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Public Statements

Changing Senate Rules

Floor Speech

By:
Date:
Location: Washington, DC

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Mr. MERKLEY. Madam President, I am rising today to talk about the vision we have ahead for the next 2 years and how this Senate can fulfill its responsibilities under the Constitution to do its legislative responsibilities addressing the big issues facing America.

I don't think anyone is unaware that for the last 2 years this Chamber has seen simply inaction and paralysis. It has been rated as one of the worst 2-year sessions in the history of the U.S. Government.

Well, what are we going to do differently? How is it that we only address 1 out of 24 appropriations bills over the last 2 years? How is it that so many important bills never made it to the floor of the Senate, bills such as the replacement for No Child Left Behind, which was a bipartisan vision that came out of committee.

How is it that so many bills came to this floor to never see a final vote? These are bills, such as the DISCLOSE Act, which would have eliminated secrecy in campaign donations; the DREAM Act, which would have honored creating a future for those who know only America as their home; the President's jobs package, which would have helped put America back to work; and the closing of loopholes for the biggest, most wealthy oil companies. Those funds could be put to use reducing our deficit or funding critical programs for working Americans.

On issue after issue after issue, we saw inaction. What we heard yesterday at the start of this next 2 years was a call from the President for action. In his inaugural speech he said:

For now decisions are upon us, and we cannot afford delay. We cannot mistake absolutism for principle, or substitute spectacle for politics, or treat name-calling as reasoned debate. We must act, knowing that our work will be imperfect. We must act, knowing that today's victories will be only partial.

The President echoed, if you will, the thought that he brought into his first 4 years, the urgency of now. We have big issues facing America, and it is time for the executive branch and the legislative branch to work together to address those issues.

In this call for action, we must ask how much action can there be if we see more than 100 filibusters in the next 2 years? How much action can there be if on every request for a vote an objection is heard that creates a day of delay in this Senate? The contrast is enormous from the time that Lyndon B. Johnson was President of the Senate.

Lyndon B. Johnson, during 6 years of presiding over this body, saw one filibuster. Harry Reid, in his 6 years of presiding over this Senate, has seen 391 filibusters.

Let me convey that even when we have the votes to end a filibuster, the fact that it is launched creates enormous paralysis. Imagine you are debating a bill, and you continue debating through the end of the week. When you come in the following Monday to debate, and nobody has anything left to say, then someone says: I ask unanimous consent that we have a final vote on this bill. Now, you see, we don't have a previous question on this floor, so one has to ask unanimous consent. Any of the 100 Senators can weigh in and say no.

When they weigh in and say no on that Monday, then on Tuesday a petition is put forward with 16 Senators saying: Let's have a vote on closing debate. That vote can't happen until Thursday, under the rules.

If it is successful on a Thursday, we have to have 30 hours more of debate before we can hold the final vote. That takes us into Saturday. Monday through Saturday is lost based on an objection on Monday by one Senator.

If we have 391 of these objections that waste a week of our time in the course of a 6-year period, then we basically waste every legislative week because there are not 391 weeks in a 6-year period.

It becomes pretty simple to see why we only were able to get one appropriations bill done in the last 2 years, and why so many bills never made it to the floor of the Senate for consideration even though they were essential to restoring the economic vitality of our Nation and putting people back to work. I, for one, find this absolutely unacceptable.

Over our history there have been three basic forms of filibusters. The first only worked in an age when transportation didn't work very well, and at any given moment there were a number of Members who couldn't get here to the floor of the Senate because they were traveling from their farms and the axle on their wagon broke or the train broke down or so on and so forth. Sometimes those journeys would take many weeks and things happened along the way. In that situation, a quorum of 50 percent plus 1 was sometimes in doubt, and those seeking delay could say: You know what. Let's deny a quorum.

Well, that was an effective tool only through that period. Then, as that changed, folks said: You know, we have the respect here of hearing everyone out. Therefore, if I can get to the floor of the Senate, I may delay this Senate as long as I am able to speak.

Well, it is through this effort that we have a number of famous filibusters, folks such as Strom Thurmond holding forth for 24 hours. We have, however, seen that a person can only delay the Senate for 24 hours. Then someone else can seek the floor, and you may proceed. So that was a fairly modest strategy.

In both the case of the denying quorum and in the case of speaking as long as you could, you had to spend time and energy. You had to organize, and it was visible before this body. It was visible before the reporters gathered in the balcony. Therefore, the American people, long before there was a television camera here, could see what you were doing, and the public could provide feedback on that.

But now we come to the modern era, from 1970 forward, in which it has become popular to start using the objection as an instrument of party warfare, the objection to a final vote. If we turn back before 1970, we had an overlap between the parties of perhaps 30 Members. So if you had used this objection, you would have a good sense that you would be able to get cloture. Furthermore, there was a social contract that you only interrupted the workings of this body on an issue of deep principle. You only blockaded the operations of the Senate on an issue of profound concern to your State, not as a routine instrument of party politics.

But that has changed over the last 43 years, since 1970 forward, and now the minority party can say: Let's show that the majority can't even get an agenda onto the floor of the Senate, and then let's complain about them not acting. This is not a philosophy that serves America. It is not a philosophy that was embraced through the extent of our history. You came here with the responsibility to contribute in committee, to contribute on the Senate floor, to try to make bills better, and to try to get issues addressed. You were not trying to paralyze this body so issues don't get addressed that may be contained on that side. That, quite frankly, is an unacceptable theme that has started to haunt this Hall, and we need to do something about it.

Indeed, if we look at the modern era where the parties have become so divided, we no longer see that overlap of 30 Senators. Therefore, any minority group, be it the Democrats, be it the Republicans, has the ability to bring this Chamber to a halt. But is it right to do so? If we cannot persuade our colleagues it is wrong to do so, then we need to change the rules of the Senate.

We need to insist if someone is going to throw a shoe into the gears, if someone is going to blockade the ability of the Senate to deliberate and decide, then that Senator needs to take responsibility here on the floor of the Senate.

Yes, we should get rid of the filibuster on the motion to proceed. Filibustering on whether to get to a bill does not enhance deliberation on the bill itself. We should make that decision in a crisp fashion and get on to the work, not waste weeks trying to decide if we are going to do the work of the people.

Second, we should get rid of the filibuster on going to a conference committee. Both Chambers have decided. They have voted in favor of the bill. It has been passed in different forms. Nothing should impede getting to conference and having a negotiation. Indeed, out of those negotiations, even if starting with one Chamber having a dramatic view different from the other, there is a coming together that takes steps forward that both Chambers can agree to. So nothing should impede that negotiation from going forward. We recognize a bill can still be filibustered when it comes back from committee, so why impede getting to the conference committee in the first place?

We should greatly reduce the number of hours after we have gotten cloture on debate. On nominations, by the time we vote on closing debate, our Members know how they are going to vote on that nominee. So we could have a final 2 hours but not a final 30 hours. Thirty hours is another wasted set of days we can ill afford. And certainly it makes sense to say, whenever possible, we should cut down that 30 hours on bills after we have reached cloture. We can do it by unanimous consent, and we often do that now. We can do it by requiring Senators to proceed to a vote if they do not stand and talk, but that is postcloture.

Here is the thing: When 41 Senators say they want additional debate, they want to delay the decisionmaking process here in the Senate, they should be willing to stand and make their case before their colleagues and the American people. It takes time and energy if you go that direction. It doesn't become a freebie where one Senator spends no time, no energy, and can go off to dinner or on vacation while paralyzing the Senate. You should have to spend the time and energy to be here to make your case.

Not only is that important in stripping away frivolous filibusters, it also means the American people get to weigh in. I am absolutely convinced if we were to go back to the debate on the DISCLOSE Act, which stripped away secrecy in campaign donations, and we had 59 votes to close debate--we needed a sixtieth--if those who voted for additional debate, and who fled this Chamber fearful of making their case before the American people, had been required to stand and defend secrecy and foreign donations in our campaign system, the American people would not have said they were heroes but they were bums. They would have weighed in and said to their own Senators: Join the effort to close debate, because to stand in the way of a final vote over secrecy in campaign donations does great damage to our democracy. Maybe the pressure and common sense of the citizens would have helped address the bitter partisanship that guides this body.

At a minimum, the citizens of this Nation have the right to know what is happening to legislation here on floor. The idea it is being paralyzed by the secret filibuster is unacceptable, so we should include the talking filibuster in any package we bring to modify the rules of the Senate.

I see my colleague from New Mexico has come to the floor, and he spoke earlier. He has put forward the vision that we must, at the start of every 2 years, evaluate how the Senate is working, and if it has problems we need to pass changes in the rules to address those problems.

This is not some remote concept of inside baseball. This is about American citizens having a legislature that can address the big issues facing our Nation. So I praise him for his leadership in putting this forward, which has led to this day. And it is the second time. We were here 2 years ago making this case, making this argument that we owe it to our citizens to improve the workings of the Senate, and we are here again today.

There is a saying about the Senate, that the Senate is the world's greatest deliberative body. If only it were so. It has been, at various points in its history, a thoughtful Chamber, a deliberative Chamber. But not today. It is driven by deep partisan differences, those being converted into strategies of paralysis, that prevent deliberation. We must change that. It is our responsibility as Senators to change that. The American people expect it. Let's make it so.

Madam President, I yield the floor.

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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.

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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?

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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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