E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 112 CONGRESS, SECOND SESSION

Vol. 158 WASHINGTON, TUESDAY, NOVEMBER 27, 2012 No. 149 Senate The Senate met at 10 a.m. and was COONS, a Senator from the State of Dela- A bill (S. 3637) to temporarily extend the called to order by the Honorable CHRIS- ware, to perform the duties of the Chair. transaction account guarantee program, and TOPHER A. COONS, a Senator from the DANIEL K. INOUYE, for other purposes. State of Delaware. President pro tempore. Mr. REID. Mr. President, I would ob- Mr. COONS thereupon assumed the ject to any further proceedings with re- PRAYER chair as Acting President pro tempore. spect to this bill at this time. The Chaplain, Dr. Barry C. Black, of- f The ACTING PRESIDENT pro tem- fered the following prayer: RECOGNITION OF THE MAJORITY pore. Objection is heard. The bill will Let us pray. LEADER be placed on the calendar. Eternal God, the source of our joy, Mr. REID. Mr. President, this is one thank You for this opportunity to call The ACTING PRESIDENT pro tem- of the must-do pieces of legislation we on Your Name. You have sustained this pore. The majority leader is recog- have to do before this calendar year Nation through the seasons of its exist- nized. ends. ence, and we are depending on You, f FINDING COMMON GROUND Lord, to guard our future with Your might. NATIONAL DEFENSE AUTHORIZA- Mr. REID. Mr. President, too often it As our Senators seek to do the work TION ACT FOR FISCAL YEAR is a challenge to find common ground of freedom, deepen their love for those 2012—MOTION TO PROCEED—Re- here in Washington. But as we nego- on life’s margins. Give our lawmakers sumed tiate a path back from the fiscal cliff, this day the gift of Your spirit as they Mr. REID. Mr. President, I now move we should also recognize when Demo- give thanks to You in all things. to proceed to Calendar No. 419, S. 3254, crats and Republicans agree. We agree Lord, we believe You will lead us the Defense authorization bill. taxes should not go up for anyone mak- through all our tomorrows as You have The ACTING PRESIDENT pro tem- ing less than $250,000 a year. Now, 97 led us through our yesterdays. pore. The clerk will report. percent of small businesses and 98 per- We pray in Your merciful Name. The legislative clerk read as follows: cent of middle-class families would benefit from that. Amen. Motion to proceed to the bill (S. 3254) to authorize appropriations for fiscal year 2013 With common ground in sight, we f for military activities of the Department of should be able to act today to avert the PLEDGE OF ALLEGIANCE Defense, for military construction, and for fiscal cliff for millions of families and defense activities of the Department of En- businesses. Even if we disagree on The Honorable CHRISTOPHER A. COONS ergy, to prescribe military personnel whether to extend tax breaks for the led the Pledge of Allegiance, as follows: strengths for such fiscal year, and for other wealthiest 2 percent of Americans, we I pledge allegiance to the Flag of the purposes. should agree to hold the middle class United States of America, and to the Repub- SCHEDULE harmless and do it today, do it now. A lic for which it stands, one nation under God, Mr. REID. Mr. President, we are indivisible, with liberty and justice for all. single vote in the House of Representa- going to recess, as we normally do on tives would get the job done now. Un- f Tuesdays, from 12:30 to 2:15 to allow for fortunately, there is one obstacle our weekly caucus meetings. APPOINTMENT OF ACTING standing between Congress and com- We are going to begin consideration PRESIDENT PRO TEMPORE promise: Grover Norquist. For years of the disabilities treaty this afternoon Norquist has bullied lawmakers willing The PRESIDING OFFICER. The whether with a vote or with permis- to put their oath of office or their clerk will please read a communication sion. It is a simple majority vote to promise to serve constituents ahead of to the Senate from the President pro move to this most important piece of their pledge to this antitax zealot. His tempore (Mr. INOUYE). legislation. brand of ideological extremism has The legislative clerk read the fol- MEASURE PLACED ON THE CALENDAR—S. 3637 been bad for Congress and even worse lowing letter: Mr. REID. Mr. President, I am told for the country. So I was pleased to see U.S. SENATE, that S. 3637 is due for its second read- Republicans in Congress distance PRESIDENT PRO TEMPORE, ing and is at the desk. themselves from Norquist this week. I Washington, DC, November 27, 2012. To the Senate: The ACTING PRESIDENT pro tem- appreciate that very much. So do the Under the provisions of rule I, paragraph 3, pore. The clerk will read the bill by American people. I am sure their con- of the Standing Rules of the Senate, I hereby title for the second time. stituents do. Several Republican law- appoint the Honorable CHRISTOPHER A. The legislative clerk read as follows: makers have said revenue should be on

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Mar 15 2010 00:14 Nov 28, 2012 Jkt 029060 PO 00000 Frm 00001 Fmt 4624 Sfmt 0634 E:\CR\FM\A27NO6.000 S27NOPT1 jbell on DSK7SPTVN1PROD with S6910 CONGRESSIONAL RECORD — SENATE November 27, 2012 the table during the fiscal cliff negotia- let me suggest that if the President All this reflects a very clear philos- tions. How common sense is that? Ab- wants a solution to the challenges of ophy: For Washington Democrats, solutely. It is so clear to everyone ex- the moment, the people he needs to be every dollar that has ever been secured cept Grover Norquist. It is time now talking to are the members of his own for anything is sacred—every dollar for the Republicans to turn this happy party so he can convince them of the that has ever been secured for anything talk into action. need to act. We are not going to solve is sacred—and they will defend it to President Obama and Senate Demo- this problem by creating villains and the death regardless of what it means crats ran on a promise to end the Bush drumming up outrage. We will solve for jobs or the economy. But those tax breaks for the wealthy. President the problem by doing the hard work of days are over because you do not elimi- Obama did not hide that in the last sitting down and figuring out a solu- nate trillion-dollar deficits by taxing year of his campaign. Every place he tion that involves tough choices on all the rich—not even close. It may be an went, that is what he talked about. sides. effective talking point, but as a matter Americans, when they voted, raised That gets at another point I made of policy it is a minor deal, and the their voices and supported our pledge. yesterday. In the past, Democrats have Democrats know it. So, as we move Congress must act in accordance with demanded tax hikes now for spending into the final stretch, it is time, as I the will of the American people. cuts that never actually happen. Not have said, to put the talking points An agreement to avoid the fiscal cliff this time. A balanced approach means away and get serious about striking a must give economic certainty to mid- real spending reductions now. And I am deal. dle-class families and must protect im- not saying this because it is the Repub- The first step to recovery is to admit portant tax deductions for families and licans’ position, although it is. I am you have a problem. If borrowing more businesses still struggling to recover not saying this because I have any- than 40 cents for every dollar you from this great recession. It must take thing against the government, which I spend does not convince you you have a balanced approach to reduce spend- do not. I am saying this because it is a spending problem, frankly, I do not ing. But it must also ask the richest of the only approach that has any chance know what will. If Democrats cannot the rich to pay a little bit extra to re- of working. No credible deficit reduc- admit we have a spending problem, duce the huge deficit we have. tion plan we have seen over the past they need to talk to their constituents Any balanced agreement will require few years excludes real cuts. If we want more. They need to get real. That difficult concessions from both sides—I to prevent this crisis, Democrats need means changing the way things have said both sides. Clinging to the kind of to be as serious about cutting spending been done around here for the past few ideological purity Grover Norquist ped- as they are about spending. It is that years. dles, saying he will never bend or com- simple. Independent budget experts have promise, is easy. Cooperating with By the way, this is an approach been telling us for ages that our long- those with whom you disagree is hard. Americans overwhelmingly support. term budget deficits are driven by the Doing what is right for the country de- According to a recent AP poll, voters unsustainable health care entitle- spite personal cost is hard. Legislating prefer spending cuts to tax hikes 62 ments. What was the administration’s is hard. As we approach the fiscal cliff, percent to 29 percent—a more than 2- response to that? Their response was to Democrats are ready to make those to-1 margin. Now, there is a reason for add trillions more by creating an en- tough choices. I hope my Republican this. The American people are not stu- tirely new health care entitlement pro- friends, especially those who claim pid. They know the problem with gram. We were promised that the they put no pledge before their pledge Washington is not that it taxes too lit- President’s health care law would re- to serve their constituents, can say the tle but that it spends too much. They duce health care costs. What did it do? same. also know the only reason we are even We are now told health care costs will RECOGNITION OF THE MINORITY LEADER talking about a looming fiscal crisis rise as a share of our economy and the The ACTING PRESIDENT pro tem- right now is because the Democrats taxpayer’s liability. By one estimate, pore. The minority leader is recog- have spent the last 4 years creating it. those costs will go up by more than $1⁄2 nized. That is what I would like to focus on trillion over the next 10 years. FISCAL CLIFF this morning—how we got into this We know the number of Americans 65 Mr. MCCONNELL. Mr. President, yes- mess in the first place—because amidst or older will increase by one-third over terday I came to the floor to discuss all of the talk about plans and pro- the next 10 years. According to the what is known as the fiscal cliff, a mix posals, it is easy to forget that we did Census Bureau, there were 40 million of automatic tax hikes and defense not get here by accident; we got here older Americans in 2010. There will be cuts that are set to hit at the end of because Washington Democrats, from 54 million of them a decade after that, the year, jeopardizing our security as the President on down, have done two and more than 72 million older Ameri- well as our economy. My message was things exceedingly well over the past 4 cans a decade after that. What are the pretty simple: A solution is possible. years: spent other people’s money and Democrats doing to ensure the pro- Republicans have been reasonable, kicked the can down the road—spend grams they rely upon will actually be and the President needs to lead. He is other people’s money and kick the can there? We cannot ignore the facts. We the only one who can get us to a solu- down the road. For 4 years, Democrats need to prepare for the demographic tion. If that is what he wants, we will spent money we did not have in the changes we know are coming. Medicare succeed. So it was with some concern misguided hope that it would help the is simply too important for millions of that I read this morning that the economy. They have borrowed trillions seniors to let it continue down the road President plans to hit the road next of dollars to keep unemployment pret- to insolvency. We must preserve it for week to drum up support for his own ty much right where it was when they today’s seniors and strengthen it for personal approach to the short- and started. And here is what we have 4 those who will retire in the years long-term fiscal challenges we face. In years later: a mountain of debt and a ahead. other words, rather than sitting down looming national budgetary crisis. As Congress looks for savings, we with lawmakers of both parties and Republicans are happy to talk about need to look at the new health care en- working out an agreement, he is back how to solve this mess, but make no titlements too. While Democrats and on the campaign trail, presumably mistake, we will also talk about how Republicans may disagree on with the same old talking points with we got here. The reason we are having ObamaCare, it is ridiculous to suggest which we are all quite familiar. these negotiations is because Wash- that we make changes to Medicare and Look, we already know the President ington Democrats have spent money Medicaid while leaving $1.6 trillion in is a very good campaigner. We con- without any care for the cost or the fu- new ObamaCare spending untouched. gratulate him on his reelection. What ture and refuse to do anything to pro- For 4 years Democrats have been we do not know is whether he has the tect long-term spending programs, completely unbalanced in the way they leadership qualities necessary to lead such as Medicare, a failure that is have spent paper dollars. Yet now that his party to a bipartisan agreement on among the biggest single drivers of our the crisis is upon us, they solemnly ad- big issues such as we currently face. So debt. vise us that we need to be balanced in

VerDate Mar 15 2010 00:14 Nov 28, 2012 Jkt 029060 PO 00000 Frm 00002 Fmt 4624 Sfmt 0634 E:\CR\FM\G27NO6.003 S27NOPT1 jbell on DSK7SPTVN1PROD with November 27, 2012 CONGRESSIONAL RECORD — SENATE S6911 our solution. This is how you ensure to be treated’’ and that he would do ev- But Senator Byrd was clear about the expansion of government. This is erything he could to ‘‘preserve the what we should never do. He said, ‘‘We how you end up with $16 trillion of rules and traditions of the institution must never, ever tear down the only debt, but it is not how you get out of that I love.’’ wall—the necessary fence—this Nation it. It is not how you solve the problem. Inaccurately describing the essence has against the excesses of the execu- You solve the problem by taking tough and wise purpose of the Senate, the tive branch and the result of haste and medicine and tough votes. You solve it majority leader sounded a lot like our tyranny of the majority.’’ by doing something different than former colleague Robert C. Byrd. So I Senator Byrd, as we know, was a his- what you have been doing all along. was quite surprised to hear our friend torian. He was a skillful majority lead- You solve it with the help of a Presi- from Nevada assert that Senator Byrd er who understood the unique impor- dent who is willing to lead his party. would actually support the heavy- tance of the Senate and the need of a You don’t just change your rhetoric handed tactic he intends to employ. majority leader to keep his commit- and your talking points while telling I am not going to correct all the in- ment. But he was also a political real- your base behind closed doors you accuracies my friend made yesterday, ist who had been around enough to un- aren’t going to give any ground. You such as saying four times that it takes derstand that political majorities are change your behavior. For Democrats 10 days to get out a bill. I don’t know fleeting, and if you break the rules to in Washington, as I have said, that what version of Riddick’s my friend suit your political purposes of the mo- means getting serious for a change has been reading, but if it actually ment, you may regret having done so about cuts. The time for campaigning took 10 days to get on a bill I might ac- when you find yourself in the minority. is over. It is time to act. tually support some rule changes my- Senator Byrd specifically said: NUCLEAR OPTION self. I strongly caution my colleagues as some Mr. President, yesterday the major- But I must disabuse my friend from propose to alter the rules to severely limit the ability of a minority to conduct a fili- ity leader and I had a rather spirited Nevada about how Senator Byrd would view the heavy-handed tactic he in- buster. I know what it is to be majority lead- discussion about his intention to er, and wake up on a Wednesday morning in change the Senate rules outside the tends to employ. Unlike the majority leader, I recall when our late colleague November and find yourself a minority lead- process provided in those rules. er. spoke on this topic at a Rules Com- When he was in the minority, my To make sure there was no doubt as friend from Nevada objected strenu- mittee hearing the last time the major- ity leader entertained ‘‘breaking the to his views on the subject, Senator ously to the very procedure he now Byrd concluded by unequivocally ob- wants to employ. He called using a rules to change the rules.’’ Senator Byrd was unequivocally against vio- jecting to the use of the nuclear option simple majority maneuver to change that the Senator from Nevada is now Senate procedure the ‘‘nuclear option’’ lating Senate rules to change the rules the way the current majority leader is proposing. He said: and described it as breaking the rules The Rules Committee must, however, jeal- to change the rules. Now that he is in proposing. Senator Byrd began by noting that ously guard against efforts to change or rein- the majority, he says the ends justify terpret the Senate rules by a simple major- ‘‘Our Founding Fathers intended the the means. He says we have to make ity, circumventing rule XXII where a two- the Senate more efficient and we have Senate to be a continuing body that al- thirds majority is required. to violate the Senate rules to do that lows for open and unlimited debate and My friend the majority leader is no so he and his colleagues in the major- the protection of minority rights. Sen- more correct about Senator Byrd’s ity can implement more easily their vi- ators have understood that,’’ he stated, views on the nuclear option, on the sion for America. According to him, ‘‘since the Senate first convened.’’ idea of breaking the rules to change these minor changes won’t affect any- That is Senator Byrd on the history of the rules, than he is about taking 10 one who has the thought of making the Senate. days to get on a bill. Senator Byrd also noted that at the America better. I will conclude by reading what are Constitutional Convention, James Let me say that again. The majority likely the last words Senator Byrd Madison reported that the Senate was leader said these minor changes won’t spoke on the subject of the nuclear op- to be ‘‘a necessary fence’’ in order to affect anyone who has the thought of tion, and I encourage my colleagues to ‘‘protect the people against their rul- making America better. Of course, in reflect on his wise counsel. This is ers,’’ and ‘‘to protect the people the majority leader’s world, it will be what he said: against the transient impressions into just he and his colleagues who deter- As I have said before, the Senate has been which they themselves might be led.’’ mine what makes America better. the last fortress of minority rights and free- How did Senator Byrd view the fili- In short, according to my friend from dom of speech in the Republic for more than buster in the role of the Senate? How Nevada, the means by which he wants two centuries. I pray that Senators will did it relate to the Senate as a ‘‘nec- pause and reflect before ignoring that his- to achieve his ends don’t matter, only essary fence’’? Senator Byrd said, ‘‘The tory and tradition in favor of the political his ends matter. That is pretty conven- right to filibuster anchors this nec- party of the moment. ient if you happen to be in the major- essary fence.’’ The ACTING PRESIDENT pro tem- ity at the moment. I say again, at the Senator Byrd acknowledged that this pore. The majority leader is recog- moment. But convenience or effi- right should not be abused, and that nized. ciency, as my friend has described it, is ‘‘there are many suggestions as to RULES CHANGES not what the Senate has been about. what we should do’’ if it is abused. He Mr. REID. To paraphrase Shake- My friend the majority leader may recounted procedures that currently speare, which I don’t do too often, I have put it best in 2006 when he made exist under the rules—I say again, pro- think the Republican leader protests the first of his commitments to respect cedures that currently exist under the far too much. Now he has gone back to the rights of the minority. This is what rules—to address it if it is. quoting Senator Byrd. the majority leader said: As I suggested yesterday, Senator The situation we had when the Re- As majority leader, I intend to run the Byrd also indicated that simply work- publicans were trying to change the Senate with respect for the rules and for the ing a full week such as most people rules regarding judges was totally dif- minority rights the rules protect. The Sen- do—I mean, most people in America ate was not established to be efficient. ferent than what has happened on the Sometimes the rules get in the way of effi- have a 5-day work week—by simply floor the last few years. You see, what ciency. The Senate was established to make working a full week we could address Democrats were proposing to do, help sure that minorities are protected. Majori- some of these concerns. Senator Byrd repair the Senate, is pretty much what ties can always protect themselves, but mi- bemoaned the fact that ‘‘the Senate Senator MCCONNELL said was necessary norities cannot. That is what the Senate is often works 3-day weeks.’’ In other in 2005. all about. words, if you want the Senate to be For example, Senator MCCONNELL My friend from Nevada then com- more productive, start working more. has said that the Senate has repeatedly mitted that he was going to ‘‘treat my It is not rocket science here. That is adjusted its rules as circumstances dic- Republican colleagues the way I expect what Senator Byrd was saying. tate. Let me quote. In remarks on the

VerDate Mar 15 2010 00:14 Nov 28, 2012 Jkt 029060 PO 00000 Frm 00003 Fmt 4624 Sfmt 0634 E:\CR\FM\G27NO6.005 S27NOPT1 jbell on DSK7SPTVN1PROD with S6912 CONGRESSIONAL RECORD — SENATE November 27, 2012 Senate floor in May of 2005, Senator ing amendments for 4 or 5 days instead ‘‘Mr. Smith Goes to Washington,’’ not MCCONNELL said: of waiting for 30 hours to expire and all idle time with quorum calls and wait- Despite the incredulous protestations of of that. ing for 30 hours to expire on meaning- our Democratic colleagues, the Senate has Also, we have this crazy idea that if less 30-hour postcloture time. We are repeatedly adjusted its rules as cir- you are going to have a filibuster, you not getting rid of that with regular fili- cumstances dictate. The first Senate adopted have to stand and say something, not busters, but we are getting rid of it on its rules by majority vote, rules, I might hide in your office someplace or go to a motion to proceed. add, which specifically provided a means to a wedding that you are having in your The Senate isn’t working. Apart from end debate instantly by simple majority vote. That was the first Senate way back at State. Then we also are doing the in- Senator MCCONNELL and his troops, ba- the beginning of our country. That was Sen- credulous thing of saying if we want to sically everybody in America agrees ate Rule 8, the ability to move the previous go to conference on a bill, rather than the Senate is not working. question and end debate. having three filibusters necessary to In the Senate, as in any human insti- Let me repeat some of the things he overcome with cloture, we would do it tution, there will always be plenty of said: once. blame to go around, but let’s call it like it is. Two long-time Senate watch- Despite the incredulous protestations of Those are the simple changes we are our Democratic colleagues, the Senate has making, and Senator MCCONNELL was ers, Thomas Mann and Norm repeatedly adjusted its rules as cir- right when he said that despite the in- Ornstein—one representing a progres- cumstances dictate. credulous protestations of our Demo- sive think tank, the other a conserv- The same day, Senator MCCONNELL cratic colleagues, the Senate has re- ative think tank—wrote this: also reported that the Senate has peatedly adjusted its rules as cir- We have been studying Washington politics ‘‘often reformed Senate procedure by a cumstances dictated. We are making and Congress for more than 40 years, and simple changes. We are not changing never have we seen them this dysfunctional. simple majority vote.’’ In our past writings, we have criticized both When Republicans were in the major- the Constitution, we are not getting rid of the filibuster. We are making parties when we believed it was warranted. ity, Senator MCCONNELL said this: Today, however, we have no choice but to ac- This is not the first time a minority of sen- three simple rules changes. As my knowledge that the core of the problem lies ators has upset a Senate tradition or prac- friend the Democratic Senator from with the Republican Party. tice, and the current Senate majority in- New Mexico, who is retiring, my friend I didn’t make that up. They wrote it; tends to do what the majority in the Senate who has been here 30 years, said Why is two of the foremost Congress watchers has often done—use its constitutional au- that all you are doing? this country has ever had. That is what thority under article I, section 5, to reform Under Leader MCCONNELL, Repub- Senate procedure by a simple majority vote. they wrote. Objective outside observers licans have mounted filibusters on are calling it like it is. The current Re- On March 27, 2005, Senator MCCON- things that don’t matter. The motion publican minority is abusing the Sen- NELL told Fox News that the Senate to proceed, he said, well, that allows us ate rules. So, in response, to quote Sen- can change the rules with 51 votes. to get—I am paraphrasing—that allows ator MCCONNELL: McConnell said: us to get set and have an idea what will The current Senate majority intends to do Well, obviously you would need 51 votes to happen on the bill itself. what the majority in the Senate has often do it. I’m confident that we would have 51 That is nonsense. It is only as the done—use its constitutional authority under votes if the majority leader decides to do it. leader indicated at the beginning of article I, Section 5, to reform Senate proce- I believe it should be done if we cannot get this Congress, his No. 1 goal is to de- dure. accommodations from the Democrats. feat President Obama. We have been We plan to do so to help repair the So what has changed in the last few able to get nothing done because of Senate. I am sorry there are those who years since those statements were that. The American people are sick of are criticizing me that we are not made? Well, for one thing under Leader it. doing more, but we are doing this. We MCCONNELL Republican Senators have In the 109th Congress, from 2005 to get rid of the motion to proceed and mounted filibusters so much more on a 2006, when the Republicans were in the have people come and present their regular basis. majority, there were very few filibus- faces—as Senator DURBIN said in a We talked here yesterday about the ters. In the next Congress, when the more explicit way, put their rear ends motions to proceed. I had a meeting roles were reversed, Republicans, they here in the Senate—rather than some- this morning with one Senator who has have done—I give this example, which place outside Capitol Hill. been in the Senate for 30 years. He is so understandable to everybody. This is the right thing to do. We need said, Why are you only changing the Lyndon Johnson, majority leader for 6 to repair the Senate. It is not working, rules this much? years—I will have 6 years at the end of and at the start of the next Congress Look how simple the rule changes this year—had one cloture motion. Me? we intend to do our utmost to take are that we are making, motions to I think we are up to about 386 now. In some modest steps to make it work proceed. Let us talk about that. I have this Congress we have had 110 filibus- better. a piece of legislation on the floor, as we ters and we have weeks to go. It is even The ACTING PRESIDENT pro tem- have on a number of occasions. That in the New York Times. They say: Oh, pore. The Republican leader. has to sit for a couple of days. Once he has filled the legislative tree. The Mr. MCCONNELL. Mr. President, I that happens and they won’t let us on New York Times reported I did that 19 certainly agree the Senate isn’t work- the bill, they won’t let us on anything, times—out of 110 filibusters. Had they ing. We get a few days in between re- I have to file cloture. Let us say I may let us get on a bill, there wouldn’t be cesses, rarely work at night, and al- do that on a Wednesday after a bill any need to fill the tree. We could have most never do anything on Thursday. lays there for a couple of days, so we spent that time having amendments. That is entirely within the purview of can have a Friday cloture vote. Republicans have increased the num- the majority leader. But, Mr. President, having been here ber of filibusters so out of proportion It is true that a few years back, when not very long, you know that is not the to any changes that have been in the my party was in the majority, we con- end of it. We have got cloture when we Senate it is hard to comprehend. The templated changing the rules, but cool- really haven’t because there is 30 hours Senate is not working as it should. Ev- er heads prevailed and we didn’t. The of idle time to do zero, nothing. Then eryone in America—and that is kind of fundamental issue, as my friend lays after the 30 hours, you are on the bill, an exaggeration, I acknowledge that— out, is that he wants to break the rules and to get off the bill you have to go maybe not everyone, but as I travel to change the rules. In other words, he through the same process again. around the country trying to help my and I are not negotiating on these I talked to three Republican Sen- candidates get elected and raise issues. He is deciding what will be the ators yesterday and they said, Explain money, people say: What are you going rule in the Senate. He will break the that to me. I said, Well, for the ap- to do to change the filibuster? This is rules in order to change the rules. That proximately 9 or 10 days that we waste awful. What is going on? is all anybody listening to this debate on getting on a bill, we could, if you That is what they say. They expect needs to understand. What the major- guys let us on a bill, we could be offer- Washington, the Senate, to work like ity leader is going to do is he is going

VerDate Mar 15 2010 00:14 Nov 28, 2012 Jkt 029060 PO 00000 Frm 00004 Fmt 4624 Sfmt 0634 E:\CR\FM\G27NO6.006 S27NOPT1 jbell on DSK7SPTVN1PROD with November 27, 2012 CONGRESSIONAL RECORD — SENATE S6913 to break the rules to change the rules— cane rules changes when we ought to majority vote, I will do it because I am going one party only. be sitting down together and trying to to do my duty as I see my duty, whether I We ought to be negotiating rule solve the Nation’s huge deficit and debt win or lose. changes. Rule changes ought to be pro- problems. I can see that man with his white posed by the majority leader and the But the fundamental issue is this: Is hair, standing straight and tall, saying minority leader together that would the majority going to break the rules that. That is a direct quote from Rob- surpass the 67-vote threshold, if it is to change the rules? That is the issue ert Byrd. I am in the same position he designed to protect the Senate from before the Senate. Are we going to was. The Republicans have made the the whims of new majorities. There is break the rules to change the rules— Senate dysfunctional, and I have asked always a temptation when a party is in employ the nuclear option, fundamen- my caucus to support me for some sim- the majority to want to change the tally change the body, not have a nego- ple changes—simple changes. I went rules to benefit themselves at the ex- tiation between the two leaders about over them. The vexatious motion to pense of others. It is particularly ab- what adjustments might be appropriate proceed that was never abused until surd to do it right now because any- to make the Senate work better. Oh, this Congress by these Republicans we thing Senate Democrats would gain no, we are going to do it on our own. are going to change, and that is the out of that would go nowhere in the I think it is a huge mistake not only way it should be. House. So there is no practical purpose for the Senate, but it will impact obvi- Talk about all the time we are wast- served by this. All it does is put on ously our short-term ability to come ing not talking about the fiscal cliff is record that Senate Democrats are will- together and to work on the big prob- poppycock. The Republican leader is ing to break the rules to change the lems the country sent us to solve. the one who is coming to the floor en- rules. That is the fundamental issue. The ACTING PRESIDENT pro tem- gaging in these conversations, not me. Rules changes ought to be negotiated pore. The majority leader. There are going to be no rules changes by the two leaders, as they have been Mr. REID. Mr. President, the Repub- until the next Congress. This isn’t tak- down through the years, and then pro- lican leader is entitled to his own opin- ing away from the fiscal cliff argu- posed together. ion but not his own facts, and we seem ments at all that either side might As I have indicated on several occa- to have a revision of facts that simply have. sions—and I will say again—I think the are not accurate. I served with Senator I would also say this. Before coming frustrations the majority leader has Metzenbaum. He understood the rules. here, I was a trial lawyer, and I am had could have been easily solved by We always worked through them. proud of the fact that I was. I tried lots putting some of his young Members in There was not a big deal with that. He of cases. I had many jury trials—over the Chair and breaking down some— slowed things down a little bit, but 100. But I also settled hundreds and one person—trying to make it difficult that is what Senators do. hundreds of cases. One never felt com- to get on to a bill. All this could have Also, remember who said that a sim- fortable going to trial because what we been fixed. Rather than complaining ple majority would do it? MITCH always wanted to do was to settle the about it, just do something about it. MCCONNELL. I am not breaking the case before that. Even in the cases we That is what I would have done, if I had rules to change the rules. Here again is were forced to go to trial, with rare ex- been in his shoes. He has chosen not to what Senator MCCONNELL said: ception, the other side—either plaintiff do that. The first Senate adopted its rules by ma- or defendant, whichever side you Rather than point fingers and con- jority vote, rules, I might add, which specifi- weren’t on—would come to say, why tinue to campaign—look, the campaign cally provided a means to end debate in- don’t we try to work something out, is over. You guys had a pretty good stantly by simple majority vote. That was and here is my idea. day. You are in the majority. But you the first Senate way back at the beginning of But here we have a unique deal. I can’t seem to turn the campaign off. our country. have a Republican leader saying why You just keep running it forever. So That is true. I would also say—— doesn’t he negotiate with us. Our pro- here we are with this explosive nuclear Mr. MCCONNELL. Would the major- posal is there, which is to simply option being thrown into the Chamber ity leader yield on that point? change the motion to proceed, have a at a time when we ought to be turning Mr. REID. Sure. talking filibuster, and do something the election off and trying to come to- Mr. MCCONNELL. Did the Senate about the way we go to conference. If gether to solve the biggest problem, majority at that time, made up of Re- the Republican leader doesn’t like that which I talked about first, which is the publicans, choose to go forward and do and has some other suggestion about fiscal cliff and the Nation’s seemingly that? We did not do it. We did not use how rules should be changed, I will be hopeless debt and deficit situation. the nuclear option. There was a lot of happy to talk to him. If he thinks That is what we ought to be doing. In- discussion about it which related to ju- things are hunky-dory right now, he is stead, my friends on the other side just dicial appointments, but in the end the in a distinct minority, as are the Re- can’t keep from continuing to cele- majority chose not to do it. publicans in the Senate. brate the election. You won. Now, why Mr. REID. I respond to my friend, the Mr. MCCONNELL. We keep quoting don’t we govern. The way to govern is point is that rules have been changed Senator Byrd back and forth, but I to try to bring this body together. by simple majority for a long time. think it is appropriate to look at what The Senate has been built over the That is what Senator MCCONNELL said he said in 2010. He said: years on collegiality. We have always in 2005 and that is accurate. I believe that efforts to change or reinter- had some personalities on both sides I would also say this, and I say this pret the rules in order to facilitate expedi- who made it a challenge for whoever as respectfully as I can about the de- tious action by a simple majority are grossly the majority leader was. I can remem- ceased Senator Byrd. I think people misguided. The Senate is the only place in ber back when we were in the majority will recall, those who served in the government where the rights of the numer- and Howard Metzenbaum from Ohio Senate when Senator Byrd was around, ical minority are so protected. would sit out here on the floor and read that I was referred to as his pet. OK. He I said in my prepared statement ear- every bill. He was a royal pain in the took very good care of me. We had a re- lier what Senator Byrd said before the you know what to whoever the major- lationship that was very unique. I Rules Committee: ity leader was at the time. The Senate cared a great deal about this man. But The [Rules] Committee must, however, survived all that. We didn’t engage in a don’t misquote him. jealously guard against efforts to change or rules change dictated by whoever was Leader Byrd made clear he was will- reinterpret the Senate rules by a simple ma- in the majority at the moment. ing to force a majority vote if he need- jority, circumventing rule XXII where a two- This is exactly the wrong way to ed to. Here is what Senator Robert thirds majority is required. start off on a new year and to end an Byrd said: I keep coming back to this because it old year with a ton of problems that we The time has come to changes the rules. I has to do with the way any rule change have to deal with. Here we are, as a re- want to change them in an orderly fashion. is implemented. That is the point. The sult of this suggestion that we employ I want a time agreement. But barring that, if majority leader has suggested, and I the nuclear option, arguing about ar- I have to be forced into a corner to try for a think it is appropriate, that we talk

VerDate Mar 15 2010 00:50 Nov 28, 2012 Jkt 029060 PO 00000 Frm 00005 Fmt 4624 Sfmt 0634 E:\CR\FM\G27NO6.007 S27NOPT1 jbell on DSK7SPTVN1PROD with S6914 CONGRESSIONAL RECORD — SENATE November 27, 2012 about rule changes together. But that The ACTING PRESIDENT pro tem- that we could get a vote. The only way is not what he is suggesting he is going pore. Without objection, it is so or- that seemed possible was to assert this to do. He says he is going to break the dered. power of overruling the Parliamentar- rules to change the rules and employ f ian’s ruling through the Chair and thus the nuclear option. establishing by 51 votes—or a mere ma- That is not a negotiation with the RESERVATION OF LEADER TIME jority—a new rule of the Senate. minority over rules changes. What we The ACTING PRESIDENT pro tem- That was deemed to be such a change ought to be doing is talking to each pore. Under the previous order, the that it was called the nuclear option other about what adjustments in the leadership time is reserved. because it hadn’t been done, and we rules we could advocate together, and could say that it was comparable to not one party with a majority today— f the use of a nuclear weapon in a war. It that might be in the minority 2 years ORDER OF PROCEDURE was such a game-changing proposition, from now—breaking the rules to to say the least, that Members on both change the rules for some kind of mis- The ACTING PRESIDENT pro tem- sides of the aisle got together in what guided short-term advantage. That is pore. Under the previous order, the fol- they called the Gang of 14. I think al- the problem. lowing hour is equally divided and con- most everyone in this body is glad that So I would be happy to talk to the trolled between the two leaders or cooler heads prevailed; that those 14 majority leader about these issues, but their designees, with the Republicans Members decided they would reach an I vigorously oppose—and I know Sen- controlling the first half. agreement amongst themselves that ator Byrd would vigorously oppose— The Senator from Arizona is recog- would make it impossible for either the breaking the rules to change the rules. nized. Democratic Party to automatically fil- He was very clear about that in 2010. I RULES CHANGES ibuster nominees or for the Republican know he would object to it. Mr. KYL. Mr. President, I would like Party to have this right to change the I hope somehow this nuclear option to continue the conversation that our rules just because they had 51 votes. can be avoided. It seems to me to be an two leaders were engaged in earlier and Therefore, they reached the com- absolutely unnecessary distraction also on yesterday. This is going to be a promise which, for judicial nominees, away from much larger issues con- very important issue for the Senate. was that there would be no filibuster fronting the future of our Nation. To put it into perspective for the except in extraordinary circumstances. Mr. REID. Mr. President, Senator American people, let me just say that a Both sides deemed that a sufficient Byrd served in the House of Represent- rules change in the Senate is not a way of resolving the issue that came atives and the Senate for almost 60 small or an inconsequential matter. It before us at that time. Everybody years. He gave lots of speeches. I have is even more important if it is at- stood down. The war did not occur. The quoted what he said. I will quote again tempted to be done without going nuclear weapon was not used, and that part of what he said. through the normal process of chang- was for the best of the country and cer- The Constitution in Article I, Section 5 ing the rules, which requires a two- tainly for the best of the Senate. We says that, Each House may determine the thirds majority. This is important be- avoided a crisis and, certainly, there Rules of its Proceedings. cause the Senate has always considered would have been a crisis. I can’t imag- Now we are at the beginning of the Con- itself a continuing body. It does not ine that my friends on the Democratic gress. This Congress is not obliged to be side of the aisle would not have reacted bound by the dead hand of the past. end and then begin again as the House of Representatives does because the very badly to the use of that nuclear So this debate is not going to be option had it been done by the Repub- solved by the deceased. It is going to be House has an election every 2 years. In this body, Members are elected for 6- lican majority. solved by us. We are in the Senate Well, today the shoe is on the other year terms. As a result, every 2 years today and the Senate has not been foot. The Democratic majority now has we have some turnover in the body, but working. No matter how many times reason to believe that it would like to the Republican leader says he likes two-thirds of the body has already been move forward with more alacrity on how things are today, it doesn’t make here and continues forward. legislation. Therefore, it believes that it so that the majority of the Senate So the rules of the Senate have al- by this same nuclear option procedure likes how it is today. The facts are the ways been continuing rules of the con- it should change the rules so that the facts. We can’t make them up. The tinuing body, amendable by a two- ability to filibuster at the beginning of Senate is not working, and we need to thirds majority of the body. To suggest the consideration of the bill is elimi- do something to fix it. a nuclear option by which a mere ma- nated. I close, then, as I began. I would be jority of the body can amend the rules The Republican minority naturally happy to work with Leader MCCONNELL is itself a violation of the rules. It is an has said: Wait a minute. That is wrong about rules changes. I have made clear assertion of power. But as the old say- for two reasons. First of all, just as you what we seek. I await his suggestions. ing goes: Might does not make right. accused us of doing, you are changing As I repeat again what I said earlier, a And the fact that the majority may the rules without going through the man who has served with distinction in have the power to overrule a ruling of rules process change. This is your own the Senate, JEFF BINGAMAN—quite a the Chair, thus establishing a new version of the nuclear option. If it was legal scholar, having been attorney precedent and a new rule of the Senate, wrong then, it is still wrong now. And general before he came here—asked: does not make it right. That is why it most of us agreed after the fact that it Why are we asking for such modest hasn’t been done. was wrong then. But, secondly, what changes? So if the Republican leader In point of fact, there was a time a you would do, if you eliminate the re- has some ideas as to what he thinks few years ago, as has been discussed, quirement for cloture and a cloture should be done, I will come to his of- when some members of the Senate Re- vote if there is an objection to a unani- fice. We can do it privately or publicly. publican majority were considering the mous consent request to take up the I am happy to work with him. As I in- use of the same parliamentary tactic bill or motion to proceed to a bill, what dicated, that is how I used to do things to ensure a vote on nominees for the you are doing is putting all of the when I tried cases. This is the same, U.S. Supreme Court and also for the power into the hands of the majority just that we have a bigger jury. Court of Appeals. The feeling was that leader—in this case, the Democratic Mr. President, I suggest the absence the Democratic minority had filibus- leader—to decide whether there will be of a quorum. tered over and over and over and had any amendments at all from the Re- The ACTING PRESIDENT pro tem- prevented votes, I think, on Miguel publican side or even from the Demo- pore. The clerk will call the roll. Estrada, who was being nominated for cratic side. The only leverage that the The legislative clerk proceeded to the DC Circuit Court of Appeals. I minority has to ensure that it will be call the roll. think he was filibustered seven sepa- able to offer amendments is to nego- Mr. KYL. Mr. President, I ask unani- rate times. tiate with the majority leader and en- mous consent that the order for the The Republican leadership was inves- sure that right exists. And the only le- quorum call be rescinded. tigating the possibility of ensuring verage it has is to deny cloture on the

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