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Public Statements

Changing Senate Rules

Floor Speech

By:
Date:
Location: Washington, DC

Mr. UDALL of New Mexico. Mr. President, I rise today to talk about our efforts to change the Senate rules. As we began the 113th Congress on January 3, Senators Merkley, Harkin, and I submitted a resolution to reform the Standing Rules of the Senate. Thirteen of my colleagues have signed on to cosponsor our resolution.

When we submitted the resolution, we agreed with the majority leader that it would be best to have the debate about reforming our rules after the inauguration. I appreciate his willingness to work with us on this important issue. Although we postponed the debate, we preserved the right of a simple majority of this body to amend the rules in accordance with article 1, section 5 of the Constitution.

Senate Resolution 4, our proposal to reform the rules, is simple, it is limited, and it is fair. Again, we are not ending the filibuster. We preserved the rights of the minority. Here is what we are proposing: an end to the widespread abuse of silent filibusters. Instead, Senators would be required to go to the floor and actually tell the American people why they oppose a bill or nominee in order to maintain a filibuster. Debate on motions to proceed to a bill or to send a bill to conference would be limited to 2 hours. Postcloture debate on a nominee, other than a Justice of the Supreme Court, would be limited to 2 hours rather than the current limit of 30 hours.

These are sensible changes. These are reforms we are willing to live with if we are in the minority, and yet we are warned these simple reforms will transform the very character of the Senate and leave the minority without a voice. These arguments are covers for continued abuse of the rules.

The reforms we propose are modest--some would say too modest--but they would discourage the excessive use of filibusters. The minority still has the right to filibuster, but not the right of one Senator to do so by simply picking up the phone, by simply making an announcement and then going out to dinner or, more likely, out to a fundraiser. I have listened carefully to the arguments by the other side against these changes. Let me say, again, we are not talking about taking away the rights of the minority, we are not talking about abolishing the right of debate or to filibuster, but there must be change. The abuse of the filibuster and other procedural rules has prevented the Senate from doing its job. We are no longer the world's greatest deliberative body. In fact, we barely deliberate at all. This does not honor this institution, and it does not serve the American people.

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 112th Congresses have the three highest totals of 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 over 390. Lyndon Johnson, 1, Harry Reid, 390. Legislation is blocked at every turn. The result is not surprising. The Senate of the 112th Congress passed a record low 2.8 percent of bills introduced. That is a 66-percent decrease from the last Republican majority in 2005-2006, and a 90-percent decrease from the high in 1955-1956. By every measure, the 112th Congress was the most unproductive Congress in our history.

My Republican colleagues have come to the floor and made many impassioned statements in opposition to amending our rules at the beginning of this Congress. They say the rules can only be changed with a two-thirds supermajority, as the current filibuster rule requires. They argue that any attempt to amend the rules by a simple majority is breaking the rules to change the rules. This is simply not true. The supermajority requirement to change Senate rules is in direct conflict with the U.S. Constitution. Article 1, 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 required a supermajority, they explicitly said so, as they did for expelling a Member. On all other matters, such as determining the Chamber's rules, a majority requirement is clearly implied. There have been three rulings by Vice Presidents, sitting as President of the Senate--where the Presiding Officer is sitting today--who have ruled on the meaning of article 1, section 5.

In 1957, Vice President Nixon ruled that:

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.

Vice President Rockefeller and Vice President Humphrey made similar rulings at the beginning of later Congresses.

The Constitution is clear, and there is also a longstanding common law principle--upheld in the Supreme Court--that one legislature cannot bind its successors. Many of my Republican colleagues have made the same argument. For example, in 2003 Senator John Cornyn wrote in a Law Review article:

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

So amending our rules at the beginning of a Congress is not breaking the rules to change the rules, it is reaffirming that the U.S. Constitution is superior to the Senate rules.

When there is a conflict between them, we follow the Constitution.

Some of my colleagues may believe that using the Constitution in this way would be harmful to the Senate. But there is an alternative. We do not have to reform the rules with only a majority vote. Each time the filibuster rule has been amended in the past, a bipartisan majority 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 they passed the changes with two-thirds in favor.

We could do that again. I know many of my Republican colleagues agree with me. The Senate is not working. As I visit with my Republican colleagues on the other side of the aisle, they tell me they are unhappy with the way things are. I said 2 years ago I would push for the same reforms at the beginning of the next Congress regardless of which party was in the majority.

At the time, many people believed the Democrats would lose their majority. So let me be clear: If Leader McConnell had become the new majority leader in this Congress, I would have asked him to work with me on these same reforms.

I will say again, the proposed changes will reform the abuse of the filibuster. They will 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 other side has suggested a change in the rules is an affront to the American people. But the real affront would be to allow the abuse of the filibuster to continue.

We have to change the way we do business. We have to govern. It is time for us to pay attention to jobs and the economy and what matters to American families--what they talk about around the kitchen table. That was the message that was sent us from this election, and we would do very well to listen to it.

Under the abuse of the current rules, all it takes to filibuster is one Senator picking up the phone. That is it--does not even have to go to the floor and defend it--just a phone call by one Senator: no muss, no fuss, no inconvenience, except for the American public, except for a nation that expects and needs a government that works, a government that actually works together and finds common ground.

Maybe some of my colleagues believe the Senate is working as it should, that everything is fine. We do not take that view. It is not working and it needs change. The American people of all persuasions want a government that actually gets something done. The challenges are too great, the stakes are too high for a government of gridlock to continue.

The New York Times yesterday and several of the local newspapers in my home State have editorialized about moving forward with reform and how important that is. I ask unanimous consent that an editorial from the New York Times and an editorial from the New Mexican be printed in the Record.

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Mr. UDALL of New Mexico. Three of my Senate colleagues who have just been elected are in the Chamber. I think one of the best things about this new class of Senators who have come into the Senate is they have studied this issue, they understand this issue, they have been out there with the American people and listened to them. The American people are demanding change.

So it is a real pleasure to see in the chair the Senator from Hawaii, who is the Presiding Officer, and on the floor the Senator from North Dakota and also the Senator from Maine. I know shortly we will be going into our caucus and having a very lively debate about which way to move forward, how we do reform.

I am convinced we are going to reform these rules. I hope we do it working with our colleagues on the other side of the aisle. But if they will not come with us, we are in a position where we are in the majority, and we have to make this institution work for the American people.

With that, I suggest the absence of a quorum.

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Mr. UDALL of New Mexico. Madam President, once again let me say at the beginning it is a real pleasure to see my old attorney general colleague, now the Senator from North Dakota, Heidi Heitkamp, in the chair presiding over the Senate, and also to see the Senator from Maine, Angus King, here--our new Senators. I think Senator Merkley would agree with this, that our new Senators bring an energy to this that we don't necessarily have. We are 4 years from our last campaign. We ran in 2008. I love hearing their stories and what they have heard and how they have visited with people in townhall meetings.

The American people get this. I don't think there is any doubt that they really get this. I know my colleague has done a number of townhalls on this issue. I just hope, as we have the chance to discuss this, both in our caucus and on the floor and with other Senators, that we can capture the energy of the Senators who have arrived here and have been out with the people in their States, with their constituents, and what they bring to this.

But I wanted to ask the Senator because, among many of our Senators, he does regular townhall meetings--and I have also done a number in my career--is this kind of rules change something that is so arcane that people don't understand it? Are they saying: Why are you

bothering with procedure or do people get it? Do they get it in Oregon when you are in a meeting?

Mr. MERKLEY. To my colleague from New Mexico, I would say they most adamantly get it. In fact, I had 13 townhall meetings 2 weeks ago, in conservative parts of the State, in more liberal parts of the State. And in every setting--every setting from conservative to liberal--folks said: Please, please continue this effort to address the filibuster and the paralysis, and the simple notion behind the talking filibuster.

If a Senator is voting for more debate--that is to delay the workings of the Senate--then he or she should be making their case on the floor so the citizens get to see what is going on and they get to decide whether they support it or oppose it. That idea resonates with people. It is the way folks think the Senate works, and they often think the rules that required it in the past have been changed so it does not happen now. So it is a chance I have to explain to them that what has changed is the social contract; that when people objected to the Senate proceeding with its business in the past, they wanted to make their views known on the Senate floor. They wanted to take responsibility because they realized it was a very high privilege to be able to delay the Senate and they had a responsibility to do so only for deeply principled or large issues and to make their case known.

So I do see overwhelming support. I feel as though the American people are so far ahead of maybe our own Chamber in understanding how broken we are and how much it needs to be fixed.

Mr. UDALL of New Mexico. The Senator made some nice comments about me--he was probably a little too generous--and I wanted to also thank him for all the work he has done on this issue. He has been a passionate voice for change, and he and I have both reached out to our friends across the aisle and tried to get things done.

I always bring this back to the question of why are we doing this. We are doing this so government can tackle the issues the American people care about. And I think there are two times in history--I am sure there are many others--where for me the Senate was in its glory days. We should always remember we have that potential. We see little bits of light every now and then here, such as with the passage of a transportation bill or a farm bill out of the Senate where bipartisanship exists and we come together, but I wish to talk very briefly about two time periods that I consider to be the glory days of the Senate.

One was before the Civil War. In the 40 years before the Civil War, the Senate was grappling with how do we hold the Union together. There was tremendous discussion, and Senators such as Daniel Webster and John Calhoun and others would work with each other and have heated debate, but for that 40 years before the Civil War, they held the country together. It was the Senate that fashioned those compromises that allowed the country to stay out of the Civil War. They didn't completely prevent it, but most people, looking at history, say those were some of the glory days of the Senate.

The second period was in the 1960s and 1970s, with Senators such as Muskie and Stafford and Chafee--giants in this body--who stepped forward on civil rights, stepped forward on environmental issues, stepped forward on the pressing issues of the time. So the Senate, once again in that time period, passed laws.

I remember; I was a kid here in Washington, and my father was Secretary of the Interior, when the wilderness law, the Clean Water Act, the Clean Air Act, and the Environmental Protection Agency was set up. Those were big laws--big, bold laws--that were dealing with our problems. So once again, they are glory days of the Senate.

I think we have that potential. As I see the new Senators coming in, the folks who were elected with us, and the Senators who arrived in the last 5 or 10 years, I think we have the ability to respond in a big, bold way to the crises that face us.

I know Senator Merkley came here as a young man with Senator Hatfield, I believe, and he saw a different Senate. Maybe he could talk about that. We don't want to stay; I know we are going to a caucus and we have our generous chair here--our presiding officer--so we don't want to keep her up here too long.

Anyway, I yield to the Senator.

Mr. MERKLEY. I think my colleague from New Mexico is absolutely right in pointing out there were periods when the Senate really worked to face the big issues of America. And it wasn't that there weren't profound differences. There were fierce differences, emotional differences, deep differences, but folks came to this floor, they conversed, they laid out their arguments and, ultimately, they made decisions about which way to go. They didn't bring the attitude: Well, let's paralyze this Chamber from doing anything. Had they done that, there would never have been the set of changes that addressed significant issues in either of those periods.

My colleague is right that a part of the reason I feel so strongly about restoring the functioning of this Senate is that when I came here as an intern at age 19 for Senator Hatfield, I had the very good fortune to be assigned to the Tax Reform Act of 1976, and then I had the even better fortune that it came up on the floor of the Senate. So during the many days it came before the body, I sat up in the staff gallery and watched as amendment after amendment was raised and debated and voted on. And since in those days there was no camera or e-mail, the member of the Senate team who was responsible for it would run down from the staff gallery, intercept their Senator, and tell them what the issue was, what was said about it, what the folks back home thought about it, what the set of motions was that had been dealt with on it, and so it was a legislature at work. And rarely, rarely, did the thought that anything would not be decided by 51 pass the minds of Senators. Again, that objection for 51 was reserved for very special, very rare occasions. It might happen once or twice in your career.

I do feel that the conversation we have before us is so important that I thought I would put up this chart. As my colleague can see, this just dramatizes it. It is a picture of Lyndon B. Johnson showing his one filibuster in 6 years, one time that he needed to get a cloture motion to try to shut down debate; otherwise, there was a courtesy that people said what they had to say and then stood aside and took votes. And here we have Harry Reid in his 6 years--it says ``387 and counting.'' It hit 391 before we completed his sixth year. So there is an enormous difference.

The work we are engaged in right now of trying to find a way to have every voice heard and then to be able to proceed to be accountable and transparent before the public is so important.

As the Senator and I have engaged in this conversation, sometimes we have heard criticism from across the aisle saying: You are trying to silence the voice of the minority. Does the Senator see anything in the proposals that we have been advocating that in any way silences the voice of the minority?

Mr. UDALL of Colorado. In looking at this, I do not see anything in the proposals, and I think we, in working on this together, tried to bring a discipline to it that said we want to preserve the best traditions of the Senate, we want the minority to be heard, we want the minority to have amendments, and we want them included in the process. What we don't want is the tyranny of the minority. And the Founders talked about the tyranny of the minority. They talked about the fact that if you allowed a small minority to govern and block the governing of the majority, that was the tyranny of the minority, and they feared that.

So I think that when we consider this and we talk about the filibuster and our institution today, our Senate, where many times the Republican leader has come to the floor and said that it is going to take 60 votes, everything takes 60 votes, that isn't the way the Founders designed it. The Founders actually had very strong language for what they thought of supermajorities.

Everybody remembers their history. The Founders came off the Articles of Confederation. It was a supermajority. It didn't work. It was broken. So they only put into the Constitution in five places supermajorities--things such as expelling a Member and ratifying a treaty--but otherwise it was simple majorities. And when the history is going to be written, it is hard to tell how this happened. But to have a leader of the Senate stand and say that everything takes 60 votes--the Founders never contemplated that. When they adopted rule XXII in 1917, that wasn't what they were trying to do, and the rule has actually been turned on its head.

Madam President, I yield the floor.

The PRESIDING OFFICER. The Senator from Oregon.

Mr. MERKLEY. Madam President, I would like to follow up on the last point Senator Udall of New Mexico made about our Founders.

I have in my hand three of the Federalist Papers, Federalist Papers 22, 75, and 58. These are by Madison and Hamilton, and they explore this issue of the supermajority. It was a very conscious decision that a supermajority was not put into the Constitution for decisions of these Chambers. And the reason why--and they explained it more eloquently--is essentially that if you take the path that the minority thinks is the right path rather than the path the majority thinks is the right path, then over time you make a series of worse decisions. The minority might be right on occasion, but most of the time the viewpoint brought by those representing the greatest number of States in this case or the greatest number of citizens on the House side is the path that makes sense. And they warned about the supermajority as an instrument that would bring paralysis. It is almost as if they could look forward 200 years to this moment and say: Don't do that because you will end up with paralysis.

This is from Federalist Paper No. 22 by Alexander Hamilton. He wrote this in 1787, and he notes in commenting about the issue of a simple majority that ``there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.''

Let me read that last set of words about what Hamilton said would happen if you had a supermajority requirement in the Senate: ``tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.'' I think anyone watching the proceedings of the Senate for the last 2 years would say that Hamilton was right on the mark in that regard. And, of course, he was not alone. There was not a single Federalist Paper written arguing that there should be a supermajority in the Senate or the House because of the experience that had been had previous to forming the strategy embodied in the Constitution.

Let's turn to James Madison. In Federalist 58, James Madison said:

It has been said that more than a majority ought to have been required for a quorum .....

He goes on to discuss it in various views, and he said:

Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive--

And here is the key language--

a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.

He also made the point that we would end up with equitable sacrifices to the general weal--or general good.

So as we turn to our conversations in our respective caucuses and to the dialog here on the floor of the Senate, I ask my colleagues to search your hearts about our responsibility to the citizens of the United States of America to address the big issues facing America, which means that we don't paralyze this body in secret. If my colleagues have points to make, then make them as was done during the periods of great debate on the floor of the Senate: Make them on the floor of the Senate, engage in that debate, and when no more is to be said, when all 100 Senators say: We have had our full input, then let's make a decision.

Madam President, I yield the floor.

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