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    Changing Senate Rules

    by Former Senator Mark Udall

    Posted on 2013-01-22

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    UDALL of New Mexico. Mr. President, I rise today to talk about our efforts to change the Senate rules. As we began the 113th Congress on January 3, Senators Merkley, Harkin, and I submitted a resolution to reform the Standing Rules of the Senate. Thirteen of my colleagues have signed on to cosponsor our resolution.

    When we submitted the resolution, we agreed with the majority leader that it would be best to have the debate about reforming our rules after the inauguration. I appreciate his willingness to work with us on this important issue. Although we postponed the debate, we preserved the right of a simple majority of this body to amend the rules in accordance with article 1, section 5 of the Constitution.

    Senate Resolution 4, our proposal to reform the rules, is simple, it is limited, and it is fair. Again, we are not ending the filibuster. We preserved the rights of the minority. Here is what we are proposing: an end to the widespread abuse of silent filibusters. Instead, Senators would be required to go to the floor and actually tell the American people why they oppose a bill or nominee in order to maintain a filibuster. Debate on motions to proceed to a bill or to send a bill to conference would be limited to 2 hours. Postcloture debate on a nominee, other than a Justice of the Supreme Court, would be limited to 2 hours rather than the current limit of 30 hours.

    These are sensible changes. These are reforms we are willing to live with if [[Page S28]] we are in the minority, and yet we are warned these simple reforms will transform the very character of the Senate and leave the minority without a voice. These arguments are covers for continued abuse of the rules.

    The reforms we propose are modest--some would say too modest--but they would discourage the excessive use of filibusters. The minority still has the right to filibuster, but not the right of one Senator to do so by simply picking up the phone, by simply making an announcement and then going out to dinner or, more likely, out to a fundraiser. I have listened carefully to the arguments by the other side against these changes. Let me say, again, we are not talking about taking away the rights of the minority, we are not talking about abolishing the right of debate or to filibuster, but there must be change. The abuse of the filibuster and other procedural rules has prevented the Senate from doing its job. We are no longer the world's greatest deliberative body. In fact, we barely deliberate at all. This does not honor this institution, and it does not serve the American people.

    For most of our history the filibuster was used very sparingly, but in recent years what was rare has become routine; the exception has become the norm. Everything is filibustered, every procedural step of the way, with paralyzing effect. The Senate was meant to cool the process, not send it into a deep freeze.

    Since the Democratic majority came into the upper Chamber in 2007, the Senates of the 110th, 111th, and 112th Congresses have the three highest totals of filibusters ever recorded. Lyndon Johnson faced one filibuster during his 6 years as Senate majority leader. In the same span of time Harry Reid has faced over 390. Lyndon Johnson, 1, Harry Reid, 390. Legislation is blocked at every turn. The result is not surprising. The Senate of the 112th Congress passed a record low 2.8 percent of bills introduced. That is a 66-percent decrease from the last Republican majority in 2005-2006, and a 90-percent decrease from the high in 1955-1956. By every measure, the 112th Congress was the most unproductive Congress in our history.

    My Republican colleagues have come to the floor and made many impassioned statements in opposition to amending our rules at the beginning of this Congress. They say the rules can only be changed with a two-thirds supermajority, as the current filibuster rule requires. They argue that any attempt to amend the rules by a simple majority is breaking the rules to change the rules. This is simply not true. The supermajority requirement to change Senate rules is in direct conflict with the U.S. Constitution. Article 1, section 5 of the Constitution states: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.

    When the Framers required a supermajority, they explicitly said so, as they did for expelling a Member. On all other matters, such as determining the Chamber's rules, a majority requirement is clearly implied. There have been three rulings by Vice Presidents, sitting as President of the Senate--where the Presiding Officer is sitting today-- who have ruled on the meaning of article 1, section 5.

    In 1957, Vice President Nixon ruled that: The right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority of a previous Congress.

    Vice President Rockefeller and Vice President Humphrey made similar rulings at the beginning of later Congresses.

    The Constitution is clear, and there is also a longstanding common law principle--upheld in the Supreme Court--that one legislature cannot bind its successors. Many of my Republican colleagues have made the same argument. For example, in 2003 Senator John Cornyn wrote in a Law Review article: Just as one Congress cannot enact a law that a subsequent Congress could not amend by majority vote, one Senate cannot enact a rule that a subsequent Senate could not amend by majority vote. Such power, after all, would violate the general common law principle that one parliament cannot bind another.

    So amending our rules at the beginning of a Congress is not breaking the rules to change the rules, it is reaffirming that the U.S. Constitution is superior to the Senate rules. When there is a conflict between them, we follow the Constitution.

    Some of my colleagues may believe that using the Constitution in this way would be harmful to the Senate. But there is an alternative. We do not have to reform the rules with only a majority vote. Each time the filibuster rule has been amended in the past, a bipartisan majority of Senators was prepared to use the constitutional option. But with a majority vote on the reforms looming, enough Members agreed on a compromise and they passed the changes with two-thirds in favor.

    We could do that again. I know many of my Republican colleagues agree with me. The Senate is not working. As I visit with my Republican colleagues on the other side of the aisle, they tell me they are unhappy with the way things are. I said 2 years ago I would push for the same reforms at the beginning of the next Congress regardless of which party was in the majority.

    At the time, many people believed the Democrats would lose their majority. So let me be clear: If Leader McConnell had become the new majority leader in this Congress, I would have asked him to work with me on these same reforms.

    I will say again, the proposed changes will reform the abuse of the filibuster. They will not trample the legitimate rights of the minority party. I am willing to live with all the changes we are proposing, whether I am in the majority or the minority.

    The other side has suggested a change in the rules is an affront to the American people. But the real affront would be to allow the abuse of the filibuster to continue.

    We have to change the way we do business. We have to govern. It is time for us to pay attention to jobs and the economy and what matters to American families--what they talk about around the kitchen table. That was the message that was sent us from this election, and we would do very well to listen to it.

    Under the abuse of the current rules, all it takes to filibuster is one Senator picking up the phone. That is it--does not even have to go to the floor and defend it--just a phone call by one Senator: no muss, no fuss, no inconvenience, except for the American public, except for a nation that expects and needs a government that works, a government that actually works together and finds common ground.

    Maybe some of my colleagues believe the Senate is working as it should, that everything is fine. We do not take that view. It is not working and it needs change. The American people of all persuasions want a government that actually gets something done. The challenges are too great, the stakes are too high for a government of gridlock to continue.

    The New York Times yesterday and several of the local newspapers in my home State have editorialized about moving forward with reform and how important that is. I ask unanimous consent that an editorial from the New York Times and an editorial from the New Mexican be printed in the Record.

    There being no objection, the material was ordered to be printed in the Record, as follows: [From the New York Times, Jan. 21, 2013] A Chance To Fix the Senate For six years, Democrats in the Senate have chafed at an unprecedented abuse of the filibuster by Republicans, who have used the practice to hold up nominees high and low and require a supermajority for virtually every bill. But now that they finally have an opportunity to end much of this delay and abuse, Democrats are instead considering only a few half-measures.

    When the Senate returns on Tuesday, it will still technically be in the first legislative day of the session, which means only a simple majority is necessary to change the rules for the rest of the session.

    With the support of 51 senators, the rules could be changed to require a ``talking filibuster,'' forcing those objecting to a bill to stand and explain their reasons, at length. The current practice of routinely requiring a 60-vote majority for a bill through a silent objection would end, breaking the logjam that has made the chamber a well of inefficiency and frustration.

    Several younger senators, led by Jeff Merkley of Oregon and Tom Udall of New Mexico, say that if pressed, a majority of the Senate would support their plan for the talking filibuster. But older senators aren't so [[Page S29]] sure, and have reportedly persuaded Harry Reid, the majority leader, to back off the idea. With the experience of having been in the minority themselves, these Democrats are fearful of losing a powerful tool should Republicans ever return to power in the chamber.

    That would squander a moment for change. Supermajorities were never intended to be a routine legislative barrier; they should be reserved for the most momentous bills, and the best way to make that happen is to require that objectors work hard for their filibuster, assembling a like-minded coalition and being forthright about their concerns rather than hiding in the shadows or holding up a bill with an e-mailed note.

    Currently there are six opportunities to filibuster most bills, and Republicans have exploited them all. Mr. Reid wants to reduce those opportunities and speed things up, primarily by ending the filibuster on motions to proceed to debate on bills.

    That change alone could cut a week of delay on most measures. He also wants to curb filibusters that prevent conference committees from meeting and that hold up some presidential nominations.

    A faster-moving Senate would be useful, but that should not be the only goal. The best way to end the Senate's sorry history of inaction is to end the silent filibuster, forcing lawmakers to explain themselves if they want to block legislation supported by the majority.

    ____ [From the New Mexican, Jan. 5, 2013] Filibuster Reform: We Need It Now The first day of the 113th Congress took place last week. But fortunately, for the hopes of filibuster reform in the U.S. Senate, opening day will continue later this month, likely Jan. 22. It is, after all, on the opening day of a session that the Senate can revise its rules with a simple majority of 51 votes--and a rules revision to make it easier to do the people's business is desperately needed.

    New Mexico Sen. Tom Udall, a Democrat, has been a leader in the efforts to reform the U.S. Senate, a move that should not be seen as partisan. Should easing the logjam of holds on bills and appointments help the Democratic majority right now, a rules change could assist Republicans in the future. In politics, no majority is permanent, after all. However, Udall and others--notably U.S. Sen. Jeff Merkley, an Oregon Democrat--are right to keep pressing for substantive reform in how the contemplative Senate does its work. The problem facing the Senate is this: Obstructionists in the minority have essentially made it impossible to do business without a supermajority. To pass legislation, the Senate routinely needs 60 votes--the number that can overcome a filibuster-- rather than a simple majority. With their reform, Udall and Merkley want any senator who puts a hold on a bill to have to get up and actually filibuster. That is, talk and talk and talk, without stopping, so that the whole world sees who is gumming up the works. Anonymous holds would stop, whether on legislation or appointments that require Senate confirmation. This seems like common sense. A senator who wants to make a stand should have to stand up and tell the country why.

    What is common sense in flyover country is controversial in Washington, D.C., where lawmakers enjoy exercising secret holds out of the light of day. Even instituting the reform will be difficult. Normally, changing Senate rules takes 67 votes; on the first day of Congress, though, 51 votes will do the job. Senate tradition--and boy, is the Senate traditional--frowns upon changing rules with such a narrow margin. Doing so is called the ``nuclear'' option by detractors, and the ``constitutional'' option to those hoping to break open stifling Senate culture. In recent days, a different Senate rules change package has been discussed, one proposed by Democratic Sen. Carl Levin of Michigan and Republican Sen. John McCain of Arizona and backed by others. We like its bipartisan origins, but unfortunately, the senators' proposal appears too watered down to fix gridlock. It would make it tougher for the minority to block debate, but by guaranteeing minority members two amendments, could serve up another method of killing legislation.

    We are encouraged that Majority Leader Harry Reid of Nevada chose to recess, rather than adjourn, the Senate on its first day of the session, thus giving Udall and Merkley time to garner support for their substantive rules reform. The right for a single senator to stand on principle, holding up legislation out of strong conviction, must be protected--and asking a politician to talk, after all, is no heavy penalty. What must go by the wayside is the ability of any senator to stall appointments, or hold up necessary legislation, just because.

    When the Senate continues its first day later this month, we urge Majority Leader Reid to go for broke. Seek true reform, allowing the filibuster to remain only if senators will stand up and speak for their positions out loud where all can see. If need be, institute the reform with 51 votes. Otherwise, the Senate will not be able to conduct the essential business of the country--again. And whether approving Cabinet secretaries or ambassadors or judges, or passing necessary laws on immigration and gun control, the nation needs a Senate that can move legislation through in a timely, thoughtful but never cumbersome fashion.

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