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  • Changing Senate Rules

    by Senator Jeff Merkley

    Posted on 2013-01-22

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    MERKLEY. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

    The PRESIDING OFFICER (Ms. Heitkamp). Without objection, it is so ordered.

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

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

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

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

    On issue after issue after issue, we saw inaction. What we heard yesterday at the start of this next 2 years was a call from the President for action. In his inaugural speech he said: For now decisions are upon us, and we cannot afford delay. We cannot mistake absolutism for principle, or substitute spectacle for politics, or treat name-calling as reasoned debate. We must act, knowing that our work will be imperfect. We must act, knowing that today's victories will be only partial.

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

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

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

    Let me convey that even when we have the votes to end a filibuster, the fact that it is launched creates enormous paralysis. Imagine you are debating a bill, and you continue debating through the end of the week. When you come in the following Monday to debate, and nobody has anything left to [[Page S30]] say, then someone says: I ask unanimous consent that we have a final vote on this bill. Now, you see, we don't have a previous question on this floor, so one has to ask unanimous consent. Any of the 100 Senators can weigh in and say no.

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

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

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

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

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

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

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

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

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

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

    Indeed, if we look at the modern era where the parties have become so divided, we no longer see that overlap of 30 Senators. Therefore, any minority group, be it the Democrats, be it the Republicans, has the ability to bring this Chamber to a halt. But is it right to do so? If we cannot persuade our colleagues it is wrong to do so, then we need to change the rules of the Senate. We need to insist if someone is going to throw a shoe into the gears, if someone is going to blockade the ability of the Senate to deliberate and decide, then that Senator needs to take responsibility here on the floor of the Senate.

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

    Second, we should get rid of the filibuster on going to a conference committee. Both Chambers have decided. They have voted in favor of the bill. It has been passed in different forms. Nothing should impede getting to conference and having a negotiation. Indeed, out of those negotiations, even if starting with one Chamber having a dramatic view different from the other, there is a coming together that takes steps forward that both Chambers can agree to. So nothing should impede that negotiation from going forward. We recognize a bill can still be filibustered when it comes back from committee, so why impede getting to the conference committee in the first place? We should greatly reduce the number of hours after we have gotten cloture on debate. On nominations, by the time we vote on closing debate, our Members know how they are going to vote on that nominee. So we could have a final 2 hours but not a final 30 hours. Thirty hours is another wasted set of days we can ill afford. And certainly it makes sense to say, whenever possible, we should cut down that 30 hours on bills after we have reached cloture. We can do it by unanimous consent, and we often do that now. We can do it by requiring Senators to proceed to a vote if they do not stand and talk, but that is postcloture.

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

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

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

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

    This is not some remote concept of inside baseball. This is about American citizens having a legislature that can [[Page S31]] address the big issues facing our Nation. So I praise him for his leadership in putting this forward, which has led to this day. And it is the second time. We were here 2 years ago making this case, making this argument that we owe it to our citizens to improve the workings of the Senate, and we are here again today.

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

    Madam President, I yield the floor.

    The PRESIDING OFFICER. The Senator from New Mexico.

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