January 5, 2011 CONGRESSIONAL RECORD — SENATE S19 I see my great colleague Senator tial and commercial community. She FILIBUSTER RULE STABENOW from the State of Michigan has continued from that day, every Mr. HARKIN. Mr. President, I have a is here. day, fighting for neighborhoods and resolution for myself, Senator DURBIN, I yield the floor. families and standing for the men and Senator MIKULSKI, and Senator The PRESIDING OFFICER. The Sen- women who work hard every day to SHAHEEN, which I send to the desk and ator from Michigan. make a better life for themselves and ask for its immediate consideration. Ms. STABENOW. Mr. President, I am their families. The PRESIDING OFFICER. The so pleased to be here today. I appre- When BARBARA first arrived in the clerk will report the resolution by ciate the words of the great Senator Senate, she was one of only two women title. from Minnesota. I am very pleased to Senators, as we know. Before then, The assistant legislative clerk read rise with colleagues on both sides of women were appointed to the worst as follows: the aisle to pay tribute to somebody committees, were locked out of the A resolution (S. Res. 8) amending the who is much more than a colleague— ‘‘old boys’ club’’ and didn’t have much Standing Rules of the Senate to provide for someone who is also a mentor and a of a voice. But she changed all that. cloture to be invoked with less than three- great friend, the Senator from Mary- She got appointed to the powerful fifths majority after additional debate. land, BARBARA MIKULSKI. Appropriations Committee—the first The PRESIDING OFFICER. Is there Today, as we all know, she became Democratic woman to do so, giving the objection? the longest serving woman Member of women of America a voice, for the first Mr. ALEXANDER. Reserving the the Senate in the history of our Na- time, on how we set our priorities for right to object. tion. I have a 3-year-old granddaughter the investments of our country. More The PRESIDING OFFICER. The Sen- Lilly who will be able to read now in importantly, she learned how to build ator from Tennessee. the history books about not only her coalitions, to work with colleagues on Mr. ALEXANDER. Mr. President, I grandmother but the woman who holds both sides of the aisle, and get things had a good discussion with the Senator this record, Senator BARBARA MIKUL- done for the people who sent her here from Iowa. This is a longstanding pro- SKI, and all she has done and all she to work for them. posal of his. He has thoughtfully con- means to each of us, particularly as a Today, as dean of the women Sen- sidered it. Even though I admire him, I role model for my granddaughter and ators, BARBARA continues that leader- do not admire the proposal. What we would like to do is let the other young children, other young ship. Thanks to her, the women of the Senator from Iowa make his proposal. I women who will be coming after all of Senate get together—both Democrats will listen, and when he has made the us. and Republicans—for fellowship and She is here today because she is bold friendship on a regular basis. Now, fol- proposal, I will ask him to yield me a and fearless and determined, as we all lowing in her footsteps, there are few minutes and we may have a little discussion back and forth on the merits know. In 1986, when she first ran for woman Members on every single com- of the proposal. With that in mind, I the Senate, she looked for inspiration mittee in the Senate. That is impor- tant to the operation of our country’s object. from her own great-grandmother who The PRESIDING OFFICER. Objec- business. came to the United States from Poland tion having been heard, the resolution with no money and no job. But her Her example shows us all the impor- tance of hard work, determination, and will go over under the rules. great-grandmother knew the impor- Mr. HARKIN. Mr. President, I am tance of hard work and she built a life courage. I congratulate my friend, Senator sorry my good friend from Tennessee for her family here, a new beginning, had to object, but I understand. We are BARBARA MIKULSKI, today on her great and in so doing opened the door for fu- going to engage for some time now on ture generations. I know today she is accomplishment and, most impor- tantly, on a distinguished record of the Senate floor in a discussion on the looking down from a special place with filibuster, something that has been public service on behalf of the people of tremendous pride. around a long time but which, in the Maryland and our country. I thank her When Senator MIKULSKI won that last several years, few years—I would for all she has done for me personally election, becoming the first Demo- not say ‘‘several’’—in the last 20, 30 and for all the other women in the Sen- cratic woman to win a Senate seat in years, has gotten to the point where it ate—the ones who have already fol- her own right, she carried on her great- has paralyzed the Senate and has para- lowed in her footsteps and the many grandmother’s legacy—opening doors lyzed the country. for future generations of women to fol- who are still to come. I intend to make some remarks for a This is an exciting day for the his- low in her footsteps. Thanks to that, while. I appreciate my friend from Ten- tory books—as some of us like to say, there are more women serving in the nessee and also my friend from Kansas it is another step in ‘‘herstory’’—BAR- Senate today than have ever served in who is here. I hope we can engage in a the entire history of our great country. BARA’s story—which is a special one for nice colloquy and a discussion about When Senator MIKULSKI was elected in our country. this in a back-and-forth way. I look 1986, from the moment she arrived in I suggest the absence of a quorum. The PRESIDING OFFICER. The forward to doing that. I do wish to take this august body, she has been a tire- clerk will call the roll. some time to at least lay out my case, less champion of working families in The assistant legislative clerk pro- as I did 15 years ago—I am sorry, 16 Maryland and across the country. I am ceeded to call the roll. years ago. On January 4, 1995, I sub- proud to have partnered with her on so Mr. HARKIN. Mr. President, I ask mitted this same resolution. I was a many important efforts to make sure unanimous consent that the order for member of the minority party in the we are building things in America the quorum call be rescinded. Senate for the first time in 8 years. again and supporting the people who The PRESIDING OFFICER (Mr. When I first came to the Senate, the have built the great middle class of MANCHIN). Without objection, it is so Republicans were in charge and then this country by their hard work. ordered. the Democrats got in charge and then She grew up working in her parents’ Mr. HARKIN. Mr. President, par- the Republicans got in charge and then grocery store and understands the liamentary inquiry: Under the unani- the Democrats got in charge and then struggles of working families who want mous consent agreement, there was a the Republicans got in charge and then nothing more than to create a better period of 30 minutes for tributes to the Democrats got in charge. Since I life for their children and their grand- Senator MIKULSKI. Is there any of that have been here, since 1985, five times children. time remaining? the Senate has changed hands. She got her start in politics fighting The PRESIDING OFFICER. Time has I note that at the beginning of that to save the Fells Point neighborhood in been consumed. Congress in 1995, the Republicans out- Baltimore, stopping a proposed high- Mr. HARKIN. If I am not mistaken, numbered Democrats 53 to 47, the same way that would have divided a neigh- under the unanimous consent agree- majority-minority ratio that exists borhood and destroyed that commu- ment, I was deemed to have 45 minutes. today, just on the other side. Even nity. Today, because of Senator MIKUL- The PRESIDING OFFICER. That is though I was opposed to the then-ma- SKI, Fells Point is a thriving residen- correct. jority party’s agenda, I submitted the

VerDate Mar 15 2010 01:44 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G05JA6.029 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE S20 CONGRESSIONAL RECORD — SENATE January 5, 2011 same basic resolution to change the year—4 or 5—up to almost 140, 139. In minority filibuster bills they did not Senate rules regarding the filibuster. 1994, former Republican Senator even object to solely in order to slow My plan would have ensured ample Charles Mathias of Maryland said: down unrelated measures they did op- debate and deliberation. The stated Today, filibusters are far less visible but pose. The result is a legislative process purpose of a filibuster is to have debate far more frequent. The filibuster has become that is simply overwhelmed, squeezing and deliberation. But it would also an epidemic,— out the ability to do important, rel- have allowed a bill or nominee to re- An epidemic. That is former Repub- atively noncontroversial legislation. ceive a ‘‘yes’’ or ‘‘no’’ vote. Unfortu- lican Senator Charles Mathias— It is no accident that Norm Ornstein, nately, my proposal did not pass. It re- used whenever a coalition can find 41 votes the esteemed congressional scholar, ceived 19 votes. My cosponsors were to oppose legislation. The distinction be- wrote an article, titled ‘‘Our Broken Senator LIEBERMAN, Senator Pell, and tween voting against legislation and block- Senate,’’ in which he wrote that ‘‘the Senator Robb of Virginia. ing a vote between opposing and obstructing expanded use of formal rules on Capitol I submitted my bill—and if you care has nearly disappeared. Hill is unprecedented and is bringing to go back and read that debate, it is That was Senator Mathias of Mary- the government to its knees.’’ the January 4, 1995, CONGRESSIONAL land. Just the other day, I received a peti- RECORD in the Senate. I saw an esca- During that Congress, again right be- tion signed by nearly 300 top histo- lating arms race, where each side fore I first submitted legislation to rians, legal scholars, and political sci- ratcheted up the use of the filibuster. modify the filibuster, there were 80 fili- entists urging Senators ‘‘to restore ma- That is what I called it then. busters that year. If I may quote my- jority rule to the United States Sen- Sadly, in the intervening years, my self, 1 year after Senator Mathias made ate.’’ I ask unanimous consent to have prediction has been fulfilled. The sad his statement about the filibuster, this this petition printed in the RECORD. reality is that today, because of the in- is what I said in 1995: There being no objection, the mate- discriminate use of the filibuster, the It is used, Mr. President, as blackmail, for rial was ordered to be printed in the ability of our government to legislate one Senator to get his or her way on some- RECORD, as follows: and to address problems is severely thing they could not rightfully win through JANUARY 4, 2011. the normal process. I am not accusing any ‘‘We, the undersigned, American histo- jeopardized. Sixteen years after I first one party of this. It happens on both sides of rians, political scientists, and legal scholars, submitted my proposal, it is even more the aisle. call upon our senators to restore majority apparent that for our government to I said that in 1995. Quoting myself rule to the United States Senate by revising the rules that now require the concurrence properly function, we must reform and from the RECORD: curb the use of the filibuster. of 60 members before legislation can be Mr. President, I believe each Senator needs brought to the floor for debate and restoring The filibuster was once an extraor- to give up a little of our pride, a little of our dinary tool used in the rarest of cir- majority vote for the passage of bills. prerogatives, and a little of our power for the Joyce Appleby, UCLA, retired; Katy cumstances. When many people think good of this Senate and the good of this Harriger, Wake Forest University; Senator of the filibuster, many times it brings country. I think the voters of this country Gary Hart, University of Colorado, Denver; to mind the classic film of ‘‘Mr. Smith were turned off by the constant bickering, Sanford Levinson, University of Texas Law Goes to Washington.’’ It is ironic that the arguing back and forth that goes on in School; Lawrence Lessig, Harvard Law in 1939, the year Frank Capra filmed this Senate Chamber, the gridlock that en- School; Peter Onuf, University of Virginia; sued here, the pointing of fingers of blame. ‘‘Mr. Smith,’’ there were zero filibus- Jack Rakove, Stanford University; David Re- Sometimes in the fog of debate, like the fog Pass, University of Connecticut, retired; ters in the Senate. From 1917 across of war, it is hard to determine who is respon- the entire 19th century—for 100 years— John K. White, Catholic University; Richard sible for slowing something down. It is like D. Lamm, Gov. of Colorado, 1975–1987; Coit D. there were 23 filibusters in 100 years. shifting sand. People hide behind the fili- Blacker, Stanford University; James Gelvin, Indeed, through 1879, there were only buster. I think it is time to let the voters UCLA; H. Robert Baker, Georgia State Uni- four. From 1917, when the Senate first know that we have heard their message in versity; Darryl Holter, University of South- adopted rules to end the filibuster, the last election. ern California; Robert Rapetto, Yale Univer- until 1969, there were fewer than 50— I said this in 1995. sity; David Orr, Oberlin College; Manuel J.R. less than 1 filibuster a year. Unfortu- They did not send us here to bicker Montoya, University of New Mexico; Kath- nately, since then, the number has sky- and to argue and to point fingers. They leen M. Beatty, University of Colorado, Den- rocketed. want us to get things done to address ver; Morton T. Tenzer, University of Con- the concerns facing this country. They necticut; David S. Tannenhaus, University of The current concerns I raise are not Nevada, Las Vegas. new. The problem has become far more want us to reform this place. They Robert H. Abzug, University of Texas, Aus- serious. In 1982, my good friend and col- want this place to operate a little bet- tin; David H. Hall, Harvard University; league, Senator Dale Bumpers of Ar- ter, a little more openly, and a little Carrie Menkel-Meadow, Georgetown Law kansas, said this about the filibuster: more decisively. School, University of California, Irvine; ‘‘Unless we recognize that things are I said that when the Republicans Carla Gardina Pestana, Miami University, out of control and procedures have to were in charge. Ohio; Michael Zucker, University of Notre With all those filibusters, it was not Dame; Thomas A. Foster, De Paul Univer- be changed, we’ll never be an effective sity; John Kukla, Richmond, Virginia; Corey legislative body again.’’ That was 1982. until the 110th and 111th Congress that the true scope of the filibuster abuse Robin, Brooklyn College and City University During the 2 years of that Congress, of New York Graduate Center; David Thelen, there were 31 filibusters as measured would truly be realized. In the 110th University of Indiana; T.H. Breen, North- by the number of cloture motions filed. Congress, there were an astonishing 139 western University; Jonathan D. Varat, In 1985, former Senator Thomas Eagle- motions to end filibusters. In the 111th, UCLA Law School; Michael Koppedge, Uni- ton of Missouri remarked: there were 136—275 filibusters in just 4 versity of Notre Dame; Michael Johnson, Johns Hopkins University; Toby L. Ditz, The Senate is now in the state of incipient years. Johns Hopkins University; Teofilo Ruiz, anarchy. The filibuster, once used, by and The fact is, in successive Congresses, UCLA; Laurel Ulrich, Harvard University; large, as an occasional exercise in civil Democrats and Republicans have made Pauline Maier, Massachusetts Institute of rights matters, has now become a routine the filibuster an everyday weapon of Technology; Anne Lombard, California State frolic in almost all matters. Whereas our obstruction, not as a way to ensure de- University, San Marcos; Gabrielle M. Spie- rules were devised to guarantee full and free bate and deliberation but as a way of gel, Johns Hopkins University. debate, they now guarantee unbridled chaos. obstruction. I say both sides have done Robert A. Hill, UCLA; Buie Seawell, Uni- That was 1985, my first year here. it. I said that in 1995. I predicted an es- versity of Denver; Edward Countryman, But during that Congress there were 40 calating arms race. I said: If we do not Southern Methodist University; Sara Berry, filibusters. do something about it, it is going to Johns Hopkins University; Thomas Bender, Again, I wish to refer to the number get worse—and, unfortunately, it has. New York University; David Hollinger, Uni- of filibusters as a visual aid to see what On almost a daily basis, one Senator versity of California, Berkeley; Franklin W. Knight, Johns Hopkins University; Lucia has happened. is able to use just the threat of a fili- Stanton, Monticello; Alan Trachtenberg, As we go back to 88th, 89th, 90th, and buster to stop bills from coming to the Yale University; Warren M. Billings, Univer- on up, we can see the number of filibus- floor for debate and amendment. In the sity of New Orleans; James Drake, Metro- ters escalating from less than 10 a past Congress, we started seeing the politan State College of Denver; M. Gregory

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Feldman, Elizabethy Cohgen, Syracuse University; McCrossen, Southern Methodist University; University of Wyoming; Frances Fox Piven, Allen W. Trelease, University of North Caro- Ira Berlin, University of Maryland; Fred G. City University of New York; Alyson M. lina, Greensboro; Tera W. Hunter, Princeton Notehelfer, UCLA, emeritus. Cole, Queens College, CUNY Graduate Cen- University; James H. Merrell, Vassar Col- Gerald L. Weinberg, University of North ter; Thomas Dunim, Amherst College; Josh- lege; Peter Novick, University of Chicago; Carolina; Richard M. Pious, Barnard College, ua Freeman, Queens College, CUNY Grad- Craig Steven Wilder, Massachusetts Insti- Columbia University; Thomas J. Knock, uate Center; Hendrik Hartog, Princeton Uni- tute of Technology; Seth L. Schein, Univer- Southern Methodist University; Michelle versity; Rick Perlstein, Chicago; Thomas sity of California, Davis; Jenna Gibbs, Flor- Nickerson, University of Texas, Dallas; John Geoghegen, Desprese, Schwartz & ida International University; Michael Chavez, Southern Methodist University; Ga- Geoghegen; John Majewski, University of Latham, Fordham University; Michael briel Piterberg, UCLA; John P. Kaminski, California, Santa Barbara; Anne Norton, Green, College of Southern Nevada; Martin University of Wisconsin, Madison; Graham University of Pennsylvania; Eric Alterman, Kaplan, University of Southern California; A. Peck, Saint Xavier University; Jonathan Brooklyn College, CUNY; Maximillian E. Valerie Matsumoto, UCLA; Sanford M. Gross, De Paul University; Jean R. Sunder- Novak, UCLA, emeritus; Rogers M. Smith, Jacoby, UCLA. land, Lehigh University; Dennis D. Cornell, University of Pennsylvania; Andrew Sabl, Alexander Saxton, UCLA emeritus; Thom- Southern Methodist University; James M. UCLA; Carol W. Lewis, University of Con- as J. Sugrue, University of Pennsylvania; Banner, Washington DC; David D. Leon, necticut. Thomas S. Hines, UCLA; Albion M. Urdank, Howard University; Jeremy Adams, South- Kate Wittenstein, Gustavus Adolphus Col- UCLA; James Grossman, University of Chi- ern Methodist University; Fred M. Wood- lege; Ruth Anne Baumgartner, Fairfield Uni- cago; Lynn Hunt, UCLA; Ron Pagnucco, Col- ward, Lawrence, Kansas; Hal S. Barron, Har- versity and Central Connecticut State Uni- lege of St. Benedict, St. John’s University; vey Mudd College; Glenna Mathews, inde- versity; Ronald Walters, Johns Hopkins Uni- David Konig, Washington University at St. pendent scholar; Carol Karsen, University of versity; Charles Venator, University of Con- Louis; Brenda Stevenson, UCLA; Linn Sha- Michigan; David DuFault, San Diego State necticut; John R. Wallack, Hunter College piro, Washington, DC; Peter Loewenberg, University, retired; Jess Stoddard, San Diego and CUNY Graduate Center; Herbert Kauf- UCLA; Christian McMillen, University of State University, retired. man, formerly Yale University; Ed Edelman, Virginia; Estelle B. Freedman, Stanford Uni- Philip Flemion, San Diego State Univer- former Los Angeles County Supervisor; versity; Daniel Howe, UCLA; Ann C. sity, retired; Gregg Herken, University of Peter Truowitz, University of Texas, Austin; McGinley, University of Nevada, Las Vegas; California, Merced; Karl Inderfurth, Center Ruth Bloch, UCLA; Catherine Allgor, Uni- Mary La France, University of Nevada, Las for Strategic and International Studies; Nat- versity of California, Riverside; David L. Vegas; Christopher Blakesley, University of alie Zemon Davis, Princeton University, Richards, University of Connecticut; Naomi Nevada, Las Vegas; Thomas B. McAffee, Uni- emeritus; Edward A. Alpers, UCLA; John Merzey, Georgetown University Law Center; versity of Nevada, Las Vegas; Robert Bren- Snetsinger, California Polytechnic State Philip Green, New School for Social Re- ner, UCLA; Gail Cline, University of Nevada. University, San Luis Obispo; Kenneth T. search; Robert Westman, University of Cali- Las Vegas; George Rabinowitz, University of Jackson, Columbia University; Margaret fornia, San Diego; Nancy Unger, Santa Clara North Carolina, Chapel Hill. Jacob, UCLA; Simone Weil David, University University; Joseph Lowndes, University of Norton Wise, UCLA; Patricia Bonomi, New of Toronto; Margaret Hunt, Amherst College; Oregon; Michael Holt, University of Virginia; York University; Jon Wiener, University of Charles Capper, Boston University; Ellen Neil Sapper, Armarillo College, retired; Alan California, Irvine; Paul Finkelman, Albany Carol DuBois, UCLA; Olivier Zunz, Univer- Lessoff, Illinois State University; Peter Law School; Joseph Miller, University of sity of Virginia; John R. Chavez, Southern Kingstron, University of Connecticut. Virginia; James MacGregor Burns, Williams Methodist University; Joanne Ferraro, San David Gerber, University of Buffalo, College; Susan Dunn, Williams College; Lori Diego State University; Mary F. Corey, SUNY; Philip Rubio, North Carolina Arts Anne Ferrell, Claremont Graduate Univer- UCLA; Joseph Kett, University of Virginia; and Technology University; Philip Nord, In- sity; David Warren Sabean, UCLA; Isabel V. Ralph E. Luker, Morehouse College, retired; diana University; Aziz Rana, Cornell Law Hull, Cornell University; Edward Ayers, Gregory L. Kaster, Gustavus Adolphus Col- School; John R. Bowman, Queens College Richmond University; Tom Donnelly, Har- lege. and CUNY Graduate Center; Todd Gitlin, Co- vard Law School; Donald Kersey, San Jose Michael Kazin, Georgetown University; lumbia University; Sandra Moats, University State University; Peter H. Wood, Duke Uni- Jeremy Young, Indiana University; James of Wisconsin, Parkside; James M. McPher- versity; Joseph Scott Miller, Lewis and Brewer Stewart, Macalestar College; Mary son, Princeton University; Jason Frank, Cor- Clark Law School; Jonathan Lurie, Rutgers Beth Norton, Cornell University; Steven nell University; Charles Pastel, San Fran- University; Maxine N. Lurie, Rutgers Uni- Conn, Ohio State University; John Carson, cisco State University; Jill Lepore, Harvard versity; Elizabeth Fenn, Duke University; University of Michigan; Ruth Perry, Massa- University; Jane Kamensky, Brandeis Uni- Richard Worthington, Pomona College. chusetts Institute of Technology; Akhil Reed versity; Alejandro E. Camacho, University of Richard Olsen Harvey, Mudd College; Amar, Yale Law School; Peter Reill, UCLA; California, Irvine Law School; Donald Ken- Thomas Zoumaras, Truman State Univer- Robert E. Bieder, Indiana University; Robert nedy, president emeritus, Stanford Univer- sity; Anne K. Nelson, American University; E. Mutch, Washington, D.C.; Edwin G. Bur- sity; Paul Seaver, Stanford University; Geof- Peter Kuznick, American University; How- rows, Brooklyn College; Jeffrey K. Tulis, frey Symcox, UCLA; Leslie E. Gerwin, ard M. Wasserman, Florida International University of Texas, Austin; Fredrika J. Princeton University; Richard H. Kohn, Uni- University; Diane Mazur, University of Flor- Teute, Omohundre Institute of Early Amer- versity of North Carolina; Michael D. Wilson, ida Levin College of Law; David K. Robinson, ican History and Culture; Francis H. Stites, Vanguard University of Southern California; Truman State University; John Wintterle, San Diego State University; Albert O’Brien, Karl Manheim, Loyola Law School. San Jose State University; William Marotti, San Diego State University; John H. Berry M. Sax, Department of Defense Ad- UCLA; Peter Brandon Bayer, University of Coatsworth, Columbia University; Jack M. ministrative Judge retired; David Mont- Nevada, Las Vegas; Stephen Aron, UCLA; Balkin, Yale Law School; Christopher Bates, gomery, Yale University; Michael Holt, Uni- Ediberto Roman, Florida International State California Polytechnic State University, Po- versity of Virginia; Lisa Jacobson, Univer- University; Mellisa Stockdale, University of mona. sity of California, Santa Barbara; Walter Oklahoma; David W. Levy, University of Iryne Black, Newport Beach, California; Giger, Jr., University of Hartford; Julie Oklahoma; Elyssa Faison, University of Timothy Black, Newport Beach, California; Novkov, University of Albany, SUNY; Denis Oklahoma; Robert Savage, Florida Inter- Walter LaFeber, Cornell University; Maeva Z. Davidson; Adolph Grundman, Metropoli- national University Law School; Ronald Marcus, George Washington University Law tan State College of Denver; Brian Balogh, Steel, University of Southern California, re- School; Isaac Kramnick, Cornell University; University of Virginia; John A. Mears, tired; Robert Dawidoff, Claremont Graduate Michael Meranze, UCLA; Ross Frank, Uni- Southern Methodist University; Bennett University; Judith S. Lewis, University of versity of California, San Diego; Ron Ramberg, Los Angeles; Shanti Singham, Wil- Oklahoma. Hayduk, Queens College; Lucas A. Powe, Jr., liams College; Steve Hochstadt, Illinois Col- Steve Raphael, University of California, University Texas Law School; Paul lege; Charles Tandy, Ria University Institute Berkeley; Robert Garwin, Chula Vista, Cali- Finkelman, Albany Law School; Stanley N. for Advanced Study; Nancy F. Cotton, Har- fornia; Ann Caylor, Ranchos de Taos, New Katz, Princeton University; Susan Strasser, vard University; Jon Butler, Yale Univer- Mexico; Thomas McClendon, Southwestern University of Delaware; Claudrena Harold, sity; Eric Thomas, Jacksonville University; University; Kim Lane Scheppele, Princeton University of Virginia; Pauline Maier, Mas- Elaine Tyler May, University of Minnesota; University; Ira Chernus, University of Colo- sachusetts Institute of Technology; Jeremy Jonathan McLeod, San Diego Mesa Commu- rado, Boulder; Mark Cammack, South- I. Adelman, Princeton University; Ann nity College; Thomas Zoumaras, Truman western Law School; Myra Rich, University Heiney, Newport Beach, California; Anthony State University. of Colorado, Denver; Tim Borstelmann, Uni- Grafton, Princeton University; Charles S. Michelle Mart, Pennsylvania State Univer- versity of Nebraska, Lincoln; Sara Evans, Maier, Harvard University; James sity, Berks; Mitch Kachun, Western Michi- University of Minnesota, retired; Gowri

VerDate Mar 15 2010 01:44 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\A05JA6.040 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE S22 CONGRESSIONAL RECORD — SENATE January 5, 2011 Ramachandran, Southwestern Law School; Senators could only vote on every other bill filibuster rule safeguards the rights of the Vicki Ruiz, University of California, Irvine; or that they could only vote on trade issues, minority. But when abused, as it has been by Fay A. Yarbrough, University of Oklahoma; for example, in the fourth year of their Senate Republicans who have called for 87 Harry Watson, University of North Carolina, term? such votes to end debate so far this year, it Chapel Hill; Pamela W. Laird, University of Rules of the Senate cannot trump the obvi- creates a tyranny of the minority. Colorado, Denver; Gloria Main, University of ous intention of the Founding Fathers that There are divisions in both parties on the Colorado, Boulder, emerita; Thomas R. legislation passed by majorities of both issue, in part because there are dangers for Clark, California Assembly Judiciary Com- houses, except for the explicit exceptions for both parties. Republicans are currently fili- mittee; Joshua Goode, Claremont Graduate ratification of treaties, becomes the law of bustering to stop any and all legislation— University; Marjorie Cohn, Thomas Jefferson the land. This is not a partisan question; and will not vote to end debate until they Law School. today the filibuster, real or threatened, succeed in winning tax breaks for the na- Mr. HARKIN. Mr. President, last dominates virtually every significant issue tion’s wealthiest citizens. Change the fili- month, our former colleagues, Gary confronting the Senate and our nation. The buster rule—one proposal calls for a simple law of political payback will ensure that to- majority vote—and Republicans will not so Hart, a Democrat, and Chuck Hagel, a day’s Senate majority, once it becomes the easily be able to block legislation supported Republican, published an essay in Time minority, will exact its revenge on today’s by the next session’s 53-Democrat majority. magazine calling on us to ‘‘restore de- opposition minority party. But if Republicans take the Senate in 2012— mocracy to the U.S. Senate’’ by re- Examples of recent abuse of the cloture and especially if there’s also Republican in forming the filibuster. In their words, rule include the 53 to 36 Senate vote to end the White House—Democrats could sorely re- the abuse of the filibuster ‘‘is no way tax cuts for the wealthy. Regardless, the gret their loss of the ability to filibuster. to govern a great democracy.’’ measure, like so many others (including an When, in his capacity as president of the I ask unanimous consent to have earlier attempt to repeal the military’s Senate, Vice President Joe Biden calls for ‘‘Don’t Ask, Don’t Tell’’ policy), failed under the Senate to write the rules governing the that essay printed in the RECORD. the threat of a filibuster. These and other ex- next session, Harkin and others believe that There being no objection, the mate- amples are clear violations of the funda- they will have at least 51 votes. Some of rial was ordered to be printed in the mental principle of majority rule. them may come from Republicans. The fili- RECORD, as follows: This is no way to govern a great democ- buster rule has rendered the Senate dysfunc- [From Time, Dec. 21, 2010] racy, not to say also a democracy seeking to tional and harmed the nation’s ability to RESTORING DEMOCRACY TO THE U.S. SENATE democratize other nations. deal with pressing issues. Ayotte should vote We believe the abuse of the cloture rule to change the filibuster rule, so the Senate (By Chuck Hagel and Gary Hart) ending debate is a violation of fundamental can once again be an effective legislative Few principles are as central to democracy Constitutional principles. Should a judicial body worthy of respect. and the ideals of the American Republic as test of this notion occur, it will at the least majority rule. Though James Madison and prove which of the current Supreme Court [From the Los Angeles Times, Dec. 28, 2010] his colleagues in The Federalist acknowl- Justices are, or are not, true ‘‘originalists.’’ A NUCLEAR SENATE edged the necessity of protecting the rights Resolutions have been introduced in the Sen- The U.S. Senate, once proudly known as of minorities, the course of our nation was to ate to alter the cloture rule and permit ma- the world’s greatest deliberative body, has in be determined by the will of the majority. jority rule, while continuing to protect the recent years degenerated into something No other system consistent with democracy rights of individual Senators. would prove workable. In the interest of the nation and the U.S. else: The place where legislation goes to die. There is nothing in the United States Con- Constitution, the Senate must once again be- It earned that distinction after Democrats stitution that permits a minority to frus- come a democratic institution. won a majority in 2006 and Republicans took trate the will of the majority. unprecedented advantage of long-standing Yet in the early 21st century, the will of Mr. HARKIN. Mr. President, edito- Senate rules allowing the minority to block the majority of Americans, expressed on a rialists from across the country have progress. daily basis by our elected representatives in recognized the filibuster must end. The There’s a good chance Democrats won’t Congress, is consistently thwarted by a mi- Concord Monitor of New Hampshire hold the majority much longer, however. nority in the United States Senate. This mi- called on the Senate to ‘‘Remove the That’s why both parties should be willing to nority resorts to the Senate rule requiring a Senate filibuster roadblock,’’ noting, eliminate such anti-democratic practices as three-fifths vote—60 votes—to close (invoke ‘‘The filibuster rule has rendered the the filibuster and the placing of secret holds cloture on) debate. on legislation. And an opportunity to do so, Article One, Section five, of the U.S. Con- Senate dysfunctional and harmed the which only comes along once every two stitution provides that ‘‘Each house [of Con- nation’s ability to deal with pressing years, is about to arrive. gress] may determine the rules of its pro- issues.’’ The filibuster originated in 1806, when the ceedings. . .’’ Based upon Thomas Jefferson’s The Los Angeles Times said ‘‘ . . . Senate eliminated a rule that had allowed notion that the Senate was to be the saucer both parties should be willing to elimi- the chamber to end debate by majority vote; in which controversies cooled, Senators nate such anti-democratic practices as in effect, that meant a senator or group of have, from the beginning, been at liberty to the filibuster. . . .’’ senators could delay progress by simply express their views at such length as they Editorials throughout the country talking incessantly. But that hardly ever happened in the 19th century. It wasn’t until wish. (Jefferson, it should be noted, was the have called for reform of the filibuster. author of the Manual of Parliamentary Pro- 1917 that the Senate decided to limit these cedures for the Use of the Senate of the I ask unanimous consent to have print- stemwinders by imposing a rule that debate United States in 1801.) But the Senate has al- ed in the RECORD these editorials. could be ended by a supermajority vote. ways recognized that even the principle of There being no objection, the mate- Since then there have been some other rule unlimited speech has its conditions based rial was ordered to be printed in the changes altering the vote threshold, along upon comity and common sense. RECORD, as follows: with frequent arguments about whether the Yet today the Senate conducts its busi- [From the Concord Monitor, Dec. 17, 2010] Senate should go back to its original rule al- ness, or not, under the constant threat of a lowing debate to be ended with a simple ma- REMOVE THE SENATE FILIBUSTER ROADBLOCK filibuster. Important legislative measures jority vote. We think it should. having to do with the vital interests of our (By Anonymous) Under the current system, senators don’t nation and the rights of our citizens will not On Jan. 5, 2011, the first day of the first even have to stand up and speak until even be introduced if a minority of Senate session of the 112th Congress, Iowa Sen. Tom they’re hoarse in order to filibuster a bill; a members refuse to permit them to be consid- Harkin and other Democrats promise to hold party leader just has to refuse to allow a bill ered. Thus, a rule to protect debate is sys- a historic vote to change the Senate’s 60- to be brought up by unanimous consent, tematically used to prevent debate. Even vote cloture rule. The vote to end the filibus- forcing supporters to find 60 votes in favor of worse, secret ‘‘holds’’ by individual Senators ters that have made the Senate a place a motion to end debate. Southern Democrats prevent confirmation of federal judges and where needed legislation and presidential ap- were the first to seriously misuse this tactic administration officials. pointments go to die could be the first of during the civil rights era, but Republicans Though the Senate filibuster rose to prom- Senator-elect Kelly Ayotte’s career. How she have perfected such abuse in the last three inence during civil rights debates in the 1950s votes will be telling. years. According to the good-government ad- and ’60s, it ran its course and the majority A super-majority voting requirement vocacy group Common Cause, which once de- prevailed. Today, it is commonplace and a makes sense in rare circumstances, ratifying fended the filibuster rule but now aims to matter of course for such a lock-step minor- a treaty for example or overriding a presi- eliminate it, 8% of major legislation was af- ity systematically to prevent consideration dential veto. But the filibuster rule is not in fected by threatened or actual filibusters in of the clear majority will. the Constitution; it’s an artifact that may the 1960s, compared with 70% since 2006. The The Constitution prevails over congres- have worked once but has broken and result is gridlock, which will only get worse sional rules. Can it be seriously argued that jammed the Senate. When used judiciously, now that the balance of partisan power is the Senate could adopt a rule that individual as it was throughout most of its history, the close to even.

VerDate Mar 15 2010 03:55 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\A05JA6.044 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE January 5, 2011 CONGRESSIONAL RECORD — SENATE S23 Secret holds are another serious problem. Act? It had broad bipartisan support When I say ‘‘the minority,’’ I mean the They allow senators to anonymously block and big support among the American minority; I don’t mean a political bills or confirmations of presidential nomi- people. There was the DISCLOSE Act, party. nees from reaching the floor for an unlimited which polls showed that over 80 percent This is what James Madison noted time span, making naked obstructionism po- when rejecting a supermajority re- litically safe. It’s largely thanks to such of the American people supported. We holds that more than one in 10 federal judge- had a majority vote here for it, but we quirement to pass legislation: ships remain vacant and federal departments didn’t have a supermajority. So it is no . . . it would no longer be the majority still lack key staff two years into the Obama surprise that Americans are fed up and that would rule, the power would be trans- administration. Abuse of holds has become angry with their Federal Government. ferred to the minority. endemic in recent years, sometimes allowing In too many critical areas, people see a Unfortunately, Madison’s prediction a single senator to take the entire chamber legislature that is simply unable to re- has come true. We are the only Demo- hostage by placing holds on important legis- spond effectively to the most urgent cratic body that I know of in the world lation until backers agree to support that where the minority, not the majority, senator’s pet project. challenges of our time. Make no mistake, the problem goes controls. In today’s Senate, American The Constitution gives each chamber the democracy is turned on its head. The power to choose the rules governing its pro- beyond the sheer number of filibusters. cedures at the beginning of the two-year con- This once-rare tactic is now used or minority rules; the majority is gressional session, slated this year for Jan. 5. threatened to be used on virtually blocked. The majority has responsi- So why doesn’t the majority simply do away every measure and nominee, even those bility and accountability but lacks the with the filibuster rule, or amend it? Be- who may enjoy near universal support. power to govern. The minority has cause changing a long-standing rule requires In the past Congress, for nearly 8 power but lacks accountability and re- a two-thirds vote, an impossibly high hurdle. sponsibility. This means the minority Yet that supermajority rule may be invalid, months, the minority filibustered con- firmation of Martha Johnson as Ad- can block bills that would improve the as argued by then-Vice President Richard economy, create jobs, and turn around ministrator of the General Services Ad- Nixon in 1957: ‘‘The right of a current major- and blame the majority for not fixing ity of the Senate at the beginning of a new ministration—certainly a relatively the economy. The minority can block Congress to adopt its own rules, stemming as noncontroversial position. She was ul- popular legislation and then accuse the it does from the Constitution itself, cannot timately confirmed 96 to 0. So what be restricted or limited by rules adopted by majority of being ineffective. was that filibuster all about? And for I repeat, when I say ‘‘the minority,’’ a majority of the Senate in a previous Con- nearly 5 months, the minority filibus- gress,’’ he wrote. This is the basis of the so- I am not saying Republicans or Demo- called nuclear option (or as supporters prefer tered confirmation of Barbara Keenan crats; I am saying the minority, who- to call it, the ‘‘constitutional option’’). to the Fourth Circuit Court of Appeals. ever it may happen to be. Both parties Sen. Tom Udall (D–N.M.) is leading a push She was ultimately confirmed 99 to 0. have abused the filibuster in the past, to reform the filibuster rules on Jan. 5, a What was that filibuster all about? and both will, absent real reform, fight joined by assorted good-government Again, to quote Norm Ornstein: groups and labor unions. Last week, all the abuse the filibuster in the future. Al- The Senate has taken the term ‘‘delibera- though Republicans are currently in returning Senate Democrats sent a letter to tive’’ to a new level, slowing not just conten- Majority Leader Harry Reid (D-Nev.) ex- tious legislation but also bills that have the minority, there is no question that pressing frustration with the filibuster and overwhelming support. control of this body will change, as it urging a change to the rules, though they Secondly, the filibuster has increas- periodically does. weren’t specific about solutions (and it’s un- The fact is, reform is urgently need- ingly been used to prevent consider- likely many would favor eliminating the fili- ed. That is why I am reintroducing my ation of bills and nominees. Rather buster entirely—most seem to support weak- proposal which would permit a decreas- than to serve to ensure the representa- er reforms such as a lowering of the 60-vote ing majority of Senators over a period threshold). In order to change the rules by a tion of minority views and to foster de- of days to invoke cloture on a given simple majority vote, they would also need bate and deliberation, by filibustering matter. Under my proposal, a deter- the backing of Vice President Joe Biden, be- motions to proceed, the minority has cause as president of the Senate, the vice mined minority could slow down any been allowed to prevent debate and pre- bill. Senators would have ample time president has traditionally ruled when con- vent deliberation. The filibuster has stitutional questions about procedures are to make their arguments and attempt raised. been used to defeat bills and nominees to persuade the public and a majority Biden hasn’t taken a position, and not a without their ever receiving a discus- of their colleagues. This protects the single Republican has joined the effort. The sion here on the floor of the Senate. In rights of the minority to full and vig- apparent partisan split seems odd given that other words, the Senate, which was for- orous debate and deliberation, main- it was Republicans who most recently merly renowned as the world’s greatest taining the hallmark of the Senate. brought up the nuclear option when they deliberative body, has now become the were in the majority in 2005 and Democrats But at the end of ample debate, the world’s greatest nondeliberative body. majority should be allowed to act. were blocking President Bush’s judicial We can’t even debate important na- nominees, but a form of amnesia often sets There should be an up-or-down vote on in when a party is in the minority. For con- tional issues. legislation or a nominee. As former servatives, opposition is all the more short- That is why I fully support the com- Senator Henry Cabot Lodge, a Repub- sighted given that twice as many Demo- monsense proposals to reform the fili- lican, stated many years ago, ‘‘To vote cratic-held seats are up for reelection in 2012 buster and restore the Senate to a body without debating is perilous, but to de- as Republican seats. in which issues can be fully debated bate and never vote is imbecile.’’ Partisan fears about losing a cherished and deliberated. I support eliminating My plan has another advantage. The power have prevented the Senate from going the filibuster on the motion to proceed, fact is that right now, the minority has nuclear for decades, but abuses of the fili- and I believe those who are filibus- buster and anonymous holds have never been no incentive to compromise. Not only so rampant. The resulting dysfunction is a tering a bill or a nominee should be re- do they know they have the power to big part of the reason Congress’ approval rat- quired to come to the floor, hold the block legislation, but they can go out ing has fallen to 13%, the lowest in the his- floor, and make their case to their col- and campaign on the message that the tory of the Gallup Poll. The chamber has a leagues and the American people. Sen- majority can’t get anything done. In chance to save itself from itself on Jan. 5, ators should not be able to hide behind contrast, if the minority knows that at and it should take it. a curtain of secret holds. The reality the end of a period of time a bill or Mr. HARKIN. Mr. President, 275 fili- is, however, because of the filibuster, nominee will be subject to majority busters in 4 years is not just a cold sta- the minority has unchecked veto power vote, they will be more willing to come tistic; it represents the minority block- in this body. to the table and negotiate seriously. ing measures that sometimes—not all Now, I want to make it clear, when I Likewise, the majority would want to the time but sometimes—enjoy broad say ‘‘the minority,’’ I am not talking compromise because they want to save support among the American people. about the Republicans; I am talking time. There is nothing more valuable Just in the last Congress, the filibuster about the minority. It may be the to the majority party in the Senate was used to kill many bills that en- Democrats or it may be the Repub- than time. joyed majority and often bipartisan licans. As I said, five times it has So under my proposal, on the first support. Need I mention the DREAM changed since I have been—since 1985. cloture vote, you would need 60 votes.

VerDate Mar 15 2010 01:44 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\A05JA6.038 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE S24 CONGRESSIONAL RECORD — SENATE January 5, 2011 If you don’t get 60 votes, you would controlling the House, any final legis- would be needed to enact virtually any have another vote in 3 days and you lation will need to be bipartisan with piece of legislation or for any nominee. would need 57 votes; in 3 more days, 54 or without the filibuster. In fact, the Framers of the Constitu- votes; 3 more days, 51 votes. So the ma- So I don’t see reform of the filibuster tion were very clear about where a jority would finally act, but you would as a Democratic or Republican issue. supermajority is required. There were chew up almost 2 weeks of time. So on Indeed, it was former Republican ma- only five in the original Constitution: the first vote, let’s say 53 Senators jority leader Senator Frist who, when ratification of a treaty, override of a voted for cloture. Well, the minority he nearly shut this body down over the veto, votes of impeachment, passage of would know that in several days or use of filibusters on a handful of a constitutional amendment, and ex- maybe in a couple weeks’ time, 53 Sen- judges, said: pulsion of a Member. If they wanted to ators will get cloture. The minority This filibuster is nothing less than a for- have supermajorities, they would have then would go to the majority and say: mula for tyranny by the minority. said so. But it is not in the Constitu- Look, we can drag this out for a couple That was in 2004, Senator Frist, the tion. The filibuster is not in the Con- of weeks, chew up all your time, but we Republican majority leader at that stitution. have some things we would like to have time. The first Senate expressly included a considered. The majority—and I say Well, as I said, one of the problems rule permitting the majority to end de- there is nothing more important to the here was this was done in the middle of bate and bring a measure to a vote by majority than time here—not wanting a term. See, I think the Senate ought moving the previous question. I repeat: to spend a couple weeks on a bill, on a to be able to set its rules at the begin- The first Senate—the first Senate—had cloture or a filibuster, would say: OK, ning, on the first legislative day, which a rule that permitted the majority to we are in now and which will extend for maybe we can make an agreement. We end debate. Alexander Hamilton ex- some time. The Senate ought to be able will collapse the timeframe, the minor- plained that a supermajority require- to set its rules at the beginning of a ity gets some of the things they want, ment would mean a small minority Congress. You can’t go changing the and the majority is able then to have a could ‘‘destroy the energy of govern- vote. So I see my proposal as a means rules every month, but you should be able to set the rules at the beginning of ment.’’ of encouraging compromise. Right now, Hamilton said that the government a Congress so that you know for 2 years there is no reason to compromise for what the rules are that you are oper- would be subject to the ‘‘caprice or ar- the minority. tifices of an insignificant, turbulent or Again, I am not talking about Repub- ating under. So it is time for the arms race to end. corrupt junta.’’ Those are Hamilton’s licans or Democrats; I say ‘‘the minor- That is what this is—it is an arms race. words. ity’’ because they know they can abso- I daresay that if we don’t do anything Moreover, reform of filibuster rules lutely block it. about this, if the Republicans take con- stands squarely within the tradition of I have changed my resolution since I updating Senate rules as needed to fos- introduced it in 1995, and I have trol of the Senate, as they think they will in 2 years, well, Democrats are ter an effective government that can changed it because Republicans have going to do the same thing to them. respond to the challenges of the day. said and I heard the minority leader Guarantee it. Guarantee it. The Repub- The Senate has adopted rules that for- say earlier that they have done this be- licans did—what did I say?—136 filibus- bid the filibuster in certain cases, such cause Democrats in the majority—the ters—139? Bet your bottom dollar, if we as the War Powers Act and the budget. majority this time—have employed don’t change the rules, Democrats will Imagine that. What should be more de- procedural matters to deprive the Re- match them. You wait and see. batable than the budget? But our rules publicans of the right to offer amend- Well, a lot of people sometimes say: do not permit a filibuster of the budg- ments. Well, I am very sympathetic to Well, HARKIN, what you are advocating et. So we passed rules here limiting the this argument. That is why I included is the Senate would become like the filibuster. in this resolution a guaranteed right to House. I ask my friends and any Sen- Since 1917, we have passed four sig- offer germane amendments to the mi- ator on either side of the aisle, since nificant reforms concerning the fili- nority, filed in advance of the cloture when did the Senate become defined by buster. The fact is, as Senator TOM vote so everyone would know what was rule XXII, which is the filibuster? Why UDALL has powerfully made clear, arti- coming. Again, the minority should does that define the Senate? I thought cle I, section 5, clause 2 of the Con- have the right to offer some amend- the Senate was defined by the fact that stitution specifies that ‘‘each House ments that are germane to the bill. No you get two Senators from every may determine the rules of its pro- matter who the majority is, both par- State—two Senators from North Da- ceedings.’’ ties are concerned about amendments kota, two Senators from California, As Senator Robert Byrd, who was op- from the minority. Perhaps you have a two Senators from New York, two Sen- posed to filibuster reform—he and I had bill dealing with housing and someone ators from Iowa. I thought the Senate a great debate back in 1995 on this—as wants to offer an amendment dealing was defined by the fact that we have he emphasized, and he said this—Sen- with abortion. Well, there may be a unlimited debate. When a Senator gets ator Byrd: ‘‘At any time that 51 Sen- time and place for that but not on that the floor, you can’t take it away from ators are determined to change the bill. So that is why I say it should be him. We operate under unanimous con- rule . . . that rule can be changed.’’ germane to the bill. If the minority has sent. The power of one single Senator I am reading here from what Senator ideas to improve the bill, strike some- would remain. But in the Senate, what Byrd said. He said at that time: thing from the bill, that would be ger- do we do? We do treaties, we do nomi- The Constitution in article I, section 5 mane to that bill. nations, we sit in judgment on im- says that each House shall determine the I have heard it said—and I heard it peachments. The Senate is not like the rules of its proceedings. Now we are at the on the radio this morning driving in— House. And just because we don’t have beginning of Congress. This Congress is not that this is something like a power the filibuster as we have known it for obliged to be bound by the dead hand of the grab by a Democratic Senator reacting the last 94 years does not mean the past. to recent elections in which my party Senate becomes like the House. Elimi- ‘‘The dead hand.’’ lost numerous seats. Well, I want to nating the filibuster will not change I listened to the minority leader make clear that the reforms I advocate the basic nature of the Senate. So I say when he said we have—the majority are not about one party or one agenda to those who say the Senate would be has never changed rules except by fol- gaining an unfair advantage; it is like the House if we did away with this lowing those rules. The rules set down about the Senate as an institution op- filibuster, would they also suggest that by a Congress a long time ago, by a erating more fairly, effectively, and the Senate of Henry Clay or Daniel Senate a long time ago, said that in democratically. Again, I wish to point Webster or Lyndon Johnson or Everett order to change the rules, you need a out that I first offered this in 1995 when Dirksen was the same as the House of two-thirds vote of the Senate. I submit I was in the minority. So to use the Representatives? I don’t think so. that is unconstitutional. I submit that legal term, I come here with clean The fact is, what was never intended this Congress, this Senate, on this first hands. The truth is, with Republicans was that a supermajority of 60 votes legislative day, does not have to abide

VerDate Mar 15 2010 01:44 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G05JA6.035 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE January 5, 2011 CONGRESSIONAL RECORD — SENATE S25 by that. What if, in some Senate, one People say that the tea party in the (See exhibit 1.) party got 90 Senators one time, and House—they are going to do all this Mr. ALEXANDER. I borrowed those they adopted a rule that said that from stuff. I am sorry, I am not afraid. The words from H.V. Kaltenborn and ‘‘Mr. here on out, you have to have 90 votes people voted. There ought to be things Smith Goes to Washington.’’ in order to change the rules, here are that happen because people vote a cer- I am a little amused by the sugges- the rules, and they set up rules that tain way. No wonder so many people tion the Senator from Iowa made and pretty much made it impossible for the are frustrated. They vote, they think others made that somehow the Senate minority to ever become the majority? things are going to happen, they don’t has been paralyzed for the last couple Would that be constitutional? I don’t happen, and they say: A pox on both of years. Most of the people I know are think so. your Houses. concerned about what the Senate did Senator Byrd said we are not obliged So, yes, I don’t know why we should do, not what it did not do. It is hard to to be bound by the dead hand of the be so afraid of each other. Why should say you are paralyzed when you pass a past. The first Senate, Senator Byrd I be afraid that the Republicans are $1 trillion stimulus bill, health care said, which met in 1789, approved 19 going to institute legislation I don’t law, financial regulation law, et cetera, rules by majority vote. Those rules like? They have in the past, and our et cetera. have been changed from time to time. country has endured. I would say there As far as the claim that Republicans So the Members of the Senate who met are times when the Democrats have are holding things up goes, I have a few in 1789 and approved that first body of passed legislation Republicans did not comments. We did not have a budget rules did not for one moment think or like and our country has endured. So I last year. Most households have to believe or pretend that all succeeding just do not like this fear, that we have have budgets. The Senate ought to Senates would be bound by that Sen- to be afraid that somehow the majority have one. Why didn’t we have a budget? ate. is going to do things. It wasn’t the Republicans holding it What we want to make sure of is that Here is the essence of what Senator up. As the Senator from Iowa said, the rights of the minority are guaran- Byrd said: under our rules, it only takes 51 votes teed—the right to be heard, the right of It is my belief—which has been supported to pass a budget. During the last cou- by rulings of Vice Presidents of both parties the minority to offer amendments. But ple of years, the Democrats had 59 or 60 and by votes of the Senate—in essence up- I don’t think it ought to be the right of votes. So the reason we did not have a holding the power and right of a majority of the minority to obstruct, and I don’t budget is because the Democrats did the Senate to change the rules of the Senate think it ought to be the right of the not want to pass a budget, or at least at the beginning of a new Congress. minority to demand that their views be that they did not pass a budget. It had I would say Senator Byrd has not implemented. That is the right of the nothing to do with the Senate being been alone in his views or tactics. The majority. ‘‘broken.’’ constitutional option has been en- I close where I began, and I thank my dorsed by three Vice Presidents and friends for this indulgence. I believe The Senator from Iowa made this three times by the Senate itself. Why the bedrock of the principle of our Con- Rules proposal in 1995. He has made was it not used? Because Senators then stitution, our Founders, was majority some modifications in his proposal but reached a compromise, and therefore rule with respect for minority rights. basically this is the same as he offered we never had the constitutional option. But I say this, and I have said it many in 1995. I remember those days pretty But that does not mean we cannot use times. It is kind of the dirty little se- well. It was right after the so-called that. The Constitution is very clear. I cret of the Senate. And here is the Gingrich revolution, in 1994. Repub- think three votes of the Senate and dirty little secret: The power of an in- licans took control of the Senate and three former Vice Presidents have dividual Senator comes not by what he of the House of Representatives. The made clear in their rulings that at the can do but by what he can stop. That is Senator from Iowa made his proposal beginning of a Congress, we can set the the dirty little secret of the Senate. to diminish the effectiveness of a fili- rules. One Senator can stop something, can buster. What did the Republicans do? Chief Justice John Marshall once block it. I say that each Senator—each The Republicans, had the most to said: of us needs to give up a little of our gain—at least temporarily—from being Any enduring Constitution must be able to privilege, give up a little of our power, able to get their agenda through the respond to the various crises of human af- give up a little of our prerogatives for Senate. But every single one opposed fairs. the greater good of this country. the proposal. Every single Republican I said many times that I don’t believe I yield the floor. Senator in 1995 said: No, we may love we can be a 21st-century superpower The PRESIDING OFFICER. The Sen- our agenda, but we do not want to bound by archaic rules of the 19th cen- ator from Tennessee. change the Senate. We don’t want to tury. We have to have a responsive gov- Mr. ALEXANDER. I thank the Sen- jeopardize the Senate as a forum for ernment, responding to the challenges ator from Iowa for his consistency over forcing consensus and protecting mi- of our time. the years with his proposal. I wonder if nority rights and letting the voices of I am not afraid. I say to my friends I can make a few remarks on his pro- all of the people be heard on the Senate on the Republican side, I am not afraid. posal, and if he has time, if he is still floor. What the minority leader said—he said here, maybe I will pose a question to Not only the Republican Senators in that at some time the Republicans him. I see the Senator from Kansas is 1995 had that opinion. Here are some might be in charge, and they might also here. He spent a lot of time on the things that were said mostly in 2005 by want to undo what the Democrats did, Rules Committee on this subject. He is Democratic leaders. There were some and the Democrats better be careful. one of our most forceful speakers on Republicans who had the same idea the That was in his op-ed piece in the Post the matter, and I would defer to him, Senator from Iowa has about dimin- this morning. I am not afraid of democ- and then I know there are other Sen- ishing the effectiveness of the fili- racy. I am not afraid of the votes of the ators—the Senator from Oregon, the buster. In this case, they wanted to di- people. If the people vote to put certain Senator from New Mexico—who have minish the use of filibusters on judicial conservatives in power, then they some proposals to offer. There may be nominations. There was great con- ought to have the right to govern. other Senators on the Republican side sternation because Democrats decided They ought to have the right to re- who come to the floor. to filibuster President Bush’s judges. I spond to the people of this country. First, I ask unanimous consent to didn’t like that either. This is what has The minority—I would be in the minor- have printed in the RECORD an address been said by Democrats. ity at that time—I think the minority I made yesterday at the Heritage Foun- Senator Robert Byrd in his last testi- ought to have the right to be heard, we dation entitled ‘‘The Filibuster: De- mony before the Rules Committee: ought to have the right to debate, we mocracy’s finest show . . . the right to We must never, ever, ever, ever tear down ought to have the right to amend, but talk your head off.’’ the only wall, the necessary fence, that this we should not have the right to totally The PRESIDING OFFICER. Without Nation has against the excesses of the Exec- obstruct. I am not afraid. objection, it is so ordered. utive Branch.

VerDate Mar 15 2010 01:44 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G05JA6.037 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE S26 CONGRESSIONAL RECORD — SENATE January 5, 2011 What is that necessary fence? That ideas, but we do not need his vote to House, as they did last year, passes a necessary fence is anchored in the fili- pass this bill. We have got the votes. bill to repeal the ballot in secret elec- buster. We won the election. We will write the tions then the Democrats over here Senator SCHUMER of New York in bill. will pass it, too, if they have 51 votes. 2005: So the Senate has had no consensus. But when a consensus is required, if The checks and balances which have been Instead, we had a Democratic financial bills such as that come from the House at the core of this Republic are about to be regulation bill. We had a Democratic to the Senate, we in the Senate say, evaporated. health care bill. We had a mostly whoa, let’s think this over. We do not This was in response to the Repub- Democratic stimulus bill. We might pass it. We do not pass it unless we licans who were trying to diminish the have had one or two Republicans vote have some kind of consensus. effectiveness of the filibuster in 2005. for it. That does not mean all the Repub- ‘‘The checks and balances’’ Senator For the last 2 years, we have not had licans and all of the Democrats must SCHUMER said, ‘‘which say that if you any experience in working across party always agree. We had almost all of the get 51 percent of the vote, you don’t lines. What the filibuster does is say, Republicans and some of the Demo- get your way 100 percent of the time.’’ you are not going to pass anything in crats on the tax agreement that was Former Senator Hillary Clinton: the Senate unless at least some Repub- passed in December. On the New You’ve got majority rule. Then you’ve got licans and some Democrats agree. You START treaty, we had almost all of the Senate over here where people can slow will not pass anything unless you get a the Democrats and some of the Repub- things down, where they can debate, where consensus. licans support it. But in each case, at they have something called the filibuster. Then that will change behavior, and least you had substantial consensus You know, it seems like it’s a little less than people say, okay, let’s bring a No Child from both parties, and I think the efficient. Well, that’s right, it is. And delib- Left Behind bill to the floor. But it has country respects and appreciates that. erately designed to be so. got to have the support of Senator ENZI I think the Framers knew what they Senator Dodd more recently: and Senator HARKIN or it is not going were doing when they created a I’m totally opposed to the idea of changing anywhere, because it has got to have 60 majoritarian House, in other words, the filibuster rules. I think that’s foolish, in votes to move forward. What is the ad- the freight train that can run through my view. vantage of that? The advantage of that whatever the result of election is. And Senator Byrd: is the comparison of the Civil Rights when they created a different kind of That’s why we have a Senate, to amend bill in 1964, and the health care law of Senate. A different kind of Senate that and debate freely. 2009. Senator Byrd eloquently has said has Senator Dodd: In 1964, after a bitter fight led by been one where we can say, you are not I can understand the temptation to change Senator Russell of Georgia, the Civil going to pass anything unless we do it the rules that make the Senate so unique Rights bill passed the Senate, over- together. That is called consensus. and simultaneously so terribly frustrating. coming a filibuster. The bill was writ- That is called cooperation. I think the But whether such temptation is motivated ten in the Republican leader’s office. It American people would be greatly re- by a noble desire to speed up the legislative was not just sent over there in the mid- lieved. process or by pure political expediency, I be- My question I wish to pose through lieve such changes would be unwise . . . dle of the night during Christmas, it Therefore, to my fellow Senators who was written in his office. You had the Chair to Senator HARKIN is, what is never served a day in the minority, I urge President Johnson, a Democrat, and a filibuster? Senator SANDERS was on you to pause in your enthusiasm to change Senator Dirksen saying, this is good the floor for several hours on the tax Senate rules. for the country. A lot of people hated debate last month. He spoke for 8 or 9 Just two more. the bill. And some people thought it hours. I guess that is a filibuster in the Senator REID, who was then the did not go far enough. traditional sense. But I think the kind Democratic leader but the minority What did Senator Russell do, who of filibuster the Senator from Iowa is leader, said in 2005: had fought that bill for his whole term counting is this: let’s say Senator REID The filibuster is far from a ‘‘procedural here? He went home to Georgia and brings a health care bill to the floor, gimmick.’’ It’s part of the fabric of this in- said, I did everything I could to stop it, and I rush over to offer an amendment stitution that we call the Senate. For 200 but it is the law, and we must obey it. to the health care bill, and Senator years we’ve had the right to extend the de- So not only does the Senate need a REID says: Sorry, I am going to cut off bate. It’s not procedural gimmick. Some in consensus to get a better bill, we need your amendment. Then I object. Sen- this chamber want to throw out 214 years of a bill that the country will accept. ator REID calls what I tried to do a fili- Senate history in the quest for absolute Compare that to the health care law power. They want to do away with Mr. buster. Smith, as depicted in that great movie, being in 2009. A lot of good intentions went If we are just talking and amending able to come to Washington. They want to into the health care law. I know that. and debating, that is not a filibuster. It do away with the filibuster. They think Senator HARKIN was in the middle of is not a filibuster until the majority they’re wiser than our Founding Fathers. I that, but the fact of the matter was leader cuts off debate and amendments. doubt that’s true. that it was a Democratic bill. It was So what the Democrats are counting as Then there was one other Senator rammed through Christmas Eve in the filibusters is the number of times they who spoke and who said this, the Sen- middle of the night. We barely had a have cut us off from doing what we are ator from Illinois, Senator Obama: chance to look at the bill, and it passed supposed to do, which is, amend and de- Then if the majority chooses to end the fil- with a solely partisan vote. bate. ibuster, if they choose to change the rules And what happened? Instead of ev- It is like being invited to sing on the and put an end to the Democratic debate, erybody going home and saying, it is Grand Ole Opry, and getting there and then the fighting and the bitterness and the the law of the land, we support it, an you are not allowed to sing. The people gridlock will only get worse. instant movement was created to re- of Tennessee do not expect me to come I think the last 2 years in the Senate peal it and replace it. I hope we will up here and sit on a log just because have been an aberration. We have had not do what Senator HARKIN suggests. I the distinguished majority leader says no incentive for the majority to take think his proposal will create a situa- he does not want my amendments. the ideas of the minority because the tion where the majority says: well, we What was traditional in the Senate is majority had these huge majorities, are going to hang you, but we will hang that Senators could offer amendments nearly 60 votes here, and a Democratic you in 3 days instead of tonight. They and debate, at almost any time, on al- President. will narrow it down until they can pass most any bill. In the days of Senator So when Senator CORKER, my col- a measure with 51 votes. Byrd and Senator Baker, they would league from Tennessee, began to work So if the Republican House of Rep- have 300 amendments filed. They would on the financial regulation bill, there resentatives passes a bill to repeal the start voting. So some Senators would came a time in the process where the health care law, then you know Senate say, well, it is Thursday, don’t we go Democrats said: Well, you know, we Republicans would pass it, too, if we home? The Leaders would say no, we like CORKER, and he has got some good have got 51 votes. Or if the Democratic are going to vote, unless you want to

VerDate Mar 15 2010 01:44 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\G05JA6.038 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE January 5, 2011 CONGRESSIONAL RECORD — SENATE S27 give up your amendment. Instead of The brazenness of this proposed action is afternoon why it is essential to our country doing that, we did not vote on one Fri- that Democrats are proposing to use the that cooler heads prevail tomorrow when the day in the Senate this past year, and a very tactics that in the past almost every Senate convenes. One good example Democrats might follow lot of Senators on both sides of the Democratic leader has denounced, including President Obama and Vice President Biden, is the one established by Republicans who aisle do not want to vote on controver- who has said that it is ‘‘a naked power grab’’ gained control of both the Senate and House sial issues. If we look for consensus, if and destructive of the Senate as a protector of Representatives in 1995. On the first day of we were willing to vote on controver- of minority rights. the new Republican majority, Sen. Harkin sial issues, and if we ended the 3-day The Democratic proposal would allow the proposed a rule change diluting the fili- work week, if the majority thinks the Senate to change its rules with only 51 votes, buster. Every single Republican senator minority is abusing the filibuster, they ending the historical practice of allowing voted against the change even though sup- can confront it. They can sit over there any senator at any time to offer any amend- porting it clearly would have provided at and they can say to us, okay, Senator ment until sixty senators decide it is time to least a temporary advantage to the Repub- end debate. lican agenda. ALEXANDER, 60 of us are ready to cut As Investor’s Business Daily wrote, ‘‘The Here is why Republicans who were in the this off. We are ready to get on to a Senate Majority Leader has a plan to deal majority then, and Democrats who are in the vote. So you have got 7 hours that you with Republican electoral success. When you majority today, should reject a similar rules can speak, then you have got to get 23 lose the game, you simply change the rules. change: other Senators to take the other hours. When you only have 53 votes, you lower the First, the proposal diminishes the rights of If you stop talking, we are going to put bar to 51.’’ This is called election nullifica- the minority. In his classic Democracy in the question to a vote, and we have got tion. America, Alexis de Tocqueville wrote that some motions we can make about your Now there is no doubt the Senate has been one of his two greatest fears for our young reduced to a shadow of itself as the world’s democracy was the ‘‘tyranny of the major- being dilatory. In other words, we can greatest deliberative body, a place which, as ity,’’ the possibility that a runaway major- make life miserable for you, because Sen. Arlen Specter said in his farewell ad- ity might trample minority voices. we are going to do this all night long. dress, has been distinctive because of ‘‘the Second, diluting the right to debate and Senator Byrd said in his last testi- ability of any Senator to offer virtually any vote on amendments deprives the nation of a mony: The rules exist today to con- amendment at any time.’’ valuable forum for achieving consensus on front a filibuster. But the demise of the Senate is not be- difficult issues. The founders knew what So my question to the Senator from cause Republicans seek to filibuster. The they were doing when they created two very Iowa which I would pose through the real obstructionists have been the Demo- different houses in Congress. Senators have Chair is: What is a filibuster? Is a fili- cratic majority which, for an unprecedented six-year terms, one-third elected every two years. The Senate operates largely by unani- buster when I come down to the floor number of times, used their majority advan- tage to limit debate, not to allow amend- mous consent. There is the opportunity, un- to amend the health care bill, and the ments and to bypass the normal committee paralleled in any other legislative body in majority leader says, sorry, I am going consideration of legislation. the world, to debate and amend until a con- to use my powers to cut it off? You To be specific, according to the Congres- sensus finally is reached. This procedure cannot amend the bill. And then he sional Research Service: takes longer, but it usually produces a better files cloture. 1. the majority leader has used his power result—and a result the country is more That is what he calls a filibuster, I to cut off all amendments and debate 44 likely to accept. For example, after the Civil think. What I call it is cutting off my times—more than the last six majority lead- Rights Act of 1964 was enacted, by a bipar- right to amend, right to debate, right ers combined; tisan majority over a filibuster led by Sen. 2. the majority leader has moved to shut to do my job. Russell of Georgia, Sen. Russell went home down debate the same day measures are con- to Georgia and said that, though he had EXHIBIT 1 sidered (same-day cloture) nearly three fought the legislation with everything he THE FILIBUSTER: ‘‘DEMOCRACY’S FINEST SHOW times more, on average, than the last six had, ‘‘As long as it is there, it must be ... THE RIGHT TO TALK YOUR HEAD OFF’’ majority leaders; obeyed.’’ Compare that to the instant repeal (Address by Senator Lamar Alexander, 3. the majority leader has set the record effort that was the result of jamming the Heritage Foundation, Jan. 4, 2011) for bypassing the committee process bring- health care law through in a partisan vote. Voters who turned out in November are ing a measure directly to the floor 43 times Third, such a brazen power grab by Demo- going to be pretty disappointed when they during the 110th and 111th Congresses. crats this year will surely guarantee a simi- learn the first thing some Democrats want Let’s be clear what we mean when we say lar action by Republicans in two years if Re- to do is cut off the right of the people they the word ‘‘filibuster.’’ Let’s say the majority publicans gain control of the Senate as many elected to make their voices heard on the leader brings up the health care bill. I go believe is likely to happen. We have seen this floor of the U.S. Senate. down to the floor to offer an amendment and happen with Senate consideration of judges. In the November elections, voters showed speak on it. The majority leader says ‘‘no’’ Democrats began the practice of filibus- that they remember the passage of the and cuts off my amendment. I object. He tering President Bush’s judges even though health care law on Christmas Eve, 2009: mid- calls what I tried to do a filibuster. I call they were well-qualified; now Democrats are night sessions, voting in the midst of a snow what he did cutting off my right to speak unhappy because many Republicans regard storm, back room deals, little time to read, and amend which is what I was elected to do. that as a precedent and have threatened to amend or debate the bill, passage by a So the problem is not a record number of fili- do the same to President Obama’s nominees. straight party line vote. busters; the problem is a record number of Those who want to create a freight train It was how it was done as much as what attempts to cut off amendments and debate running through the Senate today, as it does was done that angered the American people. so that minority voices across America can- in the House, might think about whether Minority voices were silenced. Those who not be heard on the floor of the Senate. they will want that freight train in two didn’t like it were told, ‘‘You can read it So the real ‘‘party of no’’ is the majority years if it is the Tea Party Express. after you pass it.’’ The majority’s attitude party that has been saying ‘‘no’’ to debate, Finally, it is hard to see what partisan ad- was, ‘‘We won the election. We’ll write the and ‘‘no’’ to voting on amendments that mi- vantage Democrats gain from destroying the bill. We don’t need your votes.’’ nority members believe improve legislation Senate as a forum for consensus and protec- And of course the result was a law that a and express the voices of the people they rep- tion of minority rights since any legislation majority of voters consider to be an historic resent. In fact, the reason the majority lead- they jam through without bipartisan support mistake and the beginning of an immediate er can claim there have been so many fili- will undoubtedly die in the Republican-con- effort to repeal and replace it. busters is because he actually is counting as trolled House during the next two years. Voters remembered all this in November, filibusters the number of times he filed clo- *** but only 6 weeks later Democratic senators ture—or moved to cut off debate. The reform the Senate needs is a change in seemed to have forgotten it. I say this be- Instead of this power grab, as the new Con- its behavior, not a change in its rules. I have cause on December 18, every returning gress begins, the goal should be to restore talked with many senators, on both sides of Democratic senator sent Senator Reid a let- the Senate to its historic role where the the aisle, and I believe most of us want the ter asking him to ‘‘take steps to bring [Re- voices of the people can be heard, rather same thing: a Senate where most bills are publican] abuses of our rules to an end.’’ than silenced, where their ideas can be of- considered by committee, come to the floor When the United States Senate convenes fered as amendments, rather than sup- as a result of bipartisan cooperation, are de- tomorrow, some have threatened to try to pressed, and where those amendments can be bated and amended and then voted upon. change the rules so it would be easier to do debated and voted upon rather than cut off. It was not so long ago that this was the with every piece of legislation what they did To accomplish this, the Senate needs to standard operating procedure. I have seen with the health care bill: ram it through on change its behavior, not to change its rules. the Senate off and on for more than forty a partisan vote, with little debate, amend- The majority and minority leaders have been years, from the days in 1967 when I came to ment, or committee consideration, and with- in discussion on steps that might help ac- the Senate as Sen. Howard Baker’s legisla- out listening to minority voices. complish this. I would like to discuss this tive assistant. That was when each senator

VerDate Mar 15 2010 01:44 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\G05JA6.039 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE S28 CONGRESSIONAL RECORD — SENATE January 5, 2011 had only one legislative assistant. I came committee, when more amendments were and hold up almost every bill going through back to help Sen. Baker set up his leadership considered, debated and voted upon? until its sponsor obtained his approval. Sen. office in 1977 and watched the way that Sen. 1. Recognize that there has to be bipar- Allen of Alabama did the same before Baker and Sen. Byrd led the Senate from tisan cooperation and consensus on impor- Metzenbaum. And Sen. John Williams of 1977 to 1985, when Democrats were in the ma- tant issues. The day of ‘‘we won the election, Delaware during the 1960’s was on the floor jority for the first four years and Repub- we jam the bill through’’ will have to be regularly objecting to federal spending when licans were the second four years. over. Sen. Baker would not bring a bill to I first came here forty years ago. Then, most pieces of legislation that came the floor when Republicans were in the ma- *** to the floor had started in committee. Then jority unless it had the support of the rank- I have done my best to make the argument that legislation was open for amendment. ing Democratic committee member. that the Senate and the country will be There might be 300 amendments filed and, 2. Recognize that senators are going to served best if cooler heads prevail and Demo- after a while, the majority would ask for have to vote. This may sound ridiculous to crats don’t make their power grab tomorrow unanimous consent to cut off amendments. say to an outsider, but every Senate insider to make the Senate like the House, to per- Then voting would begin. And voting would knows that a major reason why the majority mit them to do with any legislation what continue. cuts off amendments and debate is because they did with the health care law. I have said The leaders would work to persuade sen- Democratic members don’t want to vote on that to do so will destroy minority rights, ators to limit their amendments but that controversial issues. That’s like volun- destroy the essential forum for consensus didn’t always work. So the leaders kept the teering to be on the Grand Ole Opry but then that the Senate now provides for difficult Senate in session during the evening, during claiming you don’t want to sing. We should issues, and surely guarantee that Repub- Fridays, and even into the weekend. Sen- say, if you don’t want to vote, then don’t run licans will try to do the same to Democrats ators got their amendments considered and for the Senate. in two years. More than that, it is hard to the legislation was fully vetted, debated and 3. Finally, according to Sen. Byrd, it will see how Democrats can gain any partisan ad- finally passed or voted down. be the end of the three-day work week. The vantage from this destruction of the Senate Sen. Byrd knew the rules. I recall that Senate convenes on most Mondays for a so- and invitation for retribution since any bill when Republicans won the majority in 1981, called bed-check vote at 5:30. The Senate they force through the Senate in a purely Sen. Baker went to see Sen. Byrd and said, during 2010 did not vote on one single Friday. partisan way during the next two years will ‘‘Bob I know you know the rules better than It is not possible either for the minority to surely be stopped by the Republican-con- I ever will. I’ll make a deal with you. You have the opportunity to offer, debate and trolled House of Representatives. don’t surprise me and I won’t surprise you.’’ vote on amendments or for the majority to But I am not the most persuasive voice Sen. Byrd said, ‘‘Let me think about it.’’ forcefully confront a filibuster if every sen- against the wisdom of tomorrow’s proposed And the next day Sen. Byrd said yes and ator knows there will never be a vote on Fri- action. Other voices are. And I have col- the two leaders managed the Senate effec- day. lected some of them, mostly Democratic tively together for eight years. There are some other steps that can be leaders who wisely argued against changing What would it take to restore today’s Sen- taken to help the Senate function better the institution of the Senate in a way that ate to the Senate of the Baker-Byrd era? without impairing minority rights. would deprive minority voices in America of Well, we have the answer from the master One bipartisan suggestion has been to end their right to be heard: the practice of secret holds. It seems reason- of the Senate rules himself, Sen. Byrd, who From Mr. Smith Goes to Washington able to expect a senator who intends to hold in his last appearance before the Rules Com- Jimmy Stewart: Wild horses aren’t going mittee on May 19, 2010 said: ‘‘Forceful con- up a bill or a nomination to allow his col- leagues and the world know who he or she is to drag me off this floor until those people frontation to a threat to filibuster is un- have heard everything I’ve got to say, even if doubtedly the antidote to the malady [abuse so that the merits of the hold can be evalu- ated and debated. it takes all winter. of the filibuster]. Most recently, Senate Ma- Second, there is a crying need to make it Reporter: H.V. Kaltenborn speaking, half jority Leader Reid announced that the Sen- easier for any President to staff his govern- of official Washington is here to see democ- ate would stay in session around-the-clock ment with key officials within a reasonable racy’s finest show. The filibuster—the right and take all procedural steps necessary to period of time. One reason for the current to talk your head off. bring financial reform legislation before the delay is the President’s own fault, taking an Sen. Robert Byrd’s final appearance in the Senate. As preparations were made and cots inordinately long time to vet his nominees. Senate Rules Committee rolled out, a deal was struck within hours Another is a shared responsibility: the maze SENATOR ROBERT BYRD: We must and the threat of filibuster was with- of conflicting forms, FBI investigations, IRS never, ever, ever, ever, tear down the only drawn.... I also know that current Senate audits, ethics requirements and financial wall, the necessary fence, that this nation Rules provide the means to break a fili- disclosures required both by the Senate and has against the excesses of the Executive buster.’’ the President of nominees. I spoke on the Branch. Sen. Byrd also went on to argue strenu- Senate floor on this, titling my speech ‘‘In- SEN. CHUCK SCHUMER: The checks and ously in that last speech that ‘‘our Founding nocent until Nominated.’’ The third obstacle balances which have been at the core of this Fathers intended the Senate to be a con- is the excessive number of executive branch Republic are about to be evaporated. The tinuing body that allows for open and unlim- appointments requiring Senate confirma- checks and balances which say that if you ited debate and the protection of minority tion. There have been bipartisan efforts to get 51% of the vote, you don’t get your way rights. Senators,’’ he said, ‘‘have understood reduce these obstacles. With the support the 100% of the time. this since the Senate first convened.’’ majority and minority leaders, we might FORMER SEN. CLINTON: You’ve got ma- Sen. Byrd then went on: ‘‘In his notes of achieve some success. jority rule. Then you’ve got the Senate over the Constitutional Convention on June 26, Of course, even if all of these efforts suc- here where people can slow things down 1787, James Madison recorded that the ends ceed there still will be delayed nominations, where they can debate where they have to be served by the Senate were ‘first, to pro- bills that are killed before they come to the something called the filibuster. You know it tect the people against their rulers, sec- floor and amendments that never see the seems like it’s a little less than efficient, ondly, to protect the people against the tran- light of day. But this is nothing new. I can well that’s right, it is. And deliberately de- sient impressions into which they them- well remember when Sen. Metzenbaum of signed to be so. selves might be led. . . They themselves, as Ohio put a secret hold on my nomination SEN. DODD: I’m totally opposed to the well as a numerous body of Representatives, when President George H.W. Bush appointed idea of changing the filibuster rules. I think were liable to err also, from fickleness and me education secretary. He held up my nom- that’s foolish in my view. passion. A necessary fence against this dan- ination for three months, never really saying SEN. BYRD: That’s why we have a Senate, ger would be to select a portion of enlight- why. is to amend and debate freely. ened citizens, whose limited number, and I asked Sen. Rudman of New Hampshire SEN. ALEXANDER: The whole idea of the firmness might seasonably interpose against what I could do about Sen. Metzenbaum, and Senate is not to have majority rule. It’s to impetuous councils.’ That fence,’’ Sen. Byrd he said, ‘‘Nothing.’’ And then he told me how force consensus. It’s to force there to be a said in that last appearance, ‘‘was the United President Ford had appointed him to the group of Senators on either side who have to States Senate. The right to filibuster an- Federal Communications Commission when respect one another’s views so they work to- chors this necessary fence. But it is not a he, Rudman, was Attorney General of New gether and produce 60 votes on important right intended to be abused.’’ Hampshire. The Democratic senator from issues. ‘‘There are many suggestions as to what New Hampshire filibustered Rudman’s ap- SEN. DODD: I can understand the tempta- we should do. I know what we must not do. pointment until Rudman finally asked the tion to change the rules that make the Sen- We must never, ever, ever, ever tear down president to withdraw his name. ate so unique and simultaneously so terribly the only wall—the necessary fence—this na- ‘‘Is that the end of the story?’’ I asked frustrating. But whether such temptation is tion has against the excess of the Executive Rudman. motivated by a noble desire to speed up the Branch and the resultant haste and tyranny ‘‘No,’’ he said. ‘‘I ran against the [so-and- legislative process or by pure political expe- of the majority.’’ so] and won, and that’s how I got into the diency, I believe such changes would be un- What would it take to restore the years of Senate.’’ wise. Sens. Baker and Byrd, when most bills that During his time here Sen. Metzenbaum SEN. ROBERTS: The Senate is the only came to the floor were first considered in would sit at a desk at the front of the Senate place in government where the rights of a

VerDate Mar 15 2010 03:55 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\A05JA6.052 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE January 5, 2011 CONGRESSIONAL RECORD — SENATE S29 numerical minority are so protected. A mi- being enacted I do not think is right. out. But there were some things in the nority can be right, and minority views can So I would say to my friend that I do bill that Senators not on our com- certainly improve legislation not think the health care bill is a good mittee, and maybe one Senator on our SEN. ALEXANDER: The American people committee, did not like. So we had to know that it’s not just the voices of the Sen- example. ator from Kansas or the Senator from Iowa I say to my friend, he quoted some- work through the ensuing months to that are suppressed when the Majority Lead- one, I think maybe it may have been get everybody onboard and to work it er cuts off the right to debate, and the right Senator REID, saying, do people think out, which is fine. I have no problems to amend. It’s the voices that we hear across they are wiser than our Founding Fa- with that. That is the legislative proc- this country, who want to be heard on the thers. Please show me where our ess. I have patience. As my friend from Senate floor. Founding Fathers ever set up a system Kansas knows, I have a lot of patience SEN. GREGG: You just can’t have good where the Senate could have unlimited working on farm bills. They take time. governance if you don’t have discussion and But we worked it all out. And yet one different ideas brought forward. debate? They never did that. It is not SEN. DODD: Therefore to my fellow Sen- in the Constitution. Senator, one Senator who really dis- ators, who have never served a day in the mi- As I pointed out, the first Senate ac- agreed with it, was able to hold it up nority, I urge you to pause in your enthu- tually had the motion, the previous from coming on the floor. We finally siasm to change Senate rules. question, to cut off debate. And they got it on the floor, but it took almost SEN. REID: The Filibuster is far from A did not set up a majoritarian House. a year. One Senator was able to do ‘Procedural Gimmick.’ It’s part of the fabric Article I section 5, I say to my friend that. of this institution that we call the Senate. from Tennessee, article I, section 5 is So I say, one Senator should be able For 200 years we’ve had the right to extend very clear. Each House sets up its to have the right to offer amendments, the debate. It’s not procedural gimmick. to be heard, but not to stop everything. Some in this chamber want to throw out 214 rules. If the new majority in the House years of Senate history in the quest for abso- wanted to, they could set up rules to be I guess that is what I come down to, I lute power. They want to do away with Mr. like the Senate. They could do that. say to my friend from Tennessee, that Smith, as depicted in that great movie, being They could set up rules however they there ought to be a—I think there is a able to come to Washington. They want to wanted, as long as they were constitu- reason and a good reason for the Sen- do away with the filibuster. They think tional. I suppose someone could take it ate to be that saucer that cools things they’re wiser than our Founding Fathers, I to court to see if it was constitutional. down, the story about Jefferson and doubt that’s true. But they do not have to operate under Washington. But it should be at some FORMER SEN. OBAMA: Then if the Major- point in time where the majority has ity chooses to end the filibuster, if they those rules. We do not have to operate choose to change the rules and put an end to under these rules. The Constitution not only the authority but the power Democratic debate, then the fighting and the gives us the right to change those to act after a due consideration and a bitterness and the gridlock will only get rules. due period of time. worse. Our Founding Fathers never set up I believe, I say to my friend in all The PRESIDING OFFICER. The Sen- this system, by the way, never. There sincerity, that will promote more com- ator from Iowa. is no mention of it anywhere in the promise than the present system. You Mr. HARKIN. I will respond to my Constitution. They did not set up a may disagree, but I feel that would. I friend from Tennessee who makes co- majoritarian House, they set up article am not trying to take away com- gent arguments, as he always does. He I, section 5, which said each House can promise. I believe in compromise. I be- is a good friend of mine, and we have set up its own rules. But then in the lieve in working things out. As chair- worked together on a lot of things. I Constitution, they outlined certain man of the Agriculture Committee for two farm bills, we worked things out. I hope this is the beginning of some col- prerogatives. The Senate has certain am sure there were things in the farm loquies we can have here. I do want to prerogatives, the House has certain bill that the Senator from Kansas did indulge and let other Senators have prerogatives, such as, for example, all not like, and there were things in there their say because they were so kind to bills of revenue have to originate in the that I did not like, even though I was let me have my say too. But I intend to House, not in the Senate. Treaties are chairman. But you work these things be here as long as anybody wants to done by the Senate, not by the House. out. You compromise and you get say anything or to engage in some col- But they never set up any kind of things done. So I believe in that spirit loquies here on the Senate floor. majoritarian type of thing. of compromise. But I think what we I say to my friend from Tennessee, I say to my friend, on the filibuster, have here now—and that escalating that as I listened to him, and I did very I think there is a reason for a fili- arms race—is doing away with that carefully, there are a couple of things I buster. I think there ought to be fili- spirit of compromise and working want to point out in terms of this idea busters. I think there ought to be things out and moving things. That is of a filibuster and being able to amend times when the minority can slow why I think we have to change the things. My friend referred many times down things in order to get their views to the health care bill. I do not know if rules. heard, or in order for them to be able I do not know if I adequately re- my friend said this, but I have heard it to offer amendments, to make the bill sponded to my friend from Tennessee, said that we wrote it behind closed better, in their views. That is the right but these were my thoughts at the end. doors and all of that kind of stuff. of the minority. I am looking forward to other com- Let me point out that when it came I do not think it is the right of any ments from other Senators and engag- to our committee, the HELP Com- minority—I say minority. When I say ing in our colloquies. I promise I will mittee, we had 13 days of markup, 54 that, I am not talking about Repub- not take so long. hours. We allowed any amendment to licans. I am saying any minority here. The PRESIDING OFFICER. The Sen- be offered. The Senator is a member of I do not think it is the right of any mi- ator from Kansas. that committee. We allowed any Sen- nority here to say, if I do not get my Mr. ROBERTS. Mr. President, I ator on our committee to offer any way, I am going stop everything. That thank my colleagues for their perti- amendment. We adopted 161 Republican is kind of what I see happening around nent remarks. amendments, either through some here. If I do not get my way, one Sen- The Senator from Iowa said in the votes, which they won, or through just ator can stop things. past he had entered into a colloquy adopting the amendments. Then after I point out one other bill, I say to my with colleagues on our side of the aisle that, after all of that, all Republicans friend from Tennessee, that I thought where they wandered over into each voted no. That is fine. There are a lot was a great bipartisan bill. We worked other’s pastures. I am going to put of times I know in the past when I have hard on it in our committee. The Sen- down this microphone for a moment had an amendment on a bill which I ator from Tennessee was instrumental. and speak from here in a gesture of bi- thought improved it, but overall I did That was the food safety bill. We re- partisanship on how we can improve not like the bill, and I voted against it. ported it out of our committee a year the Senate. I think that is the right of the minor- ago in November, unanimous vote. Ev- I know we have heard a lot of talk ity. But then to obstruct it and to try eryone voted for it, Republicans and about Robert C. Byrd, a beloved indi- to obstruct it to keep it from even Democrats on our committee. We got it vidual. I know the Presiding Officer

VerDate Mar 15 2010 01:44 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\A05JA6.054 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE S30 CONGRESSIONAL RECORD — SENATE January 5, 2011 was very close to the former Senator. SCHUMER know that we had defeated since 2003. In sum, the DREAM Act, a The last time Bob Byrd spoke publicly his amendment as well. He wasn’t too controversial measure with very pas- was in the rules committee, when he happy with that. sionate beliefs on both sides of the rose to the occasion in a very pas- I just showed that the process has aisle and within the parties as well had sionate way. The chairman, of course, broken down to the point that even in not had an amendment offered to it in CHUCK SCHUMER, the Senator from New committee, if you had two amend- either House of Congress either in com- York, with great deference recognized ments, if you had five, if you had one, mittees or on the floor. Senator Byrd. We were all on the edge you were simply ignored. Then the Some may believe the DREAM Act is of our chairs. The Senator from Ten- health care act came to the floor and perfect or certainly is the best bill pos- nessee has already gone over what Sen- worked its way. I think the Senator sible and would not need any amend- ator Byrd said at that time and pre- from Tennessee brought up the ‘‘Grand ments to improve it. But, obviously, viously. But I remember when I first Ole Opry.’’ I saw it as making a bill be- our constituents don’t feel that way. It came to the Senate, it was required hind closed doors. That is a famous is a very controversial bill. Instead of that we go to school, so to speak, and country western song. We didn’t like addressing their concerns, the majority Senator Byrd talked to all of the fresh- that process at all. shut down debate and amendments and men at that particular time. I finally had only one other recourse in the process shut down the rights of The keeper of the institutional flame and that was to go to the reconcili- Americans to be heard. As a result, the was the tag I put on Senator Byrd. My ation process, which I knew was not minority refused to end debate and, ob- wife Franki and I became very close going to be successful, but I had sev- viously, there was a filibuster. It would friends of the Senator. At any rate, he eral amendments, all were defeated. be interesting to know, of the times recounted the story attributed to Jef- My main concerns about the health that bills have been filibustered, what ferson and Washington, he would tell care bill were not allowed, as far as I was being filibustered. every incoming class about the role of was concerned, on the floor of the Sen- Contrast this with the approach the people’s House and perhaps what ate, and that has happened a lot. taken on the 9/11 bill which the major- happened, when they put the coffee pot Now we are seeing an effort to repeal ity sought to pass just a few days later. on in regards to legislation, that the the health care act and also an effort The goal of providing help to the vic- coffee was so hot it would boil over, to try to fix it, if we possibly can. I am tims of 9/11 is one Members of both par- and it was the Senate’s duty to act as not as upset about that as some people ties share, but Senate Republicans the saucer, as folks did back in West are because I think we could get the noted that the particular version of the Virginia in the earlier days, or Kansas proper kind of debate, but the debate bill Senate Democrats supported was or Iowa or Tennessee or Texas, that must proceed in regular order and problematic in regards to how much money we were spending and certainly they would pour the coffee out in the under the standing rules of the Senate would need improvement. saucer and let it cool off a little bit so as a continuing body. I am not going to go into the quotes So we insisted on having our con- they could put their biscuit in it and cerns addressed. Most of them were ad- actually eat it, and then the legislation by Senator Byrd. That has already been done by Senator ALEXANDER. But dressed with a revised bill on which we would pass. did provide input. That bill passed the The problem is, sometimes on our I would like to quote Senator Dodd in Senate by unanimous consent, and side maybe we want tea, maybe we his valedictory speech. even the proponents of the original leg- want to start over. I think the Senator The history of this young democracy, the islation would admit that the final bill from Tennessee basically hit the nail Framers decided, should not be written sole- is a better one and now enjoys broader on the head with the massive three. If ly in the hand of the majority. This isn’t about the filibuster. That support due to the minority’s input. we are going to talk about getting What I think the majority needs to is the most important statement he things done or not getting things done, do is involve the minority like it did on made. there are three massive things that the 9/11 bill, not shut us out, not shut have happened with regard to legisla- What will determine whether this institu- us down as it did on the DREAM Act tion. I say ‘‘massive’’ because they tion works or not is whether each of the 100 Senators can work together. and other acts. were so overreaching, so overwhelming, If that happened, if we did not fill the we are now just learning what their How can we do that? Here is a classic tree, I think possibly 75 percent, 80 per- implications are. The massive three example. Right before Christmas, there cent of the filibusters would go away. are financial regulatory reform, the were several bills the majority wanted There are some who would like to fili- health care act, and the stimulus. to pass without allowing the minority buster anything, I know. But it gets Now the health care act, I have a per- and the American people the right to back to what the Senator asked: Why sonal feeling about that in that I had debate or amend them. So the tree was are we here? It is important to pass 11 amendments, all on rationing. filled, and that is the parliamentary legislation. But it is equally important By the way, the Senate never con- language to say: I am sorry, we are to prevent bad legislation from passing firmed the nomination of Dr. Donald going to cut off debate. In the first or, if you have an alternative you Berwick, the head of CMS, the Center three years and four months of this would like to offer, to at least have the for Medicare and Medicaid Services. We majority, the use of filling the tree ability to do so. planned to ask a lot of questions to the went up over 300 percent compared to In the last 2 years that process has doctor because of statements he made the average for the previous 22 years. simply broken down. Why can’t we in the past. Obviously, that confirma- Ninety-eight times in the 110th Con- work together? That is what Senator tion did not happen. He was a recess gress, cloture was filed the moment the Dodd said. He asked whether each of appointment. That is something I question was raised on the floor. A de- the 100 Senators can work together. think we ought to deal with as well. bate was not even allowed to take That was on the question of filibusters. Now, the health care act, it was 12:30 place. So on one hand you can talk We can stop this business of secret in the morning in the Finance Com- about filibusters; the other hand is fill- holds. It seems to me we could have a mittee. I had several amendments, all ing the tree, or not allowing Members timely pace on nominations. It seems on rationing. Finally, we got to the to offer amendments, and same day to me we could certainly end these re- last two. I said: Why don’t we consider clotures. cess appointments where people who them en bloc? I had about a minute or The Senator from Tennessee offered should be confirmed have to go through two to explain each amendment. They the classic example. Let’s go back to a the confirmation process instead of all were voted down automatically on a few days ago, right before Christmas. of a sudden parachuting somebody in party-line vote. By the time we got to The DREAM Act was a House bill. I who is controversial and now we have 12:30 or 1 o’clock and my amendments, know the Senate leadership wanted to over 100,000 regulations pouring out of I noticed Senator SCHUMER was in the pass it. It never had a legislative hear- the Department of HHS. Health care room so I stuck on one of his amend- ing in the House, never had a markup providers throughout the Nation—in ments along with mine. It was defeated in the House. The Senate version of the Iowa, Tennessee, Kansas—are won- on a party-line vote. Then I let Senator DREAM Act had not had a markup dering what on Earth is happening.

VerDate Mar 15 2010 03:55 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\G05JA6.041 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE January 5, 2011 CONGRESSIONAL RECORD — SENATE S31 When I go home, I don’t get the ques- to achieve cost containment, and it in- doing the job we could do, and we tion of why a bill didn’t pass. I get the volved several of the commissions that should do better, and I stand ready to question: What on Earth are you guys have been in the bill. I regret that bill work with all concerned to see if we doing back there passing all the legis- sort of sat somewhere and collected can do that. lation with all the regulatory stuff dust. We never got a score. I thought it But my time is up, and I am going to that I have to put up with, taxes I have was, quite frankly, a better bill than cease here and allow the Senator from to pay, et cetera, et cetera? the one in the Finance Committee. Texas to be recognized. As a matter of fact, when they pose I say to the Senator, you recognized The PRESIDING OFFICER. The Sen- that question, I say: I am not a you me, and I had an opportunity to offer ator from Texas is recognized. guy; I am an us guy. Then we have a some amendments. At least there was Mr. CORNYN. Madam President, may debate, but it is a debate that should some debate. And I think it was a I inquire how much more time there is have taken place on the floor of the much more bipartisan effort. So I give on our side? Senate instead of on the plains of Kan- the chairman—— The PRESIDING OFFICER. Three- sas. Unfortunately, because of the ma- Mr. HARKIN. If it was out of our and-a-half minutes. jority, we were not able to have that committee, obviously it was a better Mr. CORNYN. Madam President, I debate here, on the floor. bill than coming out of the Finance am going to ask unanimous consent, The question I have for the distin- Committee. But I say to my friend, with the indulgence of my colleagues, guished Senator from Iowa—and I ap- again, that—— to allow me to speak for up to 10 min- preciate his reference to our work in Mr. ROBERTS. Senator CORNYN utes. I probably will speak about 5 min- previous farm bills. We were able to wants to be heard, so I am going to be utes or so, unless I get particularly work it out. Sometimes it was very quiet and listen to you. wound up, which could take 10 min- contentious, and sometimes the farm Mr. HARKIN. I thought there were utes. But I ask unanimous consent for bill would come to the floor, and it some things we should talk about. I an additional 10 minutes. would take a week and a half. Then we say to my friend, in listening to my The PRESIDING OFFICER. Is there would have an appropriations bill, and friend from Kansas say this, it oc- objection? then the appropriators would think curred to me that certain of his amend- Without objection, it is so ordered. they could rewrite the farm bill and ments were allowed. The Senator was Mr. CORNYN. I thank the Chair. take another week and a half. But we allowed to debate them and offer them, Madam President, I think we are worked through it. Nobody filled the but they were not adopted. It seems to playing with fire when we talk about tree and said: I am sorry, you can’t me, as I have said before, the right of amending the Senate rules. All of us have that amendment. the minority ought to be to offer have been here for different periods of I am making a speech instead of ask- amendments, to have them considered, time. I have been here for 8 years, ing the question. I apologize for that. to have them voted on, but it does not which actually sounds like a long time, I am in agreement on secret holds. I mean it is the right of the minority to but in the life of the Senate is not very think there should be timely pace on win every time on those amendments. long at all in an institution that has nominations. I do think we should go I say to my friend, on that financial existed for more than 200 years. through the regular confirmation proc- services bill, I had an amendment too I have been here when our side was in ess. and I could not get it in. I was on the the majority. As a matter of fact, we But I do feel exactly as the Senator majority side, and they would not let had the White House, we had both from Tennessee has put out, that once me offer one either. So both sides have Houses of Congress. And I have been you get on this business of ending the some legitimate points. here when we have had President filibuster or going down on the number I also say to my friend from Kansas, Obama in the White House and Demo- of requisite votes, you are on a slippery and others, we can get into this tit for crats controlling both Houses of Con- slope, and then you are into the tyr- tat, who started it. I think we have to gress. I can tell you, unequivocally, it anny of the majority, and that is not kind of quit that. I could come back is a whole lot more fun to be here when what the Senate is all about. and say: Well, yes, in the last 2 years, you are in the majority. I will stop at this point and ask the the tree was filled 44 times. In this last But there are certain temptations Senator from Iowa if he has any com- session, 44 times the tree was filled, that the majority has which I think ments. but there were 136 filibusters. Why are exacerbated when, for example, The PRESIDING OFFICER (Mrs. wouldn’t there be 44 filibusters? Why during most of the last 2 years, one MCCASKILL). The Senator from Iowa. were there 136? We can get into that tit party or the other has the ability in Mr. HARKIN. Madam President, I for tat, who did what to whom. I wish the Senate to basically pass legislation thank my friend from Kansas. I think to forget about all that. We could go by essentially a party-line vote; in he makes some good points. back, probably, to the 18th century— other words, as I recall on that morn- I would say to my friend, I think we tit for tat, who did what to whom at ing at 7 a.m. on Christmas Eve a year ought to go through processes in our some point in time. ago, when the vote on the health care committees to have hearings on nomi- I ask my friend from Kansas, who has bill came up where all 60 Democrats nees to flush out things such as that. been here a long time—we served to- voted for the bill and no Republicans So to that extent, the Senator from gether in the House; my friend was voted for the bill. Kansas is right. We should not have, chairman of the Agriculture Com- My point being: The temptation is, especially if there is any controversy mittee in the House. We have done a when you have such a large majority— at all—I suppose some of them are non- lot of legislation together—does my 60 or more—there is a huge temptation controversial—but if there is some con- friend from Kansas feel the Senate is in both parties—not just the Demo- troversy out there, yes, I think the operating today in the best possible crats; Republicans, I am sure, would be committees ought to have the responsi- way? Does my friend from Kansas be- tempted as well—to try to go it alone. bility to bring them forward. Let the lieve there could be some things done Thus, I think it detracts from what is committees question them. We did that to make the Senate operate a little bit one of the great strengths of this insti- in our HELP Committee, I say to my more openly and fairly with rights for tution, which is that this institution’s friend from Kansas. I am trying to re- the minority to be protected but with- rules force consensus, and unless there member the person we had—oh, a lot of out letting the minority—and I do not is consensus, things do not happen. We controversy about Craig Becker, I mean Republicans when I say ‘‘minor- are, thus, the saucer that cools the tea think, who was going to the NLRB. ity,’’ I mean whoever happens to be in from the cup, and all the various analo- Mr. ROBERTS. If the Senator will the minority—to keep the minority gies we have heard. yield, I think the Senator is exactly from obstructing things? Does my But the important thing is not how right. I am on the HELP Committee, as friend feel there could be some changes this affects us as individual Senators. the Senator may recall, and I was try- made? This is not just an abstract discussion ing to get one amendment to say that Mr. ROBERTS. I will answer the about the rules. This is about what is we would prohibit the use of rationing question, no. I do not think we are in the best interests of a country of

VerDate Mar 15 2010 01:44 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\G05JA6.041 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE S32 CONGRESSIONAL RECORD — SENATE January 5, 2011 more than 300 million people. I would I do not doubt the good faith of our Mr. CORNYN. I appreciate the ques- submit any time one party or the other colleagues who are offering some of tion from my friend, the Senator from is not only tempted but yields to that these propositions. There are even Iowa. That is not what I am sug- temptation to go it alone to try to some of them that I find somewhat at- gesting. But I do think we need to have push legislation through without tractive. The idea of secret holds, for a process which allows for an oppor- achieving that consensus, I think it example—if there ever was a time for tunity for amendments and debate. hurts the institution and I think it pro- that, that time is long past gone. I And if we do not have a process requir- vokes a backlash, much as we saw on know we are not going to agree on ev- ing a threshold of 60 votes, the tempta- November 2. Because the American erything. But we ought to at least have tion is going to be, again, for the ma- people understand that checks and bal- an opportunity for everyone to be jority leader to deny the opportunity ances are important. heard, and for individual Senators’ for amendments, constrict time al- When we do not have checks and bal- rights to be respected, not because lowed for an amendment, for debate, by ances, either through the self-restraint they are Senators but because they filing cloture, and we are going to see of the majority or through recognizing represent a large segment of the Amer- things shooting through here that have the rights of the minority to offer ican people, and it is their rights that not had an adequate opportunity for amendments, to have debates, to con- are impinged when the majority leader, deliberation. tribute to legislation, then the Amer- for whatever reason, decides to deny a This institution has famously been ican people are going to fix that by Senator a right to offer an amendment called the world’s greatest deliberative changing the balance of power, as they and a right to have a fulsome debate on body, but I daresay we have not dem- did on November 2. the amendment in the interest of get- onstrated that in recent memory. And, Here again, I do not want to be mis- ting legislation passed. again, I think, as the Senator from understood as making a partisan argu- Although Senator REID said this Tennessee and others have observed, ment. I think Republicans would be morning the 111th Congress has to go this is not a problem with the rules. just as tempted as Democrats to do the down in history as being one of the This is the way the rules have actually same thing. But I think that is where most productive Congresses, at the been implemented. I think we have we have to show self-restraint and same time, he complained about Re- learned an important lesson from this where, if we do not show self-restraint, publicans filibustering legislation. and one I hope will help us respect the then the American people will change There seems to be kind of an inherent rights of all Senators, whether they be the balance of power and establish contradiction there. But I suggest the in the majority or the minority, to those checks and balances. explanation for that is the fact that offer amendments and to debate these Here again, I think for most people our friends on the other side have had amendments not because they are who are listening—if there is anyone such a large supermajority, they have about our rights but because they are listening out there on C–SPAN or else- been able to muster the 60 votes and to about the rights, for example, of the 25 where to this debate—this should not go it alone. Again, I think that is million people I represent. They have be about us. This should not be about yielding to a temptation that everyone the right to be heard. They have a the arcana of these rules. This should would understand, and the American right to have any suggestions or im- be about the rights of the American people have now since corrected that as provements to legislation be consid- people to get legislation that affects a result of the November 2 election. ered. That is all I am saying. all 300-plus million of us debated, I would suggest, in closing, to all of Mr. HARKIN. Madam President, if amended, in a way to try to achieve our friends on both sides of the aisle, my friend will yield further, again, in that consensus and, thus, achieves again, I recognize the sincerity of those my resolution there is a guarantee that broad support by the American people. who have offered these proposals, but I the minority has the right to offer Because anytime, again, we yield to would suggest there is not a malfunc- amendments—absolute guarantee. As I the temptation to go it alone to do tion, or should I say the rules them- said, that is something I have urged things on a partisan basis, it will ulti- selves are not broken, but the rules since 1995. I am very sympathetic to mately provoke the kind of backlash contemplate that the rules will not be the argument that people are cut out we have seen over the health care bill, abused. I think the temptation to from offering amendments. I know be- abuse those rules by going it alone is to mention one example. cause that has happened to me by the This is not a small thing. I have the understandable but something that majority at times. So I believe there honor of representing 25 million people needs to be avoided. I think because of ought to be rights for the minority. I in the Senate, and this is not just the election now—since we are more always hasten to add when I say ‘‘mi- about my rights as an individual Sen- evenly divided so nobody will be able nority’’ I am not saying Republicans, I ator or even the minority’s rights, this to get to 60 votes unless there is a bi- am saying the minority. It may be us is about their right—their right to be partisan consensus, to the extent that pretty soon. It goes back and forth, as 60 votes are needed—that the American heard through an adequate time for de- my friends knows. There ought to be people have sort of fixed the problem bate, their right to have an oppor- the right for the minority to offer some of our colleagues have perceived. amendments and to have their voice tunity to change or amend legislation, I thank the Chair. and then to have a chance to have it Mr. HARKIN. Madam President, will heard and to, as the Senator says, rep- voted on. the Senator yield for a question? resent the people of our States ade- I understand the frustration of our Mr. CORNYN. I am happy to yield for quately. colleagues when the majority leader, a question. But I ask my friend again, what hap- due to his right of prior recognition, Mr. HARKIN. I thank my friend from pens when we have one or two or three can get the floor. He can put something Texas. Again, he and I have worked to- or four Senators who don’t want to see on the Senate calendar that has not gether on some legislation in the past a bill passed in any form—some bill, gone through a committee markup and too. He is a thoughtful Senator and a just take any bill—that maybe has that sort of due process and fair oppor- good legislator. been worked on by both Republicans tunity for amendment and participa- I ask my friend from Texas this: In and Democrats, has broad bipartisan tion; and then again, if he has 60 votes listening to him, I almost have the support maybe to the tune of even 70 or on his side to be able to push it feeling that my friend from Texas is so Senators, but there is one or two or through, then deny us any opportunity saying we ought to have a super- three Senators who don’t want it to to offer amendments, much less to majority to pass anything, that we pass anyway, and they are able to grid- have a fulsome debate on these impor- should have 60 votes in order to pass lock the place under rule XXII. I know tant issues. anything. the Senator talked about exercising I think our country suffers from that. I ask my friend, is that what my self-restraint, and I say that is fine. I think the American people suffer friend really means or implies, that ev- But what if we had that situation when we are denied on their behalf an erything should have 60 votes before it where we have two or three Senators opportunity to have a fulsome debate can go through here? Is that what my saying: I don’t care how many Senators and to offer amendments. friend is suggesting? are on it I don’t want it to move. And

VerDate Mar 15 2010 01:44 Jan 06, 2011 Jkt 099060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\CR\FM\G05JA6.042 S05JAPT1 smartinez on DSKB9S0YB1PROD with SENATE January 5, 2011 CONGRESSIONAL RECORD — SENATE S33 they invoke their rights under rule hopeful it will be Senator GRASSLEY be- Mr. WYDEN. Madam President, I XXII. How do we get over that hurdle? cause he and I have been partners for think Senator HARKIN has made an ex- Mr. CORNYN. Madam President, I almost 14 years in this effort to force cellent suggestion. Unless Senator AL- would say to my friend the people who the Senate to do public business in EXANDER or anyone on the other side came before us thought achieving con- public and get rid of these secret holds. has a problem with that, let’s modify sensus was good, not unanimity, per- So after Senator UDALL, there would be the unanimous consent request I have haps recognizing it is impossible to get Senator GRASSLEY. After Senator made to incorporate Senator HARKIN’s 100 Senators to agree. So I would say to GRASSLEY, there would be my friend suggestion. my friend I sometimes am as frustrated and colleague Senator MERKLEY who The PRESIDING OFFICER. Is there as he is when one or two or three or would speak. At that time there would objection? four Senators say: We are going to be a Republican who would be next in Without objection, it is so ordered. force this to a cloture vote because we the queue to speak. The Senator from New Mexico. are just not going to agree. I think So my unanimous consent request at f that is frustrating to all of us, depend- that point is—I would like to be able, AMENDING SENATE RULES ing on which foot the shoe is on. for up to 30 minutes, to have the bipar- But I would say that is a small price tisan sponsors of the effort to get rid of Mr. UDALL of New Mexico. Madam to pay, that frustration, to insist on as- secret holds once and for all, including President, I submit on behalf of myself suring the rights of the minority— the distinguished Presiding Officer, to and Senators HARKIN, MERKLEY, DUR- again, not because of an individual have up to 30 minutes for a colloquy on BIN, KLOBUCHAR, BROWN, BEGICH, Senator because we aren’t all that im- this bipartisan effort to eliminate se- BLUMENTHAL, GILLIBRAND, SHAHEEN, portant. It is the rights of our constitu- cret holds. BOXER, TESTER, CARDIN, MIKULSKI, ents whom we represent that are so im- The PRESIDING OFFICER. Are there WARNER, and MANCHIN a resolution to portant, and it is so important we get any time limits on the UC motion for amend rule VIII and rule XXII of the it right because there is nobody else any Senators other than the 30 minutes Standing Rules of the Senate, and I ask after we get through who gets to vote. designated for the cosponsors of the se- unanimous consent to proceed to the It becomes the law of the land, and un- cret hold legislation? immediate consideration of the resolu- less it is unconstitutional not even the The Senator from New Mexico. tion. Supreme Court of the United States Mr. UDALL of New Mexico. Madam The PRESIDING OFFICER. Is there can set it aside. So it is very important President, in addition to his UC, we objection? we get it right. I am just saying that have myself for 15 minutes, Senator Mr. ALEXANDER. Madam President, we take the time necessary, and I MERKLEY for 15 minutes, and I believe reserving the right to object, I have think that is what the rules are de- Senator WYDEN has asked for 30, and had a number of discussions with the signed to provide for. then to accommodate the Republicans, Senator from New Mexico and the Sen- Mr. HARKIN. Madam President, if our UC would say if there is a Repub- ator from Oregon. I respect their pro- the Senator would indulge me for one lican seeking recognition that we al- posals and will have more to say about more moment, so it is not the position ternate between the two sides and they them, but I think since they have wait- of my friend from Texas that every- be under the same time limitations as ed such a long time to make their pres- thing needs 60 votes in which to move listed above. So Senator ALEXANDER entations I will merely state my objec- in the Senate; is that correct? can see I would speak for 15, and then tion now and have more to say later. Mr. CORNYN. Madam President, he would have a block for 15, and then So I object. there are a long list of bills that pass Senator MERKLEY, and then it would be The PRESIDING OFFICER. The ob- on a regular basis by unanimous con- 30 for Senator WYDEN. jection having been heard, the resolu- sent, and it is like—we are almost fo- Mr. WYDEN. Then, after Senator tion will go over under the rule. cused on the exception rather than the MERKLEY, there would be another Re- Mr. UDALL of New Mexico. Madam rule. There are many times—a lot of publican who would be in a position to President, let me just inquire through times; I can’t quantify it—where legis- speak for 15 minutes, and at that point the Parliamentarian, it is my under- lation will pass by unanimous consent under the unanimous consent request standing that by objecting to this reso- because it has gone through the com- we would be able to discuss this bipar- lution being immediately considered mittees, people have had an oppor- tisan effort to eliminate secret holds now, the result is the resolution will go tunity to offer amendments, both sides for up to 30 minutes. over under the rule, allowing it to be have had an opportunity to contribute The PRESIDING OFFICER. Is there available to be brought up at a future to it, and then it passes without objec- objection? time. Is that understanding correct? tion. Again, I can’t quantify that, but Mr. HARKIN. Madam President, I The PRESIDING OFFICER. That is the ones we seem to be focused on are wonder if the Senator would mind a correct. the ones that seem to be more or less slight modification to that. One of the Mr. UDALL of New Mexico. Thank the exception to the rule where there things I thought we were kind of get- you very much. are genuine disagreements, when there ting into today were colloquies wherein Madam President, I rise today to in- is a need to have a more fulsome de- we could ask a question and have a re- troduce the resolution I just men- bate and the opportunity for amend- sponse in a reasonable manner. I would tioned. I have worked very hard with ments. ask to modify the unanimous consent all of my colleagues, including my two So I think the current rules serve the request to say that any colloquies en- colleagues from Iowa and Oregon, Sen- interests of our constituents and the tered into—questions propounded to a ators HARKIN and MERKLEY, to reform American people well. Senator through the Chair—not be de- the rules of this unique and prestigious I thank the Chair and I thank my tracted from the time allotted to that body. I do so after coming to the floor colleague. Senator. last January—January 25, in fact, now The PRESIDING OFFICER. The Sen- Mr. WYDEN. I am very open to that. almost 1 year ago—to issue a warning, ator from Oregon. I think it is an excellent suggestion. a warning because of partisan rancor f Mr. UDALL of New Mexico. I very and the Senate’s own incapacitating much agree with that. I have been sit- rules, that this body was failing to rep- ORDER OF PROCEDURE ting here following the debate, and I resent the best interests of the Amer- Mr. WYDEN. Madam President, Sen- think Senator ALEXANDER, among oth- ican people. The unprecedented abuse ator UDALL and Senator MERKLEY have ers, has propounded some very good of the filibuster, of secret holds, and of waited at great length to make their questions. I actually have another other procedural tactics routinely pre- remarks. I wish to propound a unani- question I was going to ask on top of vent the Senate from getting its work mous consent at this time. At this his question of what is a filibuster. So done. It prevents us from doing the job point, Senator UDALL would be the I am looking forward to that portion of the American people sent us here to do. next speaker. There would be a Repub- it. Senator HARKIN, thank you very Since that day in January things lican who would speak next. I am very much for that. haven’t gotten better. In fact, I would

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