[Congressional Record (Bound Edition), Volume 161 (2015), Part 1]
[Senate]
[Pages 24-27]
[From the U.S. Government Publishing Office, www.gpo.gov]




              RESOLUTION OVER, UNDER THE RULE--S. RES. 20

  Mr. UDALL. Mr. President, I have a resolution at the desk of which 
Senator Merkley and I are cosponsors.
  The PRESIDING OFFICER. The clerk will read the resolution by title.
  The assistant legislative clerk read as follows:

       A resolution (S. Res. 20) limiting certain uses of the 
     filibuster in the Senate to improve the legislative process.

  Mr. UDALL. I ask for its immediate consideration and to send the 
resolution over, under the rule, I, therefore, object to my own 
request.
  The PRESIDING OFFICER. Objection is heard.
  The resolution will go over, under the rule.
  Mr. UDALL. Mr. President, I rise today to talk about our continuing 
effort to change the Senate rules as we begin the 114th Congress. This 
is the same process Senators Merkley, Harkin, and I used at the 
beginning of the last Congress when we introduced a similar resolution. 
At that time, Majority Leader Reid wanted to have the debate about 
reforming our rules after the inauguration.
  He was willing to work with us and protect our interests until we 
could debate our proposal. By doing so, he preserved the right of a 
simple majority of this body to amend the rules in accordance with 
article I, section 5 of the Constitution.
  I hope Majority Leader McConnell will extend to us this same courtesy 
if he chooses to address other issues before rules reform.
  It has been the tradition at the beginning of many Congresses that a 
majority of the Senate has asserted its right to adopt or amend the 
rules. Just as Senators of both parties have done in the past, we do 
not acquiesce to any provision of Senate rules--adopted by a previous 
Congress--that would deny the majority that right.
  The resolution I am offering today is based on proposals we 
introduced at the start of the 112th and 113th Congresses. At that 
time, many called our efforts a power grab by the majority. But we were 
very clear. We would support these changes even if we were in the 
minority, and here we are today, reintroducing the reform package as 
Members of the minority.
  These changes do not strip minority rights. They allow the body to 
function as our Founders intended. The heart of our proposal is the 
talking filibuster. The filibuster once was a tool that was used 
sparingly. It allowed the minority to be heard. Today it is abused too 
often and far too easily.
  I have said many times that the Senate has become a graveyard for 
good ideas. The shovel is the broken filibuster and other procedural 
tactics.
  The system is broken. But in the last election I think the message 
was clear. The electorate said: Fix it, do your job, and make the 
government work. That is what our resolution is intended to do.
  Our reforms were not adopted in the last Congress, but we made some 
progress. Strong support for fixing the Senate led leaders Reid and 
McConnell to address the dysfunction in the Senate and make some 
moderate changes.
  Unfortunately, it did not take long for the leaders' gentlemen's 
agreement to break down. In November 2013 the abuse of the rules--and 
the obstruction--reached a tipping point, and so the majority acted 
within the precedent of the Senate. We changed the rules to prevent the 
minority from abusing the rules and obstructing scores of qualified 
nominees for judicial and executive appointments.
  I believe that drastic step was unfortunate, but it was also 
necessary. The minority has a right to voice objections but not to 
abuse the rules to obstruct justice by preventing judges from being 
confirmed or by preventing the President from getting his team in 
place.
  By changing the rules, the 113th Senate was able to confirm 96 
judges. In fact, it confirmed more judges than any modern Congress 
since 1980.
  The 113th Congress also confirmed 293 executive nominations in 2014--
the most since 2010.
  That is an incredible change. It was a bold but necessary action. But 
it also led to even greater polarization in the Senate. That 
polarization could have been prevented if the Senate had adopted our 
reforms at the beginning of the 113th Congress.
  That is why I strongly urge the new majority leader to continue the 
change that was adopted in November. It allows most judicial and 
executive branch appointees to be confirmed by a straight majority 
vote. I urge him to continue the progress we made last Congress and 
adopt the rest of our proposed reforms at the start of this Congress.
  Anyone who has watched this Senate try to legislate in the past few 
years knows we still are hobbled by dysfunction. We voted on cloture 
218 times just over the past 2 years. To put that in perspective, the 
Senate voted on cloture only 38 times in the 50 years after the rule 
was adopted in 1917. We cannot continue down this path.
  The unprecedented use of the filibuster and other procedural tactics 
by both parties has prevented the Senate from getting its work done. 
The Senate needs to return to its his historical practice and function 
as a deliberative yet majoritarian body, when filibusters were rare and 
bipartisanship was the norm.
  We believe the proposed rule changes in our resolution provide 
commonsense reforms. This will restore the best traditions of the 
Senate and allow it to conduct the business the American people expect.
  We have one goal, whether we are in the majority or in the minority: 
to give the American people the government they expect and deserve, a 
government that works.
  We said before, and we say it again, that we can do this--with 
respect for the minority, with respect for differing points of view, 
with respect for this Chamber, but, most of all with respect for the 
people who send us here.
  The right to change the rules at the beginning of a new Congress is 
supported by history and by the Constitution. Article I, section 5 is 
very clear. The Senate can adopt and amend its rules at the beginning 
of the new Congress by a simple majority vote. This is

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known as the constitutional option, and it is well named.
  It has been used numerous times--often with bipartisan support--since 
the cloture provision was adopted in 1917.
  Opponents of the Constitutional Option say that the rules can only be 
changed with a two-thirds supermajority, as the current filibuster rule 
requires. And they have repeatedly said any attempt to amend the rules 
by a simple majority is ``breaking the rules to change the rules.'' 
This simply is not true.
  The supermajority requirement to change Senate rules is in direct 
conflict with the U.S. Constitution. Article I Section 5 of the 
Constitution states that, ``Each House may determine the Rules of its 
Proceedings, punish its Members for disorderly Behavior, and, with the 
Concurrence of two thirds, expel a Member.'' When the Framers required 
a supermajority, they explicitly stated so, as they did for expelling a 
member. On all other matters, such as determining the chamber's rules, 
a majority requirement is clearly implied.
  There have been three rulings by Vice Presidents, sitting as 
President of the Senate, on the meaning of Article I Section 5 as it 
applies to the Senate. In 1957, Vice President Nixon ruled 
definitively:

       [W]hile the rules of the Senate have been continued from 
     one Congress to another, the right of a current majority of 
     the Senate at the beginning of a new Congress to adopt its 
     own rules, stemming as it does from the Constitution itself, 
     cannot be restricted or limited by rules adopted by a 
     majority of a previous Congress. Any provision of Senate 
     rules adopted in a previous Congress which has the express or 
     practical effect of denying the majority of the Senate in a 
     new Congress the right to adopt the rules under which it 
     desires to proceed is, in the opinion of the Chair, 
     unconstitutional.

  Vice Presidents Rockefeller and Humphrey made similar rulings at the 
beginning of later Congresses.
  In 1979, when others were arguing that the rules could only be 
amended in accordance with the previous Senate's rules, Majority Leader 
Byrd said the following on the floor:

       There is no higher law, insofar as our Government is 
     concerned, than the Constitution. The Senate rules are 
     subordinate to the Constitution of the United States. The 
     Constitution in Article I, Section 5, says that each House 
     shall determine the rules of its proceedings. Now we are at 
     the beginning of Congress. This Congress is not obliged to be 
     bound by the dead hand of the past.

  In addition to the clear language of the Constitution, there is also 
a longstanding common law principle, upheld in the Supreme Court, that 
one legislature cannot bind its successors. For example, if the Senate 
passed a bill with a requirement that it takes 75 votes to repeal it in 
the future, that would violate this principle and be unconstitutional. 
Similarly, the Senate of one Congress cannot adopt procedural rules 
that a majority of the Senate in the future cannot amend or repeal.
  Many of my Republican colleagues have made the same argument. For 
example, in 2003 Senator John Cornyn wrote in a law review article:

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

  So amending our rules at the beginning of a Congress is not 
``breaking the rules to change the rules.'' It is reaffirming that the 
U.S. Constitution is superior to the Senate rules, and that when there 
is a conflict between them, we follow the Constitution.
  And I would like to make clear that by moving on to other business, 
we are not waiving our constitutional right to amend the Senate's rules 
with a majority vote. In 1975, when the cloture threshold was reduced 
from two-thirds to three-fifths, the reform effort lasted until March. 
But on the first day of that Congress, Senator Mondale introduced his 
resolution and unequivocally stated that he was reserving his right to 
call for a majority vote at a later date.
  Senator Mondale made the following statement on that first day:

       Mr. President, I wish to state, as has been traditional at 
     the commencement of efforts to amend rule XXII, that, by 
     operating under the Standing Rules of the Senate the 
     supporters of this resolution do not acquiesce to the 
     applicability of certain of those rules to the effort to 
     amend rule XXII; nor do they waive any rights which they may 
     obtain under the Constitution, the practice of this body, or 
     certain rulings of previous Vice Presidents to amend rule 
     XXII, uninhibited by rules in effect during previous 
     Congresses.

  Today, I take the same position as Senator Mondale and many other 
reformers did over the years. I understand that Majority Leader 
McConnell may move on to other business, but I am not acquiescing to 
any provision in the Senate rules that prevents a majority from 
amending those rules. We can, and should, take time to debate our 
proposal and have an up or down vote. I know other colleagues also have 
reform proposals. They all deserve consideration.
  This is not just about rules. It is about the norms and traditions of 
the Senate. They have collapsed under the weight of the filibusters.
  Neither side is 100-percent pure. Both sides have used the rules for 
obstruction. No doubt they have had their reasons, but I don't think 
the American people care about that. They don't want a history lesson 
or a lesson in parliamentary procedure. They want a government that is 
reasonable and that works.
  I hope all my colleagues, especially the new Senators, give special 
consideration to reform. We do not need to win every legislative or 
nomination vote, but we need to have a real debate--and an open 
process--to ensure we are, actually, the greatest deliberative body in 
the world.
  We changed the rule regarding nominations. That was an important 
start, but it was the beginning--not the end. We still need to reform 
the Senate rules.
  Mr. President, I ask unanimous consent that Senator Franken be added 
as a cosponsor to S. Res. 20.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. UDALL. I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon is recognized.
  Mr. MERKLEY. Today we are at the start of a new Congress, and every 
new Congress provides the opportunity for a fresh start of the work we 
do on behalf of the American people. Congratulations to our newly 
elected Members and congratulations to our returning elected Members.
  It is appropriate at this moment, at the start of a new, 2-year 
Congress, that we ponder how to make this institution work for the 
American people, work well within our constitutional framework and our 
responsibility for advice and consent on nominations, and work well in 
terms of our responsibility for legislation that will address the big 
issues facing our Nation.
  Since I came to the Senate in 2009, it has been a pleasure to work 
with my colleague from New Mexico. My colleague from New Mexico came to 
the Senate from the House. I came here from the State of Oregon but 
with memories of how the Senate worked many years before when I first 
came to the Senate as an intern in 1976.
  I must say, in the 1970s, this body worked very much in the manner 
that one might anticipate. A bill was put forward. There was no 
filibuster of a motion to proceed. The bill was debated. A group of 
Senators would be ready to call upon the President of the Senate to 
submit their amendment.
  Whoever was called on first--that amendment was debated. That 
amendment was debated, and in a short period of time it was voted on 
and then the Senators would vie for the opportunity to present the next 
amendment.
  What I saw in 2009 when I came back as a Senator was a very different 
Chamber, a Chamber where long periods of time would be spent debating 
what bills to debate. The motion to proceed would be filibustered. So 
we would waste the energy of this institution not upon delving into the 
complexities of an issue and how to best address it but simply on the 
procedural issue of whether we were going to start debate on a 
particular bill.
  This situation has certainly been observed by the American public. 
The American public's esteem for our institution has declined steadily 
over the

[[Page 26]]

past several decades as the paralysis of this institution has 
increased.
  Observers of Congress report that the past two Congresses have been 
among the least productive in modern history--too few amendments 
getting considered, paralysis even after a bill has come to the floor 
on which amendment to address first, and too many filibusters--
filibusters not of the type of old in which a Senator would delay 
action on a bill by holding forth as long as his energies would enable 
him or her to stand on this floor and carry forth, but filibusters of 
the silent kind, the kind in which there is simply an objection to 
closing debate. But then this Chamber is filled with silence because no 
one has anything left to say on it, and no one is willing to spend the 
time and energy to even declare to the American people: I am here on 
this floor speaking at length because I want to block this bill. There 
is no accountability to the public in that fashion--no transparency. So 
the silent filibuster has come to haunt this hall.
  Well, that is a very different Senate than the Senate in the mid-
1970s and one that my colleague from New Mexico and I are determined to 
change--to restore this Chamber to being a great deliberative body. We 
can have all the interesting policy ideas in the world, and we can 
have, certainly, insights on how to make things work better, but if the 
machinery for this body to consider those ideas is broken, then, 
certainly, those abilities are not put into their best opportunity or 
framework. Many folks, when we have been debating the functionality of 
the Senate, have said: But, remember, it was George Washington who said 
that the Senate should be a cooling saucer--in other words, saying that 
the dysfunction and paralysis of the Senate is just exactly the way it 
was designed to be.
  That is certainly a misreading of the comment attributed, perhaps 
apocryphally, to George Washington. George Washington was referring to 
the fact that the Senate was designed with a constitutional framework 
of 6 years, of one-third of the Members rotating every 2 years, of a 
Chamber that was initially elected indirectly by the States--rather 
than by popular election--and that this would give it more chance to be 
thoughtful and reflective on the issues that come before the Nation.
  This thoughtfulness, this ability to gain reflexion, is, in fact, 
exactly what the Senate should be. It is the quality that led to the 
Senate being described as the world's greatest deliberative body. But 
the filibuster, and the abuse of it, has changed that. And certainly 
the inability of the minority and the majority to be able to put forth 
amendments in a timely fashion and to debate them has changed.
  I think back to what Alexander Hamilton said early in the history of 
our Nation. He said that the real operation of the filibuster ``. . . 
is to embarrass the administration, to destroy the energy of 
government, to substitute the pleasure, caprice and artifices of an 
insignificant, turbulent or corrupt junto to the regular deliberations 
and decisions of a respectable majority.''
  That phrase, isn't that what we need to restore in this body, the 
regular deliberations and decisions of a respectable majority?
  This is all part of this cycle of a democracy in which citizens vote 
for an individual who they feel reflects what needs to be done in our 
Nation, and those individuals come to this [chamber/Chamber] and they 
proceed to have an agenda. That agenda, if it is part of the majority 
agenda or a bipartisan majority agenda, gets implemented and those 
ideas get tested. Those ideas that work well can be kept and those 
ideas that work poorly can be thrown out. But if this Chamber is locked 
in paralysis, that cycle of testing ideas and of citizens voting for a 
vision and seeing that vision implemented and tested is broken. That is 
much where we are now.
  Alexander Hamilton went on to say that when the majority must conform 
to the views of the minority, the consequence is ``. . . tedious 
delays; continual negotiation and intrigue; contemptible compromises of 
the public good.''
  I think that is exactly what we have seen too much of in this 
Chamber, whether it be one party in charge or the other party in 
charge. As my colleague noted, this is not a partisan issue. The ideas 
we put forward when in the majority we are now putting forward in the 
minority. Isn't that the test of whether an idea is in fact designed 
for the good of this institution, rather than the advantage of the 
moment?
  Our Senate is broken. The American people know that. And it is our 
responsibility as Senators to work to change that. That is why there 
should now be a full debate among the Members on the best ideas on how 
to enable this Chamber to work better. Those ideas should come from the 
right of the aisle, from the left of the aisle, and ideas in 
partnership between colleagues on both sides of the aisle. Again, this 
shouldn't be about the advantage of the moment, it should be about the 
successful function of our beloved Senate.
  One of the things we have seen in the course of this broken Senate is 
our failure to adequately dispose of our responsibility for advice and 
consent on nominations under the Constitution. That responsibility is 
designed to be a check on outrageous potential nominations from the 
President. It is not designed to be a way for one coequal branch of 
government--that is the Congress--to seek to systematically undermine 
other branches of the government, be it the judiciary or the executive. 
So we need to have a timely and systematic way of considering 
nominations. That certainly has fallen apart in the course of the 
poisonous and partisan nature of deliberations here over the last few 
years. But we can change that.
  Indeed, we stepped forward a year ago November to test a rule to 
close debate on most nominations with a simple majority. The result has 
been quite spectacular. The number of district judges who have been 
considered on the floor of this Chamber has more than doubled--has 
almost tripled. Judicial vacancies have been cut in half--extremely 
important to a fair and capable judiciary. Executive nominations 
roughly doubled.
  It should not be the goal of this Chamber, whether the majority or 
the minority, to disable the executive branch by preventing the 
positions from being filled in the executive branch. If a majority says 
a person is reasonable, then that nomination should proceed 
expeditiously.
  Senator Udall and I have put forward, as he noted, a resolution that 
is in keeping with the package of ideas we worked on in 2011 and 2013, 
so we are presenting those ideas here in 2015. But my encouragement is 
for people to put forward their ideas, individual Senators, to add 
their ideas or put forward individual components that will contribute 
to this dialogue.
  One of the ideas we have, and I will be offering to this body, is to 
create a process to consider rule changes at the start of each 
legislative session--a detailed way of addressing that, since currently 
we have no pattern, no guide, to holding a debate about how the Senate 
functions.
  A second will be to consider the expedited consideration of most 
nominations. We made a rule change a couple of years ago--well, 
November a year ago. And also, before that, we made some minor changes 
in timing in January 2013. That came out of the debate just 2 years 
ago. Those January 2013 changes are expiring. Those timelines are 
expiring. So that goes away. Should those be adopted as part of the 
standing rules rather than simply the standing orders which expire with 
the change of a Congress?
  A third idea is to end the filibuster on the motion to proceed to 
legislation. Think about how this has changed. If you take the 10-year 
period between 1973 and 1982, a 10-year period that embraces when I 
first came here as an intern, there were 14 times there was a 
filibuster on a motion to proceed. If you take 10 years from roughly 
2003 to 2012, that number went up to about 160--more than a tenfold 
increase in the paralysis of getting bills to the floor to be 
discussed.
  Why should there be filibusters at all on a conference committee? If 
the

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House has put forward an idea and passed it, and the same bill has been 
passed by the Senate, isn't it common sense to enable a delegation from 
each Chamber to meet together to work out a compromise? We did make a 
modest improvement in this procedure, but there is much more work to be 
done on this.
  In fact, I was mystified when I came here in 2009 as to why there 
weren't conference committees going on. First I heard: Well, it is 
easier for Chairs of committees to get together informally and try to 
work out something behind the scenes. But then, as I asked more 
questions, the answer became: Because there are three steps required, 
and all three of which enable a filibuster, and that paralysis just 
isn't worth entertaining the time on the floor. Well, let us restore 
conference committees. Let us get rid of filibusters on conference 
committees.
  And certainly we must improve floor debate by ensuring amendments can 
be introduced and debated. The minority has said in recent years that 
this is a deep disadvantage to them. But I can tell you as a Member of 
the previous majority that it was a disadvantage to majority Members as 
well not to be able to introduce and debate amendments.
  We also certainly must replace the silent filibuster with the talking 
filibuster so there is transparency and accountability to the use of 
this instrument on final passage of a bill.
  Let us not let this opportunity pass. Let us not continue on 
autopilot from one Congress to the next. Let us take this moment of 
opportunity to start on this path to restoring the U.S. Senate to being 
the world's greatest deliberative body in order to address the big 
issues before us and for the betterment of our Nation.
  Mr. President, I yield the floor.

                          ____________________