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  • Extension of Morning Business

    by Senator Tom Udall

    Posted on 2013-01-02

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    UDALL of New Mexico. I thank my colleague very much, and let me say to my colleague from Oregon, who has been a real leader on this, he has been diligent, he has studied this, he cares about it, and he has been a great partner. The packages that were voted on the last time we helped put those together--and there were two very significant votes, as Senator Merkley realizes. We came very close. We had 44 votes for a package that would make 4 or 5 changes and then his package on the talking filibuster, which was included in both packages, received 46 votes. That showed that if we had the opportunity at the beginning of a Congress to change the rules under the Constitution, we were very close to the 51 votes.

    I just want to comment on what my colleague from Rhode Island said earlier--Senator Whitehouse--and repeat that because we have been counting the votes over the last couple months. We have been trying to determine if the votes are there in order to be able to change the rules, and we know at the beginning of a Congress that we need 51 votes.

    I also want to respond to several things that were going on here earlier on the floor. Several Senators made statements, and several of those statements were from the other side. I believe they should be responded to because we are in this crucial phase in terms of adopting the rules.

    The first issue that comes up is this issue of breaking the rules to change the rules. This has been what has been repeated numerous times in the last couple months with our Republican friends and colleagues coming to the floor. They use the phrase ``break the rules to change the rules.'' In fact, when we use the Constitution, there is no conflict with the Senate rules because three Vice Presidents have ruled from the chair, where Senator Cardin is now sitting, that at the beginning of a Congress, on that first legislative day, we can change the rules, and we do it pursuant to the Constitution.

    The Constitution, at article I, section 5, says the Senate can determine the rules of its proceedings. Every constitutional scholar I know of who has looked at this realizes that is the window--that first legislative day--in order to deal with the rules. So when, in fact, we legislate on that day in a rules context, we are not breaking the rules; we are creating the rules for the coming Congress--in this case, the 113th Congress. We are creating the rules that will govern.

    Do I think we should use the Constitution to change the rules every couple weeks after we put rules in place? Of course not. That is not fair to do. We would never be advocating for adopting rules and then changing them every couple weeks or every couple months. In that situation, there is a high threshold to change the rules, as it says in the Senate rules.

    But I want to engage in this colloquy with my colleague from Oregon, first of all, on this issue of the constitutional option and in terms of utilizing the constitutional option at the beginning of a Congress; putting the rules in place and then following the rules throughout the Congress. I ask my colleague: Isn't that the way we are intending to move? Then, secondly, the heart of the matter--and this is where Mr. Merkley, the distinguished Senator from Oregon, has been instrumental in terms of helping us deal with the dysfunctional filibuster system we have right now--we have a secret filibuster. We have a silent filibuster--in fact, we have way too many filibusters. Just to give a little comparison, when LBJ--Lyndon Baines Johnson--was majority leader for 6 years in the 1950s, he had one cloture motion filed--one filibuster. Harry Reid, whose office is just a few feet from here, as the President pro tempore knows, comes to the floor and he has had close to 400 filibusters in his 6 short years. So they have gotten completely out of hand.

    One of the things I want to talk to my good colleague, the Senator from Oregon, about, in addition to this constitutional option--the small window we have tomorrow on the first legislative day--is also how do we remedy this situation in the Senate? Everyone acknowledges the Senate has become dysfunctional; that we are not doing the work of the American people. We hear our Republican colleagues say they do not like the way it is working. So I ask: What is the best way to get to the heart of that? Is it the talking filibuster? Is it trying to change the rules on the motion to proceed? How do we get at the heart of what the problem is? I yield for my colleague.

    The PRESIDING OFFICER. Without objection, the colloquy is extended.

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