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Jefferson S.
Republican AL

About Sen. Jefferson
  • A Most Dysfunctional Senate

    by Senator Jeff Sessions

    Posted on 2013-01-02

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    SESSIONS. Mr. President, I want to say some things that are pretty hard right now. I say them out of affection and concern for the Senate of the United States and for the way we are conducting the people's business. I believe they ought to be heard and all of us ought to think about them. Some of our new Members have not been involved in a Senate that functioned differently than the one in which we are participating today. They do not know how a real Senate should operate. We have gradually, and at a very accelerated pace in more recent years, made some very unwise choices about how we do the people's business.

    This has been the most dysfunctional Senate in history. The majority has abused and altered the powers and duties of the Senate more than at any time in history, to the detriment of the institution and to the detriment of the public interest.

    That is a hard thing to say, but I truly believe something very unfortunate has been occurring and people have not talked about it. I would also criticize the Republicans a bit here because we are supposed to be the loyal opposition. The majority always has pressures on it to advance an agenda and the loyal opposition has the duty to advocate for its views and make sure the institution is handled in a way that protects the institution as the majority seeks to advance its agenda. Frankly, I do not think we have done a good enough job at that. But I would say the majority is using tactics--I refer to them as postmodern tactics--to advance an agenda. And in so doing has done damage to the institution.

    Our leader, Senator Reid, will not acknowledge a single error in his aggressive leadership and movement of legislation. He simply blames all the problems on Republicans who, he says, are obstructing his vision, his goals, and the agenda that he and his team want to advance. Not satisfied that these actions have brought the Senate to one of its lowest levels of public respect in history, if not the lowest, the majority party is now demanding even more power.

    The majority leader and the majority are threatening to violate the rules of the Senate and change the rules of the Senate so they can grab even more power. I would say the majority leader himself has obtained more power than any leader in history, and now it appears that he is asking for more.

    We don't like to talk about this. We are reluctant to talk about what is happening and be as critical as I am today, but in fact we have been silent too long. The bottom line is that this issue is not just about politics. This issue is about the historic role of the Senate and our constitutional order.

    This Senate is not functioning as it should, and that is for sure; we all may agree on that. The question is, Why? Perhaps it was due to the 2010 election when the Democrats took a shellacking and lost six Senate seats. At that point there seemed to be a doubling down of the desire and ability of the majority leadership to dominate this institution. Actual Senate rules and actual codified law--and certainly the traditions of the Senate--were eroded. They were changed and run over.

    The Republicans who fought back were called obstructionists. I don't know, but maybe when someone has been in power for a long time--as the leadership and the Democratic side has--they begin to think they are entitled to get all these things done. They believe they are entitled to bring up bills and not have Senators offer amendments so they can slow down the train and pick and choose what amendments the opposition can offer and how long they can debate. Maybe this goes in their mind in a way that when they get in that cocoon of power, everybody becomes an obstructionist when they simply insist on the rules of the Senate.

    I always thought one of Senator Reid's charms--the old Harry Reid I knew--was that he could actively and aggressively talk politically and stick it to the opposition. He always got to the point. Sometimes I could admire his skills. He could do it with a smile. We all tolerate a little political license and a certain amount of political exaggeration in the world we live in, but I thought Senator Reid would not seek to advance powers beyond what he understood were the limits of the majority in the Senate because he has been in the minority, and he has operated there. He had to fight for his rights to have full minority rights. So I am a little baffled. I am not sure I understand this new Senator Reid, and I am not sure all of the decisions he is making are good.

    Now we are talking about a nuclear option that would break the rules of the Senate to change the rules of the Senate. That is a very dangerous thing, and I do not believe it is necessary.

    Let me describe what is happening. I want to make a complaint about how this Senate has been operating. I said it is dysfunctional. The majority has said the reason it is dysfunctional is because Republicans object too much and they are obstructionists. Let me point out some of the things that are actually occurring.

    First, I would dispute that. I don't believe it is accurate that Republicans object too much and are obstructionists. I don't believe Republicans are any more vigorous in their defense of their ideas than the Democrats were when they were in the minority when I came to the Senate 16 years ago. I know they were not. So it is the little constraints that we operate under every day, such as rules, tradition, actual statutory law that controls how we conduct our business that are being eroded, gone around, and run over. These are the things that make the institution what it is. A person has to be able to accept the fact that those who disagree with them have at least some power and a right to have their voices and ideas heard and their amendments brought up. That is one of the great traditions of the Senate.

    So I say--sort of metaphorically--I am going to tack on the walls of the Senate a few charges. I don't take pleasure in this, but it is time to tell the truth about it.

    First, to a degree unknown in the history of the Senate, the majority leader has used his power under rule XIV to bring bills straight to the floor without normal committee process. They are violating and avoiding the [[Page S8648]] process that goes on in committee where Members offer amendments, have debates, call expert witnesses, and consider these things. It may take weeks or months, but finally a bill ripens and it is then brought to the floor.

    The majority leader does have the power under rule XIV to bring a bill to the floor without having had that committee process. The committee process is public, the debate is transcribed, and the amendments in the committee are voted on and recorded. It holds the Senators accountable so the public and their constituents know what they have done, how a bill is progressing, and at the end of the day whether they think they like it or not.

    For example, this last-minute fiscal cliff tax legislation didn't go through the committee process. It was a big, important piece of legislation. We have a finance committee that is supposed to debate and decide tax issues. That did not occur with this bill. Additionally, no amendments were allowed to this bill--because it was brought directly to the floor by the majority leader. It is a very bad process. We are too often using midnight-hour votes to ram through big, historic legislation that has never been fully debated. We didn't even have an opportunity to fully read the legislation the night before last. That is not the way to run the Senate. What we know now from a preliminary estimate from the Congressional Research Service is that 58 percent of the bills which came to the floor of the Senate did not come through committee during this Congress. Nearly 60 percent of the legislation was not brought through traditional Senate committee procedures, and that is not good.

    Second, the majority leader and the majority were quick to block President Bush's recess appointment attempts. Some of them were dubious; some of them were probably OK. They had the majority. They have done nothing to defend the Senate's historic and constitutional role when President Obama made a much more blatant recess appointment. The institution itself was weakened by this act. The Senate has to defend its legitimate confirmation powers, and there is a limit on the President's ability to initiate recess appointments.

    The majority leader--righteous to defend it against President Bush-- who is now the leader of this institution, has allowed President Obama to weaken the confirmation process. That goes beyond just the politics of the moment. Maybe it furthers a long-term agenda, but clearly does harm to the long-term interest of the Senate.

    Third, the majority has directly violated the formal role of the Senate and plain statutory law that requires the Senate to produce a budget every year. The Congressional Budget Act of 1974 sets up a public legislative process--a public process--by which both the House and Senate must openly confront the Nation's fiscal challenges every year and lay out a plan. For 3 years the majority in this Senate has refused to comply with the law simply to avoid public accountability.

    The majority leader said it would be foolish to have a budget. Those are his words. Senator Conrad, chairman of the Budget Committee, was clearly uneasy about this. Senator Conrad was determined--at least in his committee, which I serve on with him--to bring up a budget. We were going to discuss it, mark it up, and then it would be up to the majority leader whether he would ever bring it to the floor because he didn't bring it to the floor the year before.

    We have now gone 3 years without bringing a budget to the floor. Apparently, the majority had a caucus within a day of the Budget Committee markup occurring. My staff had studied it, made amendments, and we were going to offer ideas to the budget. But the markup was canceled. Only a shell of this matter went forward. There were no votes, no formal budget process or budget offered. That is directly contrary to the statute of the United States.

    The Budget Act requires an open process with committee votes, floor votes, and 50 hours of debate in which Senators who propose or oppose a budget have to do so publicly and with accountably. People should be able to offer amendments so we can have a vote on them.

    Senator Reid was thinking it was foolish to have his Members actually have to vote on concrete budget proposals. He didn't want them to do so. Apparently, the previous election had not gone well enough, and he wanted to protect his Members from those votes. That is what he meant by being foolish. It was foolish politically for the Democratic Party, but certainly we know it was not foolish for the American people that the Senate would actually discuss the financial future of our country and bring up a budget. A budget can be passed with a simple majority. Republicans cannot filibuster a budget. They get to offer amendments-- for a change around here--but they don't get to filibuster it. They get an up-or-down vote--50 votes--after 50 hours of debate.

    The leader violated plain statutory law, which requires us to have a budget by April 15 because he didn't want his Members to be accountable, but he blames Republicans for being obstructionists.

    Fourth, for the first time in history, the Senate has abdicated the most fundamental requirement of Congress: responsible management of the money that the American people send here. We violated that requirement. Not a single appropriations bill was brought to the floor this year-- not 1. That is the first time in history. We researched this--there has never been a time in history when not a single appropriations bill was brought up before the Senate. Frequently we don't get them all done, so then a continuing resolution has to be passed to keep the government from being shut down.

    Congress is supposed to pass the appropriations bills telling the President, and all his Cabinet people, how much money they have to spend in the next fiscal year that begins October 1 of every year. The President cannot spend any money Congress has not appropriated. That is a fundamental requirement of the Senate. That is not just an idle idea, it is a fundamental requirement.

    So we get to the end of the year and nothing has been done so we passed a continuing resolution, a CR. We stacked 13 bills--1,000-plus pages of spending--in one continuing resolution, and we just funded the government with no amendments, no debate, and no discussion for 6 months. That is no way to run a government. Each one of those bills is supposed to be brought up: defense, highways, education, health care. People who have amendments are supposed to bring up ways to save money or spend more money on each one of those bills, and we are supposed to vote on them. For the first time in history we did not do that.

    Perhaps this was a clever political maneuver. It avoided public debate and public accountability because we had an election coming up in November and we don't want to vote before an election.

    Another example is the Defense Authorization Bill. The fiscal year concluded this year without us passing the Defense Bill. The Senate has passed the Defense Bill for 50 consecutive years. Yet, just a few weeks ago, well after the elections, we were finally able to pass the Defense bill.

    The House has sent over a budget that lays out a firm financial course for America. They voted on that budget in public. They were prepared to defend and explain their budget. It would have changed the debt course of America. But what did the Senate do? Nothing. Did Republicans filibuster the budget? Did they block a budget from being brought up? No. Republicans demanded that we go through the process. We pleaded with them to have a budget hearing in the committee. We asked them to bring up the budget and noted that they have the power to pass a budget with a simple majority. That is a burden a majority party has, really--to bring up a budget and pass it. It is not easy. It is a challenge. But it is the first time we have ever gone 3 years--or maybe the first time ever we have gone through the situation in which they refused to even bring up a budget. We have had budgets fail in the past, but we haven't had one, to my knowledge, where we just go for years and refuse to even bring one up.

    In that secret Budget Control Act deal, we set spending limits on most of the discretionary spending caps, but that is not a budget. There were no amendments. There were no public discussions, no committee hearings, no [[Page S8649]] floor debate, no 50 hours to deal with the great issues of our time.

    One more point. The majority leader has been trigger-happy in filing cloture motions. We have altered the way the Senate operates. We have to plead with somebody to be able to get an amendment in the Senate today. It is amazing. This goes against the history of this institution.

    The two great guarantees in the Senate, as Robert Byrd, the great majority leader and historian of the Senate, has said, are the right to debate and the right to amend. Those are fundamental. We are seeing an erosion of both.

    So what does this cloture motion do? Senator Reid said: I am going to bring up a certain bill, and the Republicans can have five amendments.

    Well, we have 15 amendments we want to debate--maybe more--on a bill. Somebody reminded me that the Panama Canal bill had 80 votes to give away the Panama Canal. It eventually got two-thirds votes and passed. It went through weeks of debate and lots of amendments. That is what the Senate is about. Now they say no amendments. So that begins to cause a problem.

    The majority leader says: You have to filibuster. You won't agree to my limited number of amendments. You are obstructing. I am going to file the bill and immediately file cloture to end debate. So 30 hours goes by, has the vote to end debate, and says: All this time, the Republicans have been filibustering. The Republicans are obstructing.

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