
the Senate and to the system of government of which it is such a vital 
part. Do not think just because they say they are limiting it to the 
executive branch appointments, excluding judges, do not think that is 
not going to lead to all kinds of other obnoxious approaches toward the 
Senate.
  A little dose of history provides a big dose of clarity for this 
debate. For more than a century the right to keep debate going belonged 
to each individual Senator. There was no rule at all for ending debate. 
A single Senator could prevent bills from passing by preventing debate 
from ending.
  We have had a rule for ending debate for nearly a century. Today it 
is easier to end a debate than at any time since the turn of the 19th 
century--not the 20th century, the 19th century. Not only that, but the 
majority is using that rule more effectively today to prevent 
filibusters than the rule has been used in the past. It is all there in 
the public record. When we vote to end debate, we prevent a filibuster. 
A higher percentage of votes to end debate has succeeded in recent 
Congresses than in the past.
  To top it off, just a few months ago, the Senate overwhelmingly 
adopted two new standing orders and two new standing rules giving the 
majority even more power considering nominations and legislation. But 
using the rules to their advantage is not enough for the majority. 
Gaining even more power through those new orders and rules is not 
enough. Now the majority threatens to use a parliamentary maneuver to 
weaken or abolish the right to debate itself.
  But as I said, the Senate rules reflect the Senate's role. Changing 
those rules, especially in the way the majority is talking about, means 
changing the Senate's role in our system of government. A few partisan 
victories simply cannot be enough to justify that.
  The minority leader has faithfully reminded us of the majority 
leader's past promises not to change the Senate's rules or procedures 
except through the process provided for in the rules. On January 27, 
2011, the majority leader said: ``I will oppose any effort in this 
Congress or the next to change the Senate's rules other than through 
the regular order.'' My question is this: When the majority leader 
said: ``I will oppose,'' did he really mean ``I will lead''?
  The integrity of this institution and the system with which it is a 
part should matter more than the politics of the moment. If our 
commitment to this institution and to keeping our word no longer 
matter, we will be breaking the trust of the American people and 
failing in our duty to them.
  This must not happen. The Senate is a venerable institution. If the 
majority continues to go down the road they are going down, it is going 
to be much less venerable, and it is going to be a broken institution. 
Keep in mind, their decision, if they do choose to do this, will work 
against them someday.
  I have to say that I am very concerned because I believe that not 
only is it wrong, what they are going to do, but it is based upon false 
premises. When the majority leader says we have filibustered hundreds 
of times, that is totally inaccurate, especially when the leader calls 
up a bill and files cloture immediately just to make it look like we 
are filibustering. We are fast moving away from being the most 
deliberative body in the world to one that is just run by the majority, 
similar to the House of Representatives.
  I hope some of the wiser Senators on the Democratic side will 
prevail. Right now it does not look like they will. But I will tell you 
this, if we go down the road that the majority leader is talking about, 
this institution is going to be dramatically changed for the worse.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, I thank the Senator from Utah for his 
thoughtful remarks. I have been trying to think of a way to put in 
context what is at stake because the majority leader said in his 
remarks today: We have changed the rules 18 times. True. We have 
changed the rules a lot. But we are not talking about changing the 
rules of the Senate. We are talking about changing the Senate.
  That is what the proposal is, changing the Senate from an institution 
that protects minority rights by requiring 60 votes out of 100 on major 
matters of importance instead of a majority of votes. You know we grow 
up and we go to first grade and we learn that the majority wins. So we 
get that ingrained in ourselves as we grow up in America. It is a good 
principle, the majority wins. It is a way to resolve disputes and work 
things out.
  But from the very beginning of our country, our most thoughtful 
observers and visitors have looked at our country and said: But a 
democracy needs some protections for the minority, for the people with 
a minority view.
  I have mentioned on the floor before that I have been reading Jon 
Meacham's book about Thomas Jefferson, about the conversation they had 
after dinner on February 15, 1798. Jefferson wrote about what Adams 
said to him. Adams said:

       No Republic could ever last which had not a Senate. 
     Trusting the popular assembly for the preservation of our 
     liberties is unimaginable.

  ``Trusting a popular assembly for the preservation of our 
liberties.'' What did he mean by that? What he meant by that is that 
the passions in our country--and they particularly happen that way 
today because of the Internet--can suddenly grow very strong. They 
happened back at that time in France with

[[Page 11280]]

the French Revolution, where the population got excited and began to 
behead people in connection with the French Revolution.
  So popular passions can run strong. Our Founders said: We want a 
House of Representatives that reflects those popular passions, which is 
why when you go over to the House, they have a Rules Committee. Whoever 
wins the House by one vote gets nine of the seats and whoever loses 
gets four of the seats to make it clear that the party that has four of 
the seats does not have anything to say about anything, so they can 
bring it up on Monday and pass it on Tuesday.
  That is what a popular assembly can do. So Adams was saying to 
Jefferson: We need another body. We need a Senate that is not so 
responsive to the popular passions. President Adams and President 
Jefferson said at the beginning of our country that they did not 
believe a Republic could stand without such a Senate. That is what they 
said then. Our most famous visitor to the United States was Alexis de 
Tocqueville, a young Frenchman who came in the 1830s.
  He wrote a book, ``Democracy in America,'' which is probably the best 
book ever written about democracy in America. He said in this that 
there are two great dangers he saw in our future democracy. This is 
when it was very young. One was Russia. That was a prescient comment. 
But the other was the tyranny of the majority. That is what de 
Tocqueville said.
  The great danger to our democracy is the tyranny of the majority. 
That means a majority can run over you with a one-vote margin. What 
does that mean today? Let's say you care about abortion rights. Let's 
say you care about gay rights.
  Let's say you care about climate change. Let's say you didn't support 
the war in Iraq, you didn't support the war in Afghanistan. Let's say 
you don't like government snooping, but the majority does. The majority 
has a view that is different from your view, so they can run over you--
in the Senate they can't because they will have to persuade at least 
60. It will take some time to do it, and it doesn't always work. You 
have to stop and think about any issues.
  The House can say: No secret ballot in a union election, and they can 
pass it in a day. It will come to the Senate, and we will say: Let's 
think about it. We will think about it even if the Democrats are in 
charge and they are in favor of no secret ballot in a union election 
because we protect the rights of working men and women across the 
country who may be in the minority. But we have to stop and think about 
whether we want to abolish the secret ballot in union elections.
  What the majority leader is proposing doing next week is not just 
changing a rule, he is changing this institution so that whoever has a 
majority of one can do anything they want to do, anytime they want to 
do it, and can run over any minority. It doesn't make so much 
difference that you run over a person in the minority in the Senate--
you know, we are just individuals. But what about the views we 
represent? What about the views of the farmers in North Dakota, 
mountaineers in Tennessee, or the civil rights workers in Alabama? What 
about the people in the 1970s who opposed the Vietnam war? The 
majority? The majority ran over it.
  People who are accustomed to being in the minority know the advantage 
and the importance of having protection of minority rights. They know--
and they have studied American history--that the chief defender of 
minority rights in the history of our country has been the Senate. This 
is what the majority leader proposes to change. He proposes to make 
this place like the House, where a freight train can run through it 
overnight and change abortion rights, change the war attitude, change 
civil rights, change environmental policy. One vote can do it. Run the 
train through the House. Run the train through the Senate. Today it 
might be a Democratic train. Tomorrow it might be the tea party 
express.
  Our friends on the other side might wish to think about that. I have 
some very creative colleagues over here. I will bet they could come up 
with a pretty good agenda of things we would like to do if we had 51 
votes and we could do it anyway.
  This is not about a rules change. This is about changing the nature 
of a Senate that John Adams, Thomas Jefferson, George Washington, and 
the Founders of our country created to be an alternative to a popular 
assembly and that every majority leader in our history has, in the end, 
supported in this way.
  We should not take this lightly--especially if you are an American 
person who has an unpopular view. If you feel as though you are in the 
minority, if you feel that a majority might not agree with you, might 
even run over you, you do not want the Senate to suddenly be a place 
where a freight train could run right through it overnight.
  You may say: Well, we have the President and the White House.
  You may. You do today. You might not tomorrow. You might not 
tomorrow.
  When I came to the Senate 10 years ago one party had both the Senate, 
the House, and the Presidency. What if we were 10 years ago and we 
could run a freight train through the House, to the Senate, and send it 
down to President Bush? We might say that no State in the country--
every State in the country must have a right-to-work law. We believe in 
right-to-work laws. We might have new rules on public unions. We might 
have different ideas on abortion. We might have different ideas on 
climate change. If you are in the minority, you wouldn't be able to 
stop us. You wouldn't even be able to slow us down for a good 
conversation. We could just run right through town.
  Nearly one-half of this body is in its first term. More than half of 
my Democratic friends have never been in the minority. I have been in 
the minority in a variety of ways in my lifetime, and I want some 
protection--more than just from the popular assembly that might run 
through.
  That is why I said this morning that I hope very much that the 
Democratic leader will accept the request from those of us on the 
Republican side for all of us Senators to meet together in the Old 
Senate Chamber where we can meet privately, where we can talk face-to-
face.
  We can say: We need to understand how in the world the Democratic 
side could want to change the character of the Senate in this way when 
in 2 years they could be on the other side. What would make you so 
angry that you would want to do that?
  If you would say to us, you have been filibustering our nominees, we 
would say to you, I guess you know that none of your nominees have ever 
been defeated by filibuster. I guess you know that--except for two 
circuit judges. And you started that because you did five of ours.
  You will say: Well, you have been delaying our nominations.
  We will say: I hope you know that the Congressional Research Service 
and the Washington Post say that President Obama's Cabinet nominees 
have been moving through the Senate more rapidly than President Bush's 
did and President Clinton's did in their second terms. I hope you know 
that.
  You may say: But you have been holding people up for years.
  We will reply: I hope you will look at the Executive Calendar.
  It is on everybody's desk here. This is the list of people who can be 
confirmed in the Senate. How do they get on the Executive Calendar? 
They come out of committees. Who controls the committees? Democratic 
majorities. If there is someone who hasn't been confirmed, put him on 
the calendar. It is your committee that can do it.
  Once they get on the calendar, how do they get confirmed? Only one 
person can manages that schedule--the majority leader. All he has to do 
is say: I move the nomination of Jacob J. Lew, of New York, to be U.S. 
Alternate Governor of the International Monetary Fund. He has been on 
the calendar since April 16, 2013.
  You may say: There is an objection to that.
  We will say: So what? The majority leader can bring it up, and under 
our

[[Page 11281]]

rules we can ask for a 60-vote vote on Mr. Lew to the International 
Monetary Fund.
  He is already in the administration, so that probably wouldn't 
happen, but let's say it did. The majority leader can bring it up on 
Monday. We would vote on Wednesday. He would get 60 votes, and then he 
would be confirmed. That would take one of the 24 people off of this 
Executive Calendar.
  You might say: Well, they have been waiting for years.
  We might say: Wait a minute, I have got it right here. The one who 
has been waiting the longest came to the floor February 26, 2013. That 
was 4 months ago. There is no one here who has been waiting longer than 
4 months, who has been here waiting for us to do something about it. 
The only one who could move somebody off this calendar to a vote is the 
majority leader sitting right over there, so what are you talking 
about?
  This is what we would say to you.
  You must be angry about something else or you wouldn't be thinking 
about changing the character of the whole Senate because no one has 
been denied their seat by filibuster except a circuit judge, and you 
set the precedent for that. There is no one left to confirm except 
these nominees for the National Labor Relations Board that President 
Obama made unconstitutionally on January 24, 2012.
  The Republican leader said: You have a Labor Secretary who is 
controversial.
  We all concede that, but the majority leader hasn't moved that we 
have a vote on him. He has been reported since May; he has been sitting 
here since May. The majority leader could have been brought him up.
  There is a lady nominated for the Environmental Protection Agency. 
Bring up her nomination. Let's vote on it. There are a couple of other 
controversial nominations, but all we have to do is vote--except on 
these unconstitutional nominees.
  What do we do about them? Let's make clear what happened to the 
National Labor Relations Board. In December of 2011 the President sends 
us two nominees to the National Labor Relations Board. This is the way 
it is supposed to happen. Their papers then come over to the Health, 
Education, Labor and Pensions Committee. Senator Hatch used to chair 
that. I am on that committee now as a ranking member. Before the papers 
from the White House even get to the committee, the President recess-
appoints them. In other words, he used his power to appoint these 
persons to the NLRB during a recess when the Senate was in session. How 
do we know it was in session? It was in session, in a pro forma 
session, which is a device invented by the majority leader, Senator 
Reid, when George W. Bush was President to keep President Bush from 
making recess appointments.
  President Bush didn't like that, these 3-day pro forma sessions, but 
he respected it.
  He said: Our Founders didn't want a king. They created separation of 
powers. That means checks and balances. I am the President, but I can't 
do everything. There is Congress over here, and there is a bill of 
rights over here.
  President Bush said: I don't like what Senator Reid did. He created 
these pro forma sessions so I can't make a recess appointment, but I 
will respect that.
  Senator Reid has a pro forma session when President Obama is in, and 
President Obama doesn't respect it and appoints two people. They are 
still there. The Court of Appeals for the District of Columbia has 
ruled that unconstitutional, as has the Third Circuit Court of 
Appeals--two of the highest courts in the land--and they are still 
there. They are still there making cases unconstitutionally. They have 
decided 1,031 cases, all of which will be subject to being vacated if 
the Supreme Court agrees with the Federal courts. We cannot ignore that 
in the Senate if we wish to preserve the principle of checks and 
balances in the United States.
  I mentioned at the beginning that I like to read history. I said this 
on the Senate floor, and I will read it again and then conclude because 
I know other Senators are here.
  I was reading Jon Meacham's book about Thomas Jefferson, which I 
mentioned, and John Adams and Jefferson and how changing the Senate, 
not changing the rules--but if you change the Senate rules in this way, 
that means that the majority, on any day, any year, could come through 
and do anything it wants do.
  They might decide: We don't like the gas in North Dakota, or we don't 
like the corn in Tennessee. So we are going to change the rules so we 
can have an advantage that 51 of us can do something about.
  They could do that any day. Do it now; do it then.
  I mentioned that history. I mentioned de Tocqueville's history. But 
here is the last piece of history I will mention once more. This is 
chapter 7 of Senator Reid's book in 2007. Chapter 7 is entitled ``The 
Nuclear Option.'' I had just come to the Senate. He talks about me in 
this chapter and gives me some credit for the gang that was formed to 
preserve the Senate at the time when another majority leader was trying 
to change the character of the Senate.
  I see the distinguished majority leader, so I will defer to his 
comments. Maybe it is appropriate for me to read them. Senator Reid 
wrote in 2007:

       Peaceable and productive are not two words I would use to 
     describe Washington in 2005.
       I just couldn't believe that Bill Frist was going to do 
     this.
       The storm had been gathering all year, and word from 
     conservative columnists and in conservative circles was that 
     Senator Frist of Tennessee, who was the majority leader, had 
     decided to pursue a rules change that would kill the 
     filibuster for judicial nominations.

  This is Senator Reid's book. It is an excellent book, and I 
appreciate being mentioned in it.
  Senator Reid continues:

       And once you opened that Pandora's box, it was just a 
     matter of time before a Senate leader who couldn't get his 
     way on something moved to eliminate the filibuster for 
     regular business as well. And that, simply put, would be the 
     end of the United States Senate.

  I believe that. I believe it would be. It is not a mere rules change. 
Anytime this body changes its rules in the middle of a session without 
following the 67-vote rules cloture requirement, anytime it does that, 
it doesn't matter what it is for, it could do it again for a matter of 
precedent. If it does it for judicial nominations, the importance of 
the change is not whether it is a good idea to have an up-or-down vote 
on judicial nominations, the importance of the change is that with 51 
votes you can do anything you want at any time. That, in de 
Tocqueville's words, in his foresight and his prescience in the 1830s, 
takes away from the people of the United States their greatest 
protection of their liberties because it encourages the tyranny of the 
majority.
  I yield the floor.
  The PRESIDING OFFICER. The assistant majority leader.
  Mr. DURBIN. Madam President, I have great respect for the Senator 
from Tennessee. He is my friend. We have worked together successfully 
and I hope we will in the future, but I would take exception to his 
conclusions about the current status of the Senate.
  I have been in the Senate--now my 17th year. I have seen this 
institution change dramatically--dramatically--in 17 years. We have 
faced more gridlock, more wasted time than I ever imagined could occur 
in this great institution. It has become commonplace for us to face 
filibuster after filibuster after filibuster.
  People at home who would turn on C-SPAN to watch the Senate Chamber 
would have to get close to their television screens and look to see if 
there was any evidence of life on the floor of the Senate. Are those 
people actually moving? Are they awake? We go on for 30 hours at a time 
doing nothing around here. Why? Because we are facing a record number 
of filibusters from the other side of the aisle.
  Time and again, when we have important issues come up, they ground to 
a halt for 30-hour periods of time. We are lucky to do one or two 
things of substance a week. Oh, there are exceptions. A couple weeks 
ago we did an immigration bill. I thought it was one of our better 
moments. But it was a rare moment in the Senate.

[[Page 11282]]

  Too often now we are facing filibusters on the President's nominees. 
Make no mistake, President Barack Obama won the election on November 6 
last year. Some on the other side of the aisle are in complete denial 
of that reality. Winning that election, this President has a 
responsibility to lead this Nation. He wants to put together a team to 
lead. He brings the names to the Senate for confirmation, but time and 
again they are facing filibusters from the Republican side of the 
aisle.
  There is one that even precedes the last election. Richard Cordray, 
who was Attorney General of the State of Ohio--an extraordinarily 
gifted public servant--was chosen by President Obama to head up the 
Consumer Financial Protection Bureau. This is the only consumer 
protection bureau in the Federal Government. It is an important agency. 
We created it with the Dodd-Frank financial disclosure reform bill. For 
more than 2 years--more than 2 years--Mr. Cordray's nomination has been 
held on the floor of the Senate by the Republican minority. That is 
unacceptable and it is fundamentally unfair.
  No one has ever raised a question about this nominee's competence or 
about his integrity. Yet they will not approve him because they do not 
like the notion of a consumer protection agency. That is it. So to stop 
the agency from functioning they are going to stop this appointment by 
President Obama--for 2 years.
  The National Labor Relations Board sits down in judgment of labor 
practices across America for the safety of our workers, the 
organization of workers. It is an important agency. But in the words of 
former Senator Dale Bumpers, there are some on the other side of the 
aisle who hate the National Labor Relations Board like the Devil hates 
holy water. They do not want to see it exist, but they can't abolish 
it. They know that. So they stop it from having a functioning majority. 
They stop nominees the President submits to fill the vacancies at the 
National Labor Relations Board time and time again.
  The same thing is true when it comes to the Bureau of Alcohol, 
Tobacco, Firearms and Explosives as well. This is an agency opposed by 
many in the gun lobby. So since the time we have said that agency shall 
be filled by senatorial appointment, there has never ever been a person 
appointed.
  It is the approach of those on the other side of the aisle to stop 
agencies from doing their work. This has to come to an end. I don't 
want to see this happen in the Senate, this confrontation over rules, 
but I don't want to see the current situation continue either.
  Earlier this year Senator Harry Reid, the majority leader from 
Nevada, met with the Republican leaders, sat down and worked out a 
bipartisan agreement to avoid what we are facing right now. He was 
criticized by many Democrats who said: Come on, Harry, they are just 
leading you along; they are not going to work with you. You will find 
out, if you don't change the rules of the Senate, you are not going to 
get the job done.
  But Harry Reid said: I would rather try to do it on a bipartisan 
basis by agreement. He made that effort, and it didn't work. Today we 
find ourselves in the situation with key executive appointments being 
stalled and held up.
  Listen to this: Gina McCarthy was nominated by President Obama to 
head the Environmental Protection Agency. What is her background? Her 
background was serving as head of the EPA in the Commonwealth of 
Massachusetts--the State of the Presiding Officer--under Governor 
Romney. She was Governor Romney's cabinet official for the EPA in 
Massachusetts. She not only has credentials, she is clearly bipartisan 
in her approach. So her name came before the regular Senate process. 
What did the other side do? They submitted a few questions for her to 
answer. No, not just a few, they broke all Senate records. They gave 
her a list of 1,100 questions to answer before they would consider her 
nomination. That is what we are up against--clear tactics to delay and 
stall even good people from serving, holds on nominees that go on 
indefinitely. These sorts of things have to come to an end. If we are 
going to end the obstruction in this Senate, if we are going to give to 
the President the power and the authority to lead this Nation, as he 
was elected to do, the Senate can no longer stand as a blockade and 
obstruction to that exercise of authority granted to the President by 
the people of the United States of America. That is what this is about.
  A number of my Republican colleagues have reached out to me in the 
last few days saying: Is there a way to avoid this? There is. There is. 
If we come to the point where we can sit down and work this out 
together, resolve these nominees, all the better. It would be a good 
day for the Senate if it could be achieved. But the notion we are going 
to walk away from these Presidential nominees or other key nominees in 
the future isn't fair. I invite my Republican colleagues to vote no if 
they disapprove of the President's nominees. That is their right and it 
is their duty. But to stop the Senate from even coming to a vote on 
these nominees has gone on for way too long.
  I urge my colleagues to try to find some way to resolve this issue. 
But if we can't, let's end the obstruction in the Senate and make sure 
the rules reflect the reality that a President should have the 
executive appointments he needs to lead this Nation.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Warren). The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. CORNYN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Madam President, I know we have been talking about the 
nominations process here on the floor and in caucus meetings, but I 
think it is worth reviewing the facts and comparing President Obama's 
nominees to how nominees of President Clinton and President George W. 
Bush have been treated, because I think there is broad 
misunderstanding. And, of course, when you don't know what the facts 
are--or the facts you truly believe in are wrong--then you are going to 
reach the wrong conclusion.
  I think a fair look at the facts will demonstrate that President 
Obama and his nominees have been treated more than fairly. As a matter 
of fact, 1,560 nominees of President Obama have been confirmed during 
the 4\1/2\ years he has been President, and 4 have been rejected. That 
is not a bad ratio, 1,560 
to 4.
  When you start looking at how long it has taken for the President's 
Cabinet nominees to be confirmed, President Obama's Cabinet nominees 
have waited, on average, about 51 days from the time they were 
nominated until the time they were confirmed. For President George W. 
Bush it was 52 days, and for President Bill Clinton it was 55 days. So 
certainly President Obama has nothing to complain about, at least 
relative to President George W. Bush and President Clinton in terms of 
the amount of time it has taken for his nominees to be voted on by the 
Senate.
  As far as judges are concerned, there have been 199 of President 
Obama's nominees confirmed to the U.S. District Court; only 2 of them 
have been defeated. That is a 99-percent success rate, which I think is 
pretty good in anybody's book.
  President Obama has had 28 judges at the district court, circuit 
court, and other article III courts, so 28 for President Obama and 10 
for President George W. Bush at this same point in their Presidency.
  Someone once said that facts are stubborn. But if you acknowledge the 
facts, it is hard for me to understand where this sense of outrage and 
urgency comes from with regard to the President's nominees.
  Indeed, the renewed sense of urgency of our colleagues across the 
aisle to change the longstanding rules of the Senate is based either on 
a misunderstanding of the facts or--I am sorry to say--willful 
ignorance is the only other alternative.
  So this is a manufactured crisis with no grounding in objective 
reality. That is about the nicest way I can say it. The facts show that 
President Obama's

[[Page 11283]]

nominees have moved through the Senate at a pace quicker than his 
predecessors.
  So what about the nominees to the National Labor Relations Board? 
These are a special case, because the Circuit Court of Appeals in the 
District of Columbia found that the President exceeded his 
constitutional authority to make an appointment to these NLRB positions 
in a reported opinion from the court. But--this is important--it wasn't 
because Congress or the Senate denied the President his choice for 
these NLRB appointees. In fact, the President nominated them on 
December 15, 2011, right before Christmas. So the President nominates 
them right before Christmas, on December 15, 2011, and the President 
recess-appointed these same nominees on January 4, 2012.
  What was so astonishing about that is the paperwork for the 
nominations hadn't even made its way over to the Senate, and the 
committee of jurisdiction had not even had an opportunity to have a 
hearing on these nominees. But in spite of that, the President sought 
to circumvent the advice and consent function for the Senate that is 
written in the U.S. Constitution and make what he called a recess 
appointment.
  Another notable fact about that is the President himself decided--not 
the Senate--when we were in recess, leaving the Court of Appeals, when 
they reviewed this recess appointment and holding it unconstitutional, 
to say there is no real difference between what the President did in 
terms of determining the Senate was in recess and deciding to do it 
while we were breaking for lunch, and held that it was not 
constitutional. So Senators were not even given a chance to review his 
nominees to the National Labor Relations Board, much less block them.
  After the court ruled these appointments unconstitutional, the 
President renominated them this past February. They were reported out 
of the committee in May, and due to the inaction of the majority 
leader--who is essentially the traffic cop for the Senate floor--they 
haven't even been put up for a vote by the majority leader.
  This is another important fact that I think most people don't fully 
appreciate. If I wanted to propose a nominee, I wouldn't have any 
standing to do so. It is the majority leader of the Senate, 
representing the majority party, who is the one who determines when 
these nominees will come up for a vote. So to say that somehow it is 
the minority's fault these individuals haven't been put up for a vote 
completely distorts how the Senate operates and is a disingenuous 
approach, to say the least.
  We should recall that Republicans and Democrats came to a genuine 
compromise on the matter of nominations at the beginning of this 
Congress and a deal was struck: In exchange for Republican support, the 
majority leader gave his word here on the Senate floor that he would 
not attempt to change the Senate rules other than through regular 
order.
  What that means, as the distinguished Senator from Kansas, the 
ranking member of the Rules Committee, knows, is going through the 
Rules Committee and coming to the floor, with 67 votes, to change the 
Standing Rules of the U.S. Senate. So the majority leader gave his word 
that he would not try to invoke the so-called nuclear option--which we 
are now threatened with--but would, rather, seek to change the rules 
through the regular order, which would require 67 votes on the Senate 
floor.
  As it turns out, Senator Reid is apparently willing to go back on his 
word and is now poised to break the rules of the Senate in order to get 
his way, in order to change the rules.
  We have questioned many of our colleagues about, Why would there be 
such an extraordinary power grab and breaking of one's word when it 
comes to how the rules changed, and wondered, what is the rationale for 
this?
  When we have gone through the same facts I described earlier, which 
show President Obama's nominees have been treated at least as fairly--
or even more fairly, one could argue--than President Clinton and 
President George W. Bush, our Democratic colleagues have said, Well, 
this is a narrow, modest change that would only apply to nominees to 
positions in this administration.
  That is not the way the Senate works. If you break the rules in order 
to change the rules, in this instance, there is a slippery slope, to 
say the least, to extend this same practice not only to executive 
nominations but also to Federal judges and to ordinary legislation, 
which would allow the tyranny of the majority and deny the minority an 
opportunity to influence ordinary legislation or to make sure its voice 
was heard when it comes to nominees. So the argument that this is some 
sort of a narrow fix designed to break some imaginary logjam with 
regard to this administration's executive nominees is false.
  The fact is, if the majority leader goes through with this nuclear 
option, as it is called, he will have set a new precedent in the 
Senate--one that says it is permissible to break the rules of the 
Senate at any point simply to get your own way, if the majority has the 
gumption to do it.
  I hope the majority leader is aware of the magnitude of this 
decision. Even more importantly than that, I hope Members of the 
Democratic caucus understand what this means.
  I have been here long enough to have been in the majority and the 
minority. I can tell you that being in the majority is a lot more fun. 
But I can also tell you that majorities and minorities are fleeting. 
The shoe will be on the other foot. It is simply shortsighted and, I 
believe, an abuse of our process to try to jam these nominees through 
based on some manufactured and imaginary crisis and change the Senate 
as we know it forever.
  I hope the majority leader understands the consequences will forever 
alter the nature of this institution--and not one based on just the 
rules but based on the relationships that are so important to getting 
anything done here.
  We all understand the rules are important. But fundamentally, the way 
the Senate operates--regardless of whether Republican or Democratic, 
regardless of where we come from--is your word is your bond. We have to 
be able to believe it. No matter what their political differences may 
be, when colleagues across the aisle give their word, you have to be 
able to depend on it. And if we can't depend on your word and we can't 
depend on the majority leader's word when he said he won't invoke the 
nuclear option, it forever undermines the important relationship and 
bonds of trust and confidence we should be able to have in this 
institution.
  Just to go over a few other short points:
  According to the Congressional Research Service, the Senate is 
considering President Obama's executive nominations faster than any 
other recent President. I talked about that recently. But here are some 
of the President's Cabinet nominees who have been confirmed recently:
  The Energy Secretary, confirmed 97-0. The only reason we had to vote 
on it is because the majority leader finally decided to put that 
nomination on the floor. It was unanimous, 97-0. Everybody who was here 
voted in favor of that nomination.
  The Secretary of Interior was 87-11; Secretary of Treasury, Jack Lew, 
71-26; the Office of Management and Budget, 96-0; Secretary of State 
John Kerry was confirmed 94-3--and he was confirmed only 7 days after 
the Senate got his nomination; the Administrator for the Centers of 
Medicare and Medicaid Services was confirmed 91-7; the Chair of the 
Securities and Exchange Commission was confirmed by voice vote. There 
wasn't even a recorded vote. That is essentially a unanimous decision 
of the Senate; Secretary of Transportation, 100-0; Secretary of 
Commerce, 97-1.
  It is worth recalling some of the words that were spoken by different 
Members of the Senate, because this is the kind of thing that will come 
back to haunt you if you flip-flop and take a different position later 
on.
  This is Senator Harry Reid, December 8, 2006:

       As majority leader, I intend to run the Senate with respect 
     for the rules and for the

[[Page 11284]]

     minority rights the rules protect. The Senate was established 
     to make sure that minorities are protected. Majorities can 
     always protect themselves, but minorities cannot. That is 
     what the Senate is all about.

  Then there is the majority whip Senator Durbin. This is April 15, 
2005:

       Those who would attack and destroy the institution of the 
     filibuster are attacking the very force within the Senate 
     that creates compromise and bipartisanship.

  Well, if that is true--and I agree it is true--why in the world would 
any Senator vote to destroy the very force within the Senate that 
creates compromise and bipartisanship, particularly when we are making 
decisions here that affect 319 million Americans.
  Then there is the President of the United States when he was in the 
Senate, April 13, 2005. Then-Senator Barack Obama said:

       If the majority chooses to end the filibuster, if they 
     choose to change the rules and put an end to the democratic 
     debate, then the fighting, the bitterness, and the gridlock 
     will only get worse.

  I realize we are passionate about our positions on the various issues 
that come before the Senate, and that is entirely appropriate. We all 
have convictions about these important issues. But this is the only 
place perhaps left in the country, I believe, where we can actually 
debate these in an open and responsible way and be held accountable by 
the people who send us here--in my case, 26 million Texans.
  But if we are willing to engage in this sort of shifty behavior, if 
we are willing to break our word in order to get momentary political 
advantage, then I think the public's confidence in the Senate is going 
to be completely undermined, and we will have lost our effectiveness. 
Also, perhaps just as significantly, the very bonds of trust that are 
so important in order to get things done around here will have been 
broken.
  For what? For a temporary advantage over five or six or seven 
executive nominees. I daresay if Senator Reid had put these nominations 
on the floor, we would have seen the vast majority of them confirmed a 
long time ago. The only reason they were not is because he chose not to 
do so. What he has done is to put them on the floor now, in this period 
of time before the August recess, to create a manufactured crisis so he 
can then invoke the nuclear option and somehow convince Members of his 
own caucus that they ought to be party to breaking the Senate rules in 
order to gain temporary advantage. It is incredibly shortsighted, and I 
think it will exacerbate the gridlock and the divisions here rather 
than help us try to find ways to build consensus and work together in 
the best interests of the American people.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. ROBERTS. Madam President, thank you for being able to maintain 
order in this very crowded Chamber.
  It should be a crowded Chamber. It is not. I say it should be because 
this should be a required debate. As a matter of fact, we should have 
had the debate.
  I am the ranking member of the Senate Rules Committee. The 
distinguished Senator from Texas just pointed out if we went to regular 
order, we would be having a meeting of the Rules Committee, having a 
very interesting debate, a very educational debate. I think especially 
for the class of 2010 and the class of 2012 on the majority side, who 
did not have the advantage of listening to Bob Byrd's lecture to every 
class that came in, his sermon to every class that came in--we all 
became born again to our responsibilities as Senators, seeing the light 
with only his advantage of being both in the majority and the minority. 
I regret that is not the case. I regret we are not in the Rules 
Committee.
  I rise, like the distinguished Senator from Texas and others who have 
spoken about this, our leader, Senator Alexander in particular, giving 
us a real history on what is going on here or what is not going on. We 
are trying to discuss the so-called nuclear option that the majority 
leader reportedly wishes to employ.
  We are apparently brought to this point as a result of the leader's 
frustration. I was here when, obviously, he was simply frustrated with 
the pace of the Senate and how the Senate operates. This really comes 
down to the NLRB and the appointments to the NLRB and the fact that two 
courts found these appointments were illegal. That is what our side 
objects to. It is not especially to the appointments.
  Apparently, we are going to have a cloture vote on it, and apparently 
the nuclear gun is cocked and ready to be pulled. There is a country 
western song, ``Don't take your guns to town, son. Leave your guns at 
home.'' Harry, don't take that nuclear gun to this body. Take it back 
to Searchlight, NV. Put it back in its holster if in fact the nuclear 
gun has a holster. That would be my advice.
  I would say this about the majority leader. I have known him for a 
long time. We worked together on the Ethics Committee--and I mean we 
worked together. As majority leader I have had a good relationship with 
him. He has a good sense of humor. Sometimes that doesn't show, but he 
actually does.
  I remember one time he was conducting a mini-filibuster. I don't 
remember the issue. I was the Acting Presiding Officer. I was listening 
to him talking about how rabbits were eating the cactus in front of his 
home in Searchlight, NV; whereupon I took the floor and we engaged in 
quite a colloquy about rabbits and cactus and not to sit on cactus. 
There are a lot of cactus in the world.
  This is probably the biggest one we are attempting to sit on, and I 
just don't think it is a good idea.
  The majority leader was a boxer. He was a good one. His hero is 
Smokin' Joe, Smokin' Joe Frazier. So when I talk to him, I call him 
Smokin' Joe. My appeal to him, if he is listening--he probably isn't, 
but if he reads about this, or if his staff tells him, tell him your 
old friend from the Ethics Committee had some advice. Smokin' Joe used 
to wait until the late rounds. He was in better shape. But he knew when 
to hold them and when to fold them. He was a great champion.
  We do not need to go down this road. We really don't need to go down 
this road. Apparently, the majority leader has determined that--and 
this is my view--he will have to destroy the Senate in order to save 
it.
  Those are pretty strong words. Those are harsh words, but I intend 
them to be. We should not be confused about this. By breaking the rules 
to change the rules the majority seeks to destroy what has made the 
Senate great, unique in the history of the world. I am repeating the 
advice we all got from Senator Byrd, the institutional flame of the 
Senate. Again, every time a new class came in, he would give his sermon 
or his lecture or his advice or his counsel, and we all took it, 
regardless of whether we were Democrat or Republican.
  The Senate has always been the one place where all Americans could be 
assured they would have a voice. Every American, no matter what State 
they happened to live in or what political party they belonged to, knew 
they would be represented here. Kansas, Massachusetts, wherever; they 
knew they would be represented. Minority views were respected. Even if 
your party was not in power, you still had a voice.
  Unfortunately, if you pull that trigger on that nuclear gun, the 
majority will abolish that. If you take that step, that is surely going 
to lead to complete control of this institution by the majority. That 
has been predicted by virtually everybody who has spoken, and I intend 
to quote a lot of majority leaders and a lot of people in the Senate on 
the Democratic side who have pointed this out.
  I know some on the other side, especially those who have never been 
in the minority, will seek to minimize the import of what they are 
doing. Oh, it is just a small change. They will claim what they are 
trying to do is very limited, applying only to executive nominations.
  I wish I had a chart. But if you look at the difference of 68 percent 
on civilian nominations that were confirmed in past administrations in 
the 106th Congress, and you are talking, 68, 72, in

[[Page 11285]]

that neighborhood, and then you move clear up here to the 112th 
Congress, and President Obama is 82 percent, 86 percent--what is the 
deal? Other than being upset about the NLRB.
  Make no mistake. The change itself will be less important than the 
manner in which it is imposed. Let me repeat that. The change itself 
will be less important than the manner in which it is imposed. If the 
majority decides to write new rules with a simple majority vote, 
regardless of the issue, ignoring the existing rules that require a 
supermajority to achieve such a change, it will put us on a path that 
will surely lead to total control of this body by the majority.
  As of today there is only one House of Congress where the majority 
has total control. The majority wishes, apparently, now, there were 
two--or there will be two.
  We do not have to wonder what the Senate will become if they get 
their wish. We only need to look to the House of Representatives. We 
will become the Senior House. I don't know about the Upper House or the 
Lower House--perhaps we will be the Upper House--but we will become the 
House.
  I know that doesn't mean much to many of my colleagues who have never 
been in the minority or served in the House. I served as an 
administrative assistant to a wonderful House Member for 12 years and 
was in the House for 16 years. I have the privilege of now serving my 
third term in the Senate. I have been in the majority and I have been 
in the minority. The Senator from Texas is surely right, the majority 
is better.
  Many of you folks who should be here have never served in the House. 
Many of you have never served in the minority. I have done both, as I 
have indicated. Let me explain what it means to serve in the minority 
in the House to those who have never had this wonderful privilege.
  In the House, no bill comes to the floor without a rule. The rule 
governs the length of debate and the amendments that will be 
considered. If you want to even speak on the bill, you have to get the 
bill manager to give you some of the very limited time available under 
the rule. If there is not enough time, you will not be able to even 
speak on it.
  The majority in the House writes the rule, and they decide how much 
time they will allow. The rule also determines what amendments will be 
considered. If the rule does not allow for consideration of your 
amendment it will not be considered, it will not be debated, and it 
will not be voted on. The majority in the House decides what amendments 
will be considered.
  If you are a member of the majority, they might allow consideration 
of your amendment--if you are in good standing with the Rules 
Committee. If you are a member of the minority, you can forget about 
getting a vote on your amendment. If the majority does not want to 
allow it, it will not happen. As a member of the minority there is 
nothing that you can do about it.
  I know about this. I remember when I first went to the House Rules 
Committee under a very determined, aggressive chairman of the Rules 
Committee. I had an amendment that I thought was well placed, well 
taken, pertinent. It was on agriculture. It was on something that dealt 
with the farm bill or agricultural program policy. But I was a 
Republican. I went in and I thought this amendment would be considered 
under parliamentary procedure whether it would be germane or not. Guess 
what. It was just a rehash of a partisan debate because it was not 
bipartisan. We had a lot of bipartisan support for it.
  So my amendment was not allowed. Then I figured it out. Charlie 
Stenholm was from Texas--well, he still is from Texas and he is still 
active in the agriculture community. Very active, very respected. 
Charlie wanted the same amendment. So I finally figured out, let 
Stenholm introduce my amendment, but don't tell them it is my 
amendment.
  So Stenholm introduced my amendment and then as soon as it was 
approved by the House Rules Committee, then it became the Stenholm-
Roberts amendment. If it passed, obviously, it became the Roberts-
Stenholm amendment in Kansas and the Stenholm-Roberts amendment in 
Texas, and that is how we got things done. So we had the Stenholm-
Roberts for quite a few years. I never went into the Rules Committee 
because if I did I knew I would lose. Boy, talk about one-party rule.
  We don't want to do that. Guess what. We had a revolution back in 
1994. I became chairman of the Agriculture Committee. All of a sudden 
the Stenholm-Roberts amendment became the Roberts-Stenholm amendment, 
and that is how it worked in the House of Representatives.
  I don't think we want to do that. It is precisely for this reason 
that many Members of the House choose to run for the Senate. That is 
why I did it. The Senate is supposed to be different. Here, if you want 
to be heard on a bill, it will happen. We haven't been living up to 
that recently, but that is how the place is supposed to work. In the 
Senate the Senator's right to speak is not supposed to depend on the 
whim of the majority. Now it is on a whim and a prayer. That is why 
people run for the Senate. That is what has distinguished this body 
from the House since we first convened in 1789.
  The majority, unfortunately, wants to erase that distinction. It 
wants to assure that Members do not have any rights beyond those which 
the majority is willing to grant.
  You don't have to take my word for it. The distinguished majority 
leader--whom I affectionately call Smokin' Joe--himself has recognized 
this. As my colleague, Senator Alexander, from that desk right over 
there, has previously noted, Senator Reid addressed this topic in his 
book--how appropriate--``The Good Fight,'' from a boxer and now our 
majority leader. Senator Reid wrote about the battle over the nuclear 
option in 2005. Things were a little different. This is what he wrote:

       Once you opened that Pandora's box, it was just a matter of 
     time before a Senate leader who couldn't get his way on 
     something moved to eliminate the filibuster for regular 
     business as well. And that, simply put, would be the end of 
     the United States Senate.

  The end of the United States Senate.
  The distinguished majority leader said:

       It is the genius of the Founders that they conceived the 
     Senate as a solution to the small state/big state problem. 
     And central to that solution was the protection of the rights 
     of the minority. A filibuster is the minority's way of not 
     allowing the majority to shut off debate, and without robust 
     debate, the Senate is crippled.

  Senator Reid went on to say:

       Such a move would transform the body into an institution 
     that looked just like the House of Representatives where 
     everything passes with a simple majority.

  Senator Reid also wrote:

     there will come a time when we will all be gone, and the 
     institutions that we now serve will be run by men and women 
     not yet living, and those institutions will either function 
     well because we've taken care of them, or they will be in 
     disarray and someone else's problem to solve.

  Boy, that is pretty heavy stuff; that is meaningful. That is 
something everybody here should consider.
  He described the nuclear option this way at that time:

       In a fit of partisan fury--

  I am not quite sure we are there yet. I would say it is more of a 
partisan frustration.

     they were trying to blow up the Senate. Senate rules can only 
     be changed by a two-thirds vote of the Senate, or sixty-seven 
     Senators. The Republicans were going to do it illegally with 
     a simple majority, or fifty-one. Vice President Cheney was 
     prepared to overrule the Senate parliamentarian. Future 
     generations be damned.

  Do you think the Senator was upset then? He was upset then a heck of 
a lot more than he was this morning. If only the majority leader would 
recall his own words.
  The Vice President also recognized the damage this would do. This is 
what Vice President Biden said on the floor when he was still a Member 
of this body. This is important stuff. We all know Joe Biden. We are 
all a friend of Joe Biden. He is the Vice President of the United 
States. When he was a Senator he said something very important:

       Put simply, the nuclear option would transform the Senate 
     from the so-called

[[Page 11286]]

     cooling saucer our Founding Fathers talked about to cool the 
     passions of the day to a pure majoritarian body like a 
     Parliament.
       Republicans control the Senate, and they have decided they 
     are going to change the rule. At its core, the filibuster is 
     not about stopping a nominee or a bill, it is about 
     compromise and moderation. That is why the Founders put 
     unlimited debate in. When you have to--and I never conducted 
     a filibuster--but if I did, the purpose would be that you 
     have to deal with me as one Senator. It does not mean I get 
     my way. It means you may have to compromise. You may have to 
     see my side of the argument. That is what it is it about, 
     engendering compromise in moderation.

  Joe Biden went on to say:

       If there is one thing I have learned in my years here, once 
     you change the rules and surrender the Senate's institutional 
     power, you never get it back.

  Folks, we are about to break the rules to change the rules.
  He went on to say:

       The nuclear option abandons America's sense of fair play. 
     It is the one thing this country stands for: Not tilting the 
     playing field on the side of those who control and own the 
     field.

  Then he said to the Republican side of the aisle, which was then in 
the majority:

       I say to my friends on the Republican side: You may own the 
     field right now, but you won't own it forever. I pray God 
     when the Democrats take back control, we don't make the kind 
     of naked power grab you are doing. But I am afraid you will 
     teach my new colleagues the wrong lessons.
       We are only in the Senate as temporary custodians of the 
     Senate. The Senate will go on. Mark my words, history will 
     judge this Republican majority harshly, if it makes this 
     catastrophic move.

  I hope the Vice President will listen to his own prayers. We don't 
need any divine intervention here, but maybe he can share his concerns 
with the majority leader. It could help us avert a real catastrophe.
  The majority leader and the Vice President are not the only people 
who recognize the damage that would be done by triggering the so-called 
nuclear option. Our former Parliamentarian, named Bob Dove--a man whose 
advice I sought when I had the privilege of being the acting Presiding 
Officer--and Richard Arenberg, a professor and one-time aide to former 
majority leader George Mitchell, wrote a book on the subject, 
``Defending the Filibuster.''
  I know I am quoting a lot, but these are important issues. I hope 
they stick like a burr under your saddle so they make you stop and 
think about this. They wrote--

       If a 51-vote majority is empowered to rewrite the Senate's 
     rules, the day will come, as it did in the House of 
     Representatives, when a majority will construct rules that 
     give it near absolute control over amendments and debate. And 
     there is no going back from that. No majority in the House of 
     Representatives has or ever will voluntarily relinquish that 
     power in order to give the minority a greater voice in 
     crafting legislation.
       Do not be fooled by those who would try to minimize the 
     impact of what the majority is actually contemplating.

  The rule changes themselves are less important than the manner in 
which they will be imposed. Once the majority has decided it can set 
the rules, there is no limit to what the majority might do in the 
future. I hope you understand that. There are no constraints. The 
majority claims these changes are necessary to make the Senate 
function. If it decides further changes are needed, it will make them. 
The minority will have no voice, no say, no power, and that has never 
been the case in the Senate.
  Tragically, what the majority contemplates is at once both calamitous 
and totally unnecessary. The filibuster is a product of our 
dysfunction, not the source.
  I know many Members--and I have harped on this--do not even know what 
it is like to serve in a functioning Senate. They hardly know what it 
is like to operate under regular order where bills are referred to 
committee, amended, brought to the floor, debated, amended, and passed.
  This matter should be before the Rules Committee. We should have a 
complete hearing and then bring it to the floor. We averted this at the 
first of this year. I know people think the filibuster is to blame for 
this breakdown, but they are wrong. We don't operate under regular 
order here because the majority leadership doesn't want to. They have 
an agenda. I understand that.
  They have been trying to operate this place like the House of 
Representatives for years. They want to control debate and to control 
the amendments.
  I know a little bit about this. When we were talking about the farm 
bill last year, Senator Reid said: We can't do a farm bill in less than 
3 weeks. I said: We will do it in 3 days. Senator Stabenow and I worked 
very hard to get common agreement on the farm bill, but we did it. We 
needed regular order. We needed to open it up. We needed to give 
Senators here on our side a chance to at least offer amendments, and we 
did it. We had 73 amendments. We did it in 2\1/2\ days. We had regular 
order and people said: Gee, is this what the Senate used to be all 
about? And that was the case. So it can work.
  I know there are folks over there who think the filibuster is to 
blame for this breakdown, but they are wrong. Rather than give up that 
control, they have decided during the past 4 years--with the exception 
of a few bills I have just mentioned--I think they want to make it 
official. I think they would rather blow up the Senate rather than let 
it work its will.
  It will be a tragedy. They think it will save the Senate, but it will 
destroy it. That threat of destruction may not be obvious to some 
today, but it is real. If the nuclear option is deployed, one day it 
will become clear to all. And when that day comes and people wonder: 
What happened to the Senate? When did it die? We will know the answer. 
It died the day the nuclear option was triggered. That is what nuclear 
devices do--they destroy. This is not just a minor shot across the bow 
to be used only once. This is a mushroom cloud over the Capitol.
  Again, I urge the distinguished majority leader: Don't take your 
nuclear gun to town.
  Madam President, I ask unanimous consent to have the remarks by U.S. 
Senator Robert C. Byrd at the orientation of new Senators, December 3, 
1996, printed in the Record.
  I also ask unanimous consent that Senator Byrd's final speech before 
the Rules Committee called ``The Filibuster And Its Consequences'' be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Remarks by U.S. Senator Robert C. Byrd at the Orientation of New 
                       Senators, December 3, 1996

       Good afternoon and welcome to the United States Senate 
     Chamber. You are presently occupying what I consider to be 
     ``hallowed ground.'' You will shortly join the ranks of a 
     very select group of individuals who have been honored with 
     the title of United States Senator since 1789 when the Senate 
     first convened. The creator willing, you will be here for at 
     least six years. Make no mistake about it, the office of 
     United States Senator is the highest political calling in the 
     land. The Senate can remove from office Presidents, members 
     of the Federal judiciary, and other Federal officials but 
     only the Senate itself can expel a Senator.
       Let us listen for a moment to the words of James Madison on 
     the role of the Senate.
       ``These [reasons for establishing the Senate] were first to 
     protect the people against their rulers: secondly to protect 
     the people against the transient impression into which they 
     themselves might be led. [through their representatives in 
     the lower house] A people deliberating in a temperate moment, 
     and with the experience of other nations before them, on the 
     plan of government most likely to secure their happiness, 
     would first be aware, that those charged with the public 
     happiness, might betray their trust. An obvious precaution 
     against this danger would be to divide the trust between 
     different bodies of men, who might watch and check each 
     other. . . . It would next occur to such a people, that they 
     themselves were liable to temporary errors, through want of 
     information as to their true interest, and that men chosen 
     for a short term, [House members], . . . might err from the 
     same cause. This reflection would naturally suggest that the 
     Government be so constituted, as that one of its branches 
     might have an opportunity of acquiring a competent knowledge 
     of the public interests. Another reflection equally becoming 
     a people on such an occasion, would be that they themselves, 
     as well as a numerous body of Representatives, were liable to 
     err also, from fickleness and passion. A necessary fence 
     against this danger would be to select a portion of 
     enlightened citizens,

[[Page 11287]]

     whose limited number, and firmness might seasonably interpose 
     against impetuous councils, . . .''
       Ladies and gentlemen, you are shortly to become part of 
     that all important, ``necessary fence,'' which is the United 
     States Senate. Let me give you the words of Vice President 
     Aaron Burr upon his departure from the Senate in 1805. ``This 
     house,'' said he, ``is a sanctuary; a citadel of law, of 
     order, and of liberty; and it is here--it is here, in this 
     exalted refuge; here, if anywhere, will resistance be made to 
     the storms of political phrensy and the silent arts of 
     corruption; and if the Constitution be destined ever to 
     perish by the sacrilegious hand of the demagogue or the 
     usurper, which God avert, its expiring agonies will be 
     witnessed on this floor.'' Gladstone referred to the Senate 
     as ``that remarkable body--the most remarkable of all the 
     inventions of modern politics.''
       This is a very large class of new Senators. There are 
     fifteen of you. It has been sixteen years since the Senate 
     welcomed a larger group of new members. Since 1980, the 
     average size class of new members has been approximately ten. 
     Your backgrounds vary. Some of you may have served in the 
     Executive Branch. Some may have been staffers here on the 
     Hill. Some of you have never held federal office before. Over 
     half of you have had some service in the House of 
     Representatives.
       Let us clearly understand one thing. The Constitution's 
     Framers never intended for the Senate to function like the 
     House of Representatives. That fact is immediately apparent 
     when one considers the length of a Senate term and the 
     staggered nature of Senate terms. The Senate was intended to 
     be a continuing body. By subjecting only one-third of the 
     Senate's membership to reelection every two years, the 
     Constitution's Framers ensured that two-thirds of the 
     membership would always carry over from one Congress to the 
     next to give the Senate an enduring stability.
       The Senate and, therefore, Senators were intended to take 
     the long view and to be able to resist, if need be, the 
     passions of the often intemperate House. Few, if any, upper 
     chambers in the history of the western world have possessed 
     the Senate's absolute right to unlimited debate and to amend 
     or block legislation passed by a lower House.
       Looking back over a period of 208 years, it becomes obvious 
     that the Senate was intended to be significantly different 
     from the House in other ways as well. The Constitutional 
     Framers gave the Senate the unique executive powers of 
     providing advice and consent to presidential nominations and 
     to treaties, and the sole power to try and to remove 
     impeached officers of the government. In the case of 
     treaties, the Senate, with its longer terms, and its ability 
     to develop expertise through the device of being a continuing 
     body, has often performed invaluable service.
       I have said that as long as the Senate retains the power to 
     amend and the power of unlimited debate, the liberties of the 
     people will remain secure. The Senate was intended to be a 
     forum for open and free debate and for the protection of 
     political minorities. I have led the majority and I have led 
     the minority, and I can tell you that there is nothing that 
     makes one fully appreciate the Senate's special role as the 
     protector of minority interests like being in the minority. 
     Since the Republican Party was created in 1854, the Senate 
     has changed hands 14 times, so each party has had the 
     opportunity to appreciate first-hand the Senate's role as 
     guardian of minority rights. But, almost from its earliest 
     years the Senate has insisted upon its members' right to 
     virtually unlimited debate.
       When the Senate reluctantly adopted a cloture rule in 1917, 
     it made the closing of debate very difficult to achieve by 
     requiring a super majority and by permitting extended post-
     cloture debate. This deference to minority views sharply 
     distinguishes the Senate from the majoritarian House of 
     Representatives. The Framers recognized that a minority can 
     be right and that a majority can be wrong. They recognized 
     that the Senate should be a true deliberative body--a forum 
     in which to slow the passions of the House, hold them up to 
     the light, examine them, and, thru informed debate, educate 
     the public. The Senate is the proverbial saucer intended to 
     cool the cup of coffee from the House. It is the one place in 
     the whole government where the minority is guaranteed a 
     public airing of its views. Woodrow Wilson observed that the 
     Senate's informing function was as important as its 
     legislating function, and now, with televised Senate debate, 
     its informing function plays an even larger and more critical 
     role in the life of our nation.
       Many a mind has been changed by an impassioned plea from 
     the minority side. Important flaws in otherwise good 
     legislation have been detected by discerning minority members 
     engaged in thorough debate, and important compromise which 
     has worked to the great benefit of our nation has been forged 
     by an intransigent member determined to filibuster until his 
     views were accommodated or at least seriously considered.
       The Senate is often soundly castigated for its 
     inefficiency, but in fact, it was never intended to be 
     efficient. Its purpose was and is to examine, consider, 
     protect, and to be a totally independent source of wisdom and 
     judgment on the actions of the lower house and on the 
     executive. As such, the Senate is the central pillar of our 
     Constitutional system. I hope that you, as new members will 
     study the Senate in its institutional context because that is 
     the best way to understand your personal role as a United 
     States Senator. Your responsibilities are heavy. Understand 
     them, live up to them, and strive to take the long view as 
     you exercise your duties. This will not always be easy.
       The pressures on you will, at times, be enormous. You will 
     have to formulate policies, grapple with issues, serve the 
     constituents in your state, and cope with the media. A 
     Senator's attention today is fractured beyond belief. 
     Committee meetings, breaking news, fundraising, all of these 
     will demand your attention, not to mention personal and 
     family responsibilities. But, somehow, amidst all the noise 
     and confusion, you must find the time to reflect, to study, 
     to read, and, especially, to understand the absolutely 
     critically important institutional role of the Senate.
       May I suggest that you start by carefully reading the 
     Constitution and the Federalist papers. In a few weeks, you 
     will stand on the platform behind me and take an oath to 
     support and defend the Constitution of the United States 
     against all enemies, foreign and domestic; to bear true faith 
     and allegiance to the same; and take this obligation freely, 
     without any mental reservation or purpose of evasion; and to 
     well and faithfully discharge the duties of the office on 
     which you are about to enter: So help you God.
       Note especially the first 22 words, ``I do solemnly swear 
     that I will support and defend the Constitution of the United 
     States against all enemies foreign and domestic . . .'' In 
     order to live up to that solemn oath, one must clearly 
     understand the deliberately established inherent tensions 
     between the 3 branches, commonly called the checks and 
     balances, and separation of powers which the Framers so 
     carefully crafted. I carry a copy of the Constitution in my 
     shirt pocket. I have studied it carefully, read and reread 
     its articles, marveled at its genius, its beauty, its 
     symmetry, and its meticulous balance, and learned something 
     new each time that I partook of its timeless wisdom. Nothing 
     will help you to fully grasp the Senate's critical role in 
     the balance of powers like a thorough reading of the 
     Constitution and the Federalist papers.
       Now I would like to turn for a moment to the human side of 
     the Senate, the relationship among Senators, and the way that 
     even that faced of service here is, to a degree, governed by 
     the constitution and the Senate's rules. The requirement for 
     super majority votes in approving treaties, involving 
     cloture, removing impeached federal officers, and overriding 
     vetoes, plus the need for unanimous consent before the Senate 
     can even proceed in many instances, makes bipartisanship and 
     comity necessary if members wish to accomplish much of 
     anything. Realize this. The campaign is over. You are here to 
     be a Senator. Not much happens in this body without 
     cooperation between the two parties.
       In this now 208-year-old institution, the positions of 
     majority and minority leaders have existed for less than 80 
     years. Although the positions have evolved significantly 
     within the past half century, still, the only really 
     substantive prerogative the leaders possess is the right of 
     first recognition before any other member of their respective 
     parties who might wish to speak on the Senate Floor.
       Those of you who have served in the House will now have to 
     forget about such things as the Committee of the Whole, 
     closed rules, and germaneness, except when cloture has been 
     invoked, and become well acquainted with the workings of 
     unanimous consent agreements. Those of you who took the 
     trouble to learn Deschler's Procedure will now need to set 
     that aside and turn in earnest to Riddick's Senate Procedure.
       Senators can lose the Floor for transgressing the rules. 
     Personal attacks on other members or other blatantly 
     injudicious comments are unacceptable in the Senate. Again to 
     encourage a cooling of passions, and to promote a calm 
     examination of substance, Senators address each other through 
     the Presiding Officer and in the third person. Civility is 
     essential here for pragmatic reasons as well as for public 
     consumption. It is difficult to project the image of a 
     statesmanlike, intelligent, public servant, attempting to 
     inform the public and examine issues, if one is behaving and 
     speaking in a manner more appropriate to a pool room brawl 
     than to United States Senate debate. You will also find that 
     overly zealous attacks on other members or on their states 
     are always extremely counterproductive, and that you will 
     usually be repaid in kind.
       Let us strive for dignity. When you rise to speak on this 
     Senate Floor, you will be following in the tradition of such 
     men as Calhoun, Clay, and Webster. You will be standing in 
     the place of such Senators as Edmund Ross (KS) and Peter Van 
     Winkle (WEST VIRGINIA), 1868, who voted against their party 
     to save the institution of the presidency during the Andrew 
     Johnson impeachment trial.

[[Page 11288]]

       Debate on the Senate Floor demands thought, careful 
     preparation and some familiarity with Senate Rules if we are 
     to engage in thoughtful and informed debate. Additionally, 
     informed debate helps the American people have a better 
     understanding of the complicated problems which besiege them 
     in their own lives. Simply put, the Senate cannot inform 
     American citizens without extensive debate on those very 
     issues.
       We were not elected to raise money for our own reelections. 
     We were not elected to see how many press releases or TV 
     appearances we could stack up. We were not elected to set up 
     staff empires by serving on every committee in sight. We need 
     to concentrate, focus, debate, inform, and, I hope, engage 
     the public, and thereby forge consensus and direction. Once 
     we engage each other and the public intellectually, the tough 
     choices will be easier.
       I thank each of you for your time and attention and I 
     congratulate each of you on your selection to fill a seat in 
     this August body. Service in this body is a supreme honor. It 
     is also a burden and a serious responsibility. Members' lives 
     become open for inspection and are used as examples for other 
     citizens to emulate. A Senator must really be much more than 
     hardworking, much more than conscientious, much more than 
     dutiful. A Senator must reach for noble qualities--honor, 
     total dedication, self-discipline, extreme selflessness, 
     exemplary patriotism, sober judgment, and intellectual 
     honesty. The Senate is more important than any one or all of 
     us--more important than I am; more important than the 
     majority and minority leaders; more important than all 100 of 
     us; more important than all of the 1,843 men and women who 
     have served in this body since 1789. Each of us has a solemn 
     responsibility to remember that, and to remember it often.
       Let me leave you with the words of the last paragraph of 
     Volume II, of The Senate: 1789-1989: ``Originally consisting 
     of only twenty-two members, the Senate had grown to a 
     membership of ninety-eight by the time I was sworn in as a 
     new senator in January 1959. After two hundred years, it is 
     still the anchor of the Republic, the morning and evening 
     star in the American constitutional constellation. It has had 
     its giants and its little men, its Websters and its Bilbos, 
     its Calhouns and its McCarthys. It has been the stage of high 
     drama, of comedy and of tragedy, and its players have been 
     the great and the near-great, those who think they are great, 
     and those who will never be great. It has weathered the 
     storms of adversity, withstood the barbs of cynics and the 
     attacks of critics, and provided stability and strength to 
     the nation during periods of civil strife and uncertainty, 
     panics and depressions. In war and in peace, it has been the 
     sure refuge and protector of the rights of the states and of 
     a political minority. And, today, the Senate still stands--
     the great forum of constitutional American liberty!''
                                  ____


     May 19, 2010--Rules Committee Hearing, Senator Byrd's Opening 
           Statement, ``The Filibuster and Its Consequences''

       On September 30, 1788, Pennsylvania became the first state 
     to elect its United States senators, one of whom was William 
     Maclay. In his 1789 journal Senator Maclay wrote, ``I gave my 
     opinion in plain language that the confidence of the people 
     was departing from us, owing to our unreasonable delays. The 
     design of the Virginians and of the South Carolina gentlemen 
     was to talk away the time, so that we could not get the bill 
     passed.''
       Our Founding Fathers intended the Senate to be a continuing 
     body that allows for open and unlimited debate and the 
     protection of minority rights. Senators have understood this 
     since the Senate first convened. In his notes of the 
     Constitutional Convention on June 26, 1787, James Madison 
     recorded that the ends to be served by the Senate were 
     ``first, to protect the people against their rulers, 
     secondly, to protect the people against the transient 
     impressions into which they themselves might be led . . . 
     They themselves, as well as a numerous body of 
     Representatives, were liable to err also, from fickleness and 
     passion. A necessary fence against this danger would be to 
     select a portion of enlightened citizens, whose limited 
     number, and firmness might seasonably interpose against 
     impetuous councils.'' That ``fence'' was the United States 
     Senate. The right to filibuster anchors this necessary fence. 
     But it is not a right intended to be abused.
       During this 111th Congress in particular the minority has 
     threatened to filibuster almost every matter proposed for 
     Senate consideration. I find this tactic contrary to each 
     Senator's duty to act in good faith. I share the profound 
     frustration of my constituents and colleagues as we confront 
     this situation. The challenges before our nation are far too 
     grave, and too numerous, for the Senate to be rendered 
     impotent to address them, and yet be derided for inaction by 
     those causing the delay. There are many suggestions as to 
     what we should do. I know what we must not do. We must never, 
     ever, tear down the only wall--the necessary fence--this 
     nation has against the excesses of the Executive Branch and 
     the resultant haste and tyranny of the majority. The path to 
     solving our problem lies in our thoroughly understanding it. 
     Does the difficulty reside in the construct of our rules or 
     in the ease of circumventing them?
       A true filibuster is a fight, not a threat or a bluff. For 
     most of the Senate's history, Senators motivated to extend 
     debate had to hold the floor as long as they were physically 
     able. The Senate was either persuaded by the strength of 
     their arguments or unconvinced by either their commitment or 
     their stamina. True filibusters were therefore less frequent, 
     and more commonly discouraged, due to every Senator's 
     understanding that such undertakings required grueling 
     personal sacrifice, exhausting preparation, and a willingness 
     to be criticized for disrupting the nation's business.
       Now, unbelievably, just the whisper of opposition brings 
     the ``world's greatest deliberative body'' to a grinding 
     halt. Why? Because this once highly respected institution has 
     become overwhelmingly consumed by a fixation with money and 
     media. Gone are the days when Senators Richard Russell and 
     Lyndon Johnson, and Speaker Sam Rayburn gathered routinely 
     for working weekends and couldn't wait to get back to their 
     chambers on Monday morning. Now every Senator spends hours 
     every day, throughout the year and every year, raising funds 
     for reelection and appearing before cameras and microphones. 
     Now the Senate often works three-day weeks, with frequent and 
     extended recess periods, so Senators can rush home to 
     fundraisers scheduled months in advance.
       Forceful confrontation to a threat to filibuster is 
     undoubtedly the antidote to the malady. Most recently, Senate 
     Majority Leader Reid announced that the Senate would stay in 
     session around-the-clock and take all procedural steps 
     necessary to bring financial reform legislation before the 
     Senate. As preparations were made and cots rolled out, a deal 
     was struck within hours and the threat of filibuster was 
     withdrawn.
       I heartily commend the Majority Leader for this progress, 
     and I strongly caution my colleagues as some propose to alter 
     the rules to severely limit the ability of a minority to 
     conduct a filibuster. I know what it is to be Majority 
     Leader, and wake up on a Wednesday morning in November, and 
     find yourself a Minority Leader.
       I also know that current Senate Rules provide the means to 
     break a filibuster. I employed them in 1977 to end the post-
     cloture filibuster of natural gas deregulation legislation. 
     This was the roughest filibuster I have experienced during my 
     fifty-plus years in the Senate, and it produced the most-
     bitter feelings. Yet some important new precedents were 
     established in dealing with post-cloture obstruction. In 
     1987, I successfully used Rules 7 and 8 to make a non-
     debatable motion to proceed during the morning hour. No 
     leader has attempted this technique since, but this procedure 
     could be and should be used.
       Over the years, I have proposed a variety of improvements 
     to Senate Rules to achieve a more sensible balance allowing 
     the majority to function while still protecting minority 
     rights. For example, I have supported eliminating debate on 
     the motion to proceed to a matter (except for changes to 
     Senate rules), or limiting debate to a reasonable time on 
     such motions, with Senators retaining the right to unlimited 
     debate on the matter once before the Senate. I have authored 
     several other proposals in the past, and I look forward to 
     our committee work ahead as we carefully examine other 
     suggested changes. The Committee must, however, jealously 
     guard against efforts to change or reinterpret the Senate 
     rules by a simple majority, circumventing Rule XXII where a 
     two-thirds majority is required.
       As I have said before, the Senate has been the last 
     fortress of minority rights and freedom of speech in this 
     Republic for more than two centuries. I pray that Senators 
     will pause and reflect before ignoring that history and 
     tradition in favor of the political priority of the moment.

  I urge all Members of this wonderful body to read what Senator Byrd 
said and urged and counseled and advised. I know the new Members have 
not had this experience.
  When you first went in, you thought, my gosh, how long is this going 
to last? The man wrote a book about the Senate. As it turned out, we 
hung on every word and took his advice, and it is good advice. It is 
printed in the Record. Read it.
  The PRESIDING OFFICER. Without objection, the material will be placed 
in the Record.
  Mr. ROBERTS. We might have a heck of a test on it next week.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Madam President, I appreciate the comments of the Senator 
from Kansas. I am sure he will have to take a call from the Vice 
President to discuss his remarks on the floor. I appreciate the way in 
which he talked about all that has been said on the floor in the past 
by the Vice President, and President Obama, who was then a Senator, and 
the leaders here in the

[[Page 11289]]

Senate. We have had lots of statements on the floor and commitments 
made in the past. The majority leader has committed twice on the Senate 
floor not to use the nuclear option, with the last time being a few 
months ago. These were not conditional commitments. They were not 
commitments with caveats. They were not commitments to not violate the 
rules of the Senate unless it became convenient for political purposes 
to violate the rules of the Senate.
  As recently as January 27, 2011, the majority leader said, and I 
quote:

       I agree that the proper ways to change Senate rules is 
     through the procedures established in those rules, and I will 
     oppose any effort in this Congress or the next to change the 
     Senate's rules other than through the regular order.

  Earlier this year, on January 24, 2013, there was a discussion 
between the minority leader Senator McConnell and the majority leader 
Senator Reid. Senator McConnell said:

       I will confirm to the majority leader that the Senate would 
     not consider other resolutions relating to any standing order 
     or rules of this Congress unless they went through the 
     regular order process?

  He was posing a question to the majority leader.
  Majority Leader Reid said:

       That is correct. Any other resolutions related to Senate 
     procedure would be subject to a regular order process, 
     including consideration by the Rules Committee.

  That was January 24, 2013.
  What has happened since that point that would change the way the 
majority leader views this issue? Well, let's see. We confirmed the 
Secretary of Energy by a vote of 97-0. We confirmed the Secretary of 
Interior with a vote of 87-11. We confirmed the Secretary of the 
Treasury with a vote of 71-26. We confirmed the Secretary of State 94-
3. I might add in that case, that vote happened just 7 days after the 
Senate got his nomination. We confirmed the Secretary of Commerce 97-1. 
We confirmed the Secretary of Transportation 100-0. We confirmed the 
Director of the Office of Management and Budget 96-0. We confirmed the 
Administrator of the Center for Medicare and Medicaid Services 91-7. We 
confirmed the Chair of the Security and Exchange Commission by voice 
vote. In other words, he was confirmed unanimously. Not to mention the 
fact we have passed major legislation out of the Senate. We just 
completed a 3-week debate on a major immigration overhaul, and it 
passed with a bipartisan vote. We had a major debate on a farm bill, 
which passed with a bipartisan vote. Other legislation has moved 
through the Senate in the last few months.
  So it begs the question: Why are we now having this discussion? The 
majority leader said back in January he wasn't going to change the 
rules, and to change the rules, you have to break the rules. Let's make 
that very clear. It takes 67 votes to change the rules of the Senate. 
What is being talked about here is basically using a procedural 
device--a gimmick, if you will--to be able to change the rules to 51 
votes. In other words, breaking the rules to change the rules.
  There is absolutely no basis and no foundation based on the numbers 
and the facts I just quoted for the majority to be making the argument 
that they are here today.
  If you go back and look at the statements that have been made by 
others in the past--and I remember coming here in 2005 as a new Member 
of the Senate from the House of Representatives. At that point we were 
debating judicial nominations. The Democrats were holding up several of 
President Bush's judicial nominations. There was a big debate about 
whether to exercise the nuclear option; in other words, to confirm some 
of those with 51 votes.
  I remember at the time being sympathetic to that. I came from the 
House of Representatives. In the House of Representatives we moved 
things in an orderly fashion. The Rules Committee decided what 
legislation came to the floor, what amendments were made in order, and 
how much time was allowed for debate on each amendment. It was a very 
structured and orderly process. Those of us who got here to the Senate 
were frustrated at times with the slow pace in the Senate. On some 
levels it made sense to think: Gee, wouldn't it be great if we could 
make the Senate function more like the House.
  Fortunately, cooler heads prevailed because the Senate is not 
designed to function like the House. It was created for a very 
different purpose and a very different design. What we are talking 
about here would completely undermine that purpose and that design for 
this institution. We have observed traditions, rules, in the Senate for 
decades. What we are talking about, if the majority has its way, is 
doing something that would break the rules to change the rules and 
forever change the Senate in a way the majority leader Senator Reid 
mentioned back in 2009; that doing that would ``ruin'' the country and 
the Senate would be ``destroyed'' if we went about a rules change along 
the lines of what is being talked about today. So I hope cooler heads 
will prevail again. I certainly understand now, as I look back on what 
happened in 2005, the wisdom of those who had been here a little bit 
longer and understood a little bit more about the way this institution 
operates: the importance of having a Senate where you have open debate, 
where you have the opportunity for amendments--something that in the 
House oftentimes you do not have the opportunity to do.
  It is important, in my view, that Republicans and Democrats come 
together and recognize if we go back on the traditions, the rules, the 
precedents in the Senate, we will be forever changing not just the 
rules, but we will be changing the Senate, and that is certainly not 
what our Founders had in mind, nor do I think that is what our 
colleagues on the other side have in mind. They may be well-
intentioned, but what they are talking about doing is going to change 
forever the Senate in a way that would be very perilous to this 
institution and, more importantly, jeopardize the rights of the 
American people to have their voice heard in the Senate.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Madam President, I have the greatest respect for my friend 
from South Dakota. But, obviously, he missed the speeches this morning. 
We went through all this. I am not going to repeat what has gone on 
since the broken promise earlier this year.

                          ____________________