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Mr. UDALL of New Mexico. Mr. President, there has been much discussion about the need to reform the Senate rules, and I have listened closely to the arguments against these changes by the other side. Today I rise to address some of their concerns. My Republican colleagues have made impassioned statements in opposition to amending our rules at the beginning of the next Congress. They say the rules can only be changed with a two-thirds supermajority. They say any attempt to amend the rules by a simple majority is breaking the rules to change the rules. This simply is not true.
Repeating it every day on the Senate floor doesn't make it true. The supermajority requirement to change Senate rules is in direct conflict with the U.S. Constitution. The Constitution is very specific about when a supermajority is required and just as clearly when it isn't required.
Article I, section 5 of the Constitution States:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.
When the Framers require a supermajority, they explicitly said so. For example, for expelling a Member. On all other matters, such as determining the Chamber's rules, a majority requirement is clearly implied.
There have been three rulings by Vice Presidents sitting as President of the Senate. Sitting up where the Presiding Officer is sitting, three Vice Presidents have sat there. And the meaning of article I, section 5, as it applies to the Senate, this is what they were interpreting. In 1957, Vice President Nixon ruled definitively, and I quote from his ruling:
While 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.
That was Vice President Nixon. Vice Presidents Rockefeller and Humphrey made similar rulings at the beginning of later Congresses.
I have heard many of my Republican colleagues quote Senator Robert Byrd's last statement to the Senate Rules Committee. The Presiding Officer knew Senator Byrd well. He is from his State of West Virginia. Senator Byrd came to that Rules Committee. I was at that Rules Committee, and I was at the hearing where he appeared--and I have great respect for Senator Byrd. He was one of the great Senate historians. He loved this institution, but we should also consider Senator Byrd's other statements and the steps he took as majority leader to reform this body.
In 1979 it was argued that the rules could only be amended in accordance with the previous Senate rules. Majority Leader Byrd said the following on the floor:
There is no higher law, insofar as our Government is concerned, than the Constitution. The Senate rules are subordinate to the Constitution of the United States. The Constitution in Article I, Section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.
That was Senator Robert Byrd. This Congress is not obliged to be bound by the dead hand of the past.
As Senator Byrd pointed out, the Constitution is clear. There is also a longstanding common law principle upheld in the Supreme Court that one legislature cannot bind its successors. For example, the Senate cannot pass a bill with a requirement that it takes 75 votes to repeal it in the future. That would violate this common law principle and be unconstitutional. Similarly, the Senate of one Congress cannot adopt procedural rules that a majority of the Senate in the future cannot amend or repeal.
Many of my Republican colleagues have made the same argument. In 2003 Senator John Cornyn wrote in a Law Review article--as many of you know, Senator Cornyn was an attorney general in Texas, was a distinguished justice. Senator Cornyn said the following in this Law Review article:
Just as one Congress cannot enact a law that a subsequent Congress could not amend by a majority vote, one Senate cannot enact a rule that a subsequent Senate could not amend by a majority vote. Such power, after all, would violate the general common-law principle that one parliament cannot bind another.
That was Senator John Cornyn.
Amending our rules at the beginning of a Congress is not breaking the rules to change the rules, it is reaffirming that the U.S. Constitution is superior to the Senate rules. And when there is a conflict between them, we follow the Constitution.
I find some of the rhetoric about amending our rules particularly troubling. We have heard comments that any such reforms, if done by a majority, would ``destroy the Senate.'' Again, I can turn to my Republican colleagues to answer this accusation.
In 2005 the Republican Policy Committee released a memo entitled ``The Constitutional Option: The Senate's Power to Make Procedural Rules by Majority Vote.'' That memo supports the same arguments I make today for reform by a majority, and it also refutes many of the recent claims about how the Senate will be permanently damaged.
One section of the memo titled, ``Common Misunderstandings of the Constitutional Option'' is especially interesting and enlightening. It responds to the argument that ``the essential character of the Senate will be destroyed if the constitutional option is exercised,'' and it responds with the following words:
When Majority Leader Byrd repeatedly exercised the constitutional option to correct abuses of Senate rules and precedents, those illustrative exercises of the option did little to upset the basic character of the Senate. Indeed, many observers argue that the Senate minority is stronger today in a body that still allows for extensive debate, full consideration, and careful deliberation of all matters with which it is presented.
What is more important about the Republican memo is the reason they believed a change to the rules by a majority was justified. Because of what Republicans saw as a break in longstanding Senate tradition. They claimed they weren't using the constitutional option as a power grab, they were using it as a means of restoring the Senate to its historical norm.
This is exactly where we find ourselves today. Back then, the Republicans argued the constitutional option should be used because 10 of President Bush's judicial nominees were threatened with a filibuster. I believe the departure from Senate tradition now is far worse.
Since Democrats became the majority party in the Senate in 2007, we have faced the highest number of opposition filibusters ever recorded. Lyndon Johnson faced one filibuster during his 6 years as Senate majority leader. In the same span of time, Harry Reid has faced 386.
For most of our history, the filibuster was used very sparingly. But in recent years, what was rare has become routine. The exception has become the norm. Everything is filibustered--every procedural step of the way, with paralyzing effect. The Senate was meant to cool the process, not send it into a deep freeze.
Since the Democratic majority came into the upper Chamber in 2007, the Senates of the 110th, 111th, and current 112th Congresses have witnessed the three highest total of filibusters ever recorded. A recent report found the current Senate has passed a record low 2.8 percent of bills introduced. That is a 66-percent decrease from the last Republican majority in 2005 and 2006 and a 90-percent decrease from the high in 1955 and 1956.
So the Republicans argued in 2005, ``[a]n exercise of the constitutional option under the current circumstances would be an act of restoration.'' An act of restoration. I cannot improve on that statement. We must return the Senate to a time when every procedural step was not filibustered.
I respect the concerns some of my Republican colleagues have regarding the constitutional option, but there is an alternative. We don't have to reform the Senate rule with a majority vote in January. This is up to my colleagues on the other side of the aisle. Each time the filibuster rule has been amended in the past, a bipartisan group of Senators was prepared to use the constitutional option. But with a majority vote on the reforms looming, enough Members agreed on a compromise and passed the changes with two-thirds in favor. We could do that again in January.
I know many of my Republican colleagues agree with me that the Senate is not working. Some say we don't need to change the rules, we need to change behavior. But we tried that--the changing of behavior--with a gentleman's agreement at the beginning of this Congress. It failed. So now it is time to make some real reforms.
This is not a ``power grab,'' as some have charged. We want to make the Senate a better place--a place where real debate happens for both parties. So I ask my friends on the other side of the aisle to bring their own proposals to the table. Let's work together to restore the deliberative nature of the Senate where all sides have the opportunity to debate and be heard.
I said 2 years ago I would push for reforms at the beginning of the next Congress regardless of which party was in the majority. I will say again that our goal is to reform the abuse of the filibuster, not trample the legitimate rights of the minority party. I am willing to live with all the changes we are proposing whether I am in the majority or the minority.
The American people, of all political persuasions, want a government that actually gets something done, that actually works. We have to change the way we do business. The challenges are too great, the stakes are too high, and we do not want a government of gridlock to continue.
I thank the Chair for the time, and I suggest the absence of a quorum.
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