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Public Statements

A Most Dysfunctional Senate

Floor Speech

By:
Date:
Location: Washington, DC

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Mr. WHITEHOUSE. Mr. President, I have a question for the distinguished Senator from Alabama, for whom I have very high regard. He has been my ranking member on the Judiciary Committee, and he is my ranking member on the Budget Committee, and we share the experience of having served as U.S. attorneys. I have great admiration for him.

I heard him say something that brought me to the floor, and that is that it has been the practice of the majority leader to seek to pick and choose amendments the minority may offer. My question to the distinguished Senator from Alabama is, does that not overstate the case? Can he identify a time when the majority leader has ever said to the minority party: You can bring up an amendment, but it has to be this one.

The reason I ask that question is because my understanding is that the effort to control the amendment process by the majority leader has been limited to two things: No. 1, the number of amendments, which makes a lot of sense when we consider that the very small bill to raise the minimum wage that Senator Kennedy offered when I first got here--I was sitting where Senator Cardin from Maryland is now presiding watching this debate take place on the floor, and they got to over 100 amendments on a one- or two-page bill. The Senate could never get to the bill if Members had to spend the rest of the session going through all these amendments. So to limit the number of amendments seems reasonable.

The other restriction that I think sometimes the majority seeks to impose is that the amendments be germane. I know when I was working with a number of colleagues of the distinguished Senator from Alabama on trying to form a bipartisan solution to the cyber compromise, every time the Republicans and the Democrats got together, we would start our discussion with the same back-and-forth, and that would be the Republicans saying----

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

Mr. WHITEHOUSE. Please do. The Senator from Alabama has heard my questions.

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Mr. WHITEHOUSE. Mr. President, let me thank the Senator from Alabama for his comments today. I think they are helpful in moving us forward, and I hope very much that we can find a way to go forward without having to use the constitutional doctrine that at the beginning of each Congress the Senate has an opportunity to adjust its rules with 51 votes. I think that is constitutional doctrine at this point.

I reject the notion that it is breaking the rules to take advantage of that constitutional moment. But the Senator makes a fair point that from a point of view of precedent--very different than breaking the rules, but from the point of view of precedent--it sets a new standard that we should be very cautious about going to.

I strongly support the Senator's recommendation that there needs to be a more vibrant amendment process. I believe the status of the discussion is regarding the filibuster on the motion to proceed, that if the majority leader is able to move to procedure without a filibuster, there will be amendments under that rule. I think that is an important qualification as we go forward.

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Mr. WHITEHOUSE. Mr. President, may I reclaim the floor for one moment? I will yield the floor, not just for a question--I will yield the floor to the Senator from Alabama with the understanding that I will be recognized at the conclusion of the point he makes, so he does not have to frame it in the nature of a question.

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Mr. WHITEHOUSE. I appreciate the point the Senator from Alabama is commenting on, and I think it is important that we recognize that is a floor or a minimum number of amendments and not a ceiling. I think the more we can allow Senators amendments, the better institution this will be.

That said, the calendar is unyielding. Days come and days go, Congresses end, work periods end. The majority leader and minority leader have the responsibility for trying to fit the work into those time periods. Clearly there is the prospect of vexatious amendments, either in nature or in number, whose purpose is to interfere with their ability to manage the floor in a sensible way for all of us. I think we do have to be prepared to defend against that, and I think number and germaneness are the usual touchstones.

The story I was telling, when the Senator from Alabama reclaimed his time, was of the cyber negotiations. When the Republicans and Democrats met together, the opening moment of virtually every discussion was the Republicans saying, when we get this bill to the floor, there will be amendments, correct? We were saying, absolutely, that is our understanding, we will stand by you having your amendments, but let us have them be germane, let us have them be relevant to cyber. That was always kind of a mutual agreement going forward until a Senator came to the floor and gave notice that they would insist on a repeal ObamaCare amendment on any cyber bill. That threw a pretty big spanner into the works of what I thought was moving toward a good bipartisan solution there.

I think we have real problems here in terms of the abuse of the filibuster. When the majority leader can say that Lyndon Johnson as majority leader faced 1 filibuster, and this majority leader has, I think he said, 291 times--391 times had to file cloture, that is a pretty big change.

When you see judges who have been cleared in the Judiciary Committee unanimously sitting on the Executive Calendar in what has become a hostage pool for purposes of trading--these are judges who are ready to go, and there may very well be a judicial emergency in their district; they have Republican and Democratic support, and they are held hostage to be used as trading pieces on either judges or other issues--I think that is a very poor way to go about doing business, particularly when you consider where that leaves an individual who has put their life on hold waiting to see if they will be confirmed, and all they are is a pawn in a chess game, even though everybody thinks that substantively they are qualified and should serve as judges.

You see situations in which we have a cloture fight and then, when we actually have the vote, the measure passes with 90-plus votes. Clearly, there was not a great dispute over that. That is cloture being used for obstruction and to, I believe, take those 30-hour blocks of cloture time and stack them up into a wall of obstruction.

I will say one final thing and then I will yield the floor. The good Senator from Alabama mentioned the budget process, and he is our ranking member on budget, so he knows this very well, but I have to dispute his description of the budget not passing and of why the majority leader said it would be foolish to have a budget.

The reason it would have been foolish to have a budget is because we had a budget. In the ordinary course, a budget is developed from the committee up. We start in the Budget Committee. We propose a budget. It then goes to the Senate floor. We have budget day, which is often irreverently called a vote-arama, where we vote and vote and vote on amendments, and we ultimately get a budget. A similar process happens in the House. The President then has a budget to work with and we go forward.

In this case, because the question of the Nation's budget is such a hot political issue, the budget was negotiated at the very top, between the President and the Speaker and the Senate leadership, and it was passed into law. We didn't pass a budget; we passed a bill. We passed a law, and the law set the budget. So when your budget is being set by law, yes, it is a little foolish to go through the process as if none of that had happened and try to build a budget from the ground up when it has already been established by law and when we wouldn't change it with our budget procedures. It has already been established by law, by negotiations at the highest level.

So I think that is why it was foolish. I think the budget process will continue to go forward in circumstances in which we are building a budget from the ground up, the way we do in the ordinary course, but I do think it was important to clarify that.

With that said, I yield the floor.

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