Resolution Over, Under the Rule—S. Res. 20by Senator Tom Udall
Posted on 2015-01-06
UDALL. Mr. President, I have a resolution at the desk of which
Senator Merkley and I are cosponsors.
The PRESIDING OFFICER. The clerk will read the resolution by title.
The assistant legislative clerk read as follows: A resolution (S. Res. 20) limiting certain uses of the filibuster in the Senate to improve the legislative process.
Mr. UDALL. I ask for its immediate consideration and to send the resolution over, under the rule, I, therefore, object to my own request.
The PRESIDING OFFICER. Objection is heard.
The resolution will go over, under the rule.
Mr. UDALL. Mr. President, I rise today to talk about our continuing effort to change the Senate rules as we begin the 114th Congress. This is the same process Senators Merkley, Harkin, and I used at the beginning of the last Congress when we introduced a similar resolution. At that time, Majority Leader Reid wanted to have the debate about reforming our rules after the inauguration.
He was willing to work with us and protect our interests until we could debate our proposal. By doing so, he preserved the right of a simple majority of this body to amend the rules in accordance with article I, section 5 of the Constitution.
I hope Majority Leader McConnell will extend to us this same courtesy if he chooses to address other issues before rules reform.
It has been the tradition at the beginning of many Congresses that a majority of the Senate has asserted its right to adopt or amend the rules. Just as Senators of both parties have done in the past, we do not acquiesce to any provision of Senate rules--adopted by a previous Congress--that would deny the majority that right.
The resolution I am offering today is based on proposals we introduced at the start of the 112th and 113th Congresses. At that time, many called our efforts a power grab by the majority. But we were very clear. We would support these changes even if we were in the minority, and here we are today, reintroducing the reform package as Members of the minority.
These changes do not strip minority rights. They allow the body to function as our Founders intended. The heart of our proposal is the talking filibuster. The filibuster once was a tool that was used sparingly. It allowed the minority to be heard. Today it is abused too often and far too easily.
I have said many times that the Senate has become a graveyard for good ideas. The shovel is the broken filibuster and other procedural tactics.
The system is broken. But in the last election I think the message was clear. The electorate said: Fix it, do your job, and make the government work. That is what our resolution is intended to do.
Our reforms were not adopted in the last Congress, but we made some progress. Strong support for fixing the Senate led leaders Reid and McConnell to address the dysfunction in the Senate and make some moderate changes.
Unfortunately, it did not take long for the leaders' gentlemen's agreement to break down. In November 2013 the abuse of the rules--and the obstruction--reached a tipping point, and so the majority acted within the precedence of the Senate. We changed the rules to prevent the minority from abusing the rules and obstructing scores of qualified nominees for judicial and executive appointments.
I believe that drastic step was unfortunate, but it was also necessary. The minority has a right to voice objections but not to abuse the rules to obstruct justice by preventing judges from being confirmed or by preventing the President from getting his team in place.
By changing the rules, the 113th Senate was able to confirm 96 judges. In fact, it confirmed more judges than any modern Congress since 1980.
The 113th Congress also confirmed 293 executive nominations in 2014-- the most since 2010.
That is an incredible change. It was a bold but necessary action. But it also led to even greater polarization in the Senate. That polarization could have been prevented if the Senate had adopted our reforms at the beginning of the 113th Congress.
That is why I strongly urge the new majority leader to continue the change [[Page S24]] that was adopted in November. It allows most judicial and executive branch appointees to be confirmed by a straight majority vote. I urge him to continue the progress we made last Congress and adopt the rest of our proposed reforms at the start of this Congress.
Anyone who has watched this Senate try to legislate in the past few years knows we still are hobbled by dysfunction. We voted on cloture 218 times just over the past 2 years. To put that in perspective, the Senate voted on cloture only 38 times in the 50 years after the rule was adopted in 1917. We cannot continue down this path.
The unprecedented use of the filibuster and other procedural tactics by both parties has prevented the Senate from getting its work done. The Senate needs to return to its his historical practice and function as a deliberative yet majoritarian body, when filibusters were rare and bipartisanship was the norm.
We believe the proposed rule changes in our resolution provide commonsense reforms. This will restore the best traditions of the Senate and allow it to conduct the business the American people expect.
We have one goal, whether we are in the majority or in the minority: to give the American people the government they expect and deserve, a government that works.
We said before, and we say it again, that we can do this--with respect for the minority, with respect for differing points of view, with respect for this Chamber, but, most of all with respect for the people who send us here.
The right to change the rules at the beginning of a new Congress is supported by history and by the Constitution. Article I, section 5 is very clear. The Senate can adopt and amend its rules at the beginning of the new Congress by a simple majority vote. This is known as the constitutional option, and it is well named.
It has been used numerous times--often with bipartisan support--since the cloture provision was adopted in 1917.
Opponents of the Constitutional Option say that the rules can only be changed with a two-thirds supermajority, as the current filibuster rule requires. And they have repeatedly said any attempt to amend the rules by a simple majority is ``breaking the rules to change the rules.'' This simply is not true.
The supermajority requirement to change Senate rules is in direct conflict with the U.S. Constitution. Article I Section 5 of the Constitution states that, ``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 stated 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, on the meaning of Article I Section 5 as it applies to the Senate. In 1957, Vice President Nixon ruled definitively: [W]hile the rules of the Senate have been continued from one Congress to another, 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. Any provision of Senate rules adopted in a previous Congress which has the expressed or practical effect of denying the majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional.
Vice-Presidents Rockefeller and Humphrey made similar rulings at the beginning of later Congresses.
In 1979, when others were arguing that the rules could only be amended in accordance with the previous Senate's rules, Majority Leader Byrd said the following on the floor: There is no higher law, insofar as our Government is concerned, than the Constitution. The Senate rules are subordinate to the Constitution of the United States. The Constitution in Article I, Section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.
In addition to the clear language of the Constitution, there is also a longstanding common law principle, upheld in the Supreme Court, that one legislature cannot bind its successors. For example, if the Senate passed a bill with a requirement that it takes 75 votes to repeal it in the future, that would violate this principle and be unconstitutional. Similarly, the Senate of one Congress cannot adopt procedural rules that a majority of the Senate in the future cannot amend or repeal.
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, and that when there is a conflict between them, we follow the Constitution.
And I would like to make clear that by moving on to other business, we are not waiving our constitutional right to amend the Senate's rules with a majority vote. In 1975, when the cloture threshold was reduced from two-thirds to three-fifths, the reform effort lasted until March. But on the first day of that Congress, Senator Mondale introduced his resolution and unequivocally stated that he was reserving his right to call for a majority vote at a later date.
Senator Mondale made the following statement on that first day: Mr. President, I wish to state, as has been traditional at the commencement of efforts to amend rule XXII, that, by operating under the Standing Rules of the Senate the supporters of this resolution do not acquiesce to the applicability of certain of those rules to the effort to amend rule XXII; nor do they waive any rights which they may obtain under the Constitution, the practice of this body, or certain rulings of previous Vice Presidents to amend rule XXII, uninhibited by rules in effect during previous Congresses.
Today, I take the same position as Senator Mondale and many other reformers did over the years. I understand that Majority Leader McConnell may move on to other business, but I am not acquiescing to any provision in the Senate rules that prevents a majority from amending those rules. We can, and should, take time to debate our proposal and have an up or down vote. I know other colleagues also have reform proposals. They all deserve consideration.
This is not just about rules. It is about the norms and traditions of the Senate. They have collapsed under the weight of the filibusters.
Neither side is 100-percent pure. Both sides have used the rules for obstruction. No doubt they have had their reasons, but I don't think the American people care about that. They don't want a history lesson or a lesson in parliamentary procedure. They want a government that is reasonable and that works.
I hope all my colleagues, especially the new Senators, give special consideration to reform. We do not need to win every legislative or nomination vote, but we need to have a real debate--and an open process--to ensure we are, actually, the greatest deliberative body in the world.
We changed the rule regarding nominations. That was an important start, but it was the beginning--not the end. We still need to reform the Senate rules.
Mr. President, I ask unanimous consent that Senator Franken be added as a cosponsor to S. Res. 20.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. UDALL. I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon is recognized.