Transaction Account Guarantee Program Extension Act - Motion to Proceed

Floor Speech

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Mr. MERKLEY. Mr. President, just following up on the comments of my colleague from Alaska, he has laid out some very important thoughts regarding the farm bill, regarding the debt ceiling, and regarding Social Security. I applaud him for coming to the floor and sharing his thoughts with our colleagues and with the American public.

These are big issues that we are wrestling with in the Senate. The farm bill is something that was passed on a bipartisan nature through the Senate. It is over in the House. It will have to come back through here. We had a proposal from the Republican leader put forward this morning that we were ready to vote on and that he objected to himself at the last second.

The debt ceiling is an important issue because it involves paying the bills on the decisions that have already been made and implemented by the U.S. Government. It is not about spending more; it is about paying the bills on the spending that has already taken place. And it should be debated and discussed and addressed because failure to have the responsibility that every family should have--to pay their bills once incurred--poses significant issues for our Nation. We saw that with the credit rating downturn. We certainly have seen that with the impact on the confidence that there was in the American system.

So it should be debated. These big issues need to be debated and decided. But this Senate often fails to ever get onto a bill to start with because there is something called a motion to proceed in which we have to raise the question: Should we address this topic? And time and time again, we have seen the minority, acting in a partisan fashion, say: No, we don't want to debate. They have used what is referred to as the silent filibuster to object and say: No, we don't want to debate that issue before the American public. We don't want to debate it with our colleagues. We don't want to wrestle with this complex topic.

Should we get onto a bill, we then see amendments treated in the same fashion, subjected to a 60-vote majority. In fact, that was the premise that the minority leader, the Republican leader, put forward in a change of heart just a few minutes ago, saying he had a proposal, that he reached agreement. But at the last second he decided it should be subject to a supermajority vote.

That is exactly what we have seen day in and day out, in increasing fashion, which has prevented this body from not only addressing the big issues across our country but even the regular issues of standard appropriations bills. We have 13 such bills that should come to this floor each year to be debated, to be decided, and to be amended, and we don't get to them. Why don't we get to them? Because the entire year is consumed by the silent filibuster strategy of the minority.

Let me give a picture of what I am talking about. This is a chart that shows the number of filibusters launched as an average per year over the preceding decades.

Now, I first came to this room when I was 19 as an intern for Senator Hatfield, and I sat up in the staff gallery and covered the Tax Reform Act of 1976. I watched this body raise amendment after amendment, debate it, decide it on a simple majority basis, and proceed to enact tax reform.

Well, in the 1900s through 1970s there was an average of one silent filibuster per year. Just one. Under the rules, this type of objection consumes a week because once the objection is made to unanimous consent to hold a majority vote, then a motion must be filed--a motion by the majority that wants to proceed. So they get 16 signatures, and that takes a little bit of time. Then once that motion has been filed--and that is called a cloture motion to close debate--then it takes 2 days to get to a vote.

The vote has to happen a day after an intervening day. So 2 days are gone. Then, if 60 Members say, yes, they want to close debate, then we have to have 30 hours of debate time before we can actually get to a final vote. So a whole week is taken up by that process.

In the 1970s, the average grew to 16 per year. That is 16 weeks wasted per year. In the 1980s, it grew to 21 per year average. Now we are getting to well over one-third of the number of weeks in the course of the Senate year. Then we go to the 1990s. We are up to 36 such silent filibusters taking up 36 weeks. We get to the decade 2000 through 2009, and an average of 48--or almost 1 per week--starting to squeeze out any ability to address the big issues facing America.

Then, since I came in 2009, we have had an average of over 60 per year, more than 1 per week. The result of this last 2 years was the most dysfunctional legislature in decades; big issues facing America, this floor, and this forum of deliberation paralyzed by the continuous use of the silent filibuster on every issue. Essentially what this silent filibuster has done is convert this to a supermajority body. Not only that, converted it to a body that spends its entire year just trying to get to the vote as to whether we can have a final vote. That is the level of dysfunction we have reached.

No wonder that public opinion of the Senate has plummeted. No wonder the frustration across this Nation has built that in silence, out of public sight, the minority has strategically thwarted the ability of this body to debate issues.

Over the course of time we see a period where this body has been run by Republicans and run by Democrats, so every minority has used this in an increasing fashion over time. This is not simply a Republican-Democratic issue or Democratic-Republican issue. This is an issue of a systematic change of culture where it was understood that the Senate was a simple majority as envisioned under the Constitution. Both Adams and Madison spoke eloquently to what a supermajority could do to destroy this body. Now their words resonate from the past because we are seeing it happen right before us today.

In this situation, doesn't it make sense for us to adjust the rules and reclaim the ability to be a body that deliberates and decides? That is what many of us are proposing be debated in January. When we start the new 2-year period we should have a major debate on the floor of the Senate about how to make this body fulfill its responsibilities to the American people. Our responsibility is not to come here and throw sand in the gears of deliberation. Our responsibility is to come here, study the issues, debate them on this floor, reach thoughtful positions, advocate for those positions, and propose that those solutions that have the strongest support go forward. That does not happen if the entire year is wasted with the silent filibuster strategy we have today.

So what can we do to address this situation? Quite a bit. Let's start with the very place that a bill begins, which is the motion to proceed. This is a motion to say let's come and debate the farm bill. Let's come and debate the Defense authorization bill. Let's come and debate a spending bill for Health and Human Services. When that motion was made in the past, it was rarely filibustered. This is a chart that goes back to 1971. From 1971, here, through 1982, that entire decade, we had 18 cases where the motion to proceed was filibustered--18 over a decade, plus.

In fact, during the previous 40 years there had only been a dozen times the motion to proceed was filibustered. Why is that? Because there is no inherent logic in saying in order to facilitate debate I am going to block debate, because that is what it is when you have this silent filibuster putting up this 60-vote hurdle to get onto a bill to begin with. So it makes sense for a simple majority to be able to decide let's go to a bill, let's debate it.

What we see over time here is a huge change. By 2007-2008, we had 57 silent filibusters, out of public sight, to prevent bills from being debated on this floor; the next year, 31 objections, 2009-2010, that 2-year period. The next 2-year period we are in now, we are already up to 42 times.

Clearly we need to return to the culture where the filibuster about an issue so close to your heart or so important to your values or so vital to your State that you would object and say I am going to stand in the way; as a matter of principle I am going to stand in the way of a bill that does damage to my core principles or to the vital interests of my State--that might happen a couple of times in a career.

That is not what we have now. What we have now is routine obstruction on every single act, which mires us in lost time and prevents us from addressing issues facing America.

Let's return to that situation when the motion to proceed was not filibustered. Let's make it like the motion to proceed to a nomination, in which we basically say no, you cannot filibuster that. You have a responsibility to advise and consent, to get nominations to the floor. If the majority says we will come here and debate it, we will come here and debate it. That is a simple change that takes care of a lot of the growth in the obstruction that wastes the Senate's time and prevents it from acting.

A second proposal is to get rid of the silent filibuster on starting a conference committee. Let me lay out the scenario for you. The House has passed a bill. The Senate has passed the same bill in a slightly different version. The two bodies say let's meet and talk about this. Let's work out a common position we can send back. That is a conference committee. Why would anyone object to starting the conference committee to negotiate between two bills, slightly different, that have been passed by the two bodies?

One could say, is that their only opportunity to make a statement about things that might happen in the conference committee? The answer is no. Because if the conference committee comes to a proposal, then they send it back to the two bodies and at that point it is debatable and it could be filibustered. That opportunity is there. So we have three motions necessary to establish a conference committee, and because all three can be filibustered, this silent filibuster--not standing and taking any public position, this silent objection--we have virtually given up the use of the conference committee. I don't think you can find a State legislature in this Nation that has so tied its hands that it cannot even hold a conversation between a State House of Representatives and a State Senate. They cannot even hold a conversation. That is how dysfunctional we have become here.

That was never part of the argument for let's have extended debate and let's be a cooling saucer, a thoughtful body. No, that is just a rule: Let's waste the entire time of the Senate and preclude the possibilities of even having a conversation, a negotiation with the House. We should eliminate the silent filibuster on motions to get to a conference committee.

Let's talk about another area. One of my colleagues from Minnesota, Al Franken, has proposed that instead of having 60 votes to end debate, we should have 41 to extend debate. Why does that matter? First, in terms of the framing of the issue, it really is the minority saying we want more debate. By this I don't mean minority party, I mean 41 from either party coming together and saying we want more debate. In that case the vote should be 41 votes required to extend debate.

That has a practical impact. It means that somebody who is absent from this Chamber does not count automatically on the side of extending debate. It is 41 of those who are here, 41 of the 100 who are saying yes, we must go forward with more debate. That is a very reasonable proposal. It changes the framing to understand that it is the minority--not the Republican minority but the minority of 51 from both sides of the aisle comes together and says: Yes, we want more debate. They make an affirmative vote of 41. That makes sense.

Then let's talk about the talking filibuster. I have been referring throughout this discussion that we are facing silent filibusters. Indeed, when I considered running for the Senate I came here and talked to the majority leader about it, and after discussing the possibility of running I said: Mr. Majority Leader, while I am here there is just one thing I must say because citizens in Oregon are so frustrated about this, and he kindly said yes, go ahead, tell me what it is.

I said, it is this: If a minority is arguing for more debate, then make them debate. Make them stand on the floor and make their case, because all we see is a quorum call back home. All we see is the Senate wasting its time.

The majority leader put his head in his hands like this and he said: Let me explain the way the rules are written. He explained to me what I have been explaining to all of you, that it is not required under the rules to take the floor when you object to a simple majority. When you vote for more debate, you are not required to debate. This is a surprise. This is the opposite of what ordinary citizens, myself included, believed across America. Why was that? Where did our belief come from?

I can tell you it came from this: When this body believed in its constitutional role to make decisions and to make decisions by a majority vote as envisioned by our Founding Fathers, it considered an objection to a simple majority vote to be a huge deal, a deal in which if you were going to make that objection you would have the courage of your convictions to come to this floor even if the rules didn't require it, you would come to this floor and you would make your case before your colleagues and try to persuade them of your point of view, and you would make your case before the American public.

It is folks back home who would have a chance to weigh in on whether you were a hero for carrying the torch on an important issue or you were a bum because your arguments didn't hold water and you were objecting, keeping the U.S. Senate from addressing an important national problem.

That era where the social contract was that you would have the courage to stand before your colleagues--that era is gone. Since the rules do not require you to stand, it has become the practice to use the silent filibuster to kill bills in the dark of night with no case being made before your colleagues, no case being made before the American people.

It is also true that Hollywood has helped cement the notion that a filibuster involves standing before this body with the courage of your convictions. Here we have a scene from the movie ``Mr. Smith Goes To Washington.'' He was trying to stop a land grab where a boys camp should be. He knew what was being done was wrong and he said he is going to take the floor and he is going to stand before his colleagues and the American people and he is going to do so as long as he could stay standing because it was an important principle that was being violated with an inappropriate land grab back home.

The American public is hungry for this kind of courage, that if you believe a simple majority is not in the interests of America because of the gravity of an issue, you will stand on this floor and make your case. That is what the talking filibuster proposes. It says that at the time you have a vote on any debate, if a majority of this body says yes, we should end debate and go forward, but a supermajority of 60 is not yet there--so the vote is between 51 and 59--that says there is still a substantial minority of 41 or more who want to have more debate, then they have to debate. It is as simple as that. They cannot basically go off on vacation while there is a quorum call. Instead, at least one person has to stand on this floor and make the argument.

Wouldn't it be an incredible difference if instead of these silent, hidden filibusters paralyzing this body, Senators who chose for additional debate had to make a stand before the American public? They had to make their case and the public could weigh in on whether they were heroes or they were bums? In that case, maybe we would get those 60 votes.

Let me give an example. We had a case in which we had an act called the DISCLOSE Act on the floor of the Senate. The DISCLOSE Act simply said that for all campaign donations, the source must be disclosed. It was based on a premise that had been argued by many on both sides of the aisle over many years, and it was this: that disclosure is the sunlight that disinfects the political process. If voters know that ad being put up on the air is being done by a certain industry--even though they claim to be the Blue Skies Industry, maybe they are the Polluted Water Industry--the citizens should know. If that ad that claims to be from Americans for Healthy Lives is actually being put on by an industry that is poisoning people, citizens should have the right to know.

This is the DISCLOSE Act. Not only under current practice is secrecy allowed, but foreign donations are allowed. Foreign companies are allowed to put unlimited secretive funds into the U.S. system. Who would defend that on the floor of the Senate? The answer is no one. We didn't have those who wanted more debate willing to debate it. No, they wanted to obstruct it in silence because they knew the American people would not approve of the fact that they were arguing for secrecy on unlimited sums of secret funds in American campaigns.

That was before this last election cycle when in election after election we saw super PACs funneling vast fortunes into the primaries for the Presidency, into Senate races, and into House races. They were funneling the money in, and no one knew where it came from. Now, some of the contributors to those super PACs did disclose that they contributed to the super PACs. They bragged about it. But when the money went from the super PAC to the State, their name was not attached to it. Nobody knew what funds went to which State. It was basically an attack by vast pools of dark money.

If we had the talking filibuster and folks had to rise on this floor and defend this secrecy and these foreign donations, then we would have gotten the 60th vote to close debate and we would have a better system to date.

How about pay equity for women? How about pay equity? I think we would have had the public weigh in if they could have seen it was being torpedoed by the silent, hidden filibuster. Now there are folks--and I have heard them over the past few weeks--who say: Oh, this strategy of asking people to talk is a way to suppress the views of the minority. Isn't that absurd? Doesn't it just make you smile that a requirement to make a case before colleagues can be framed as a situation where our views are being suppressed? No, quite the contrary. We are issuing them an invitation--this affects people on both sides of the aisle--to come forward and make their case publicly. Don't kill these bills with this hidden maneuver in the dark of night. If they have the courage of their convictions, they should come and make their case. If they don't, then let the process proceed. That is the talking filibuster.

I would like to applaud others who have put ideas forward that are similar. Senator Lautenberg of New Jersey had a bill that said--where I am talking about after the cloture vote, he said: Well, let's require people to talk during the 30 hours before the cloture vote in order to see if nobody wants to take the floor. Let's shorten that 30 hours. That is worthy of debate.

We have a responsibility for this body to debate in a transparent, accountable fashion and to make decisions so our public can see it. That is what the talking filibuster does.

I encourage my colleagues to come to the floor and share their thoughts. If they are against making their case before the American people, then have the courage to come to the floor and say: I don't like this idea because I don't want to have to make my case in front of my colleagues.

I invite my colleagues to come to the floor and say to the American public: I am going to vote against the talking filibuster because I don't want the public to see that I am killing bills in the dark of night.

Have the courage to come and debate the issue now and in the future because the American people are looking at us with extraordinary levels of frustration. They know there are big issues facing our Nation.

Right now we are talking about the fiscal cliff. Well, the fiscal cliff has many components. It may be broken into many different bills that come before this body. We need to get rid of the motion to proceed so we can get those bills to the floor to debate them. We need to make sure that if a group says: Let's block this bill from a final vote, they express their views accountably before the public. It is the least that should happen.

The Senate is headed out for the weekend. We will be back next week, and I ask for the American public to weigh in and to think about the fact that this hidden process is hurting our ability to address the big issues facing America. I ask my colleagues to wrestle with that.

It is my hope that folks will hold those conversations with the public back home. I have done so in every county of my State through my townhall meetings. I hold one in every county every year. I have raised this issue of whether or not, when folks vote for debate, they should be required to debate, they should be required to make their case and not to kill bills in the dark of night. Whether it is a progressive county or a conservative county, people believe in transparency and accountability, and they want to see their Senators making their case on this floor. Let's make it so.

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