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Public Statements

A Most Dysfunctional Senate

Floor Speech

By:
Date:
Location: Washington, DC

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Mr. UDALL of New Mexico. The Senator from Alabama--I think we overlapped as attorneys general, and we are good friends--raised this whole issue, and he used the phrase, which has been frequently used on the Republican side, that--and we are getting to this place where we have the opportunity to change the rules. The phrase he keeps using is ``break the rules to change the rules.''

This goes to my question: Is the Senator aware that under the Constitution, and specifically article I, section 5, it says that the Senate may determine the rules of its proceedings?

As far as I know--and we have a letter we are going to have printed in the Record later--almost all constitutional scholars in this country as well as three Vice Presidents sitting up there where Senator Cardin is sitting, presiding, have ruled that at the beginning of a Congress, on the first legislative day, the Senate is allowed to change the rules. And the Constitution trumps the Senate rules in that respect in that very early period.

So my question to the Senator from Alabama: Does not the Constitution trump the Senate rules?

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Mr. UDALL of New Mexico. The Senator from Alabama, my good friend and former attorney general colleague, asked the question--when he was answering the last question I asked--has this constitutional procedure for determining Senate rules at the beginning of a Senate ever been used? Yes, in fact, it has been used, and it has been used a number of times.

I would point the Senator from Alabama to 1975. In 1975, we had the situation where a number of Democratic Senators were pushing for a change in the rules. The filibuster threshold at that point was 67 votes, unlike 60 today. Actually, that was the time period when they moved that threshold from 67 to 60.

What happened was 51 Senators took to the floor and three times voted down the attempt to move away from changing the rules.

Now, I would also note that three Vice Presidents--sitting up where Senator Cardin, the Presiding Officer, is right now--have ruled that at the beginning of a Congress--at the beginning of a Congress--you are allowed, the Senate, 51 Senators, to step forward and say: We would like new rules.

What is being advocated on this side is putting rules in place and following the rules for a 2-year period of time.

Mr. SESSIONS. Mr. President, reclaiming the floor.

Mr. UDALL of New Mexico. For a 2-year period of time. And we are not----

Mr. SESSIONS. Reclaiming the floor, because I will yield the floor in a little bit, and the Senator can have an opportunity to talk, but I just want to follow up on that.

Was the final vote by two-thirds or not?

Mr. UDALL of New Mexico. The rule that was changed, when we lowered----

Mr. SESSIONS. I know we lowered the filibuster; a different Congress did. My question is, Was it a two-thirds vote or not?

Mr. UDALL of New Mexico. An accommodation was reached and----

Mr. SESSIONS. Right.

Mr. UDALL of New Mexico. And when the accommodation was reached, then the rule was changed.

Mr. SESSIONS. I like that.

Mr. UDALL of New Mexico. Now, the constitutional principle was made, and it has been acknowledged by three Vice Presidents, it has been used a number of times in the past. The reason we are doing this, as the Senator from Alabama knows, is that the amount of secret, silent filibusters that have occurred here has been extraordinary. LBJ had one. Harry Reid has had close to 400.

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