Resolution Over, Under the Rule—S. Res. 20by Senator Jeff Merkley
Posted on 2015-01-06
MERKLEY. Today we are at the start of a new Congress, and every
new Congress provides the opportunity for a fresh start of the work we
do on behalf of the American people. Congratulations to our newly
elected Members and congratulations to our returning elected Members.
It is appropriate at this moment, at the start of a new, 2-year Congress, that we ponder how to make this institution work for the American people, work well within our constitutional framework and our responsibility for [[Page S25]] advice and consent on nominations, and work well in terms of our responsibility for legislation that will address the big issues facing our Nation.
Since I came to the Senate in 2009, it has been a pleasure to work with my colleague from New Mexico. My colleague from New Mexico came to the Senate from the House. I came here from the State of Oregon but with memories of how the Senate worked many years before when I first came to the Senate as an intern in 1976.
I must say, in the 1970s, this body worked very much in the manner that one might anticipate. A bill was put forward. There was no filibuster of a motion to proceed. The bill was debated. A group of Senators would be ready to call upon the President of the Senate to submit their amendment.
Whoever was called on first--that amendment was debated. That amendment was debated, and in a short period of time it was voted on and then the Senators would vie for the opportunity to present the next amendment.
What I saw in 2009 when I came back as a Senator was a very different Chamber, a Chamber where long periods of time would be spent debating what bills to debate. The motion to proceed would be filibustered. So we would waste the energy of this institution not upon delving into the complexities of an issue and how to best address it but simply on the procedural issue of whether we were going to start debate on a particular bill.
This situation has certainly been observed by the American public. The American public's esteem for our institution has declined steadily over the past several decades as the paralysis of this institution has increased.
Observers of Congress report that the past two Congresses have been among the least productive in modern history--too few amendments getting considered, paralysis even after a bill has come to the floor on which amendment to address first, and too many filibusters-- filibusters not of the type of old in which a Senator would delay action on a bill by holding forth as long as his energies would enable him or her to stand on this floor and carry forth, but filibusters of the silent kind, the kind in which there is simply an objection to closing debate. But then this Chamber is filled with silence because no one has anything left to say on it, and no one is willing to spend the time and energy to even declare to the American people: I am here on this floor speaking at length because I want to block this bill. There is no accountability to the public in that fashion--no transparency. So the silent filibuster has come to haunt this hall.
Well, that is a very different Senate than the Senate in the mid- 1970s and one that my colleague from New Mexico and I are determined to change--to restore this Chamber to being a great deliberative body. We can have all the interesting policy ideas in the world, and we can have, certainly, insights on how to make things work better, but if the machinery for this body to consider those ideas is broken, then, certainly, those abilities are not put into their best opportunity or framework. Many folks, when we have been debating the functionality of the Senate, have said: But, remember, it was George Washington who said that the Senate should be a cooling saucer--in other words, saying that the dysfunction and paralysis of the Senate is just exactly the way it was designed to be.
That is certainly a misreading of the comment attributed, perhaps apocryphally, to George Washington. George Washington was referring to the fact that the Senate was designed with a constitutional framework of 6 years, of one-third of the Members rotating every 2 years, of a Chamber that was initially elected indirectly by the States--rather than by popular election--and that this would give it more chance to be thoughtful and reflective on the issues that come before the Nation.
This thoughtfulness, this ability to gain reflexion, is, in fact, exactly what the Senate should be. It is the quality that led to the Senate being described as the world's greatest deliberative body. But the filibuster, and the abuse of it, has changed that. And certainly the inability of the minority and the majority to be able to put forth amendments in a timely fashion and to debate them has changed.
I think back to what Alexander Hamilton said early in the history of our Nation. He said that the real operation of the filibuster ``. . . is to embarrass the administration, to destroy the energy of government, to substitute the pleasure, caprice and artifices of an insignificant, turbulent or corrupt junto to the regular deliberations and decisions of a respectable majority.'' That phrase, isn't that what we need to restore in this body, the regular deliberations and decisions of a respectable majority? This is all part of this cycle of a democracy in which citizens vote for an individual who they feel reflects what needs to be done in our Nation, and those individuals come to this [chamber/Chamber] and they proceed to have an agenda. That agenda, if it is part of the majority agenda or a bipartisan majority agenda, gets implemented and those ideas get tested. Those ideas that work well can be kept and those ideas that work poorly can be thrown out. But if this Chamber is locked in paralysis, that cycle of testing ideas and of citizens voting for a vision and seeing that vision implemented and tested is broken. That is much where we are now.
Alexander Hamilton went on to say that when the majority must conform to the views of the minority, the consequence is `` . . . tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.'' I think that is exactly what we have seen too much of in this Chamber, whether it be one party in charge or the other party in charge. As my colleague noted, this is not a partisan issue. The ideas we put forward when in the majority we are now putting forward in the minority. Isn't that the test of whether an idea is in fact designed for the good of this institution, rather than the advantage of the moment? Our Senate is broken. The American people know that. And it is our responsibility as Senators to work to change that. That is why there should now be a full debate among the Members on the best ideas on how to enable this Chamber to work better. Those ideas should come from the right of the aisle, from the left of the aisle, and ideas in partnership between colleagues on both sides of the aisle. Again, this shouldn't be about the advantage of the moment, it should be about the successful function of our beloved Senate.
One of the things we have seen in the course of this broken Senate is our failure to adequately dispose of our responsibility for advice and consent on nominations under the Constitution. That responsibility is designed to be a check on outrageous potential nominations from the President. It is not designed to be a way for one coequal branch of government--that is the Congress--to seek to systematically undermine other branches of the government, be it the judiciary or the executive. So we need to have a timely and systematic way of considering nominations. That certainly has fallen apart in the course of the poisonous and partisan nature of deliberations here over the last few years. But we can change that.
Indeed, we stepped forward a year ago November to test a rule to close debate on most nominations with a simple majority. The result has been quite spectacular. The number of district judges who have been considered on the floor of this Chamber has more than doubled--has almost tripled. Judicial vacancies have been cut in half--extremely important to a fair and capable judiciary. Executive nominations roughly doubled.
It should not be the goal of this Chamber, whether the majority or the minority, to disable the executive branch by preventing the positions from being filled in the executive branch. If a majority says a person is reasonable, then that nomination should proceed expeditiously.
Senator Udall and I have put forward, as he noted, a resolution that is in keeping with the package of ideas we worked on in 2011 and 2013, so we are presenting those ideas here in 2015. But my encouragement is for people to put forward their ideas, individual Senators, to add their ideas or put forward individual components that will contribute to this dialogue.
One of the ideas we have, and I will be offering to this body, is to create a process to consider rule changes at the start of each legislative session--a detailed way of addressing that, since [[Page S26]] currently we have no pattern, no guide, to holding a debate about how the Senate functions.
A second will be to consider the expedited consideration of most nominations. We made a rule change a couple of years ago--well, November a year ago. And also, before that, we made some minor changes in timing in January 2013. That came out of the debate just 2 years ago. Those January 2013 changes are expiring. Those timelines are expiring. So that goes away. Should those be adopted as part of the standing rules rather than simply the standing orders which expire with the change of a Congress? A third idea is to end the filibuster on the motion to proceed to legislation. Think about how this has changed. If you take the 10-year period between 1973 and 1982, a 10-year period that embraces when I first came here as an intern, there were 14 times there was a filibuster on a motion to proceed. If you take 10 years from roughly 2003 to 2012, that number went up to about 160--more than a tenfold increase in the paralysis of getting bills to the floor to be discussed.
Why should there be filibusters at all on a conference committee? If the House has put forward an idea and passed it, and the same bill has been passed by the Senate, isn't it common sense to enable a delegation from each Chamber to meet together to work out a compromise? We did make a modest improvement in this procedure, but there is much more work to be done on this.
In fact, I was mystified when I came here in 2009 as to why there weren't conference committees going on. First I heard: Well, it is easier for Chairs of committees to get together informally and try to work out something behind the scenes. But then, as I asked more questions, the answer became: Because there are three steps required, and all three of which enable a filibuster, and that paralysis just isn't worth entertaining the time on the floor. Well, let us restore conference committees. Let us get rid of filibusters on conference committees.
And certainly we must improve floor debate by ensuring amendments can be introduced and debated. The minority has said in recent years that this is a deep disadvantage to them. But I can tell you as a Member of the previous majority that it was a disadvantage to majority Members as well not to be able to introduce and debate amendments.
We also certainly must replace the silent filibuster with the talking filibuster so there is transparency and accountability to the use of this instrument on final passage of a bill.
Let us not let this opportunity pass. Let us not continue on autopilot from one Congress to the next. Let us take this moment of opportunity to start on this path to restoring the U.S. Senate to being the world's greatest deliberative body in order to address the big issues before us and for the betterment of our Nation.
Mr. President, I yield the floor.