[Congressional Record Volume 157, Number 12 (Thursday, January 27, 2011)]
[Senate]
[Pages S304-S329]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
AMENDING THE STANDING RULES AND PROCEDURE OF THE SENATE--S. RES. 8, S.
RES. 10, S. RES. 21, S. RES. 28, AND S. RES. 29--Continued
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, I call up S. Res. 28, the Wyden-Grassley-
McCaskill resolution to end secret holds.
The PRESIDING OFFICER. The resolution is pending.
Mr. WYDEN. Mr. President, with the passage of this resolution, no
longer will it be possible for a Senator to engage in the
unconscionable practice of secretly blocking a piece of legislation
that affects millions and millions of Americans.
The fight for more sunshine in the way the Senate does business feels
like it has been the longest running battle since the Trojan War.
Today, after scores of battles, the cause of open government is going
to prevail.
Over the years, Senator Grassley and I, with the strong support of
Senator McCaskill, have been able to secure leadership agreements to
end secrecy. We have been able to pass amendments to end secrecy and
send them to conference committees--where they would then magically
disappear. We actually, at one time, got a watered-down version of our
law passed. In each case, the defenders of secrecy have found a way to
keep sunshine out and obstruct the public interest. When this proposal
passes, we believe there will be real change.
There are three reasons why we believe our bipartisan proposal to end
secret holds will be different from previous approaches.
First, now with any hold here in the Senate, there would be a public
owner. Every single hold would have a Senator who is going to be held
accountable for blocking a piece of legislation.
Second, there will be consequences. In the past, there have never
been any consequences for the Senator who objected anonymously. In
fact, the individuals who objected would usually send somebody else out
to do their objecting for them, and they would be completely anonymous.
Essentially, the person who would be doing the objecting would sort of
say: I am not involved here. I am doing it for somebody else. So the
entire Senate lacked transparency with respect to who was actually
responsible.
Third, the Wyden-Grassley-McCaskill proposal would deal with all
holds, whether they reach the point of an objection on the floor or are
objected to when the bill or nomination is hotlined. Our approach
requires objections to a hotline be publicly disclosed, even for bills
or nominations that never get called up on the floor. This is a
particularly important provision.
Senator Grassley and Senator McCaskill feel very strongly about this
as well because most holds never reach the point that there is an
objection on the floor, and that is something I think has been lacking
in this debate. They hear about discussions of people objecting on the
floor. Most holds never reach that point. Typically, what happens is, a
Senator who objects to a bill or nomination tells the Senator's leader
that the matter should not be allowed to come up for a vote, and then
the leader objects to bringing up the bill when it is hotlined. Because
of that objection, the bill or nomination never actually gets called up
on the floor. That type of hold effectively kills the bill or
nomination long before it gets to the point of an objection on the
floor. So we want to make it clear this is an important distinction
and, for the first time, we would not just be talking about objections
that are made on the floor.
I see my friend and colleague, Senator McCaskill, who has crusaded
relentlessly for this. Senator Grassley and I--I say to Senator
McCaskill we sort of feel like we have been at it as part of the
longest running battle since the Trojan War. I say to the Senator, your
energy has been absolutely crucial in this fight.
I would also point out--and I think we know--the defenders of secrecy
will always try to find a way around anything that passes. We think we
have plugged the holes. We think we finally made the crucial
differences. But the fact that the Senator has been such a relentless
watchdog for the public interest, an opponent of secrecy, has been a
tremendous contribution. I thank my colleague from Missouri and welcome
her remarks.
The PRESIDING OFFICER. The Senator from Missouri.
Mrs. McCASKILL. Mr. President, very briefly, I am proud to join
Senator Grassley and Senator Wyden in their long crusade on this issue.
I am giddy, frankly. I cannot believe it. I cannot believe we are this
close to amending the Senate rules by a wide margin. I will predict
this will be a very lopsided vote, which is ironic. I do not think
there has ever been anything that has taken as long as this has that is
going to win by as big a margin as this is going to win because people
were stubborn about holding on to their secrecy. It is a lot easier to
do business, a lot easier to get your deals if you do not have to be
public about it.
So there are very few things that you can grab a hold of in the
Senate and actually see to the finish line, and I believe this will be
the finish line. But let me say one warning. If anyone thinks they can
figure out a way around this, all of us who have worked on this are not
going to give up. So 6 months from now, if something is not moving and
no one knows why and we figure out that one person has decided to own
the holds, such as the minority leader--I will just own all the holds--
that is not going to work, because we will come right back and we will
point out to the American public: Believe it or not, they are trying to
get around this rule.
So a warning to everyone: If we are going to amend the rule, be
prepared to live by it because it is the right thing to do. I think our
stock will rise with the American people. I think the transparency is
essential.
I am very proud that it appears--I will keep my fingers and toes
crossed because it has not happened yet--we have bipartisan agreement
that this nonsense is going to end.
I wish to thank my colleague from Tennessee, Senator Alexander,
because I think he has been essential in these negotiations as it has
related to an amending of the rules as it relates to the secret holds.
Thank you, Mr. President. I yield the floor.
Mr. WYDEN. Mr. President, I thank our colleague, our invaluable ally
in this fight.
Senator Grassley, I believe, is on his way. But the Senator from
Tennessee has had many discussions on this topic with me and other
Senators, and I wish to thank him for all the time and effort he has
put into it. I yield him whatever time he would like.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, Senator Grassley and Senator Wyden and
more recently Senator McCaskill, have pointed out the obvious fact that
so-called holds that Members of the Senate place on nominations or
legislation should be public. I think that is a good idea. That has
bipartisan support. I believe today we will change the rules to make
that clear, and I congratulate Senators Wyden, Grassley, and McCaskill
for their perseverance and persistence in pushing this ahead.
[[Page S305]]
I have always been glad to be public with my holds. I remember when
Senator Reid filibustered my TVA nominee by putting a hold on him, so I
filibustered one of his Nevada citizens by putting a hold on him. Then
we were able to work it out. But Senator Reid and I made our objections
public. I knew what he was doing and he knew what I was doing. That is
important to build confidence in the Senate.
Senator Grassley is on his way over and he has been the partner with
Senator Wyden on reforming holds for some time. I would like to say to
Senators Wyden and McCaskill and others--as I have already said to
Senators Udall and Merkley--that the efforts they have made to change
the rules of the Senate have created a window of opportunity which I
believe those of us on both sides of the aisle believe will make the
Senate a better functioning forum. These Senators will not succeed in
all the changes they are seeking to make but this window of opportunity
will allow the Senate to better function as a place to discuss serious
issues.
The majority leader and the Republican leader earlier today said they
were going to do their best to see that most bills come to the floor
after first going to committee. Then once bills get here we will have
amendments. I think that is what most of us want. We want a chance to
represent the views we have and those we are elected to represent.
Sometimes our views are in the minority. Sometimes we are very solitary
with our views. Maybe we are the only one who has a particular view.
But we want a chance to be heard and a chance to offer amendments to
express our views.
I think we are preserving the Senate as a forum in which that can be
done, but at the same time we are making it a more effective place in
which to do that. I congratulate Senator Wyden and his colleague,
Senator Grassley, and others for their efforts.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, while we wait for Senator Grassley, who, as
Senator Alexander has mentioned, has been relentlessly pursuing this
with us for years--again and again, Senator Grassley would come to the
floor and make the point that a Senator simply ought to have the guts,
just ought to have the guts, to stand and say: Look, this is important
to me. I am the individual who ought to be held accountable. Senator
Grassley, in that inimitable Midwestern way, always manages to get
these issues down to what they are truly all about. It is about
accountability and, as Senator Grassley says, it is about guts.
I would also mention, what is striking about the secret hold is this
astounding power. I think it is only fair to describe it that way. I
know of few powers that an elected official has that resemble the
ability to anonymously block a bill or a nomination that affects
millions of people. It is an astounding power, and for years and years
it has never been written down anywhere.
As part of the ethics legislation that was passed a few years ago, we
were able to get a watered-down version of secret holds reform in
there. But literally to think that a power such as this--so sweeping,
almost unrivaled in terms of the powers an elected official has--could
be exercised in secret is something worth reflecting about in and of
itself.
I will also tell colleagues that for those who want to get into the
history of this, there are all kinds of holds. There was the revolving
hold. There were a number of different ones. But my favorite over time
was the ``Mae West'' hold, which came to also be known as the ``come
look me over'' hold, which was almost as if a Senator was declaring
that they were not sure what they wanted to do with their hold, but
somebody ought to come up and see them sometime.
It just goes to show you, these kinds of practices--and this is what
has been good about the work done by Senator Schumer and Senator
Alexander, my friend and colleague from Oregon, Senator Merkley, and
Senator Udall, which has been so important--because, for the first
time, they have brought out into real debate what these rules are all
about. My hope is, this will just be the beginning of the discussion
about how, in the days ahead, it will be possible to bring more
sunshine and more transparency to the Senate.
But Senator Grassley, who has made this point in the past about doing
business in public--that the principle at stake is accountability and
transparency--has made the case for a long time and has additionally
told Senators that since he--and there have been a number of us who
have always put our holds in the Congressional Record; I have not used
them very often. Senator Grassley has made the point that colleagues
will find, when they do it, it does not hurt at all. In fact, not only
do they not suffer any detrimental consequences, but they do it and the
public thinks more of them.
One final point as we wait for Senator Grassley is that I am
particularly interested in having holds reform enacted as part of our
work today because the secret hold is a huge bonanza for the lobbyists.
The lobbyists can, as we have seen year after year, go to a Senator and
say: It would be a big favor to me if you would put a hold on something
so we can get a little more time to have a chance to make our case.
Sometimes we have competing lobbyists asking for secret holds, so we
have one Senator putting a secret hold on a piece of legislation and
making a whole array of lobbyists happy. Sunshine will be good for the
Senate, and it will certainly be good because it will shine the hot
light on some of these lobbyists' practices that we have been trying to
discourage here on the floor of the Senate.
I have just been notified that Senator Grassley is unavoidably
detained. He is not going to make it to the floor at this time.
On behalf of myself, Senator Grassley, and Senator McCaskill, at this
time I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second. There is a sufficient
second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Minnesota.
Ms. KLOBUCHAR. Mr. President, I first wish to commend Senator Wyden,
Senator Grassley, and Senator McCaskill for their incredible
determination to get this done. We thought we did it when our class of
Senators came in. We thought we had gotten rid of the secret hold, but
lo and behold, people found a way to work around it, and their
determination has meant we are finally going to do this and we are
going to do it right.
Secondly, I wish to thank Senator Alexander as well as Senator
Schumer of the Rules Committee for negotiating a number of these
changes, as well as Senator Reid and Senator McConnell. When I think
back over the last few months and what has happened, we had an
incredibly productive lameduck session at the end of the last Congress.
We all know there is a lot of work to be done, but in the closing
months of this year, we showed people--I think to their surprise--that
we could truly get some things done on a bipartisan basis. When the
American people unite and see a clear issue--whether it was the nuclear
arms treaty, whether it was the vote on the repeal of don't ask, don't
tell, or whether it was the first responders after 9/11--and they see
what is happening in this Chamber because they actually see a debate,
they see someone standing up and making their points as the Presiding
Officer does so well on so many issues, then they can make a decision.
That is all we are talking about, when we talk about these sometimes
complicated and convoluted rules changes, is getting things out in the
open. Obviously, the first thing is to get rid of the secret holds and
permanently end them.
The second important thing is filibuster reform. It is a longstanding
tradition in the Senate that one Senator can, if she chooses, hold the
floor to explain her objections to a bill. We always think of Jimmy
Stewart's character Jefferson Smith in ``Mr. Smith Goes to
Washington.'' This is where Senator Udall--and by the way, I always
think his voice sort of sounds like Jimmy Stewart--and Senator Merkley
have done such a tremendous job of pushing these filibuster reform
issues, as well as Senator Tom Harkin, who has been working on this
long before our group ever came to the Senate.
A group of us got together with the smart proposals made by Senators
Harkin, Udall, and Merkley to determine the best reforms and what are
the
[[Page S306]]
ones we can truly get through; what is a package we can go to the other
side of the aisle with and talk about what we need to do to get it
done. The agreement that has been reached includes some of the
important changes we want. The first I mentioned is to get rid of
secret holds, but of course critical reforms to the filibuster are
still necessary as far as I can see. One of the things I hope we
reconsider as we go down this road is the idea that we could actually
make people stand to filibuster, so that they are in this Chamber, they
are discussing why it is so important that they hold up something,
whether it is a judge, whether it is the assistant secretary of Oceanic
Affairs, whether it is a major bill or a minor bill. People should be
able to hear the arguments and then make their own decision. By the
way, if they have a good argument for filibustering something or if a
group of Senators has a good idea, the American people will say OK, I
can understand why this is happening. If they are just doing it for
reasons that don't make any sense to the people of this country, then
they are going to be seen for what they are doing, and that is slowing
down the progress of this country at a time when there are so many
major issues we need to deal with in this Chamber.
So I am happy we have been able to reach agreement on a number of
these important issues. It would not have happened without the
determination of the people who are here today, and I look forward to
more changes and agreements in the future.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, I rise to continue the debate on this set
of rule proposals, but specifically to talk about the talking
filibuster.
There is one scene from an American movie that captures everyone's
attention, and that is the scene of Jimmy Stewart here in the well of
the Senate holding forth to make his case before his colleagues and
before the American people to stop a corrupt act designed to destroy a
camp for children. That is Jimmy Stewart in the role of Jefferson Smith
in ``Mr. Smith Goes to Washington.'' He wasn't making some behind-the-
scenes move, some backroom deal; he was out in front of the American
people. That is why we have brought both the end of secret holds and
the end of secret filibusters to the floor today.
The concept of the talking filibuster is that the American people
believe when you filibuster, you are making a personal action, a
courageous action, a public action, with personal time and energy, to
stand up and say what you think needs to be said and to fight for what
you need to fight for to make your State or this Nation or this world a
better place. But this is not what the filibuster has become in modern
times. Folks object to closing debate and they go off to dinner, have a
glass of wine or two while they paralyze the Senate. It happened 136
times in the last 2 years. Each one of those filibusters proceeded to
paralyze this body for a week, and yet those folks would not stand
before the public here on the floor of the Senate and make their case.
The secret filibuster must go. It is an issue the American people
understand, since they believe we will make our case before them when
we wish to stall the Senate on an important issue. Let's make it so.
Let's make it so with the vote that will take place here in this
Chamber within the next couple of hours.
I wish to note that hundreds of thousands of people have signed
petitions across this country. They have heard about this on the Web
and other places. CREDO Action, Common Cause, Daily Kos and the Sierra
Club, just those four groups generated almost 200,000 signatures
calling for accountability, calling for transparency, calling for us to
make our case before the American people so the American people can
weigh in as to whether we are heroes or bums.
When we hold the vote on the talking filibuster today--I understand
there has been a lot of pressure applied for there to be a unanimous
party-line vote across the aisle against it. It troubles me. A number
of our new Senators campaigned on transparency. They campaigned on
accountability. They campaigned on changing the broken ways of
Washington, and one of the first votes their leadership is asking them
to do is toss away accountability, toss away transparency, and not help
fix the broken Senate.
There are some who said we must make sure we protect the rights of
the minority. The talking filibuster does exactly that. We still need
60 votes to close debate. My colleague from Oregon, Senator Wyden, was
just here. If there were an issue affecting Oregon that we must oppose,
the two of us alone could take and hold this floor back and forth to
make sure this body doesn't run over the rights of Oregon as long as we
have the 40 colleagues with us to avoid cloture. That is the way it is
now and that is the way it will be under the talking filibuster.
I am not going to belabor this. There are others who wish to speak
and we want to hear them. But let me say this: When we have gotten to
the point that we could not get a single appropriations bill done in
2010, when we cannot address 400 House bills that lie collecting dust
on the floor, when we have 100 nominations in which we did not fulfill
our constitutional responsibility to advise and consent, then we have a
responsibility to work together to change the conduct of this Senate,
to change the rules of this Senate, so those rules are not abused in a
fashion that undermines our performance under the Constitution.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, the Senator from Oregon has talked
about the number of nominations that couldn't be considered. I am sure
the Senator from Oregon remembers that there cannot be a filibuster on
a motion to proceed to a nomination. All the majority leader has to do
is bring it up. You can't debate that. If he should bring up the motion
to proceed to a nomination, and if a Senator over here or over there
objected, then the motion can be put to a simple majority vote. When I
was nominated by President George H.W. Bush to be Education Secretary,
a secret hold was placed on my nomination. Senator Metzenbaum, as it
turned out, had a hold on my nomination for 3 months when all it would
have taken for me to be confirmed was for the majority leader to bring
my name to the floor. Then if we had gotten 60 votes for it, we could
have debated for 30 hours and had a final vote on my nomination.
What would happen during the 30 hours? We don't have Senators going
out to dinner except on the other side of the aisle. Because under the
current rules, in those 30 hours, one Senator gets 7 hours to speak. We
know a Senator can do that because a distinguished Senator from Vermont
demonstrated very capably that he was capable of doing that not long
ago. He did a great job. People all over the country saw it, wrote him,
and he became a little bit of a celebrity for that day. Senators are
still capable of that. But if a Senator had wanted to take the whole 30
hours in a postcloture period, he then has to get 23 more Senators to
join him in taking an hour of that 30 hours. Without getting into the
complications of it, if Senators fail to talk, then the majority leader
can say those are dilatory tactics and force any Senator who wants to
extend the debate to be very uncomfortable. That Senator would have to
get up to 23 Senators to come join him at some time during the speech
and take 7 hours himself. The reason why that hasn't been done is
because the majority didn't want to do it.
Now I am not just saying that. The master of the Senate rules,
Senator Byrd, said it in his last testimony before our Rules Committee
last May.
He said this:
Forceful confrontation to a threat to filibuster is
undoubtedly the antidote to the malady.
Senator Byrd was talking about what some considered the abuse of a
filibuster. Most recently, before he died, Senator Byrd said:
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 a 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.
[[Page S307]]
Senator Byrd said the Senate rules provide the means to break a
filibuster. He went on to describe that.
Mr. President, I don't want to suggest to the distinguished whip, who
knows the rules of the Senate much better than I, or to Harry Reid, the
majority leader, how to break a filibuster that he thinks is an abuse.
But they know how to do it. That takes a little trouble. You cannot go
out to dinner and have a glass of wine, as the Senator from Oregon was
talking about. You have to sit on that side of the floor and have 50
Senators ready. You can sit there and say: I would like for the Senator
from Tennessee to assert himself. And you can stay all night. I imagine
if you do that once or twice, or if we voted on more than zero Fridays,
which was the number of Fridays we voted on last year, you could
confront filibusters.
Mr. DURBIN. Will the Senator yield for a question?
Mr. ALEXANDER. After I finish my sentence, I will yield the floor to
the Senator from Illinois.
I say to my friends, what we are trying to do today is to move past
this time where we point out that the majority leader has cut off our
right to amend and debate six times more than recent majority leaders.
That is what gets everybody stirred up over here. It is like telling us
we can join the Grand Ole Opry, but we can't sing.
We are here to let people know what the people in Tennessee and other
States think. We might be in the minority, but we are in the Senate
where the minority is supposed to have a voice.
When, time after time, you bring a bill to the floor and cut it off,
and you call that a filibuster--that is why we are upset. You are upset
because as a result of that you didn't get to bring as many bills to
the floor as you would like. We are trying to put that all behind us
today. This window of opportunity has produced what I think is
important. These rules changes we are going to adopt are good and will
move us in the right direction.
The real value of this whole effort has been to cause us to think
about how the Senate operates and realize the best way to do it is for
most bills to go to committee, come to the floor, and for most Senators
to get to offer most of the amendments they want to offer and get them
voted on. We might have to vote on a Friday--maybe even a Thursday
night or maybe even a Saturday. It might be that the majority has to
confront a filibuster by saying: Senator so-and-so, if you are going to
slow us down, we are going to make you use that 30 hours. You are going
to have to talk your 7 hours and get 23 other Senators, and we are
going to be here to see that you do it.
My guess would be that you do that about once, maybe twice, and that
would end that particular problem. My real guess is if this general
attitude that the majority and minority leaders talked about earlier
today occurs, then you will see very few uses of the filibusters you
think are inappropriate. The Leaders described an attitude which is
that we are going to do our best to see that most bills come to the
floor, that most Senators get to offer the amendments they want, and
that Senators get the votes on those amendments they want. If you think
inappropriate filibusters are occurring, according to Senator Byrd, you
have the means to confront them.
My hope is that this whole exercise not only is producing some rules
changes that are valuable but a change in behavior on both sides of the
aisle which will be valuable. We will wait and see.
I am happy to yield to my friend from Illinois.
Mr. DURBIN. Mr. President, I see others standing. I will be brief and
just say a few words in support of the so-called talking filibuster. In
the world of the most arcane things that people can concentrate on,
this book would be on the top 10 best-seller list. It is the Senate
Manual with the rules of procedure and the rules of precedents of the
Senate. Unless you live here and work here and follow the Senate, most
people never, ever have any glancing occasion to even observe these
rules, let alone pay any attention to them.
Why are we doing this when we have all these people unemployed in
America and we have so many challenges at home and abroad? Why are we
taking the time of the Senate to talk about this book and the rules
included? Many of us, including my friend--and that term is sometimes
used loosely here but I mean it literally, know what happens on the
floor of the Senate has an effect on America and the world. If we do
our job well, we are going to solve some of the problems of the world.
If we do it poorly, the exact opposite is the case.
What my colleagues from Colorado and Oregon and New Mexico have urged
us to do is to think about whether we can do things better in the
Senate. The history of the filibuster in the Senate is an interesting
one. There was a time when any Senator could stand up and object and
stop the proceedings of the Senate. Then Woodrow Wilson, as President,
suggested that we should arm the Merchant Marine so that our ships
could fire back if the Germans and others fired at them. He asked for
legal authority for that. He brought that issue to the Senate before
World War I, and two or three pacifist Senators stood up and said: No,
we don't want these ships to have guns because that will drag us into a
war.
At that point, Wilson said: I want to take that issue to the American
people. Three Senators should not be able to stop that from a vote. He
got his way.
At the end of the day, the rule was initiated--the cloture rule--that
said two-thirds of the body could decide to move forward even if one or
more Senators objected. That cloture rule of two-thirds guided the
Senate until the 1960s, and the civil rights debate ended up amending
that rule from 67, under that day's count, to 60. So 60 has been the
guiding way to end a filibuster. It has been that way the entire time I
and the Senator from Tennessee have served in the Senate.
What is being suggested is fundamental. I would at least say I
disagree in principle with the Senator from Tennessee, respectfully,
and here is what I believe. I think the movants of this idea believe
this: If the Senator from Tennessee believes in his heart of hearts
that something is so bad, so controversial, so wrong that he wants to
stop the business of the Senate in considering and debating an
amendment or a bill--if he feels that strongly about the value or
principle that would lead him to want to stop the Senate, what we are
being told is that he ought to be willing to stand here and say why.
Currently, you can initiate a filibuster and close down the Senate,
where for 30 hours nothing happens except the drone--the lovely drone--
of quorum calls. People across America tune in and say: What is
happening there? Are they going to actually pay these men and women for
doing nothing another day?
A person who initiates a filibuster can literally leave the floor and
head out for dinner, and the Senate is stopped cold. What is being
suggested is that if you believe it, if it is important enough to stop
the business of the Senate, for goodness' sakes, stand up and tell us
why. Defend yourself. Stand up for your principles.
I remind the Senator from Tennessee--I think he was a Member at this
time--that one of our colleagues, who will go unnamed but is from his
side of the aisle, initiated a filibuster once which forced us to come
in on a Saturday--as you say, it is a rare occurrence here--and to be
here and have over 60 votes because of his filibuster. That Senator
didn't show up. He initiated the filibuster and didn't stick around. He
was asked later about it, and he said: I had something important to do
back home.
Mr. ALEXANDER. Will the Senator yield for a question?
Mr. DURBIN. After I explain my position I will.
That is a classic illustration of someone who initiates a filibuster
and then takes a powder--goes out to dinner or goes home to attend an
event and says: Just let the Senate burn up 30 hours. I will be back
later.
What we are hearing is that it is better to say to that Senator, if
it means that much to stop the Senate it should mean enough for that
Senator and that Senator's colleagues to stand up and fight for that
right. Is it worth it? Will the Senator at least take the floor and
speak to it?
The Senator from Tennessee says there is a better way: to force the
entire Senate, during a filibuster, to be
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here--all of us. So any one Senator can change and affect the lives of
all Senators by saying we are going to stay all night. We will have
live quorum calls and we will sleep on cots in the marble room, and
that is the way to stop the filibuster. Think about that, I say to my
friend from Tennessee. Is this a punishment to the person who initiates
the filibuster? Does it even put responsibility on the person who
initiates it? The answer is clearly no. The burden, under the defense
of your position, falls on the entire Senate to sit here all night long
because one Senator objects.
I think this talking filibuster is much more reasonable. If it means
enough to object to the Senate moving forward on the debate of an
amendment or a bill, then, for goodness' sakes, have the courage and be
open enough to stand at your desk and defend your position. That is not
unreasonable. If you find that you cannot hold a number of colleagues
to your position, let's move on. If you don't want to stand and debate
the issue but want to go out to dinner with your buddies, fine. But
don't stop the Senate while you are on your way to a nice dinner--not
you personally, but the person who would move the filibuster.
I support the talking filibuster, not because of Jimmy Stewart, who
created this mental image, but I think the principle is sound and what
our colleagues recommend would help the Senate.
Mr. ALEXANDER. Mr. President, since the distinguished whip has
apparently renamed this amendment the ``which side of the aisle goes
out to dinner'' amendment, let me ask him this: Isn't it true that if
your side didn't go out to dinner--since you asked to be elected to the
Senate, you raised a lot of money, and you worked hard and defeated
some Republican to get here--if you really think somebody over here is
abusing their minority rights by filibustering, then why would you go
out to dinner, and why would you not want to be here and hear that
person talk and respond to him? Why would you not do that?
Isn't it true that Senator Byrd said that forceful confrontation to
the threat of a filibuster is undoubtedly the antidote to the malady?
He did not want us tampering with this 60-vote procedure we have that
forces consensus.
My question to the majority whip is this: Why did you go out to
dinner so often--through the Chair--when instead, you could have been
here, under the rules as Senator Byrd suggested, dealing with abuses to
the filibuster or what you consider they were?
Mr. DURBIN. The obvious question is, what do we accomplish by staying
here all night? Every 15 minutes or every hour the majority leader
could ask for a live quorum and Members could be asked to come vote. If
they don't, their voting record would reflect that. So the body would
pay the price of applying pressure--the confrontation that Senator Byrd
speaks of.
What the Senators proposing this suggest is that the person who wants
to stop the Senate should have the burden of explaining why or standing
and defending his or her position. I don't think that is unreasonable.
The PRESIDING OFFICER. The Senator from Oregon is recognized.
Mr. MERKLEY. Mr. President, I want to correct the record on something
that has been said on the other side of the aisle; that is, the abuse
of the filibuster has been a response to filling the tree. In the last
2 years, we had the tree filled once. We had 33 filibusters. In
response to those filibusters, the tree was filled 9 times. We had 34
filibusters, the tree filled 6 times, and a filibuster 36 times.
Obviously, 36 times was not a response to 6 times filling the tree.
That myth created by the opposing side is actually a myth. So while
it is a convenient argument, it happens to be a wrong one. I think that
is important to know.
I also wish to note that my colleague from Tennessee was talking
about postcloture discussions for 30 hours, thereby confusing the
conversation about the filibuster on the motion to proceed, the
filibuster on amendments, the filibuster on a bill with a 30-hour
requirement on nominations. Actually, we had a proposal to reduce those
30 hours to 2 hours. That proposal is in S. Res. 10 that will be voted
on today.
I do hope my colleague, in support of the principle he was putting
out, which is that those hours should be reduced, will support S. Res.
10, noting that is a very logical way to reduce the delay of the
Senate.
My colleagues wish to speak. I will close with this comment: If you
have the courage of your convictions and you want to exercise the
privilege of shutting down the Senate for a week, then stand up and
make yourself accountable to the American people.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. UDALL of Colorado. Mr. President, I rise to speak on a particular
proposal we will consider later today, but I wish to associate myself
with the Senator from Oregon, who has been tireless in pushing for
commonsense reforms in the way the Senate operates.
The majority whip made the comment in his remarks before the Senator
from Oregon spoke that we want to make these changes so the Senate can
respond to the changing nature of the world around us and in particular
focus on our economy and getting Americans back to work. If the Senate
is tied in knots, we are not going to put the policies in place that
these stalwart, committed Senators, including the Senator from Iowa,
Mr. Harkin, and the Senator from New Mexico, Mr. Udall, so compellingly
presented to us.
I know there are others who wish to speak, so I will briefly speak to
the proposal I have submitted that would bring us a step closer to
fixing some of the redundancy in the rules that slow down our progress
here and I think ultimately make not just our constituents in our
individual States frustrated but Americans all across our country. Put
simply, this proposal would encourage Senators to file their amendments
72 hours in advance of a vote to ensure we all have a chance to review
that amendment. But then it would also discourage the practice of
delaying a final vote by calling for an out-loud reading of the
amendment. I have heard concerns from Members of both parties about
this particular practice. We all want to have an opportunity to read
the provisions in amendments and broader bills, but it has become
increasingly obvious to me that we need to make changes in our rules,
as I said, to ensure the process works smoothly.
My proposal would encourage Senators to file amendments 72 hours in
advance, and it would prevent any Senators from creating a logjam on
the Senate floor by forcing the text of that amendment to be read aloud
if it is made available in advance.
Mr. President, you and I have been around long enough to know that in
the days before copy machines and the Internet, if one was serving in
the Senate, it was probably helpful to sit here and hear the text of
each amendment read out loud. That practice is outdated, and it is not
the way the Senate operates today. Instead, our technology allows us
instant access to the text of amendments, and therefore there is no
crucial need to hear them read aloud at the last minute. Most of the
time, in fact, we just waive the reading and move to the final vote.
When a full reading, however, has been forced, it largely brings this
place to a halt, as Senator Durbin pointed out earlier. The effect has
been to tie the Senate in knots, and it creates a spectacle when the
hard-working clerks, who are actually the people who make this Senate
run, have to stand here and read amendments, sometimes for hours, to an
empty Chamber. That said, there have been cases in which one party
believes the text of a rather large amendment has been withheld from
them in order to deny them adequate time to review it. I do not want to
take that power away from the minority to reasonably voice their
opinions on the floor to get the information they need, which is why my
proposal is a balanced way of fixing the Senate rules.
This resolution is designed to help us find common ground and prevent
needless delays by allowing us to prevent the live reading of an
amendment when the text has been available long enough for everyone to
have studied it in advance. Instead of allowing an individual Senator
to put the Senate on hold literally for hours by forcing an amendment
to be read, a simple majority of Senators would be able to collectively
vote to dispense with the reading, provided that it was filed on time.
This is a commonsense approach. It seeks to address the concerns of
those
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who want more time to read amendments and those who see the forced
reading of amendments as needlessly obstructive. It is a simple
approach, and I believe later today the Senate will approve such a
rules change.
In ending my remarks, I wish to acknowledge the work of Chairman
Schumer and Senator Alexander. There is an agreement, as I understand
it, and we will vote on it later today. I applaud their work and offer
my very sincere thanks.
I also acknowledge Leader Reid and Leader McConnell for helping bring
this package to the floor today and for reaching their own agreement on
how to improve the way the Senate works.
Finally, as I did in my beginning remarks, I wish to acknowledge
Senator Tom Harkin, Senator Tom Udall, and Senator Jeff Merkley for
bringing true attention to a concern so many Americans have had on this
particular issue. Senator Merkley and Senator Durbin spoke to the fact
that this may seem an obscure topic to many constituents. This is
historic progress we are going to make today that ultimately will make
the Senate function together. I know that is the mission of these three
outstanding Senators.
I ask unanimous consent that Senator Merkley be listed as a cosponsor
of the resolution I am offering today.
The PRESIDING OFFICER (Mrs. McCaskill). Without objection, it is so
ordered.
Mr. UDALL of Colorado. Madam President, I close on this note: I urge
my colleagues to vote for the simple commonsense reform of the Senate
rules.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Madam President, I rise to support the Wyden-Grassley-
McCaskill public hold proposal. I apologize to my two colleagues from
Oregon and Missouri that I was not on the floor at the proper time. It
is all my fault.
I am pleased to see this day come where the Senate will finally have
the opportunity for an up-or-down vote on our freestanding Senate
resolution to require public disclosure of holds. Senator Wyden and I
have been at this for a long time. We have made progress at times, and
we have also had many disappointments where things did not quite work
out the way we had hoped and what we thought the Senate had spoken on
through even rollcall votes.
It has also been good to have Senator McCaskill join us in helping
push this issue to the forefront easily. She did that--I shouldn't say
``easily'' but recently because it has not been easy. Ending secret
holds seems like a simple matter, doesn't it. But that has not proved
to be the case because secret holds are an informal process. It is
easier said than done to push them out into the open using formal
Senate procedures. It is kind of like trying to wrestle down a greased
hog. However, after a lot of thought and effort, two committee
hearings, and many careful revisions, I think this resolution does a
pretty good job of accomplishing our simple goal. That goal is to bring
some more transparency into how the Senate does its business and, with
transparency, more accountability.
This is not the only proposal we are considering today related to
Senate procedure, and I do not want there to be any confusion. This
proposal is not about altering any balance of power between the
majority party and the minority party; neither does our resolution
alter the rights of any of the 100 Members of this Senate.
Over the time I have been working on this issue, I have occasionally
encountered arguments purporting to defend the need for secret holds.
However, the arguments invariably focus on the legitimacy of holds, not
on the subject of secrecy. I want to be very clear that secrecy is my
only target and the only thing this resolution eliminates. I fully
support the fundamental right of individual Senators to hold or
withhold his or her consent when unanimous consent is requested.
Senators are not obligated to give their consent to anything they do
not want to, and no Senator is entitled to get any other Senator's
consent to their motion.
I think the best way to describe what we seek to do with this
resolution is to explain historically how holds came into being, as
Senators have heard me do before.
In the old days, when Senators conducted much of their business in a
daily way from their desks on the Senate floor, it was a simple matter
to stand up and say ``I object'' when necessary. These days, most
Senators spend most of their time off the Senate floor. We are required
to spend time in committee hearings, meetings with constituents, and
attending to other duties that keep us away from this Chamber. As a
result, we rely on our respective party leaders in the Senate to
protect our rights and prerogatives as individual Senators by asking
them to object on our behalf.
Just as any Senator has the right to stand up on the Senate floor and
publicly say ``I object,'' it is perfectly legitimate to ask another
Senator to object on our behalf if we cannot make it to the floor when
consent is requested. By the same token, Senators have no inherent
right to have others object on their behalf while keeping their
identity secret. If a Senator has a legitimate reason to object to
proceeding to a bill or nominee, then he or she ought to have the guts
to do so publicly.
We need have no fear of being held accountable by our constituents if
we are acting in their interest as we were elected to do. Transparency
is essential for accountability, and accountability is an essential
component of our constitutional system. Transparency and accountability
are also vital for the public to have faith in their government. As I
have said many times, the people's business ought to be done in public.
In my view, that principle is at stake.
I see my colleague from Oregon. If he will indulge me, I ask
unanimous consent to engage in a colloquy with the Senator from Oregon
to get his thoughts as well.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WYDEN. Madam President, as Senator Grassley has said, Senator
Grassley, Senator McCaskill, and I have always maintained that there is
no legitimate reason for Senators to keep holds they have placed with
their leaders secret for any period of time. In fact, for quite some
time, we have made a practice of immediately disclosing any hold we
place in the Congressional Record, and that has been at the heart of
our resolution, in my judgment. Would my friend from Iowa agree?
Mr. GRASSLEY. Absolutely correct. One of the defects of the watered-
down secret holds provision that was included in the ethics reform bill
in the 110th Congress was that it allowed for large windows of secrecy
before disclosure was required. Our resolution states that the leaders
shall recognize holds placed with them only if two conditions are met:
if the Senator first submits the notice of intent to object in writing
to the appropriate leader and grants in the notice of intent to object
permission for the leader or designee to object in the Senator's name
and, secondly, not later than 2 session days after submitting the
notice of intent to object to the appropriate leader, submits a copy of
the notice of intent to object to the Congressional Record and to the
legislative clerk for inclusion in the applicable calendar section.
Mr. WYDEN. I thank the Senator because I think that is an important
point because the bipartisan resolution clearly establishes the
responsibility of all Senators to go public with their holds and the
understanding that the leaders will not honor secret holds.
In addition, a concern that has been expressed is the lack of an
enforcement mechanism in case there is a breakdown in this process,
that it does not work as intended. Will the Senator from Iowa address
that point? I believe our resolution addresses that concern as well.
Mr. GRASSLEY. It certainly does. Even if the process we talked about
is not followed, once a hold comes to light in the form of an
objection, someone will be required to own up to that hold. It will no
longer be possible for a leader or their designee to object but claim
it is not their objection. They can say on whose behalf they are
objecting and why not.
We also require Senators placing a hold to give their permission to
object in their name. Still, if a Senator objects and does not name
another Senator as having the objection, and another Senator does not
promptly come
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forward claiming the objection, the Senator making the objection will
be listed in the relative section of the Senate calendar as having
placed that hold.
I yield, for a final conclusion, to the Senator from Oregon.
Mr. WYDEN. I thank the Senator from Iowa, because with this colloquy
he has laid it out very well. The fact is we have been at this so that
it sometimes feels as though it has been the longest running battle
since the Trojan War, given the fact we have had leadership agreements,
we have had amendments, and we have had a watered-down version of the
law. Today, we finally have an opportunity to ensure this
unconscionable practice of secrecy that keeps the American people,
millions of Americans, from learning about who is blocking a bill or a
nomination, and that practice is finally eliminated, and I thank my
colleague. It has been a long fight and a pleasure to work with my
friend from Iowa and to have the energy and enthusiasm of Senator
McCaskill, who has given this cause a huge push.
Madam President, I ask unanimous consent to add Senator Merkley as a
cosponsor to the bipartisan Senate resolution eliminating secret holds.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WYDEN. I appreciate the hard work of the leadership and my
partners in this effort, Senator Grassley and Senator McCaskill. We
would not be here today without them. We have a strong, bipartisan bill
that will bring greater transparency to the process of holds.
There are a few matters that we wanted to clarify to ensure there is
no confusion during the implementation. First, subsection (d) notes
that when a Senator makes an objection, but within 2 session days, no
Senator submits a Notice of Intent to Object to the Record, then the
clerk should add to the Notice of Intent to Object calendar the name of
the Senator who actually made the objection. Obviously, the calendar
should also note the name of the matter actually objected to, as well
as the date that the objection was made on the floor. Is that my
colleague's understanding, as well?
Mr. GRASSLEY. My colleague is correct and that is pretty
straightforward. The Notice of Intent to Object calendar should reflect
all of the matter necessary to understand holds. If no other Senator
has come forth and claimed the objection, then the Senator who actually
made the objection should be credited with holding the matter objected
to. It is also worth noting that this approach saves a Senator who
actually made an open objection on the floor on his or her own behalf
the trouble of filing the ``Notice of Intent to Object'' with the
clerk.
Mr. WYDEN. Yes, the Senator from Iowa makes a good point. Our
resolution turns the Notice of Intent to Object calendar into a one-
stop shop for recording information about objections made to covered
requests. At the same time, some have asked us--what happens if a
matter that had been objected to later passes? Shouldn't the clerk just
remove the relevant information from the Notice of Intent to Object
calendar in that situation? It seems to me that makes sense and such
action by the clerk would be keeping with the intent of our resolution.
Mr. GRASSLEY. I agree. If something has passed the Senate, then
obviously it is not being held. The Notice of Intent to Object calendar
should be updated to reflect that development. Some of my colleagues
have raised another small wrinkle on this issue with me--what if the
matter passes after an objection has been made but before the 2 session
days have elapsed? It seems to me that in that case, the clerk does not
need to go through the ministerial motion of adding an item to the
Notice of Intent to Object calendar, only to immediately remove it.
Again, if a matter has passed the Senate, there obviously is no hold.
Mr. WYDEN. That seems like a commonsense approach to me. I thank my
colleague for his help on secret holds. We are achieving a big victory
for transparency at the beginning of this Congress.
Mr. GRASSLEY. Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. LAUTENBERG. Madam President, people across this country are
feeling pressures from so many points of view--job loss, threatened
losses in the future as pressure exists on businesses, particularly
small businesses across our country. They look to us in the Senate and
in the House to help them solve their problems, but what they have seen
has resulted in an attitude, to a certain degree, of disdain about
those of us who serve in the Senate and the House of Representatives.
The reason it has developed that way is because they think we are not
doing our job. If they watch television or listen to what is going on,
it further confirms the fact they have in mind that we are not doing
our jobs; that we are wasting time; that we are not paying attention to
the country's needs.
That kind of a picture is appropriately formed, with the situation as
it is. The Senate has been a roadblock to progress in our country. I
salute my colleagues, Senators Udall of New Mexico and Merkley of
Oregon, for the work they are doing, and the others who are associated
with it, and I commend the Senator from Tennessee on the other side for
his willingness, for his interest in establishing a consensus of view
about how we can improve the functioning of our body. I salute him and
commend him for it, and I have mentioned that to him privately. We have
all been wrestling with this problem. But finally, I think we are
coming to a time when we can solve it.
I have spent the past year trying to improve Senate rules so we
improve our functioning; that we show the people in the country we are
actively trying to solve their problems, and they will understand that
when they see people on the floor debating the issues and not seeing a
clock working without any action to support it.
Last year, and again this month, I introduced the Mr. Smith Act, to
require filibustering Senators to come to the floor and actually
filibuster. The filibuster is a right that is reserved for Senators
when they object to a piece of legislation that we are dealing with,
and if they are able to get the floor, to keep it until such time as 60
votes develop, which says, let us end this debate. So we know that at
the moment that is a tool the minority has used regularly and it brings
the Senate to a halt. But if the plurality--the majority--shifts, the
same thing is liable to happen but with the Democrats then using the
filibuster for dilatory reasons.
What we are going to do will make the body more transparent. It will
reduce the practice of grinding the Senate to a halt for no good
reason. Today, we will have the opportunity to vote on a couple of
resolutions that include proposals based on the Mr. Smith Act.
Everybody knows what the Mr. Smith situation was. Jimmy Stewart came to
Washington and he stood for hours--an unimaginable length of time--to
try to get something done. It was a heroic gesture and it has lasted as
an icon for the American people.
Like my bill, which we entitled the Mr. Smith bill, the proposals put
forward by Senators Merkley and Udall come down to a simple idea:
Senators who want to delay action on a bill or a nomination must stand
up here and explain why we are delaying responding to the needs of the
American people. An empty Senate Chamber can't help put Americans back
to work, protect people from dangerous weapons, or improve our
country's schools. We can't invest in our railways, roads and bridges,
other infrastructure needs, and help struggling Americans to stay in
their homes if there is no Senator willing--sent here after, I am sure
in every case, an arduous election, even though the numbers might not
say that--to debate the issues. Why aren't they at work? We would have
no tolerance for schoolchildren if they continued in their absence from
their classrooms doing their homework. Why in the Senate should it be
allowed without intervention?
We want people to be able to see that there are Senators in this
Chamber debating the issues; that they are not clock watching and doing
nothing to take care of the needs of the country. We are not making
progress on vital issues because the rules of the Senate are being
abused. Some of our colleagues are conducting silent filibusters, which
is a disguise for inaction. Under these silent filibusters, Senators
are allowed to object to a bill or a nomination without ever having to
defend
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their position. Instead of explaining to their colleagues and the
American people why they oppose a bill, they are able to skip off to
dinner, leaving this Chamber to total gridlock. Is it any wonder so
many Americans have such a low opinion of Congress? When people look at
the Senate and they see us stuck in a morass of dilatory activities,
they do not appreciate it, they do not like it, and they want action.
They want the people whom they have sent here, whom they voted for,
whom they depend upon, to do something on their behalf. If there is a
disagreement about whether one path is right, they will understand that
at least we are trying to do something.
That is why I have spent so many months in trying to improve the way
we conduct business. Passing these resolutions today will assure the
American people that we are here to do their business.
In addition to the Merkley-Udall resolutions, we will be voting on
other important reforms to the Senate rules today. For example, I
support the measure of the Senator from Oregon, Senator Wyden, to end
secret holds, because the American people, again, deserve to know who
is holding up important legislation. Transparency is something we talk
about constantly around here. Yet we are not willing to put it in front
of the people. This is a much-needed reform.
But we need to do more to make the Senate a more effective and more
efficient Chamber. The Senate--and I have been here a long time--was
once known as the world's greatest deliberative body. At some point we
decided--some years ago--that in order to bring the message more
clearly to the American people we would allow television cameras to be
here so the American people could watch us at work. They could see us
at work--maybe even call it supervise us at work. Well, when they see a
beautiful facility such as the Senate Chamber with no action going on,
it gets to be quite depressing as far as they are concerned, and as far
as we here are generally concerned.
As I said, the Senate was known as the world's greatest deliberative
body--the place where national conversations began and the major issues
of the day were debated. Many of my colleagues and I want to see the
Senate regain the respect of the American people and restore our
reputation for serious debate and civil discourse, but we will never
achieve this if we continue to allow our own rules to be abused. So I
urge my friends and colleagues to join in supporting these resolutions,
because if we want to help the American people get back to work, if we
want to restore their confidence, if we want to let them know
government is here to help and not delay, then we have to get back to
work too. The fact is time is being spent, but it is not being spent on
behalf of progress for the country.
With that, Madam President, I yield the floor, and I thank my
colleague from Iowa, Senator Harkin, who agreed to let me intervene
with my remarks before he spoke at the time that was agreed to.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant editor of the Daily Digest proceeded to call the roll.
Mr. HARKIN. 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. HARKIN. Madam President, exactly 16 years ago, in January of
1995, for the first time in 8 years I found myself as a member of the
minority party here in the Senate. At the beginning of that Congress,
Republicans outnumbered Democrats 53 to 47; the exact same majority-to-
minority ratio that exists today, just in reverse order. Yet even
though I was opposed at that time to the majority party's agenda, I
introduced legislation to change the Senate rules regarding the
filibuster.
My plan would have ensured ample debate and deliberation, which I
always hear is the stated purpose of the filibuster, but would also
have allowed a bill or a nominee to eventually receive a yes-or-no
vote. Again, my proposal didn't pass.
I first proposed this at a conference of our Democratic Senators that
was held in 1994, because at that time I saw and I predicted--and it is
in the Congressional Record that I had predicted this at that time--
there was an escalating use of the filibuster that was being used not
for debate purposes, not just to slow things down, but to actually
provide for a veto of pending legislation by the minority.
I predicted, at that time, if this arms race were not nipped in the
bud, it would escalate because it had been escalating since the 1980s.
Democrats were in power. Republicans would have X number of
filibusters, and then when the Republicans were in power, the Democrats
would do the same to the Republicans. Then the Republicans would come
back in power and the Democrats would do the same to them and back and
forth, but each time it escalated--an escalating arms race.
I predicted, at that time, if we did not do something about it, it
was going to get worse. Unfortunately, my prediction became all too
true. In the intervening years, because of the extraordinary use of the
filibuster, the ability of our government to legislate and to address
the critical problems has been severely jeopardized.
Sixteen years after I first introduced my proposal, it is even more
apparent that for our government to properly function, we must reform
the use of the filibuster. There are those who have criticized me and
argued that Senator Harkin would not be doing this if he were in the
minority. Well, again, that is not true. I repeat. In 1995, when I was
a member of the minority party, I first introduced my proposal.
The truth is, in the future, whether the Chamber is controlled by
Democrats or Republicans, I will continue to work to accomplish a
couple things. One, to provide that if there is going to be a
filibuster, that it is a real filibuster; that the filibuster is used
to slow down processes, to give the minority ample time to debate and
discuss and to amend, but in the end the majority rule must come to the
Senate.
I thank Senator Schumer and Senator Alexander for the effort they
made to negotiate a package of badly needed reforms. Of course,
eliminating secret holds is long overdue. It is wrong that not only can
the minority block the majority from acting, but, too often, it does it
secretly and without any public accountability. So eliminating that and
eliminating the confirmations of many low-level executive branch
nominees I think is meaningful movement in the right direction.
While I fully support these steps, they are far from the meaningful
reforms that I think are essential to make the Senate a properly
functioning legislative body. Keep in mind, we are a legislative body.
The filibuster was once an extraordinary tool, used in the rarest of
instances. Across the entire 19th century, there were only 23
filibusters. From 1917, when the Senate first adopted rules on this
until 1969, there were fewer than 50 in that whole timespan--less than
one a year.
During the 104th Congress, in 1995, when I first introduced my
resolution, there were 82 filibusters. But it was not until the 110th
and 111th Congresses that the abuse of the filibuster would spin wildly
out of control. In the 110th Congress, there were an astonishing 139
motions to end filibusters. In the 111th Congress just ended, there
were 136. That is 275 filibusters in just over 4 years. It has spun out
of control.
This is not just a cold statistic of 275 filibusters. It means the
filibuster, instead of a rare tool to slow things down, has become an
everyday weapon of obstruction, of veto. On almost a daily basis, one
Senator is able to use just the threat of a filibuster to stop bills
from even coming to the floor for debate and amendment, let alone a
final vote.
In the last Congress, the filibuster was used to kill many pieces of
legislation that enjoyed majority and often bipartisan support. The
reality is, because of the way the filibuster is abused today, the
minority--the minority--has unchecked veto power over public policy.
When I say minority, I do not say Republicans, I say the minority. It
could be the Democrats, it could be the Republicans.
Think about this. We are a legislative body, elected by the voters of
this country every 6 years to legislate, to pass legislation with the
House, to send it to the President or to defeat legislation, one way or
the other, through our votes.
But it would seem to me that reason alone--reason alone--would
suffice to
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say that legislation should be able to be passed with a majority vote.
But that is not what has happened in the Senate. The power to pass
legislation has been given to the minority. Reason alone would dictate
there is something inherently wrong and inherently unconstitutional
about this.
As James Madison noted when rejecting a supermajority requirement to
pass legislation, here is what James Madison said: ``It would no longer
be the majority that would rule: the power would be transferred to the
minority.''
Unfortunately, Madison's prediction has come true. We are the only
democratic body in the world--and I challenge anyone, I challenge
anyone, to contradict me on this with proof--we are the only democratic
body in the world where the minority, not the majority, controls.
In today's Senate, democracy, of which we all claim to be such strong
supporters, democracy is turned on its head. The minority rules; the
majority is blocked. The majority has responsibility and accountability
but lacks the power to govern. The minority has power but lacks
accountability or responsibility.
This means, as we have seen recently, that the minority can block
bills that would improve the economy, create jobs, and then turn around
and blame the majority for not fixing the economy. The minority can
block popular legislation, then accuse the majority of being
ineffective.
Again, I wish to note that when I refer to the minority, I am not
saying Republicans, I am saying the minority. Both parties have abused
the filibuster in the past and both will, absent real reform, abuse the
filibuster in the future. Although Republicans are currently in the
minority, there is no question that control of this body will change
again at some point, as it always does periodically.
Some have argued that filibuster reform is nothing more than a
``power grab'' by a Democratic Senator reacting to the recent elections
in which his party lost seats. I have heard that said. Well, it is true
it is now harder for either party to obtain the 60 votes needed to pass
legislation. But I wish to make clear that the reforms I advocate are
not about one party or one agenda gaining an unfair advantage, it is
about the Senate, as an institution, operating more fairly,
effectively, and democratically.
I wish to repeat, I first introduced this in 1995 when I was in the
minority. So as we say in law school, in the court of equity, I come
with clean hands. The truth is, as it is situated right now with
Republicans controlling the House, any final legislation will need to
be bipartisan, with or without a filibuster.
Let me also say, again, that for a bill to become law, it has to be
passed by the House and the Senate in the same form--in the same form.
Then it must go to the President. The President can veto it and then it
takes a two-thirds vote to override a veto. There are a lot of checks
and balances out there. So the need for the check on legislation by the
minority with the ultimate power to veto that is not needed--not
needed; in fact, inimical to a democratic institution.
It was former majority leader Bill Frist who said, when he normally
shut down the body over the use of filibusters to block a handful of
judges, again by Democrats, ``This filibuster is nothing less than a
formula for tyranny by the minority.''
Further, I wish to make it clear it is not those of us who seek
reform who are engaged in a power grab. It is those who insist on
hanging on to an antiquated rule who are grabbing for power. It is
those who have taken an extraordinary tool, once used sparingly, to
ensure ample debate and deliberation and turned it into a monstrosity,
destroying the power of the majority to govern, turning over effective
control of the Senate to the party that failed to elect a majority of
Senators.
That is the real power grab. That is the real power grab. Moreover,
despite the dire predictions of opponents of reform, filibuster reform
does not mean the end of minority rights in the Senate. Senators of all
parties will continue to have ample time to make arguments, attempt to
persuade the public or a majority of their colleagues.
The reform proposals that are being considered fully protect the
rights of the minority to full and vigorous debate and deliberation,
maintaining the hallmark of the Senate.
Presently, Republicans have stated the filibusters were necessary
because Democrats employed a procedural maneuver to deprive them of the
right to offer amendments, the so-called filling of the tree. Well,
notwithstanding the rejoinder that Republican abuse amendments, such as
offering amendments totally unrelated to the pending matter--and there
again this is where you get into the chicken and egg, who did it first
to whom? Nonetheless, I am sympathetic to the argument that the
minority ought to have the right to be able to offer amendments. That
is why I have included in my resolution guaranteed rights to offer
germane amendments--germane amendments, not an amendment dealing with
something totally unrelated to the legislation on the floor--to offer
legitimate, germane amendments which the minority feels would improve
or change, to the minority's liking, whatever legislation, amendment or
bill might be on the floor.
Too many people, I believe, confuse minority rights with minority
winning. Having the right to debate and to deliberate and to offer
amendments does not mean you have the right to get your way. Being
allowed to vote on your amendment does not mean you have a right to win
the vote. The minority does not deserve the right to prevail in every
instance.
The minority obviously can convince some of the majority to join
them. Then they become the majority on a given issue or given
amendment. That used to happen all the time around here. There is
nothing wrong with that. But the minority, I submit, does not deserve
the right, under our Constitution, nor under any reasonable
interpretation of a Democratic legislative body--they do not have the
right to systematically block action by the majority and to veto, to
have veto power, over what can even be considered on the floor of the
Senate.
The fact is, provided that the minority is vested with ample
protections, as it is in my proposal, at the end of ample debate, the
majority should be allowed to act. What is so radical? What is so
strange about the notion that in a legislative body, the peoples'
representatives should vote up or down on legislation or a nominee?
As Senator Henry Cabot Lodge stated many years ago: ``To vote without
debating is perilous, but to debate and never vote is imbecile.''
I think at the heart of this debate is a central question that we are
not coming to grips with. Do we truly believe in democracy? Do we truly
believe the issues of public policy should be decided at the ballot box
and not by the manipulation of archaic procedural rules? I think the
truth is, both parties appear to be afraid of majority rule, afraid of
allowing a majority of Senators to work their will.
At its heart, those who hang on to this outdated rule, those who
vigorously oppose the majority having the ability to govern fear the
American people. They fear that the people's choices and wishes will be
translated into action here in Washington.
The central question for this body is clear: Do we or do we not
believe in democracy and majority rule? Elections should have
consequences. After ample protections for minority rights, the majority
party in the Senate, whether Democratic or Republican, duly elected by
the American people, should be allowed to carry out their agenda and be
allowed to govern.
Should I be opposed to reform of the filibuster because I am afraid
Republicans someday will become the majority party in the Senate and
proceed to enact their agenda? No. I believe in democracy for
Republicans and Democrats alike. I believe in majority rule for
Republicans and Democrats alike.
The distinguished minority leader said recently in regard to this
proposal that Democrats ought to be concerned because a couple years
from now Republicans might take over this place and would be able to
undo a lot of the things we did--fear that somehow the Republicans will
get the majority and be able to enact their agenda. I say to my
friends, God bless them. If they win the election and become the
majority party, they ought to govern. What are
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the checks and balances? We don't know whether the President will be a
Democrat or a Republican. We don't know what the House is going to be.
There are still a lot of internal checks and balances in the committee
structure.
The minority, under my proposal, can still slow things down. I read
in the paper that one Senator said it ought to be the right of the
minority to slow things down. I believe that. I believe that in the
Senate the minority ought to have the right to slow things down. That
is why my proposal provides for that. There is ample opportunity to
slow things down, throw some sand in the gearbox of the majority. But
in my proposal, at the end of a period of time of 8 days, the majority
can govern. So one can slow it down--slow down everything, every
amendment, every bill--so compromise negotiations would still go on.
I hear from my side: What if the tea party gains a majority in the
Senate? We will need to filibuster to stop them. I say to my friends on
this side and others, it is a sad day in America when the only way we
can stop the tea party or any other extreme group is through
subterfuge, through filibusters, secret holds, and parliamentary
trickery. We have to have a fundamental confidence in democracy and the
good sense of the American people. We have to have confidence in our
ability to make our case to the American people and to prevail at the
ballot box. We must not be afraid of the American people. We must not
be afraid of how they cast their votes or for whom. I am not afraid of
the will of the people expressed at the ballot box. That is what sent
me to this Chamber. I should note, that used to be the operating
principle of this body, but over the years, especially recently, it has
become grossly distorted.
We all have our views on the recent election and what the American
people said. Everybody has a view on that. I will say what my view is.
The American people spoke loudly that they are fed up and angry with
Washington, with government, and with Congress. They want change, and
they want an end to the dysfunction in this city. In too many critical
areas--job creation, energy, the economy--people see a Congress that is
unable to respond effectively to the urgent challenges of our time.
My proposal is basically the same as I offered 16 years ago. It would
amend the Standing Rules of the Senate to permit a decreasing majority
of Senators over a period of 8 days to invoke cloture on a given
matter. A determined minority could slow things down for 8 days.
Senators would have ample time to make arguments and attempt to
persuade the public and a majority of their colleagues. This protects
the right of the minority to full and vigorous debate and deliberation,
again maintaining the hallmark of the Senate. At the end of ample
debate, however, there would be an up-or-down vote on an amendment, a
bill, a nominee. My proposal would restore a basic and essential
principle of representative democracy: majority rule in a legislative
body.
I also think there is another advantage--that it would lead to
greater compromise. Many have argued that it is the filibuster that
forces compromise and collaboration. I disagree. The fact is, right now
the minority has no real incentive to compromise. Why should they if
they can totally block something and then go out and campaign on a
message that the majority just couldn't get anything done? Again, the
minority has a great deal of power but zero incentive on compromise.
I believe my proposal would encourage a more robust spirit of
compromise. If the minority knows that at the end of the day, at the
end of 8 days, 51 votes will be enough to bring a bill to the floor or
to end debate on an amendment or a nominee, it seems they would be more
willing to come to the table and compromise. And for the majority, the
reason to compromise is because for the majority party in the Senate--
either one, Democratic or Republican--one of the most valuable things
is time, allocation of time. The majority always wants to save time. So
rather than chew up 8 days on a nominee or an amendment, the majority
would like to get it done in a day or so. The minority, knowing that at
the end of 8 days, 51 votes can pass something, will say: Maybe we
ought to compromise now and get what we can out of it without dragging
it out 8 days. Right now, there is literally zero incentive to
compromise.
I also strongly encourage colleagues to support the talking
filibuster proposal of Senator Merkley. They claim it is about
silencing the minority. The fact is, the filibuster has nothing to do
with debate and deliberation. It is used to prevent consideration.
Rather than serve to ensure the representation of minority views and to
foster deliberation, the minority uses the filibuster to prevent debate
and deliberation. The filibuster has been used to defeat bills and
nominees without their receiving a discussion on the floor. So the
world's greatest deliberative body has now become the world's greatest
nondeliberative body.
I think a ``yes'' vote today on a vote for reform, for change, and
for a government that can effectively address our Nation's challenges
is a vote to move ahead. It is a vote for progress--or we can vote for
continued gridlock, continued obstruction, and broken government. This
body does not function the way it is supposed to.
To be sure, the Founders put in place a system of checks and balances
that makes it enormously difficult to enact legislation. It must pass
both Houses of Congress. It has to go through committees first. It must
pass both Houses of Congress, go to a conference committee, then it
goes to the President. He can veto it. And then it can be challenged in
court. All are very significant checks.
I often hear opponents of reform claim that what I am proposing would
turn the Senate into the House of Representatives because at the end of
8 days, 51 votes could move something. I ask my friends: When did the
Senate become defined by Senate rule XXII, which is the filibuster
rule? I thought the Senate was defined in the Constitution. Rule XXII,
the filibuster rule, is not the essence of the Senate. Regardless, the
Senate will continue to be totally different from the House. We have
two Senators from small States, two Senators from large States. We are
elected every 6 years. We have sole jurisdiction over treaties,
impeachments. And the Senate operates, as we know, in so many instances
based on unanimous consent. That will continue. So the power of one
single Senator remains to object to any unanimous consent request.
Eliminating the filibuster will not change the basic nature of this
body, nor the constitutional structure of the Senate.
For most of the Senate's history, there were very few filibusters--at
most one or two a year. Can someone suggest that the Senate of Henry
Clay or Daniel Webster, Lyndon Johnson, Everett Dirksen, that that
Senate was the same as the House of Representatives? Even in my short
time here--26 years--we used to have amendments on the floor that we
would debate and vote, and if you got 51 votes, you won. We don't do
that anymore. Under the present structure of the Senate, under the
present rule XXII, the way it is being used today, every measure that
passes the Senate must have 60 votes. Whatever happened to the idea of
majority rule? Now one has to have 60 votes.
I have heard some say that if we have to have 60 votes, this
encourages compromise to get to the 60 votes. I am all for compromise.
I have brought a lot of legislation to the floor in my time here, and
some has been adopted 100 to nothing. Farm bills, appropriations bills,
others that I have brought to the floor, both in the majority party and
in the minority party as the ranking member on a committee--and we
didn't need 60 votes. If someone offered an amendment, they had the
right to offer an amendment and get 51 or 52 or 53 votes and win. I
have never stood at that desk, either as a committee chair or as
ranking member, and insisted that a bill we had on the floor had to
have 60 votes in order to pass. But that is what has happened in the
Senate now.
Some say that promotes compromise. Anyone who has a bill or an
amendment wants to get the most votes possible, right? They want to get
more votes. That is the nature of legislation. But sometimes there is a
bill or an amendment that does not lend itself to easy compromise. It
may be contentious. We may have to take a hard vote. Maybe it only gets
51 votes.
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Should that amendment go down to failure because it got 51 or 52 or 53
or 54 or 55 or 58 or 59 votes? Go out and explain that to the American
people. Go to the next townhall meeting and say: No matter what
happens, you can't pass anything with 51 votes. You have to have 60
votes to pass anything in the Senate. That gives the minority the right
to veto anything. See how people react to that. When they understand
it, they say: That is nuts.
We all stand for election every 6 years. If we only get 52 percent of
the vote, maybe we shouldn't be here because obviously there was no
consensus among the people who voted for us that we should represent
them if we didn't get 60 percent of the vote. Is that what is coming,
that we have to have 60 percent of the vote to even serve in the
Senate? I know I am taking it to its extreme. I know no one is
suggesting that. But boiled down to its essence, what we are saying is,
without adopting reform of the filibuster, yes, we as a U.S. Senate
believe a minority has the right to veto anything in this Senate.
I would much rather be on the side that says the minority has a right
to slow things down, the minority has the right to debate, the minority
has the right to amend, and the minority has a right to win those
amendments with 51 votes. But a minority should not have the right to
veto and stop legislation.
That is what my proposal does: adequate time for debate, adequate
time for amendments, ensuring that the minority can offer an amendment,
but, in the end, the majority would rule. It was never intended--never,
never intended--that a supermajority of 60 votes would be needed to
enact any piece of legislation, any amendment, or confirm a nominee.
Indeed, the Framers of our Constitution were very clear about where a
supermajority was required. There were only five to the original
Constitution: ratification of a treaty, overriding a veto, votes of
impeachment, passage of a constitutional amendment, and expulsion of a
Member.
It may come as a shock to many people, but the filibuster is not in
the Constitution of the United States. In fact, historically, the first
Senate, when it met, included a rule that permitted the majority to end
debate and bring a measure to a vote with a majority. It was called
``invoking the previous question.'' But they had the right to do that.
It was done away with by Aaron Burr, then-Vice President of the United
States. We know what happened to him. But that was done away with.
So the Senate embarked upon a little over 100 years of having no
rules. But, then again, the Senate did not do much. They really did not
do much. However, in the 21st century, as a major superpower, with
things happening with lightning speed around the world, we have to be
able to react a little bit more rapidly than how we reacted in the 19th
century.
Moreover, reform of filibuster rules stands squarely within a
tradition of updating Senate rules as needed to foster an effective
government that can respond to the challenges of the day. The Senate
has adopted rules that forbid the filibuster in numerous circumstances,
such as war powers and the budget. Think about that. For some reason,
the Senate, at some point in time, said you cannot filibuster the
budget. Imagine that. You can filibuster other things, but you cannot
filibuster the budget. How about war powers? What could be more
important than whether or not we go to war? It is a power granted to
the Congress by the Constitution, but you cannot filibuster it. Think
about that.
So we have rules that forbid the filibuster. We have passed four
significant reforms of the filibuster since 1917. Today, unfortunately,
it has become abundantly clear that we cannot govern a 21st-century
superpower when a minority of 41 Senators can dictate action or
inaction to a majority of the Senate and a majority of the American
people--a majority of the American people.
We had a bill here last year; it was called the DISCLOSE Act. The
House passed it twice overwhelmingly. They sent it to the Senate. Now,
what did the DISCLOSE Act say? All it did is say the Supreme Court
decision in Citizens United, that allowed corporate money to be
funneled into campaigns to defeat or support an opponent and did not
have to be accounted for, did not have to be made public. Many people
suspected there was foreign money coming in through various sources to
influence campaigns in the United States because they did not have to
report it. So the bill came through that did not overturn the Supreme
Court decision. It just said: If you are going to do this, you have to
disclose where you got the money.
It passed the House. Polls showed it was supported by well over 80
percent of the people, a majority of Republicans and Democrats around
the country. It came to the Senate twice. It got 59 votes. Why isn't it
law today? Because you need 60 votes--60 votes. Go back and explain
that at your town meetings. Go back and tell them: We don't have that
today. We don't have that sunshine law because we need 60 votes, even
though we got 59.
This is not the kind of representative democracy the Founders
envisioned. It is not the kind of representative democracy that our
sons and daughters have fought and died for for over 200 years. How
many of our young men and women in uniform today--risking their lives
in Afghanistan, Iraq, around the globe--how many of them know they are
risking their lives for minority rule--for minority rule, not majority
rule--minority rule? Very few, I submit. Very few.
It is time to end the paralysis, the drift, and the decline in the
Senate. Yes, let's commit ourselves to debate and deliberation. There
is nothing wrong with that, nothing wrong with extended debate. There
is nothing wrong with having compromises. There comes a time when maybe
a compromise is not in the cards. But should that mean we cannot vote
on it, I say to my friends? Should that mean if we cannot get 60 votes,
we do not even deserve to have 51 or 52 or 53 votes? Is that what we
are saying?
I have heard my friends on the other side--I think I heard; I do not
know exactly who it was today--say: Well, the 60 votes promotes
compromise. I am all for that. But what if we cannot get the
compromise, I say? Then are we saying we cannot have a vote because we
cannot get 60 votes? That is, in essence, what they are saying. It is
not the bedrock of democratic principle to deny the majority to rule,
to finally have a vote.
So there may be a lot of misinterpretations of the amendment I am
offering: Oh, it is going to make us like the House. Nonsense. It is
going to take away minority rights. Nonsense. It is going to take away
the right of the minority to slow things down. Nonsense.
What my amendment does is it says, finally, at some point in time, we
are going to exercise our constitutional obligation.
I will close on this: Every 6 years we have an election and we go
down here and hold up our right hand and we swear an oath. We swear an
oath to uphold and defend the Constitution of the United States against
all enemies, foreign and domestic, and to bear true faith and
allegiance to the same.
I submit we are not living up to our oath of office in terms of
bearing true faith and allegiance to the Constitution when, on the
other hand, we enact rules that deny the majority the right to govern--
when we deny the majority the right to govern.
So I say every Senator has a lot of power here. The power of a
Senator comes not from what we can do but from what we can stop. I have
often said that is kind of the dirty little secret of the Senate.
Well, I think it is time for each of us to give up a little bit of
our power, to give up a little bit of our power for the good of the
country, to give up a little bit of our power of being able to stop
something in order that the majority--whomever that majority may be--
can carry out their agenda on behalf of the American people.
I do not fear--I do not fear--the voters. I do not fear the ballot
box. What I fear is this Senate will continue to be dysfunctional, it
will not be able to act, we will continue to drift, we will not be able
to respond to the exigencies of our time, the American people will get
more and more frustrated and disappointed in the workings of our
government, and the end result will be a decline in America.
Look, I am not Pollyannaish. I know none of these proposals will
succeed. It
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takes 67 votes, they say, to change the rules of the Senate. I believe
that is inherently unconstitutional. Can one Congress bind another? Can
one Congress bind all future Congresses? Can one Senate bind all future
Senates? Can one Senate in a moment of time say we need 90 votes to
pass anything here because 90 Members happen to be of one party, so
they enact a rule and they say we have to have 90 votes to change any
rule, knowing it will probably never happen again?
As Senator Byrd said one time--I know he is being quoted a lot around
here today and when it comes to these debates--we should not be bound
by the dead hand of the past--the dead hand of the past.
I believe it is the inherent right of the Senate to change its rules
by a majority vote at the beginning of any Congress. That is what it
says in the Constitution. Each House shall make its rules. It does not
say each House makes its rules and every succeeding House must abide by
those rules. It does not say that.
So I think we are left with a situation where the Senate--where the
Senate--cannot live up to its constitutional obligation. I think it is
almost inherently impossible for the Senate to do so. Therefore, I
think we must now have to look to the courts to provide some relief in
this matter, just as the Supreme Court decided in Baker v. Carr that
legislatures could not reapportion themselves. So, therefore, they
found it unconstitutional.
I, quite frankly, think a case can be made to the courts that the
Senate rules, as they are now applied with the 67-vote threshold,
prevent me, a Senator from Iowa, prevent a Senator from Georgia,
prevent a Senator from Oregon from fulfilling his or her constitutional
obligations to their constituents, to the people who elected them, to
try to get legislation passed on a majority basis.
So, like I said, I am not Pollyannaish. I know where the votes are
today. I do not know--I know my proposal will not get many votes. It
did not get many in 1995 either. And people say: Well, Harkin, why are
you doing this? Why do you do it when you know you do not get many
votes? I do it because I believe in it. I believe with all my heart and
all my soul that the Senate is not operating constitutionally right
now. So I feel this fight must continue.
As I said, I now come to that point in time where I believe that
perhaps we must look to the courts for their decision on whether the
Senate is capable of fulfilling its constitutional responsibilities and
obligations.
So I hope we do not have to go there. I hope we could adopt some of
these reforms, such as the Merkley amendment or my proposal. Quite
frankly, at the essence of it is the proposal by the Senator from New
Mexico. That is the heart of it. Can a majority of the Senate change
its rules at the beginning of a Senate? I believe it is
constitutionally not only permissible, but I think we are obligated by
the Constitution every 2 years to adopt the rules of the Senate by a
majority vote and not by 67 votes.
So I close my part of the debate by appealing to the conscience of
our Senators to think about majority rule, think about the rights of
the minority but think about the rights of the American people to have
their voices heard here by a majority vote and not by a supermajority.
I believe that is our constitutional obligation.
Madam President, I yield the floor.
The PRESIDING OFFICER (Ms. Klobuchar). The Senator from Georgia is
recognized.
Mr. ISAKSON. Madam President, I rise briefly to address a few remarks
made by the senior Senator from Iowa and to compliment my colleague
from Tennessee. But first, regarding all of these talks about our
Founding Fathers and our Constitution, if our Founding Fathers had not
intended for supermajorities to determine certain acts of this
Congress, why would two-thirds of us have to vote to pass a
constitutional amendment and three-fourths of the States have to vote
to ratify one? I think that showed the intent. If our Founding Fathers
had not intended for minority representation to exist, I wouldn't have
two Senators like California; everybody would have a proportionate
number of Senators. Finally and most importantly, with regard to the
notion that we are the only democracy in the world to have a rule where
majority rules, the fact is, that may be true. We are also the richest,
safest, most prosperous democracy in the world, and that has a lot to
do with the way we govern ourselves. So I wanted to make those three
points.
I wish to congratulate Senators Wyden, McCaskill, and Grassley on
what I think is a very appropriate amendment to make sure we have total
transparency in our process of holds in the Senate. I think that is
right, and I think that is exactly what the American people would
express.
Lastly, I wish to thank the Senator from Tennessee and the Senator
from New York. In the last few weeks, they have done a lot of good
work--yeoman's work, as a matter of fact--to make sure this Senate
doesn't rush to judgment and make a mistake that would not be in the
interests of the institution or the American people. The Senate in the
end is all about Senators putting their shoulders to the grindstone and
making things work, and I think in this case the Senator from Tennessee
has done exactly that, and I wish to compliment him on his work.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. UDALL of New Mexico. Madam President, I wish to thank all of the
Senators who have come down for this debate. These are just a couple of
cleanup, housekeeping things I need to do.
First of all, the charge was made that we are trying to make the
Senate like the House. Rather than get in a long debate here, I ask
unanimous consent to have printed in the Record Federalist Paper No. 62
and a letter from a number of scholars who testified before the Rules
Committee.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Federalist Papers
FEDERALIST No. 62
The Senate
Alexander Hamilton or James Madison
To the People of the State of New York:
HAVING examined the constitution of the House of
Representatives, and answered such of the objections against
it as seemed to merit notice, I enter next on the examination
of the Senate.
The heads into which this member of the government may be
considered are:
I. The qualification of senators;
II. The appointment of them by the State legislatures;
III. The equality of representation in the Senate;
IV. The number of senators, and the term for which they are
to be elected;
V. The powers vested in the Senate.
I. The qualifications proposed for senators, as
distinguished from those of representatives, consist in a
more advanced age and a longer period of citizenship. A
senator must be thirty years of age at least; as a
representative must be twenty-five. And the former must have
been a citizen nine years; as seven years are required for
the latter. The propriety of these distinctions is explained
by the nature of the senatorial trust, which, requiring
greater extent of information and stability of character,
requires at the same time that the senator should have
reached a period of life most likely to supply these
advantages; and which, participating immediately in
transactions with foreign nations, ought to be exercised by
none who are not thoroughly weaned from the prepossessions
and habits incident to foreign birth and education. The term
of nine years appears to be a prudent mediocrity between a
total exclusion of adopted citizens, whose merits and talents
may claim a share in the public confidence, and an
indiscriminate and hasty admission of them, which might
create a channel for foreign influence on the national
councils.
II. It is equally unnecessary to dilate on the appointment
of senators by the State legislatures. Among the various
modes which might have been devised for constituting this
branch of the government, that which has been proposed by the
convention is probably the most congenial with the public
opinion. It is recommended by the double advantage of
favoring a select appointment, and of giving to the State
governments such an agency in the formation of the federal
government as must secure the authority of the former, and
may form a convenient link between the two systems.
III. The equality of representation in the Senate is
another point, which, being evidently the result of
compromise between the opposite pretensions of the large and
the small States, does not call for much discussion. If
indeed it be right, that among a people thoroughly
incorporated into one nation, every district ought to have a
PROPORTIONAL share in the government, and that among
independent and sovereign States, bound together by a simple
league, the parties, however unequal in size, ought to have
an EQUAL share in the common councils, it
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does not appear to be without some reason that in a compound
republic, partaking both of the national and federal
character, the government ought to be founded on a mixture of
the principles of proportional and equal representation. But
it is superfluous to try, by the standard of theory, a part
of the Constitution which is allowed on all hands to be the
result, not of theory, but ``of a spirit of amity, and that
mutual deference and concession which the peculiarity of our
political situation rendered indispensable.'' A common
government, with powers equal to its objects, is called for
by the voice, and still more loudly by the political
situation, of America. A government founded on principles
more consonant to the wishes of the larger States, is not
likely to be obtained from the smaller States. The only
option, then, for the former, lies between the proposed
government and a government still more objectionable. Under
this alternative, the advice of prudence must be to embrace
the lesser evil; and, instead of indulging a fruitless
anticipation of the possible mischiefs which may ensue, to
contemplate rather the advantageous consequences which may
qualify the sacrifice.
In this spirit it may be remarked, that the equal vote
allowed to each State is at once a constitutional recognition
of the portion of sovereignty remaining in the individual
States, and an instrument for preserving that residuary
sovereignty. So far the equality ought to be no less
acceptable to the large than to the small States; since they
are not less solicitous to guard, by every possible
expedient, against an improper consolidation of the States
into one simple republic.
Another advantage accruing from this ingredient in the
constitution of the Senate is, the additional impediment it
must prove against improper acts of legislation. No law or
resolution can now be passed without the concurrence, first,
of a majority of the people, and then, of a majority of the
States. It must be acknowledged that this complicated check
on legislation may in some instances be injurious as well as
beneficial; and that the peculiar defense which it involves
in favor of the smaller States, would be more rational, if
any interests common to them, and distinct from those of the
other States, would otherwise be exposed to peculiar danger.
But as the larger States will always be able, by their power
over the supplies, to defeat unreasonable exertions of this
prerogative of the lesser States, and as the faculty and
excess of law-making seem to be the diseases to which our
governments are most liable, it is not impossible that this
part of the Constitution may be more convenient in practice
than it appears to many in contemplation.
IV. The number of senators, and the duration of their
appointment, come next to be considered. In order to form an
accurate judgment on both of these points, it will be proper
to inquire into the purposes which are to be answered by a
senate; and in order to ascertain these, it will be necessary
to review the inconveniences which a republic must suffer
from the want of such an institution.
First. It is a misfortune incident to republican
government, though in a less degree than to other
governments, that those who administer it may forget their
obligations to their constituents, and prove unfaithful to
their important trust. In this point of view, a senate, as a
second branch of the legislative assembly, distinct from, and
dividing the power with, a first, must be in all cases a
salutary check on the government. It doubles the security to
the people, by requiring the concurrence of two distinct
bodies in schemes of usurpation or perfidy, where the
ambition or corruption of one would otherwise be sufficient.
This is a precaution founded on such clear principles, and
now so well understood in the United States, that it would be
more than superfluous to enlarge on it. I will barely remark,
that as the improbability of sinister combinations will be in
proportion to the dissimilarity in the genius of the two
bodies, it must be politic to distinguish them from each
other by every circumstance which will consist with a due
harmony in all proper measures, and with the genuine
principles of republican government.
Secondly. The necessity of a senate is not less indicated
by the propensity of all single and numerous assemblies to
yield to the impulse of sudden and violent passions, and to
be seduced by factious leaders into intemperate and
pernicious resolutions. Examples on this subject might be
cited without number; and from proceedings within the United
States, as well as from the history of other nations. But a
position that will not be contradicted, need not be proved.
All that need be remarked is, that a body which is to correct
this infirmity ought itself to be free from it, and
consequently ought to be less numerous. It ought, moreover,
to possess great firmness, and consequently ought to hold its
authority by a tenure of considerable duration.
Thirdly. Another defect to be supplied by a senate lies in
a want of due acquaintance with the objects and principles of
legislation. It is not possible that an assembly of men
called for the most part from pursuits of a private nature,
continued in appointment for a short time, and led by no
permanent motive to devote the intervals of public occupation
to a study of the laws, the affairs, and the comprehensive
interests of their country, should, if left wholly to
themselves, escape a variety of important errors in the
exercise of their legislative trust. It may be affirmed, on
the best grounds, that no small share of the present
embarrassments of America is to be charged on the blunders of
our governments; and that these have proceeded from the heads
rather than the hearts of most of the authors of them. What
indeed are all the repealing, explaining, and amending laws,
which fill and disgrace our voluminous codes, but so many
monuments of deficient wisdom; so many impeachments exhibited
by each succeeding against each preceding session; so many
admonitions to the people, of the value of those aids which
may be expected from a well-constituted senate?
A good government implies two things: first, fidelity to
the object of government, which is the happiness of the
people; secondly, a knowledge of the means by which that
object can be best attained. Some governments are deficient
in both these qualities; most governments are deficient in
the first. I scruple not to assert, that in American
governments too little attention has been paid to the last.
The federal Constitution avoids this error; and what merits
particular notice, it provides for the last in a mode which
increases the security for the first.
Fourthly. The mutability in the public councils arising
from a rapid succession of new members, however qualified
they may be, points out, in the strongest manner, the
necessity of some stable institution in the government. Every
new election in the States is found to change one half of
the representatives. From this change of men must proceed
a change of opinions; and from a change of opinions, a
change of measures. But a continual change even of good
measures is inconsistent with every rule of prudence and
every prospect of success. The remark is verified in
private life, and becomes more just, as well as more
important, in national transactions.
To trace the mischievous effects of a mutable government
would fill a volume. I will hint a few only, each of which
will be perceived to be a source of innumerable others.
In the first place, it forfeits the respect and confidence
of other nations, and all the advantages connected with
national character. An individual who is-observed to be
inconstant to his plans, or perhaps to carry on his affairs
without any plan at all, is marked at once, by all prudent
people, as a speedy victim to his own unsteadiness and folly.
His more friendly neighbors may pity him, but all will
decline to connect their fortunes with his; and not a few
will seize the opportunity of making their fortunes out of
his. One nation is to another what one individual is to
another; with this melancholy distinction perhaps, that the
former, with fewer of the benevolent emotions than the
latter, are under fewer restraints also from taking undue
advantage from the indiscretions of each other. Every nation,
consequently, whose affairs betray a want of wisdom and
stability, may calculate on every loss which can be sustained
from the more systematic policy of their wiser neighbors. But
the best instruction on this subject is unhappily conveyed to
America by the example of her own situation. She finds that
she is held in no respect by her friends; that she is the
derision of her enemies; and that she is a prey to every
nation which has an interest in speculating on her
fluctuating councils and embarrassed affairs.
The internal effects of a mutable policy are still more
calamitous. It poisons the blessing of liberty itself. It
will be of little avail to the people, that the laws are made
by men of their own choice, if the laws be so voluminous that
they cannot be read, or so incoherent that they cannot be
understood; if they be repealed or revised before they are
promulgated, or undergo such incessant changes that no man,
who knows what the law is to-day, can guess what it will be
to- morrow. Law is defined to be a rule of action; but how
can that be a rule, which is little known, and less fixed?
Another effect of public instability is the unreasonable
advantage it gives to the sagacious, the enterprising, and
the moneyed few over the industrious and uniformed mass of
the people. Every new regulation concerning commerce or
revenue, or in any way affecting the value of the different
species of property, presents a new harvest to those who
watch the change, and can trace its consequences; a harvest,
reared not by themselves, but by the toils and cares of the
great body of their fellow-citizens. This is a state of
things in which it may be said with some truth that laws are
made for the FEW, not for the MANY.
In another point of view, great injury results from an
unstable government. The want of confidence in the public
councils damps every useful undertaking, the success and
profit of which may depend on a continuance of existing
arrangements. What prudent merchant will hazard his fortunes
in any new branch of commerce when he knows not but that his
plans may be rendered unlawful before they can be executed?
What farmer or manufacturer will lay himself out for the
encouragement given to any particular cultivation or
establishment, when he can have no assurance that his
preparatory labors and advances will not render him a victim
to an inconstant government? In a word, no great improvement
or laudable enterprise can go forward which requires the
auspices of a steady system of national policy.
But the most deplorable effect of all is that diminution of
attachment and reverence which steals into the hearts of the
people, towards a political system which betrays so many
marks of infirmity, and disappoints so
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many of their flattering hopes. No government, any more than
an individual, will long be respected without being truly
respectable; nor be truly respectable, without possessing a
certain portion of order and stability.
PUBLIUS.
____
December 2, 2010.
Dear Members of the Senate: As you know, the Senate has
debated the merits of the filibuster and related procedural
rules for over two centuries. Recently, several senators who
are advocating changes to Senate Rule XXII have renewed this
discussion. We write this letter today to clarify some of the
common historical and constitutional misperceptions about the
filibuster and Rule XXII that all too often surface during
debates about Senate rules.
First, many argue that senators have a constitutional right
to extended debate. However, there is no explicit
constitutional right to filibuster. In fact, there is ample
evidence that the framers preferred majority rather than
supermajority voting rules. The framers knew full well the
difficulties posed by supermajority rules, given their
experiences in the Confederation Congress under the Articles
of Confederation (which required a supermajority vote to pass
measures on the most important matters). A common result was
stalemate; legislators frequently found themselves unable to
muster support from a supermajority of the states for
essential matters of governing. In the Constitution, the
framers specified that supermajority votes would be necessary
in seven, extraordinary situations--which they specifically
listed (including overriding a presidential veto, expelling a
member of the Senate, and ratifying a treaty). These, of
course, are all voting requirements for passing measures,
rather than rules for bringing debate to a close.
Second, although historical lore says that the filibuster
was part of the original design of the Senate, there is no
empirical basis for that view. There is no question that the
framers intended the Senate to be a deliberative body. But
they sought to achieve that goal through structural features
of the chamber intended to facilitate deliberation--such as
the Senate's smaller size, longer and staggered terms, and
older members. There is no historical evidence that the
framers anticipated that the Senate would adopt rules
allowing for a filibuster. In fact, the first House and the
first Senate had nearly identical rulebooks, both of which
included a motion to move the previous question. The House
converted that rule into a simple majority cloture rule early
in its history. The Senate did not.
What happened to the Senate's previous question motion? In
1805, as presiding officer of the Senate, Vice President
Aaron Burr recommended a pruning of the Senate's rules. He
singled out the previous question motion as unnecessary
(keeping in mind that the rule had not yet routinely been
used in either chamber as a simple majority cloture motion).
When senators met in 1806 to re-codify the rules, they
deleted the previous question motion from the Senate
rulebook. Senators did so not because they sought to create
the opportunity to filibuster; they abandoned the motion as a
matter of procedural housekeeping. Deletion of the motion
took away one of the possible avenues for cutting off debate
by majority vote, but did not constitute a deliberate choice
to allow obstruction. The first documented filibusters did
not occur until the 1830s, and for the next century they were
rare (but often effective) occurrences in a chamber in which
majorities generally reigned.
Finally, the adoption of Rule XXII in 1917 did not reflect
a broad-based Senate preference for a supermajority cloture
rule. At that time, a substantial portion of the majority
party favored a simple majority rule. But many minority party
members preferred a supermajority cloture rule, while others
preferred no cloture rule at all. A bargain was struck:
Opponents of reform promised not to block the rule change and
proponents of reform promised not to push for a simple
majority cloture rule. The two-thirds threshold, in other
words, was the product of bargaining and compromise with the
minority. As has been typical of the Senate's past episodes
of procedural change, pragmatic politics largely shaped
reform of the Senate's rules.
We hope this historical perspective on the origins of the
filibuster and Rule XXII will be helpful to you as matters of
reform are raised and debated. Please do not hesitate to
contact us if we can provide additional clarification.
Very truly yours,
Sarah Binder, Senior Fellow, Governance Studies, The
Brookings Institution; Professor of Political Science, George
Washington University.
Gregory Koger, Associate Professor of Political Science,
University of Miami.
Thomas E. Mann, W. Averell Harriman Chair & Senior Fellow,
Governance Studies, The Brookings Institution.
Norman Ornstein, Resident Scholar, American Enterprise
Institute for Public Policy Research.
Eric Schickler, Jeffrey & Ashley McDermott Endowed Chair &
Professor of Political Science, University of California,
Berkeley.
Barbara Sinclair, Marvin Hoffenberg Professor of American
Politics Emerita, University of California, Los Angeles.
Steven S. Smith, Kate M. Gregg Distinguished Professor of
Social Sciences & Professor of Political Science, Washington
University.
Gregory J. Wawro, Deputy Chair & Associate Professor of
Political Science, Columbia University.
Mr. UDALL of New Mexico. Time and time again last year, during the
Rules Committee hearings on rules reform, my Republican colleagues said
that any attempt to change the filibuster would make the Senate no
different than the House. They said reforming the filibuster would be
contrary to our Founders' intent to make the Senate a more deliberative
body.
This argument makes little sense to me. The filibuster was never part
of the original Senate--the Founders made this body distinct from the
House in many ways, but the filibuster is not one of them.
A letter from seven prominent political science scholars, six of whom
testified in last year's Rules Committee hearings, states the
following:
[T]here is no explicit constitutional right to filibuster.
In fact, there is ample evidence that the framers preferred
majority rather than supermajority voting rules. The framers
knew full well the difficulties posed by supermajority rules,
given their experiences in the Confederation Congress under
the Articles of Confederation (which required a supermajority
vote to pass measures on the most important matters). A
common result was stalemate; legislators frequently found
themselves unable to muster support from a supermajority of
the states for essential matters of governing.
But we do not have to rely on today's scholars to tell us that the
Senate's uniqueness is not premised on the filibuster and unlimited
debate. Our Founders explained their vision for our Republic in the
Federalist Papers, and Federalist No. 62 explained quite clearly the
ways the Senate is unique from the House of Representatives.
In Federalist 62, Alexander Hamilton and James Madison wrote the
following:
The qualifications proposed for senators, as distinguished
from those of representatives, consist in a more advanced age
and a longer period of citizenship. A senator must be thirty
years of age at least; as a representative must be twenty-
five. And the former must have been a citizen nine years; as
seven years are required for the latter.
They go on to explain about how Representatives will be directly
elected by the people, but Senators will be appointed by the State
legislatures. This of course was changed in 1913 by the 17th amendment,
which established direct election of Senators by popular vote.
This, I would argue, is a far more drastic change to the Senate than
anything we could do with rules reform, yet even that change did not
turn the Senate into the House.
But perhaps the most important distinction between the bodies is whom
we represent.
Federalist 62 explains that the equality of representation in the
Senate was the:
result of compromise between the opposite pretensions of the
large and the small States. . . . [T]hat among a people
thoroughly incorporated into one nation, every district ought
to have a proportional share in the government, and that
among independent and sovereign States, bound together by a
simple league, the parties, however unequal in size, ought to
have an equal share in the common councils . . . [and] the
government ought to be founded on a mixture of the principles
of proportional and equal representation.
It is this fact that makes the Senate very different than the House.
As a Senator from New Mexico, I represent just over 2 million people.
Senators Feinstein and Boxer represent over 37 million constituents in
California. And Senators Barrasso and Enzi, representing Wyoming with a
population of just over half a million, actually have fewer
constituents than members of the House.
Yet we all have the same vote in the Senate. This is what makes this
body unique. Our founders did not intend to protect a minority party
from being steamrolled by a majority party, but instead to protect
small States from being run over by the large States.
Federalist 62 goes on to discuss how the number of Senators, and the
duration of their term, is another key distinction between the bodies.
Unlike the House, who are always facing reelection less than 2 years
away, two-thirds of the Senate is always free from the same worry.
Coupled with the fact that senators were appointed by the State
legislatures, the Founders believed that the
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Senate would be a check on the House against legislation that was
passed too quickly and without sufficient consideration. But they
intended the structure of the Senate to make us a more deliberative
body, not the rules that govern us.
So whatever changes we might make to our standing rules, whether
minor or significant, the Senate will always be distinct from the House
of Representatives. The cloture rule was only implemented in 1917--any
changes we make to it today cannot destroy the uniquely deliberative
nature of this body.
So to speak more generally now, today we come to the floor as a body
to debate changes to the rules that guide this institution. All of the
proposals we consider today have merit, in my opinion, and all deserve
an up-or-down vote by this prestigious body.
Each proposal is important, but as we consider them one-by-one, we
must remind ourselves what brought us to this point in the first place.
The reason we are here is simple: This Senate is broken. Because of
partisan rancor and our own incapacitating rules, this body is failing
to represent the best interests of the American people.
The unprecedented abuse of the filibuster, of secret holds, and of
other procedural tactics routinely prevents the Senate from getting its
work done. It prevents us from doing the job the American people sent
us here to do.
In the Congress that just ended, because of rampant and growing
obstruction, not a single appropriations bill was passed. There wasn't
a budget bill. Only one authorization bill was approved--and that was
only at the very last minute. More than 400 bills on a variety of
important issues were sent over from the House. Not a single one was
acted upon. Key judicial nominations and executive appointments
continue to languish.
The American people are fed up with it. They are fed up with us. And
I don't blame them. We need to bring the workings of the Senate out of
the shadows and restore its accountability.
That begins with addressing our own dysfunction. Specifically, the
source of that dysfunction--the Senate rules.
That is what I--along with my colleagues and friends Senator Merkley
of Oregon and Senator Harkin of Iowa--have been trying to do these past
weeks. We have been trying to restore the uniquely deliberative nature
of this body--while also allowing it to function more efficiently.
On Tuesday, Senator Harkin, Senator Merkley and I each were denied
unanimous consent to bring up our resolutions for immediate debate in
accordance with article 1, section 5 of the Constitution.
Denying us the ability to debate the important constitutional issue
of how this body adopts its rules was unprecedented.
Ten times previous to this--from 1917 to as recently as 1975--the
Senate debated reforms to the use of the filibuster, as well as the
underlying constitutional issue of adopting reforms by a simple
majority at the beginning of a Congress.
The results of these debates varied. But the point I make today is
this: each and every time a rules change was proposed, this Senate
never denied those Senators the right to debate their proposals through
the constitutional option.
During many of these debates, the reform proposal was defeated, often
by tabling it--but they had the debate.
1975 was the last time we had a major reform to our filibuster rules.
On three occasions that year, the Senate voted by a simple majority
to table points of order against Senator Mondale and Senator Pearson's
reform proposal--a proposal that would have amended the cloture
threshold from ``two-thirds to three-fifths present and voting.''
It was these votes by a simple majority of the Senate that forced the
compromise reform that changed the Senate's cloture threshold to the
present rule ``three-fifths duly chosen and sworn.''
We are here today debating the substance of several different
proposals, all of which share a goal of restoring debate, deliberation,
and transparency to this great body. And this afternoon, we will have
votes on these proposals.
But, we will have those votes under thresholds that I strongly
believe the Constitution does not require. To deny us the right to have
that debate about the constitutional question was unprecedented and, I
believe, a mistake.
But, however misguided I believe that decision to be, that decision
has been made, and it is one we have to live with.
Now we must seize the opportunity that remains, and that opportunity
is the chance for the most substantive debate of the Senate rules in 35
years.
I believe this debate is fundamentally important to the health of
this institution. Reform is badly needed. We have a responsibility to
the American people to come together and fix the Senate.
Whether that is through the constitutional option--as I believe we
have the right and the responsibility--or through other means, I
welcome the debate.
As I said more than a year ago when I first proposed the
constitutional option: It is time for reform. There are many great
traditions in this body that should be kept and respected, but
stubbornly clinging to ineffective and unproductive procedures should
not be one of them.
Mr. President, I want to close by saying this.
Since the beginning of this process, my actions have been guided by
the great respect I have for the institution of the U.S. Senate, my
reverence for the many great men and women who have served here, and my
sincere affection for my colleagues.
That remains true today. I want to thank my colleagues for their
consideration of our proposals, for their willingness to listen, and
for their friendship.
And I want to make clear to all those who have supported this
effort--our work is not complete: our cause endures. History has made
clear that substantial rules reform is--more often than not--the work
of many Congresses, not just one.
The debate that began in this Congress will serve as a foundation for
reform moving forward. And I commit to doing all I can to ensure that
the Senate is not a graveyard for good ideas--but instead remains a
shining light of Democracy around the world.
So now we come to the concluding point in the debate where I think it
is very appropriate to thank staff. My two staff members who have
worked the hardest--all my staff have worked very hard on this, but
Matt Nelson and Tim Woodbury deserve individual recognition for their
tireless work. I know that as a result of this, we put a lot of
pressure on the Rules Committee. Jean Boudwich and her whole crew over
there have done a great job and the Parliamentarian shop headed by Alan
Frumin. We have also had great assistance from them in terms of
answering questions and working with them, so I applaud Alan and all of
the Parliamentarians.
At several places in the Record, a variety of different items were
mentioned. To clarify the Record, I ask unanimous consent to have
printed, No. 1, a New York Times editorial from January 25; No. 2
includes quotes from constitutional scholars and conservative scholars
on the constitutional option; and No. 3 is an op-ed from the Washington
Post entitled ``Fixing a Broken Set of Rules.''
I also commend to my colleagues a Harvard Law and Policy Review
article entitled ``The Constitutional Option: Reforming the Rules of
the Senate to Restore Accountability and Reduce Gridlock.''
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Jan. 25, 2011]
Make Them Work for It
Senate Democrats now have a rare opportunity to reduce the
abuse of the filibuster and increase the chances that the
people's work actually gets done. Instead, they are close to
an agreement on a watered-down package of changes that will
have only a modest effect on the chamber's gridlock.
Over the last four years, Republicans have more than
doubled the number of filibusters from the previous period,
requiring 60-vote supermajorities for virtually every measure
to move forward. In most, a single senator has raised an
objection, bringing progress to a halt.
A group of Democratic senators--led by Tom Udall of New
Mexico and Jeff Merkley of Oregon--came up with a reasonable
proposal to reduce this practice while preserving the
minority's right to wage a fight. It would require 10
senators to start a filibuster and then speak continuously on
the
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floor to keep it going. If an issue is important enough to
block, then senators should be willing to work for it and
explain themselves to the public.
Democrats could have passed this rule change with a simple-
majority vote. But Senate aides say several Democrats are
afraid the new rules will put them at a disadvantage should
their party fall to a minority. That misses a much more
important point. The rules need to be changed not to cripple
one party or the other but to improve the efficiency of the
Senate no matter who is in power. There is no excuse for even
routine budgets and spending bills to languish for lack of 60
votes.
The agreement being negotiated by the leadership of both
parties would at least make it harder to block presidential
nominations with anonymous holds and would reduce the number
of positions needing Senate confirmation--welcome changes.
The two parties are also expected to reach a ``handshake
agreement'' to cut back on filibusters and allow the minority
party a greater chance to offer amendments to bills. But such
agreements can easily fall apart in the chamber's charged
environment.
Senator Harry Reid, the majority leader, said Tuesday that
the matter would be settled shortly. That means there is
still a chance for the Senate to adopt real rules, allowing
majority votes to prevail in most circumstances and reserving
delaying tactics for unusual cases. Without this reform, the
Senate will remain dysfunctional.
Conservatives Support the Constitutional Option
In 1957, when the Constitutional Option was attempted on
the first day of Congress, Vice President Nixon issued the
following opinion while presiding in the Senate:
[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 expressed
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.
In 2005, Senator Orrin Hatch (R-UT) wrote:
``The compelling conclusion is that, before the Senate
readopts Rule XXII by acquiescence, a simple majority can
invoke cloture and adopt a rules change. This is the basis
for Vice President Nixon's advisory opinion in 1957; as he
outlined, the Senate's right to determine its procedural
rules derives from the Constitution itself and, therefore,
`cannot be restricted or limited by rules adopted by a
majority of the Senate in a previous Congress.' . . . So it
is clear that the Senate, at the beginning of a new Congress,
can invoke cloture and amend its rules by simple majority.''
In 2003, Senator John Cornyn (R-TX) wrote:
``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.''
Senator Cornyn also held a hearing in 2003 when he was
Chairman of the Subcommittee on the Constitution, Civil
Rights and Property Rights of the Judiciary Committee (S.
HRG. 108-227). Some of the nation's leading conservative
constitutional scholars testified or submitted testimony at
that hearing, and all of it supports the principle that a
previous Senate cannot enact a rule that prevents a majority
in a future Senate from acting. Below is a sample of those
quotes:
Steven Calabresi, a professor of law at Northwestern
University School of Law, former law clerk for Justice
Antonin Scalia, and co-founder of the Federalist Society
testified that:
``The Senate can always change its rules by majority vote.
To the extent that Senate Rule XXII purports to require a
two-thirds majority for rules changes, Rule XXII is
unconstitutional. It is an ancient principle of Anglo-
American constitutional law that one legislature cannot bind
a succeeding legislature. This principle goes back to the
great William Blackstone, who said in his commentary, `Acts
of Parliament derogatory from the power of subsequent
Parliaments bind not.' ''
Douglas Kmiec, then Dean of the Columbus School of Law at
Catholic University, testified about the unconstitutional
entrenchment of supermajority rules and stated:
``We currently have in play a process where carryover
rules, rules that have not been adopted by the present
Senate, are requiring a supermajority to, in effect, approve
and confirm a judicial nominee. As you know, to close debate,
it requires 60 votes; in order to amend the rules, it
requires 67. These are carryover provisions that have not
been adopted by this body and by virtue of that, they pose
the most serious of constitutional questions because, as I
quote, Senator, the Supreme Court has long held the
following: `Every legislature possess the same jurisdiction
and power as its predecessors. The latter must have the same
power of repeal and modification which the former had of
enactment, neither more nor less.' ''
Dr. John Eastman, a professor of Constitutional Law at
Chapman University School of Law, said at the hearing that
``the use of supermajority requirements to bar the change in
the rules inherited from a prior session of Congress would
itself be unconstitutional.''
Testimony submitted to the Committee for this hearing also
supports this principle. Professor John C. McGinnis of
Northwestern University and Professor Michael Rappaport of
the University of San Diego School of Law stated in their
written testimony that:
``[The Constitution does not permit entrenchment of the
filibuster rule against change by a majority of the Senate.
Although the filibuster rule itself is a time-honored
senatorial practice that is constitutional, all entrenchment
of the filibuster rule, or of any other legislative rule or
law, that would prevent its repeal by more than a majority of
a legislative chamber, is unconstitutional. Therefore, an
attempt to prevent a majority of the Senate from changing the
filibuster rule, through a filibuster of that proposed change
in the Senate rules, would be unconstitutional.''
Finally, renowned constitutional law scholar Ronald Rotunda
stated in written testimony: ``The present Senate rules that
create the filibuster also purport not to allow the Senate to
change the filibuster by a simple majority. However, these
rules should not bind the present Senate any more than a
statute that says it cannot be repealed until 60% or 67% of
the Senate vote to repeal the Statute. . . . I do not see how
an earlier Senate can bind a present Senate on this issue.''
____
[From the Washington Post, Jan. 4, 2011]
A Senate New Year's Resolution: Fixing a Broken Set of Rules
(By Tom Udall)
Many of us have made new year's resolutions, thinking back
on the year that has recently ended and pledging to strive
for progress and self-improvement to overcome our
shortcomings.
Unfortunately, this sort of self-reflection is not a
tradition familiar to the U.S. Senate. It is a tradition,
however, that I and several of my Senate colleagues hope to
institute on Wednesday, when the 112th Congress convenes.
On that day, my colleagues and I will introduce common-
sense proposals to fix the source of our dysfunction--our
broken Senate rules. Reform will make the Senate a better
legislative body by instituting the transparency and
accountability the American people deserve.
Over the past few years, open and honest debate has been
replaced too often with secret backroom deals and partisan
gridlock. Up-or-down votes on important issues have been
unreasonably delayed or blocked entirely at the whim of a
single senator. In the past two years alone, more than 400
House-passed bills went unnoticed by the Senate. Stalled
judicial and executive nominations left more key government
posts vacant longer than during any other period in our
country's history. We couldn't even properly fund the
government.
We need to bring the workings of the Senate out of the
shadows and restore accountability within the chamber.
Under the Constitution, the Senate and the House each ``may
determine the rules of its proceedings.'' On the first day of
the new session, the rules can be changed under a simple,
rather than two-thirds, majority. It is past time for
senators to reflect on our rules, how they incentivize
obstructionism; how they inhibit, rather than promote,
debate; and how they prevent bipartisan cooperation. We then
have an obligation to the American people to implement
logical reforms to confront these challenges--reforms along
the lines many of my colleagues have submitted over the past
year.
Ultimately, such changes will not reward one political
party over another. Instead, reform will pull back the
curtain on those who obstruct the Senate's business for no
reason other than to score political points. Rules reform is
about restoring good-faith legislating for the betterment of
the country. We need to take the backroom deals out of the
legislative process and rein in rampant obstruction from
individuals; this means no more secret holds and endless
delays by threat of filibuster.
With reform, we will ensure that all senators have a full
and fair opportunity to debate legislation, offer amendments
and evaluate nominees. We will respect the Senate's unique
history of unfettered debate and ensure that the minority's
voice is heard. But we also will prevent the chamber's rules
from being manipulated to allow a small minority to silently
obstruct the will of the majority.
The last Congress produced amazing achievements of which we
can be extremely proud--health-care reform, Wall Street
reform and repeal of ``don't ask, don't tell'' are just a
few. But the Senate also failed in many of its key
responsibilities, by, for example, not passing a single
appropriations bill, keeping critical government posts empty
and leaving hundreds of House bills to die. It also failed by
too often keeping the debate behind closed doors while the
chamber sat empty.
I hope that this is the year we make the Senate accountable
to the American people again. It's no wonder constituents are
fed up with the way business is done in Washington. The
first, fundamental step toward changing that culture lies in
exercising our constitutional authority to reexamine the
stagnant rules that have allowed dysfunction to
[[Page S320]]
thrive. I urge my colleagues to recognize the obstruction
that has prevented us from doing our jobs and join me in
reforming Senate rules for the good of our country.
Mr. UDALL of New Mexico. Finally, once again, I wish to thank our
leaders. Lamar Alexander and Chuck Schumer, both working on the Rules
Committee, have done a remarkable job in terms of negotiating. Leader
Reid and Leader McConnell have made a decision which was announced
earlier today, and that decision was to change some of the rules, to
let us vote on some changes to the rules. And also, I think one of the
most significant things--and I know Senator Alexander has mentioned
this--is to try to change behavior. More than anything, I think that
could be very significant. They talked and decided they would like to
do this differently. We would like to get back to the Senate
functioning where we bring things up, we debate them, we allow robust
debate, we allow the amendment process to work forward. I know Senator
Alexander addressed this at one point in his Heritage speech, saying
the Senate is a shadow of itself. We want to get back to that Senate
with the robust debate and amendment process, and I think both sides
have tried to pull that together.
So I very much hope this is a new day in the Senate.
Mr. LEVIN. Madam President, I wanted to take a moment to commend and
thank several of my colleagues for their work to end the abuses of the
Senate rules. Senators Schumer, Harkin, Merkley, Udall of New Mexico,
Udall of Colorado, and many others dedicated time and effort to this
cause. Without their effort, the Senate would not be voting on these
resolutions today. I want to briefly outline my views on the five
measures we will vote on shortly.
While I believe there are superior ways to end the use of the secret
hold, I intend to support the Wyden-McCaskill-Grassley resolution.
I oppose the use of the secret hold, which is a notice by an
anonymous Senator of his or her intention to object to proceeding to a
measure or matter. Under current Senate practice, a Senator can place a
hold on a measure or matter by notifying the Senate leadership of his
or her intention to object. Such a notice does not prevent Senate
leadership from moving to a particular measure or matter. The problem
is that the threat of a filibuster of the motion to proceed is allowed.
It should not be. But if Senators threaten to filibuster, that should
be made public so they should have to openly defend their threat.
Nowhere in the Standing Rules of the Senate is there any mention of a
hold. The hold, secret or otherwise, ends when the leader moves to
proceed. I believe the most effective way to end secret holds would be
to amend the rules to simply say: ``No Senator may object on behalf of
another Senator without disclosing the name of that Senator.'' But the
Wyden proposal is useful nonetheless.
The resolution by the Senator of Colorado, Mr. Udall, would establish
a non-debatable motion to waive the reading aloud of an amendment if
that amendment has been filed at least 72 hours before the motion and
is printed in the Record. I support the resolution which is designed to
end an abuse of the rules where Senators force or threaten to force the
reading aloud of amendments, not to advance their position, but only to
delay and prevent debate.
The Harkin resolution would permit a decreasing majority of Senators
to invoke cloture. I believe the Harkin resolution goes too far in
weakening the fundamental minority rights. The Harkin resolution would
allow limited germane amendments during postcloture consideration of a
measure, but in my opinion the germane standard is too technical and
restrictive. The Harkin resolution would deny the minority the right to
offer relevant amendments and therefore I will vote against it.
The substitute amendment to S. Res. 10 offered by Senator Tom Udall,
Senator Harkin, Senator Merkley and others makes important improvements
to a measure designed to end abuses of the rules that have prevented
the Senate from doing its work in recent Congresses. I support most of
the provisions in this resolution. I support ending filibusters on
motions to proceed; I support limiting postcloture consideration of
nominations; and, I support the elimination of secret holds in the
manner prescribed in this resolution.
Those meritorious provisions would go a long way towards ending
current abuses of the Senate rules. Those improvements to Senate
procedure offset my concern with the extended debate provision. I will
address this point in more detail when discussing the Senator from
Oregon's provision.
In spite of my concerns with the extended debate provision, I believe
this resolution would end many of the common abuses of the rules and
deserves support.
Senator Merkley has put together a thoughtful proposal to address the
abuses of the rules in recent Congresses where a few Senators with too
little effort have prevented the Senate from doing its work. However,
it does not protect the minority adequately. Under the provisions of
his resolution, a simple majority could offer a bill, fill the
amendment tree, and file cloture on the bill. If there are more than 50
but fewer than 60 votes to invoke cloture--that is, if cloture is not
invoked--once the minority is eventually exhausted, the Senate would
proceed to a simple majority vote on the bill without the minority
having the opportunity to offer amendments. Because the Merkley
resolution does not protect the right to offer amendments, under the
rules of the Senate the minority could be precluded from offering
amendments. I am concerned that the Merkley resolution, which is
designed to end abuses of the minority, could thereby become a tool of
abuse by the majority.
Under the current practices and procedures of the Senate, I believe
there is too much protection for the minority. However, before the
rules are changed for ending debate, sufficient protections in the
rules must be provided to the minority to offer relevant amendments. I
do not believe this resolution provides those protections and I,
therefore, will vote against it.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Madam President, I have already congratulated Senator
Udall, Senator Wyden, Senator Merkley, and Senator Harkin for
stimulating a good, full discussion about two objectives. No. 1 is, how
do we make the Senate the best possible place to deal with serious
issues that come before our country, because we have plenty of them
right now, starting with our national debt and the high unemployment
rates. They have done a good job on that. They have led us today to
adopt what I believe are two important steps, one having to do with
secret holds and another having to do with taking time away, that might
otherwise be better used, by having the clerk read an amendment.
This debate has also produced a couple of other things. One is to
create broader support than we have had over a number of years on
dealing with the persistent problem of the difficulty a President has
in staffing the government. Senator Reid and Senator McConnell, when
they were whips, tried to deal with this issue. We had three bipartisan
breakfasts on this, working with the White House, 2 years ago. Senator
Lieberman and Senator Collins, who are the committee chairs, have tried
to deal with this issue. And we have all failed so far.
But Senator Schumer and I will be introducing a bill which we will be
discussing with committee chairmen and ranking members especially, and
it will have the support of the leaders, Senators McConnell and Reid.
It will have the active involvement of Senator Lieberman and Senator
Collins. What we hope to do is two things. One is to reduce the number
on Senate confirmed positions--Senator Harkin spoke about this a little
earlier. He has been a ranking member and a chairman. He basically said
that we don't need to spend our time here having Senate confirmation of
hundreds of part-time boards and commission members or the public
relations official for some department. We should focus our attention
on issues that affect the American people such as jobs, debt and
terror.
The second thing we should do is to end this practice of making it so
that the citizens who are invited by the
[[Page S321]]
President of the United States to serve in our government are innocent
until nominated. We drag them through a maze of conflicting forms, many
of them created by the executive branch and many of them created by the
Senate. These nominees fill out forms that trap them and trick them and
embarrass them. It is surprising that anybody will accept the
opportunity to serve. I remember majority leader Howard Baker was
nominated by President Bush to go to Japan as Ambassador. Everybody in
the Senate knew him very well. He was voted ``Most Admired Senator'' by
Senators on both sides of the aisle in the 1980s. It cost him $250,000
to fill out the forms so that he could be the Ambassador to Japan. I
could give many examples of similar difficulties.
Washington, DC, has become the only place where you hire a lawyer, an
accountant, and an ethics officer before you find your house and put
your kid in school if you come to work here. We need good people in the
government. We need to be able to attract them here. We should fix the
current system. I greatly appreciate the work Senators Schumer, Reid,
McConnell, Lieberman, Collins and others have done. I hope our
colleagues will join us in bringing this forward in an expedited way.
I ask unanimous consent to include at the end of my remarks, remarks
I made on March 9, 2009, on the Senate floor entitled ``Innocent Until
Nominated.''
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. ALEXANDER. Madam President, only two other things.
I wish to congratulate Senator McConnell and Senator Reid for leading
us in this way. Changing rules is an important step forward. I do not
in any way want to diminish what I believe we are about to do, but we
need a change in behavior more than we need a change in rules. This
debate has caused us to talk across party lines about what we want, and
I think what we want is what Senator Udall said as a whole. We would
like most bills to come through committee and then come to the floor.
We want to have a chance for most Senators to be able to offer most of
their amendments and then to get votes. That is what we should try to
do most of the time. Sometimes the Republicans will want to repeal the
health care law, and the Democrats will use all of their resources to
defeat our efforts. Sometimes the Democrats in the House will send over
a bill to repeal the secret ballot in union elections, and Republicans
will try to defeat that. We will use all of our resources in those
instances. But that won't be most of the time. Most of the time, we
will be able to do our jobs better to represent the people who sent us
here.
I hope those who have provoked this discussion feel a sense of
satisfaction about what they have done, even though I know that in
every case they didn't get exactly what they want.
Finally, I ask unanimous consent that a long response to Senator
Harkin's excellent comments on his amendment which he has been fighting
for for 16 years, be printed in the Record at the conclusion of my
remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. ALEXANDER. Senator Harkin is very straightforward about his
difference of opinion. He believes we ought to bring every debate
eventually to 51 votes. So I would respectfully term his amendment as
sort of a ``hang me now or hang me later.'' We know that eventually it
is not 60 votes we are going to require, it is 51, and he says that is
the way it ought to be. I disagree. So do many others.
I will just cite two distinguished Senators who spoke on the floor of
the Senate about 5 years ago when a number of Republicans got it in
their minds that they would like to change the filibuster rule as it
affects judges. This is what Senator Harry Reid said then:
The filibuster is far from a procedural gimmick. It is part
of the fabric of this institution that we call the Senate.
For 200 years we've had the right to extend the debate. It's
not a procedural gimmick. Some in this Chamber want to throw
out 214 years of Senate history in the quest for absolute
power. They want to do away with Mr. Smith as depicted in
that great movie being able to come to Washington. They want
to do away with the filibuster. They think they are wiser
than our Founding Fathers. I doubt that's true.
The then-Senator from Illinois, Barack Obama, referring then to the
Republican majority:
Then if the majority chooses to end the filibuster, if they
choose to change the rules and put an end to Democratic
debate, then the fighting and the bitterness and the gridlock
will only get worse.
I would suggest that, as a result of this discussion, we preserve the
Senate as an institution, a forum for deliberation where minority
rights are protected.
But we have also taken some important steps forward--or are about
to--with rules changes to make them function better. We have reached a
consensus among ourselves--informally, anyway--that is represented by
the colloquy that will be placed in the Record by Senator Reid and
Senator McConnell. They said what we want is an opportunity to
represent the American people the way they sent us here to do it, which
is to take legislation, bring it through committee, bring it to the
floor, and for us to have a chance to amend, debate, and vote. That
would be most of the time. Some of the time we will exercise our
minority and majority rights to defeat a bill, because that is also
what we are sent here to do.
I thank the Senators for this spirited debate. As far as I know,
there are no more speakers on the Republican side.
Exhibit 1
Floor Remarks of U.S. Senator Lamar Alexander (R-TN), ``Innocent Until
Nominated''
(March 9, 2009)
Mr. President, in the midst of much talk about
bipartisanship and not much to show for it, I have a
nomination for an issue upon which we can work together, and
that is this: review the maze of conflicting forms, FBI
investigations, IRS audits, ethics requirements, and
financial disclosures to make it possible for President Obama
and future Presidents to put together promptly a team to help
them solve big problems.
This is an urgent problem today because during the worst
banking crisis since the Great Depression, the man in charge
of fixing the crisis, Treasury Secretary Timothy Geithner,
apparently is sitting in his office without much help, at
least from any Obama Presidential appointees.
According to news accounts, among the key vacant positions
at the Treasury Department are the Assistant Secretary for
Tax Policy; the Deputy Assistant Secretary for Tax Policy;
the Deputy Assistant Secretary for Tax Analysis; the Deputy
Assistant Secretary for Tax, Trade, and Tariff Policy; and
the Deputy Assistant Secretary for International Tax Affairs.
The first choice for Deputy Secretary of the Treasury appears
to have withdrawn her name from consideration.
Four months after the President's election, according to
TheBigMoney.com, the list of vacancies on the Treasury
Department Web site shows that ``Main Treasury Building is a
lonely place, conjuring up visions of Geithner signing dollar
bills one by one . . ., watering the plants, and answering
the phones when he's not crafting a bank rescue plan.''
Of course, there are the career employees available and at
least one holdover Assistant Secretary and various czars in
the White House--but even one of the czars has expressed
concern about the slow pace of filling Treasury Department
jobs at a critical time.
Part of the problem may be attributed to the Treasury
Secretary's boss, our impressive new President, who is
nevertheless subject to the criticism that he is living over
the store but not minding it.
Presidents have many problems to solve, but no one ever
suggested that the wisest course is to try to solve them all
at once. There is a tradition that Washington, DC, can only
do one thing well at a time. And Presidents are supposed to
exclude from the White House the merely important issues so
they may deal with the truly Presidential problems, which
surely must not include being distracted by debates with
radio talk show hosts.
President Eisenhower, who knew something about leading
complex organizations, said in 1952: ``I will go to Korea.''
The country relaxed and elected him, confident that the
general would end the Korean war.
We need for President Obama to say in Eisenhower fashion
``I will fix the banks''--and then stay home long enough to
do it. Then the country might relax a little and gain some
confidence that this might actually happen, which is the
first step and perhaps the main step in economic recovery.
But the President needs a team at Treasury to help persuade
the American people that he can and will get the job done.
The President has brought on himself some of the difficulty
of putting together a team. In addition to having too many
balls in the air at once, in my opinion, his standards for
hiring sometimes seem to have the effect of disqualifying
people who know something about the problem from being hired
to solve the problem.
[[Page S322]]
But another part of the President's difficulty in filling
jobs--one that has afflicted every President since
Watergate--is the maze of investigations and forms that
prospective senior officials must complete and the risk they
run that they will be trapped and humiliated and disqualified
by an unintentional and relatively harmless mistake.
I voted against the nomination of Secretary Geithner
because I thought it was a bad example for the man in charge
of collecting the taxes not to have paid them. And I thought
his excuse for not paying was not plausible. But that does
not mean that we should disqualify every Presidential nominee
for minor tax discrepancies that result from the complexity
of our Byzantine Tax Code, a Tax Code which has reached 3.7
million words, according to a January report by the National
Taxpayer Advocate, and which is badly in need of reform.
I suspect very few Americans with complex tax returns can
go through a multiple-year audit without finding something
with which the IRS might disagree.
Take the case of former Dallas mayor Ron Kirk, President
Obama's nominee to be U.S. Trade Representative, who
headlines report paid back taxes primarily because he failed
to list as income--and then take a charitable deduction on--
speaking fees that he gave away to charity. Common sense
suggests, and his tax preparer thought, what Mr. Kirk did was
appropriate. After all, he did not keep the money. The IRS
apparently has a more convoluted rule for dealing with such
things. In any event, the matter is so trivial as to be
irrelevant to his suitability to be the trade nominee.
Tax audits are only the beginning. There is the FBI full
field investigation during which friends of the nominee are
asked such questions as: Does he live be and his means?
When I was nominated for Education Secretary a few years
ago, one of my friends replied to the FBI agent: Don't we
all?
There are Federal financial disclosures. Then there is the
White House questionnaire, and, of course, the questions from
the confirming Senate committee. The definition of what
constitutes ``income'' on some forms is different than the
definition of ``income'' on others. It is easy to make a
mistake.
This is not as bad as it could be. We have a Democratic
President and a Democratic Congress with big majorities in
both Chambers. So the nominees have gone through fairly
quickly. But when the Congress is of a different party than
the President, the congressional questionnaires expand and
sometimes delay the nomination for more weeks.
Washington, DC, has become the only place where you hire a
lawyer, an accountant, and an ethics officer before you find
a house and put your kid in school.
The motto around here has become: ``Innocent until
nominated.''
Every legal counsel to every President since Nixon would, I
suspect, agree that in the name of effective government, this
process needs to be changed. Most have tried to change it,
but in Washington style, new regulations pile up on top of
old ones, creating a more bewildering maze. So I have this
suggestion--and one of the Senators to whom I want to make
the suggestion is here today, the Senator from Connecticut. I
suggest Senator Lieberman and Senator Collins, who are the
chairman and ranking member of the committee with
jurisdiction over this mess and who have a tradition of
working well together, should set as a goal to clean it up by
the end of the year. Invite all the former White House
counsels of both parties to give their opinions. Consolidate
and simplify the forms so we learn only what we need to know.
To help with this, I suggest that Senators Lieberman and
Collins form one of those ``gangs'' that we occasionally form
in the Senate, maybe a dozen or more Senators equally divided
among both parties--some from the Homeland Security and
Governmental Affairs Committee and some not--in order to
limit the possibility that everyone will run away from the
final recommendations because they fear someone might think
Senators are not interested in ethical and good government.
Good government right now means fixing the banks and having
the best possible team to do it.
As a Washington Post editorial writer said yesterday of the
President:
As he convened his ``health care summit'' at the White
House . . . the stock market was hitting another 12-year low,
General Motors was again teetering on the brink of insolvency
and the country was still waiting to hear the details of the
Treasury's proposal to bail out banks. Maybe we can make this
grand bargain with our new President: If you will keep your
eye on the ball--in this case, fixing the banks so the
economy will get moving again--we will work in a bipartisan
way to make it easier for you and for future Presidents to
promptly assemble a team and govern us properly.
I thank the Chair. I yield the floor.
____
Exhibit 2
The Filibuster: ``Democracy's Finest Show . . . The Right to Talk Your
Head Off''
Address by Senator Lamar Alexander, Heritage Foundation
(January 4, 2011)
Voters who turned out in November are going to be pretty
disappointed when they learn the first thing some Democrats
want to do is cut off the right of the people they elected to
make their voices heard on the floor of the U.S. Senate.
In the November elections, voters showed that they remember
the passage of the health care law on Christmas Eve, 2009:
midnight sessions, voting in the midst of a snow storm, back
room deals, little time to read, amend or debate the bill,
passage by a straight party line vote.
It was how it was done as much as what was done that
angered the American people. Minority voices were silenced.
Those who didn't like it were told, ``You can read it after
you pass it.'' The majority's attitude was, ``We won the
election. We'll write the bill. We don't need your votes.''
And of course the result was a law that a majority of
voters consider to be an historic mistake and the beginning
of an immediate effort to repeal and replace it.
Voters remembered all this in November, but only 6 weeks
later Democratic senators seemed to have forgotten it. I say
this because on December 18, every returning Democratic
senator sent Senator Reid a letter asking him to ``take steps
to bring [Republican] abuses of our rules to an end.''
When the United States Senate convenes tomorrow, some have
threatened to try to change the rules so it would be easier
to do with every piece of legislation what they did with the
health care bill: ram it through on a partisan vote, with
little debate, amendment, or committee consideration, and
without listening to minority voices.
The brazenness of this proposed action is that Democrats
are proposing to use the very tactics that in the past almost
every Democratic leader has denounced, including President
Obama and Vice President Biden, who has said that it is ``a
naked power grab'' and destructive of the Senate as a
protector of minority rights.
The Democratic proposal would allow the Senate to change
its rules with only 51 votes, ending the historical practice
of allowing any senator at any time to offer any amendment
until sixty senators decide it is time to end debate.
As Investor's Business Daily wrote, ``The Senate Majority
Leader has a plan to deal with Republican electoral success.
When you lose the game, you simply change the rules. When you
only have 53 votes, you lower the bar to 51.'' This is called
election nullification.
Now there is no doubt the Senate has been reduced to a
shadow of itself as the world's greatest deliberative body, a
place which, as Sen. Arlen Specter said in his farewell
address, has been distinctive because of ``the ability of any
Senator to offer virtually any amendment at any time.''
But the demise of the Senate is not because Republicans
seek to filibuster. The real obstructionists have been the
Democratic majority which, for an unprecedented number of
times, used their majority advantage to limit debate, not to
allow amendments and to bypass the normal committee
consideration of legislation.
To be specific, according to the Congressional Research
Service:
1. the majority leader has used his power to cut off all
amendments and debate 44 times--more than the last six
majority leaders combined;
2. the majority leader has moved to shut down debate the
same day measures are considered (same-day cloture) nearly
three times more, on average, than the last six majority
leaders;
3. the majority leader has set the record for bypassing the
committee process--bringing a measure directly to the floor
43 times during the 110th and 111th Congresses.
Let's be clear what we mean when we say the word
``filibuster.'' Let's say the majority leader brings up the
health care bill. I go down to the floor to offer an
amendment and speak on it. The majority leader says ``no''
and cuts off my amendment. I object. He calls what I tried to
do a filibuster. I call what he did cutting off my right to
speak and amend which is what I was elected to do. So the
problem is not a record number of filibusters; the problem is
a record number of attempts to cut off amendments and debate
so that minority voices across America cannot be heard on the
floor of the Senate.
So the real ``party of no'' is the majority party that has
been saying ``no'' to debate, and ``no'' to voting on
amendments that minority members believe improve legislation
and express the voices of the people they represent. In fact,
the reason the majority leader can claim there have been so
many filibusters is because he actually is counting as
filibusters the number of times he filed cloture--or moved to
cut off debate.
Instead of this power grab, as the new Congress begins, the
goal should be to restore the Senate to its historic role
where the voices of the people can be heard, rather than
silenced, where their ideas can be offered as amendments,
rather than suppressed, and where those amendments can be
debated and voted upon rather than cut off.
To accomplish this, the Senate needs to change its
behavior, not to change its rules. The majority and minority
leaders have been in discussion on steps that might help
accomplish this. I would like to discuss this afternoon why
it is essential to our country that cooler heads prevail
tomorrow when the Senate convenes.
One good example Democrats might follow is the one
established by Republicans who gained control of both the
Senate and House of Representatives in 1995. On the first day
of the new Republican majority, Sen. Harkin proposed a rule
change diluting the filibuster. Every single Republican
senator voted against the change even though supporting it
clearly would have provided at
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least a temporary advantage to the Republican agenda.
Here is why Republicans who were in the majority then, and
Democrats who are in the majority today, should reject a
similar rules change:
First, the proposal diminishes the rights of the minority.
In his classic Democracy in America, Alexis de Tocqueville
wrote that one of his two greatest fears for our young
democracy was the ``tyranny of the majority,'' the
possibility that a runaway majority might trample minority
voices.
Second, diluting the right to debate and vote on amendments
deprives the nation of a valuable forum for achieving
consensus on difficult issues. The founders knew what they
were doing when they created two very different houses in
Congress. Senators have six-year terms, one-third elected
every two years. The Senate operates largely by unanimous
consent. There is the opportunity, unparalleled in any other
legislative body in the world, to debate and amend until a
consensus finally is reached. This procedure takes longer,
but it usually produces a better result--and a result the
country is more likely to accept. For example, after the
Civil Rights Act of 1964 was enacted, by a bipartisan
majority over a filibuster led by Sen. Russell of Georgia,
Sen. Russell went home to Georgia and said that, though he
had fought the legislation with everything he had, ``As long
as it is there, it must be obeyed.'' Compare that to the
instant repeal effort that was the result of jamming the
health care law through in a partisan vote.
Third, such a brazen power grab by Democrats this year will
surely guarantee a similar action by Republicans in two years
if Republicans gain control of the Senate as many believe is
likely to happen. We have seen this happen with Senate
consideration of judges. Democrats began the practice of
filibustering President Bush's judges even though they were
well-qualified; now Democrats are unhappy because many
Republicans regard that as a precedent and have threatened to
do the same to President Obama's nominees. Those who want to
create a freight train running through the Senate today, as
it does in the House, might think about whether they will
want that freight train in two years if it is the Tea Party
Express.
Finally, it is hard to see what partisan advantage
Democrats gain from destroying the Senate as a forum for
consensus and protection of minority rights since any
legislation they jam through without bipartisan support will
undoubtedly die in the Republican-controlled House during the
next two years.
* * *
The reform the Senate needs is a change in its behavior,
not a change in its rules. I have talked with many senators,
on both sides of the aisle, and I believe most of us want the
same thing: a Senate where most bills are considered by
committee, come to the floor as a result of bipartisan
cooperation, are debated and amended and then voted upon.
It was not so long ago that this was the standard operating
procedure. I have seen the Senate off and on for more than
forty years, from the days in 1967 when I came to the Senate
as Sen. Howard Baker's legislative assistant. That was when
each senator had only one legislative assistant. I came back
to help Sen. Baker set up his leadership office in 1977 and
watched the way that Sen. Baker and Sen. Byrd led the Senate
from 1977 to 1985, when Democrats were in the majority for
the first four years and Republicans were the second four
years.
Then, most pieces of legislation that came to the floor had
started in committee. Then that legislation was open for
amendment. There might be 300 amendments filed and, after a
while, the majority would ask for unanimous consent to cut
off amendments. Then voting would begin. And voting would
continue.
The leaders would work to persuade senators to limit their
amendments but that didn't always work. So the leaders kept
the Senate in session during the evening, during Fridays, and
even into the weekend. Senators got their amendments
considered and the legislation was fully vetted, debated and
finally passed or voted down.
Sen. Byrd knew the rules. I recall that when Republicans
won the majority in 1981, Sen. Baker went to see Sen. Byrd
and said, ``Bob I know you know the rules better than I ever
will. I'll make a deal with you. You don't surprise me and I
won't surprise you.''
Sen. Byrd said, ``Let me think about it.''
And the next day Sen. Byrd said yes and the two leaders
managed the Senate effectively together for eight years.
What would it take to restore today's Senate to the Senate
of the Baker-Byrd era?
Well, we have the answer from the master of the Senate
rules himself, Sen. Byrd, who in his last appearance before
the Rules Committee on May 19, 2010 said: ``Forceful
confrontation to a threat to filibuster is undoubtedly the
antidote to the malady [abuse of the filibuster]. 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 also know that
current Senate Rules provide the means to break a
filibuster.''
Sen. Byrd also went on to argue strenuously in that last
speech that ``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,'' he said,
``have understood this since the ``Senate first convened.''
Sen. Byrd then went on: ``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,'' Sen. Byrd said in that last appearance, ``was the
United States Senate. The right to filibuster anchors this
necessary fence. But it is not a right intended to be
abused.''
``There are many suggestions as to what we should do. I
know what we must not do. We must never, ever, ever, ever
tear down the only wall--the necessary fence--this nation has
against the excess of the Executive Branch and the resultant
haste and tyranny of the majority.''
What would it take to restore the years of Sens. Baker and
Byrd, when most bills that came to the floor were first
considered in committee, when more amendments were
considered, debated and voted upon?
1. Recognize that there has to be bipartisan cooperation
and consensus on important issues. The day of ``we won the
election, we jam the bill through'' will have to be over.
Sen. Baker would not bring a bill to the floor when
Republicans were in the majority unless it had the support of
the ranking Democratic committee member.
2. Recognize that senators are going to have to vote. This
may sound ridiculous to say to an outsider, but every Senate
insider knows that a major reason why the majority cuts off
amendments and debate is because Democratic members don't
want to vote on controversial issues. That's like
volunteering to be on the Grand Ole Opry but then claiming
you don't want to sing. We should say, if you don't want to
vote, then don't run for the Senate.
3. Finally, according to Sen. Byrd, it will be the end of
the three-day work week. The Senate convenes on most Mondays
for a so-called bed-check vote at 5:30. The Senate during
2010 did not vote on one single Friday. It is not possible
either for the minority to have the opportunity to offer,
debate and vote on amendments or for the majority to
forcefully confront a filibuster if every senator knows there
will never be a vote on Friday.
There are some other steps that can be taken to help the
Senate function better without impairing minority rights.
One bipartisan suggestion has been to end the practice of
secret holds. It seems reasonable to expect a senator who
intends to hold up a bill or a nomination to allow his
colleagues and the world know who he or she is so that the
merits of the hold can be evaluated and debated.
Second, there is a crying need to make it easier for any
President to staff his government with key officials within a
reasonable period of time. One reason for the current delay
is the President's own fault, taking an inordinately long
time to vet his nominees. Another is a shared responsibility:
the maze of conflicting forms, FBI investigations, IRS
audits, ethics requirements and financial disclosures
required both by the Senate and the President of nominees. I
spoke on the Senate floor on this, titling my speech
``Innocent until Nominated.'' The third obstacle is the
excessive number of executive branch appointments requiring
Senate confirmation. There have been bipartisan efforts to
reduce these obstacles. With the support the majority and
minority leaders, we might achieve some success.
Of course, even if all of these efforts succeed there still
will be delayed nominations, bills that are killed before
they come to the floor and amendments that never see the
light of day. But this is nothing new. I can well remember
when Sen. Metzenbaum of Ohio put a secret hold on my
nomination when President George H.W. Bush appointed me
education secretary. He held up my nomination for three
months, never really saying why.
I asked Sen. Rudman of New Hampshire what I could do about
Sen. Metzenbaum, and he said, ``Nothing.'' And then he told
me how President Ford had appointed him to the Federal
Communications Commission when he, Rudman, was Attorney
General of New Hampshire. The Democratic senator from New
Hampshire filibustered Rudman's appointment until Rudman
finally asked the president to withdraw his name.
``Is that the end of the story?'' I asked Rudman.
``No,'' he said. ``I ran against the [so-and-so] and won,
and that's how I got into the Senate.''
During his time here Sen. Metzenbaum would sit at a desk at
the front of the Senate and hold up almost every bill going
through until its sponsor obtained his approval. Sen. Allen
of Alabama did the same before Metzenbaum. And Sen. John
Williams of Delaware during the 1960's was on the floor
regularly objecting to federal spending when I first came
here forty years ago.
* * *
I have done my best to make the argument that the Senate
and the country will be
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served best if cooler heads prevail and Democrats don't make
their power grab tomorrow to make the Senate like the House,
to permit them to do with any legislation what they did with
the health care law. I have said that to do so will destroy
minority rights, destroy the essential forum for consensus
that the Senate now provides for difficult issues, and surely
guarantee that Republicans will try to do the same to
Democrats in two years. More than that, it is hard to see how
Democrats can gain any partisan advantage from this
destruction of the Senate and invitation for retribution
since any bill they force through the Senate in a purely
partisan way during the next two years will surely be stopped
by the Republican-controlled House of Representatives.
But I am not the most persuasive voice against the wisdom
of tomorrow's proposed action. Other voices are. And I have
collected some of them, mostly Democratic leaders who wisely
argued against changing the institution of the Senate in a
way that would deprive minority voices in America of their
right to be heard:
[Video--transcript follows]
[From Mr. Smith Goes to Washington]
Jimmy Stewart: Wild horses aren't going to drag me off this
floor until those people have heard everything I've got to
say, even if it takes all winter.
Reporter: H.V. Kaltenborn speaking, half of official
Washington is here to see democracy's finest show. The
filibuster--the right to talk your head off.
[Sen. Robert Byrd's final appearance in the Senate Rules Committee.]
SENATOR ROBERT BYRD: We must never, ever, ever, ever, tear
down the only wall, the necessary fence, that this nation has
against the excesses of the Executive Branch.
SEN. CHUCK SCHUMER: The checks and balances which have been
at the core of this Republic are about to be evaporated. The
checks and balances which say that if you get 51% of the
vote, you don't get your way 100% of the time.
FORMER SEN. CLINTON: You've got majority rule. Then you've
got the Senate over here where people can slow things down
where they can debate where they have something called the
filibuster. You know it seems like it's a little less than
efficient, well that's right, it is. And deliberately
designed to be so.
SEN. DODD: I'm totally opposed to the idea of changing the
filibuster rules. I think that's foolish in my view.
SEN. BYRD: That's why we have a Senate, is to amend and
debate freely.
SEN. ALEXANDER: The whole idea of the Senate is not to have
majority rule. It's to force consensus. It's to force there
to be a group of Senators on either side who have to respect
one another's views so they work together and produce 60
votes on important issues.
SEN. DODD: I can understand the temptation to change the
rules that make the Senate so unique and simultaneously so
terribly frustrating. But whether such temptation is
motivated by a noble desire to speed up the legislative
process or by pure political expediency, I believe such
changes would be unwise.
SEN. ROBERTS: The Senate is the only place in government
where the rights of a numerical minority are so protected. A
minority can be right, and minority views can certainly
improve legislation.
SEN. ALEXANDER: The American people know that it's not just
the voices of the Senator from Kansas or the Senator from
Iowa that are suppressed when the Majority Leader cuts off
the right to debate, and the right to amend. It's the voices
that we hear across this country, who want to be heard on the
Senate floor.
SEN. GREGG: You just can't have good governance if you
don't have discussion and different ideas brought forward.
SEN. DODD: Therefore to my fellow Senators, who have never
served a day in the minority, I urge you to pause in your
enthusiasm to change Senate rules.
SEN. REID: The Filibuster is far from a ``Procedural
Gimmick.'' It's part of the fabric of this institution that
we call the Senate. For 200 years we've had the right to
extend the debate. It's not a procedural gimmick. Some in
this chamber want to throw out 214 years of Senate history in
the quest for absolute power. They want to do away with Mr.
Smith, as depicted in that great movie, being able to come to
Washington. They want to do away with the filibuster. They
think they're wiser than our Founding Fathers, I doubt that's
true.
FORMER SEN. OBAMA: Then if the Majority chooses to end the
filibuster, if they choose to change the rules and put an end
to Democratic debate; then the fighting and the bitterness
and the gridlock will only get worse.
The PRESIDING OFFICER. The Senator from New York is recognized.
Mr. SCHUMER. Madam President, I am the last speaker after this very
good debate, which was preceded by months and months of serious
discussion. I think every one of us is better for going through this
process. We understand the Senate better. We have deeper feelings about
this hallowed institution, about what it has done, what it can do, and
what is wrong with it as well. I think every one of us agrees that the
Senate needed to be fixed, and we also agree that we did a lot last
year, despite the fact that it was broken. We had different paths to
fix it, but fix it we must and fix it we will.
I will say this: Obviously, there are going to be some rules changes
and some statutory changes. But a lot of what will make this work is
the agreement--informal but serious--between Senators Reid and
McConnell, which Senator Alexander and I were part of. I say to my
colleagues, hopefully, we are opening up a bit of a new era, where
bills are allowed to come to the floor, except under extraordinary
circumstances, where amendments are allowed to be added to those bills,
except under extraordinary circumstances, and there is vigorous debate.
I ask my colleagues to forbear--it is easy for any Senator to stand
up and bollix up the whole works. The spirit of the new agreement says
think twice, or maybe three times, before you do, because that was the
path that led us to the dysfunction.
I, too, want to salute my colleagues, Senators Harkin, Udall, and
Merkley for the great job they did. Senator Wyden and Senator McCaskill
and Senator Grassley will have a dream of theirs enacted into the rules
momentarily. This has been a fine debate. I don't think the talking
filibuster cuts against anything my colleagues on the other side of the
aisle have said. I am going to proudly vote for that provision, and
maybe--miracle of miracles--it will get two-thirds. But at least there
will be a vote, and maybe we can work toward that in the future.
I also do believe that the proposal to not invoke the constitutional
option for this Congress and next Congress gives us some time to figure
all this out, without closing the door on it forever, because some on
our side, I know, were worried about that.
Let us go forward in the spirit of comity that we have seen since the
lameduck session. Let us go forward in a bipartisan way that we have
worked on these rules changes and move forward in the next few months
and try to legislate in the way many of us who have been here longer
than a few years used to love, enjoy, and relish. If we can bring those
times back, the Senate will be a better place for every one of us, no
matter our party or ideology.
I thank all of my colleagues, including my colleague from Tennessee
and the two leaders, who stepped to the plate, and the so-called young
turks, some of whom have been here much longer than I have been, for
importuning us to act.
I yield the floor.
direction of the 112th congress
Mr. REID. Madam President, over the past few months, Democrats and
Republicans have had many positive discussions about the direction of
the 112th Congress. There are many important issues facing our country
and solutions will require bipartisan cooperation. In particular, there
has been a lot of discussion lately about the Senate rules. Many of my
colleagues have spoken to me about the way the Senate operated during
the last Congress. I think my friend from Kentucky would agree with me
that there was great frustration on both sides of the aisle.
The Senate was always intended to be, has always been, and should
always remain, the saucer that allows the boiling tea to cool to ensure
rash actions do not get enacted into law; to ensure that laws reflect
the cold rationality of reason and not the heat of perhaps misplaced
passion. But, there has been concern in recent years that the Senate
rules have been abused--that a very few have turned rules designed to
ensure careful examination into a simple bottleneck for parochial
purposes. Some have even expressed concern that the Senate is broken.
Now, I wouldn't say the Senate is broken, as I am proud to say that
the last Congress was historic in its achievements. But the Senate
Republican leader, my friend from Kentucky, and I have heard concerns
from many different Senators about Senate rules and processes, and we
have discussed the issue with each other at length. Senators Schumer
and Alexander have been an important part of this discussion. Together,
we have made important progress on a number of important areas.
Mr. McCONNELL. I thank the Senator. Senators in both of our parties
agree that there has been a significant
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breakdown in the Senate, though I am sure there are different
perspectives on the causes of the breakdown. We both recall that in the
not too distant past, when the minority and majority were reversed, we
both had somewhat different perspectives on these issues. But know that
the majority leader and I both care about this institution and the
vital role it plays in our democracy.
I am happy about the reforms that we will be adopting today. The
rules create many rights--for individual Senators, for the minority,
and for the majority leader. But, with rights come responsibilities and
Senator Reid and I have discussed how to ensure that we return to a
better balance between those two this Congress, and that the twin
hallmarks of the Senate--the right to debate and amend legislation--are
restored.
Mr. REID. Yes, we both would like to see a different Senate this
year--with fewer filibusters and procedural delays and more
opportunities for debate and amendments. In many cases, the problem is
not necessarily in the Senate rules, it is in the lack of restraint in
the exercise of prerogatives under the rules. Toward that end we will
now enter into a colloquy to discuss some of these issues. I have
discussed with Senator McConnell that many Senators in the majority
have been very unhappy at the excessive use of the filibuster the last
two Congresses, particularly on motions to proceed but also at other
times when a matter that has bipartisan support is filibustered purely
for delay.
Mr. McCONNELL. And, in my caucus, I have many Senators who have
complained that the majority leader has abused his ability to ``fill
the amendment'' tree, preventing Senators from offering and debating
amendments that they believe are important, especially when a matter
has not gone through committee or cloture is filed too quickly.
Mr. REID. As we have discussed, in the interests of comity and more
open process in the Senate, we have agreed that we should use these
procedural options of filling the amendment tree and filibustering the
motion to proceed infrequently. And we will do our best to ensure that
other members of our caucuses respect this colloquy, as well.
Mr. McCONNELL. I agree that both sides should do their best to
reinstitute regular order, where bills come to the floor and Senators
get amendments. Of course, there will be times when there is no
consensus and when either side may want to use all its rights to defeat
a bill. But we should endeavor to work together to follow the regular
order where practicable and use our procedural options with discretion.
And, I will do my best to ensure that other members of my caucus
respect this.
I want to close by clearly reaffirming my view that if we are going
to change Senate rules, we must do so within those rules. As rule 5
states, the Senate is a continuing body, and the rules continue unless
changed within the parameters of the rules.
I strongly reject this notion that a simple majority can muscle their
way to new rules at the beginning of a new Congress. I believe this is
a flawed approach. Majorities come and go. My Democratic colleagues
should be wary of attempting this maneuver because they will not always
be in the majority. The Senate is not the House of Representatives, and
our Founding Fathers never intended it to be. What some of my
colleagues in the majority propose would damage the institution and
turn the Senate into a legislative body like the House where a simple
majority can run roughshod over the minority. I would oppose such an
effort to change the rules with a simple majority in this Congress or
the next Congress, regardless of which political party is in the
majority. I ask the majority leader to join me in rejecting this
effort.
Mr. REID. The minority leader and I have discussed this issue on
numerous occasions. I know that there is a strong interest in rules
changes among many in my caucus. In fact, I would support many of these
changes through regular order. But I agree that the proper way 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.
And I hope and expect that we will have a more deliberative and
efficient Senate this Congress. In particular, I hope we can reach an
agreement to move nominees in regular order. One important reform to
the nominations process is reducing the number of Senate confirmed
positions. Our offices are working with Senators Schumer, Alexander,
Lieberman, and Collins to draft a bill to accomplish this goal. This
bill will be introduced in short order and we will work to get it
enacted as quickly as possible.
Many of these positions are part-time boards and commissions or
various agency positions that are unrelated to the management of that
agency. They could be Presidentially appointed rather than going
through the Senate. Although similar efforts have been proposed in the
past, I think all of my colleagues realize the need to address this
situation as soon as all the details are finalized.
Mr. McCONNELL. I agree that the Senate spends too much time dealing
with a growing number of nominees. It makes sense to reduce the number
of positions confirmed and free up committee staff to focus on other
nominees or legislation. I appreciate the work of these Senators and
look forward to passing this legislation as soon as it is complete.
Mr. REID. I look forward to putting into practice the sentiments in
this colloquy. Finally, I hope Senators of good will in both parties
will continue discussions as to how we can make the Senate a better
institution.
Our discussion today is in a spirit of bipartisan cooperation to
express hope and anticipation that the 112th Congress will be different
in many ways than the 111th. We look forward to greater comity on both
sides of the aisle so that we can move legislation and nominees that
have bipartisan support from the majority of Senators in this body.
There are areas that we can and should work together to achieve
progress for the American people.
Mr. McCONNELL. I agree with the majority leader that this Congress
should be more bipartisan than the last Congress. I do support the idea
that the Senate should be able to move forward and complete action on
matters with broad bipartisan support. Neither party has all of the
solutions to the problems our Nation faces. Many of the successes of
past Congresses have been the result of bipartisan cooperation and
input. I look forward to such cooperation and input in this Congress.
Mr. REID. Madam President, I ask unanimous consent that all remaining
time be yielded back and that there be 2 minutes of debate, equally
divided, prior to each vote; further, that all rollcall votes after the
first one be for 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Have the yeas and nays been ordered?
The PRESIDING OFFICER. Yes, they have been.
Mr. REID. I yield the floor.
The PRESIDING OFFICER. The pending measure is S. Res. 28. Under the
previous order, a vote of 60 is required for adoption of this
resolution. There will now be 2 minutes of debate, equally divided.
The Senator from Oregon is recognized.
Mr. WYDEN. Madam President, there has been much discussion about the
proposed rules reforms and how far they go. To those who say that this
resolution doesn't go far enough, I ask, why have the friends of
secrecy fought so hard for so long to allow Senators to anonymously
block legislation and nominations?
The fact is this resolution deals with a sweeping, almost
unparalleled legislative power--the ability of one Senator to
anonymously block a bill or a nomination from going forward. That is
not right. Senator Grassley, Senator McCaskill, and I have worked with
colleagues on both sides of the aisle to say that if you want to
exercise that extraordinary power, you ought to do it in the sunlight.
There ought to be public disclosure. There ought to be transparency.
I yield the remainder of our time to Senator Grassley, who has
championed this cause along with Senator McCaskill.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Madam President, the time has come to end secrecy on
[[Page S326]]
the floor of the Senate. The time has come for Senators who think they
ought to put a hold on a bill to be able to continue to put a hold on a
bill or a nomination, but it is also time to show that you have guts
enough to let the people know who you are and, more importantly, to let
your colleagues know who you are. So if there is something wrong with a
piece of legislation or a nomination, we can find out what it is and
move the business of the Senate ahead.
This is something that is going to make the Senate a much more
efficient place to work and get the people's business done, and it will
do what is most important--the public's business in public.
I yield the floor.
The PRESIDING OFFICER. The question is an agreeing to the resolution.
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Mrs.
Feinstein) and the Senator from Hawaii (Mr. Inouye) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Texas (Mrs. Hutchison) and the Senator from Arizona (Mr. McCain).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays were announced--yeas 92, nays 4, as follows:
[Rollcall Vote No. 2 Leg.]
YEAS--92
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
Durbin
Enzi
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hatch
Hoeven
Inhofe
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lugar
Manchin
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Webb
Whitehouse
Wicker
Wyden
NAYS--4
DeMint
Ensign
Lee
Paul
NOT VOTING--4
Feinstein
Hutchison
Inouye
McCain
The PRESIDING OFFICER. On this vote the yeas are 92, the nays are 4.
The 60-vote threshold having been achieved, the resolution is agreed
to.
Mr. CARDIN. Madam President, I move to reconsider the vote by which
the resolution was agreed to and to lay that motion on the table.
The motion to lay on the table was agreed to.
The resolution (S. Res. 28) was agreed to, as follows:
S. Res. 28
Resolved,
SECTION 1. ELIMINATING SECRET SENATE HOLDS.
(a) In General.--
(1) Covered request.--This standing order shall apply to a
notice of intent to object to the following covered requests:
(A) A unanimous consent request to proceed to a bill,
resolution, joint resolution, concurrent resolution,
conference report, or amendment between the Houses.
(B) A unanimous consent request to pass a bill or joint
resolution or adopt a resolution, concurrent resolution,
conference report, or the disposition of an amendment between
the Houses.
(C) A unanimous consent request for disposition of a
nomination.
(2) Recognition of notice of intent.--The majority and
minority leaders of the Senate or their designees shall
recognize a notice of intent to object to a covered request
of a Senator who is a member of their caucus if the Senator--
(A) submits the notice of intent to object in writing to
the appropriate leader and grants in the notice of intent to
object permission for the leader or designee to object in the
Senator's name; and
(B) not later than 2 session days after submitting the
notice of intent to object to the appropriate leader, submits
a copy of the notice of intent to object to the Congressional
Record and to the Legislative Clerk for inclusion in the
applicable calendar section described in subsection (b).
(3) Form of notice.--To be recognized by the appropriate
leader a Senator shall submit the following notice of intent
to object:
``I, Senator ___, intend to object to ___, dated ___. I
will submit a copy of this notice to the Legislative Clerk
and the Congressional Record within 2 session days and I give
my permission to the objecting Senator to object in my
name.''. The first blank shall be filled with the name of the
Senator, the second blank shall be filled with the name of
the covered request, the name of the measure or matter and,
if applicable, the calendar number, and the third blank shall
be filled with the date that the notice of intent to object
is submitted.
(4) Notices on the senate floor.--The requirement to submit
a notice of intent to object to the Legislative Clerk and the
Congressional Record shall not apply in the event a Senator
objects on the floor of the Senate and states the following:
``I object to ___, on behalf of Senator ___.''
(b) Calendar.--
(1) Objection.--Upon receiving the submission under
subsection (a)(2)(B), the Legislative Clerk shall add the
information from the notice of intent to object to the
applicable Calendar section entitled `Notices of Intent to
Object to Proceeding' created by Public Law 110-81. Each
section shall include the name of each Senator filing a
notice under subsection (a)(2)(B), the measure or matter
covered by the calendar to which the notice of intent to
object relates, and the date the notice of intent to object
was filed.
(2) Objection on behalf.--In the case of an objection made
under subsection (a)(4), not later than 2 session days after
the objection is made on the floor, the Legislative Clerk
shall add the information from such objection to the
applicable Calendar section entitled ``Notices of Intent to
Object to Proceeding'' created by Public Law 110-81. Each
section shall include the name of the Senator on whose behalf
the objection was made, the measure or matter objected to,
and the date the objection was made on the floor.
(c) Removal.--A Senator may have a notice of intent to
object relating to that Senator removed from a calendar to
which it was added under subsection (b) by submitting to the
Legislative Clerk the following notice:
``I, Senator ___, do not object to ___, dated ___.'' The
first blank shall be filled with the name of the Senator, the
second blank shall be filled with the name of the covered
request, the name of the measure or matter and, if
applicable, the calendar number, and the third blank shall be
filled with the date of the submission to the to the
Legislative Clerk under this subsection.
(d) Objecting on Behalf of a Member.--Except with respect
to objections made under subsection (a)(4), if a Senator who
has notified his or her leader of an intent to object to a
covered request fails to submit a notice of intent to object
under subsection (a)(2)(B) within 2 session days following an
objection to a covered request by the leader or his or her
designee on that Senator's behalf, the Legislative Clerk
shall list the Senator who made the objection to the covered
request in the applicable ``Notice of Intent to Object to
Proceeding'' calendar section.
The PRESIDING OFFICER. The question is on the adoption of S. Res. 29.
Under the previous order, 60 votes are required for adoption.
Who yields time? The Senator from Colorado.
Mr. UDALL of Colorado. Madam President, the resolution before us,
which I introduced, would encourage Senators to file their amendments
72 hours in advance of a vote to ensure that Members have time to
review it, but it would also delay the practice of calling for an
outloud reading of the amendment in front of us.
It addresses a concern I think we all have about the amendment
process. When a full reading of the amendment has been called for, it
ties our Senate into knots. It is a spectacle, with the clerks standing
here reading amendments for hours to an empty Chamber. My amendment
would prevent needless delays by waiving the live reading of an
amendment when the text has been available long enough for all of us to
look it over. It would have to be submitted 72 hours in advance.
So I ask for the yeas and nays, and I hope for an overwhelmingly
bipartisan approval of this important change to the Senate rules.
The PRESIDING OFFICER. The Senator from Tennessee is recognized.
Mr. ALEXANDER. Madam President, this amendment puts into effect what
the Republicans called in the health care debate the Bunning rule,
which is, if it is not on the Internet and not available for 72 hours,
it shouldn't be brought up.
We think this is a sensible--I think this is a sensible amendment,
and I urge a ``yes'' vote.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. UDALL of Colorado. Madam President, I ask for the yeas and nays.
[[Page S327]]
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be a sufficient second.
The question is on agreeing to the resolution.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Mrs.
Feinstein), and the Senator from Hawaii (Mr. Inouye) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Texas (Mrs. Hutchison) and the Senator from Arizona (Mr. McCain).
The PRESIDING OFFICER (Mr. Franken). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 81, nays 15, as follows:
[Rollcall Vote No. 3 Leg.]
YEAS--81
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Cochran
Collins
Conrad
Coons
Corker
Durbin
Enzi
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hoeven
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lugar
Manchin
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Roberts
Rockefeller
Sanders
Schumer
Shaheen
Shelby
Snowe
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wicker
Wyden
NAYS--15
Coburn
Cornyn
Crapo
DeMint
Ensign
Hatch
Inhofe
Lee
Paul
Risch
Rubio
Sessions
Thune
Toomey
Vitter
NOT VOTING--4
Feinstein
Hutchison
Inouye
McCain
The PRESIDING OFFICER. On this vote, the yeas are 81, the nays are
15. The 60-vote threshold having been achieved, the resolution is
agreed to.
The resolution (S. Res. 29) was agreed to, as follows:
S. Res. 29
Resolved,
SECTION 1. READING OF AMENDMENTS.
(a) Standing Order.--This section shall be a standing order
of the Senate.
(b) Waiver.--The reading of an amendment may be waived by a
non-debatable motion if the amendment--
(1) has been submitted at least 72 hours before the motion;
and
(2) is available in printed or electronic form in the
Congressional Record.
The PRESIDING OFFICER. The question is on the adoption of S. Res. 8.
Under the previous order, an affirmative vote of two-thirds of the
Senators voting is required for adoption. There is 2 minutes evenly
divided.
The Senator from Iowa.
Mr. HARKIN. Mr. President, this is the same resolution I offered 16
years ago. I continue to offer it. If you believe the minority ought to
have the right to slow things down, that is fine. But if you believe
the minority should have the right to veto anything that comes on the
floor, you don't want to vote for my resolution.
What my resolution says is that basically you need 60 votes. Then, if
you don't get it, 3 days later you have another vote, it would be 57
votes; 3 days later, 54 votes; after 8 days, 51 votes could move a
nominee, an amendment, or a bill. So it gives the minority the right to
slow things down, the right to amend, the right to debate, the right to
make their voices heard, but in the end it gives the majority the right
to move legislation. We are a legislative body. The majority ought to
have the right to move legislation. The minority should not have the
right to veto.
Right now in the Senate you have to have 60 votes to pass anything.
We used to be able to bring up amendments here and get 51 or 52 votes
and pass it. That no longer happens.
If you believe in democracy, trust the American people, trust the
ballot box. I am not afraid. I am not afraid of the majority enacting
its will as long as I have the right to debate an amendment.
The PRESIDING OFFICER. The time of the Senator has expired.
Who yields time in opposition? The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, this amendment might be called the ``if
you are going to hang me later, hang me now'' amendment. This would
eliminate the filibuster by making certain that it only took 51 votes,
eventually, to pass a bill. This filibuster, according to the current
majority leader in 2005, ``is a part of the fabric of this institution
we call the Senate.'' Former Senator Obama said in the same year, ``If
the majority,'' he then referred to the Republicans, ``chooses to end
the filibuster, if they choose to change the rules and put an end to
democratic debate, then the fighting and the bitterness and the
gridlock will only get worse.''
We have agreements today that will begin to end fighting and
gridlock, bring bills to the floor, having more amendments.
I urge a ``no'' vote on the proposal.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to the resolution.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Mrs.
Feinstein), and the Senator from Hawaii (Mr. Inouye) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Texas (Mrs. Hutchison) and the Senator from Arizona (Mr. McCain).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 12, nays 84, as follows:
[Rollcall Vote No. 4 Leg.]
YEAS--12
Begich
Blumenthal
Durbin
Gillibrand
Harkin
Kerry
Kohl
Lautenberg
Lieberman
Mikulski
Shaheen
Udall (NM)
NAYS--84
Akaka
Alexander
Ayotte
Barrasso
Baucus
Bennet
Bingaman
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
DeMint
Ensign
Enzi
Franken
Graham
Grassley
Hagan
Hatch
Hoeven
Inhofe
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kirk
Klobuchar
Kyl
Landrieu
Leahy
Lee
Levin
Lugar
Manchin
McCaskill
McConnell
Menendez
Merkley
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Paul
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schumer
Sessions
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Vitter
Warner
Webb
Whitehouse
Wicker
Wyden
NOT VOTING--4
Feinstein
Hutchison
Inouye
McCain
The PRESIDING OFFICER. On this vote, the yeas are 12, the nays are
84. Two-thirds of those voting for adoption not having voted in the
affirmative, the resolution is rejected.
Mr. KERRY. Mr. President, I am necessarily absent for the votes today
on S. Res. 10 and S. Res. 21. If I were able to attend these vote
sessions, I would oppose S. Res. 10 and would support S. Res. 21.
The PRESIDING OFFICER. The question is on the adoption of S. Res 10.
Under the previous order, an affirmative vote of two-thirds of the
Senators voting is required for adoption.
The substitute amendment is agreed to.
There is now 2 minutes of debate, equally divided.
The Senator from New Mexico.
Mr. UDALL of New Mexico. Mr. President, S. Res. 10 does five simple
things: limits debate on the motion to proceed to 2 hours; eliminates
secret holds; No. 3, guarantees the majority and minority three
amendments with a 60-vote threshold; No. 4, institutes a talking
filibuster; and, No. 5, shortens postcloture debate on nominations,
both executive and judicial, from 30 hours to 2 hours.
I would ask my colleagues to support the resolution. I yield back.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, in his last appearance before the Rules
[[Page S328]]
Committee, Senator Byrd quoted James Madison's description of this body
as a necessary fence against rulers and transient impressions and said
the right to filibuster anchors this necessary fence and we must never,
ever tear down the only wall, the necessary fence, that the Nation has
against these excesses.
This amendment does not tear down that fence, but it seriously
weakens it. I recommend a ``no'' vote.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. UDALL of New Mexico. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The question is on agreeing to the resolution.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Mrs.
Feinstein), the Senator from Hawaii (Mr. Inouye) and the Senator from
Massachusetts (Mr. Kerry) are necessarily absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``nay.''
Mr. KYL. The following Senators are necessarily absent: the Senator
from Texas (Mrs. Hutchison) and the Senator from Arizona (Mr. McCain).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 44, nays 51, as follows:
[Rollcall Vote No. 5 Leg.]
YEAS--44
Akaka
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Casey
Conrad
Coons
Durbin
Franken
Gillibrand
Hagan
Harkin
Johnson (SD)
Klobuchar
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Manchin
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (NE)
Nelson (FL)
Rockefeller
Sanders
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Whitehouse
Wyden
NAYS--51
Alexander
Ayotte
Barrasso
Baucus
Blunt
Boozman
Brown (MA)
Burr
Chambliss
Coats
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
DeMint
Ensign
Enzi
Graham
Grassley
Hatch
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Kirk
Kohl
Kyl
Lee
Lugar
McConnell
Moran
Murkowski
Paul
Portman
Pryor
Reed
Reid
Risch
Roberts
Rubio
Sessions
Shelby
Snowe
Thune
Toomey
Vitter
Webb
Wicker
NOT VOTING--5
Feinstein
Hutchison
Inouye
Kerry
McCain
The PRESIDING OFFICER. On this vote the yeas are 44, the nays are 51.
Two-thirds of those voting for adoption not having voted in the
affirmative, the resolution, as amended, is rejected.
The question is on agreeing to S. Res. 21, as amended. Under the
previous order, an affirmative vote of two-thirds of the Senators
voting is required for adoption of the substitute amendment, as agreed
to.
There is now 2 minutes of debate equally divided.
The Senator from Oregon.
Mr. MERKLEY. Mr. President, I thank Senator Lautenberg for
introducing the concept of a talking filibuster 2 years ago, and I
thank all colleagues who have worked to end the abuse of our current
filibuster. The fact is, we have not done any appropriations bills in
2010. We left 100 nominations without our advise and consent or
opposition, and we left 400 House bills collecting dust on the Senate
floor. The American people believe the filibuster is an act of personal
courage. Let's make it so. They believe those who filibuster should
make their case before the public. Let's make it so. They believe when
41 Senators want additional debate, let's make it so. Let's end the
secrecy and obstruction of the silent filibuster and establish the
accountability of the talking filibuster.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, in his last appearance before the Rules
Committee, Senator Byrd said:
Forceful confrontation to a threat to filibuster is
undoubtedly the antidote to the malady.
He also said:
I also know that current Senate rules provide the means to
break a filibuster.
If Senator Byrd, who knew the rules better than any of us, thought
that, we don't need to change the rules.
I urge a ``no'' vote.
The PRESIDING OFFICER. The question is on agreeing to S. Res. 21 as
amended.
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Mrs.
Feinstein), the Senator from Hawaii (Mr. Inouye), and the Senator from
Massachusetts (Mr. Kerry) are necessarily absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``yea.''
Mr. KYL. The following Senators are necessarily absent: the Senator
from Texas (Mrs. Hutchison) and the Senator from Arizona (Mr. McCain).
The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 46, nays 49, as follows:
[Rollcall Vote No. 6 Leg.]
YEAS--46
Akaka
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Casey
Conrad
Coons
Durbin
Franken
Gillibrand
Hagan
Harkin
Johnson (SD)
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Lieberman
Manchin
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (NE)
Nelson (FL)
Reed
Rockefeller
Sanders
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden
NAYS--49
Alexander
Ayotte
Barrasso
Baucus
Blunt
Boozman
Brown (MA)
Burr
Chambliss
Coats
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
DeMint
Ensign
Enzi
Graham
Grassley
Hatch
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Kirk
Kyl
Lee
Levin
Lugar
McConnell
Moran
Murkowski
Paul
Portman
Pryor
Reid
Risch
Roberts
Rubio
Sessions
Shelby
Snowe
Thune
Toomey
Vitter
Wicker
NOT VOTING--5
Feinstein
Hutchison
Inouye
Kerry
McCain
The PRESIDING OFFICER. On this vote, the yeas are 46 and the nays are
49. Two-thirds of those voting for adoption not having voted in the
affirmative, the resolution, as amended, is rejected.
Mr. KERRY. Mr. President, earlier today I supported S. Res 8 because
I believe additional action to change existing Senate rules to limit
filibusters are needed.
I very much appreciate the work of Majority Leader Reid and Minority
Leader McConnell in developing a colloquy printed in the Record today.
Specifically, I support the pledges to limit the use of filibusters on
motions to proceed and to fill the amendment tree on legislation only
when necessary.
Unfortunately, I do not believe that these pledges alone go far
enough to address the dysfunction the--epic dysfunction--of the last
years.
Frankly, the extraordinary measure of a filibuster has become an
ordinary expedient. Today it's possible for 41 Senators representing
only about one-tenth of the American population to bring the Senate to
a standstill. The filibuster has its rightful place. I used it to stop
drilling for oil in the Arctic Wildlife Refuge because I believed that
was in our national interest--and 60 or more Senators should be
required to speak up on such an irrevocable decision. But we have
reached the point where the filibuster is being invoked by the minority
not necessarily because of a difference over policy, but as a political
tool to undermine the Presidency. Consider this: in the entire 19th
century, including the struggle against slavery, fewer than two dozen
filibusters were mounted. Between 1933 and
[[Page S329]]
the coming of World War II, it was attempted only twice. During the
Eisenhower administration, twice. During John Kennedy's presidency,
four times--and then eight during Lyndon Johnson's push for civil
rights and voting rights bills. By the time Jimmy Carter and Ronald
Reagan occupied the White House, there were about 20 filibusters a
year.
But in the 110th Congress of 2007-2008, there were a record 112
cloture votes. And in the 111th Congress, there were 136, one of which
even delayed a vote to authorize funding for the Army, Navy, Air Force
and Marine Corps during a time of war. That is not how the Founders
intended the Senate to work--and that's not how our country can afford
the Senate not to work.
Chris Dodd said it best in his farewell address just a few weeks
ago--a speech the Republican leader called one of the most important in
the history of the Chamber. Chris sounded a warning: ``What will
determine whether this institution works or not, what has always
determined whether we will fulfill the Framers' highest hopes or
justify the cynics' worst fears, is not the Senate rules, the calendar,
or the media. It is whether each of the one hundred Senators can work
together.''
That was a speech that needed to be heard. But the question now isn't
whether it was heard; it is whether we really listened to it. Because
when it comes to the economy, our country really does need 100 Senators
who face the facts and find a way to work not just on their side, but
side by side.
It was with Chris's words in mind that I supported Senator Harkin's
effort to reform the filibuster rules even though I have concerns about
how the provision would affect debate in the Senate by moving to a
majority vote. I did so because I believe it is important to protest
the actions by the minority over the past four years and make a
statement that we must have an end to the unprecedented disruption that
has occurred.
Ultimately, Leader Reid is right--the question is not the rules, but
our decisions about how to abuse those rules. I hope the minority will
end this needless obstructionism as we move forward in the 112th
Congress.
The PRESIDING OFFICER. The Senator from Delaware.
____________________