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Jeff M.
Democrat OR

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  • The Fiscal Cliff

    by Senator Jeff Merkley

    Posted on 2013-01-01

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    MERKLEY. Mr. President, I want to first address the bill we passed in the early hours this morning.

    It is very unusual to be passing a bill in the early hours, certainly on the first day of the year. And this bill had a lot in it. This is the fiscal cliff bill. There are a number of reasons that I supported this bill, but there are a number of concerns I have as well. I thought it might be appropriate to just summarize why it was important this bill pass last night, but also why we should also be aware that the bill has laid out a path that requires us to do substantial additional work in order to avoid having that path be one that leads us into a thicket.

    First, we do not pass this bill if the House does not get it done. It is being considered by the House right now. Then there would be a very good probability, economists estimate, that the economy would turn down in the coming year by somewhere in the range of about 2 to 3 percent, and so we would go into a recession. That means living wage jobs for American families would disappear. That is an enormous amount of hardship, and this is a self-inflicted political wound. So it was important to pass that bill last night to avoid that.

    The second is that one of the immediate impacts would have been the end of unemployment insurance for a huge number of families across this country. In Oregon, it would be about 30,000 families immediately terminated from unemployment insurance, and in the course of January it would be another 10,000 families. So if you can imagine a bill that would have directly impacted the ability of 40,000 Oregon families to pay their car payments, to pay their rent, to pay their heating bills in the middle of winter, that was the bill we were considering last night. It is a very big reason why it is important that it pass.

    In addition, the bill we addressed last night adjusted the rates in terms of the compensation to doctors under Medicare, called the doc fix. If the doc fix did not get adopted, and we had roughly a 25- percent reduction in payments, then what we would see is that folks would have a very difficult time getting in the door of a doctor's office. We don't really have a Medicare plan if we can't get in the door of a doctor's office, and we don't really have medical care at all if we can't get in the door of a doctor's office. So it is important that we address that--again, affecting thousands of people in my home State of Oregon.

    In addition, there was a lot of concern that this fiscal cliff bill would do some things that were entirely unacceptable in regard to compromising the benefits under Medicare and Social Security. There was a proposal to increase the age limit for Medicare from 65 to 67. I advocated fiercely that that would be unacceptable. I cannot tell you how many townhalls I have gone to and had folks approach me and say: You know, I am 62 years old. I have these three conditions I am wrestling with. I have no medical care, and I am just trying to stay alive until I hit 65 so I can get medical care.

    That is a common situation in a country where many people do not have health insurance. To raise the age by an additional 2 years for those folks who have no medical care would be cruel at best, and for some it would be a death sentence. That was unacceptable.

    Others proposed that instead of making the cost-of-living provision in Social Security match better what seniors buy, they proposed making it match less well what seniors buy, saving money by inaccurately estimating the impacts of cost-of-living increases. It is important to recognize that neither of these elements that would have attacked the benefits of Medicare and Social Security was in the bill last night. Those programs were not on the table.

    Because we needed to avert a recession, because we needed to make sure we did not slash unemployment, cut people off at the knees overnight, block folks from being able to get in the door of their doctor's office, and because the bill did not do some of the things that would have been 100 percent unacceptable, it merited support last night in this Chamber. I say last night, but it was actually in the early hours of this morning, the first day of 2013.

    I supported this bill, but I have grave concerns about certain elements. This bill essentially adopted 90 percent-plus of the Bush tax cuts. Unless we continue to wrestle with the fact that revenue is at a historic low in this country and the gap between revenue and spending is very high, we are laying out a path for structural deficits as far as the eye can see. That is not in the best interests of this country.

    Folks who are well off got a very good deal last night--a very low tax on capital gains, a huge loophole in the estate tax, a very low tax on dividends, and only the very top tax bracket for the most wealthy among us was touched at all. It was not the $250,000 level President Obama had said he was fighting for, it was $400,000-plus. There are not many folks who are at that level, and only that top bracket was touched. If you are very well off in America, you got a very good deal last night, but America got a big problem, which is the potential for enduring deficits, structural deficits that undermine the soundness of our future finances.

    In addition, the bill we considered last night created some additional fiscal cliffs in the very near future, within 2 months--in March. One is that it does not address the debt ceiling. The debt ceiling is not about what we spend, not about the decisions on what we spend, it is whether we are going to pay the bill after the spending has been authorized. It is like saying to yourself: When the credit card bill comes, I am just not going to pay it because I should not have spent so much money. That is what the debt ceiling problem is--not to pay the bills we have already incurred.

    What happened the last time we had this controversy was our national credit rating was diminished. That means when you borrow money, you have to pay more. So we shot ourselves in the foot to no purpose.

    The time to make the decision over what you spend is when you are making the spending decision, not when the bill arrives later. You have already made that commitment. You are already in that boat. You have a responsibility to fulfill payment of the bills you have signed up for. But we will have that ahead of us in just 2 months.

    In addition, the bill we had in the wee hours this morning pushes off the sequester for only 2 months. What is the sequester? The sequester is a series of mandatory payment cuts that fall on working people. There was a big budget deal a year ago that I voted against because what it said is that if the supercommittee does not come up with a good plan, we are going to balance the budget on the backs of working people. I voted against it. The bill last night did not do that because it pushed off the sequester, but it only pushed it off for 2 months. So if you are concerned about a nation in which the bonus breaks for the best off are untouched while cuts fall on working people, then you should be concerned about the battle that is just 2 months ahead.

    In addition, there was a last-minute addition of a farm bill--not the Senate's farm bill, not a bill that was adopted in committee process, not a bill that was adopted on the floor of this Chamber, it was an individual leader's farm bill. The minority leader's farm bill was inserted last night.

    Earlier, we had a speech by one of my colleagues, who was saying that it is so important that we do the hard work in committee and that we do the hard work on the floor with an open amendment process. That is what we did with the Senate farm bill. Senator Stabenow from Michigan, the chair of the committee, Ranking Member Roberts--they worked very hard to have [[Page S8623]] an honest, open, public debate and votes on the individual elements. In the course of that, we adopted disaster aid for farmers and ranchers across America who were scorched by the worst fires in a century and one of the worst droughts in the last century. They should have been helped immediately upon those disasters, but they could not be helped because the farm bill had expired. Leaders said we will quickly reauthorize it. The Senate reauthorized it, we put those provisions in, we sent it over to the House, and the House never acted on it.

    Then we tried to take those emergency provisions and put them into the Hurricane Sandy bill. If we are going to address the disaster for Hurricane Sandy, as we absolutely should and must, we should also address the disaster of the worst droughts and worst fires in the century.

    An area in Oregon the size of Rhode Island burned this last summer. The forage burned. The fences burned. Farms and ranches were devastated. In other parts of the country, it was drought that was devastating. The version of the farm bill stuffed in last night does not have those emergency provisions even though this Chamber put them in. This Chamber supported them. The committee supported them.

    We also did something else on the floor: We said the historic imbalance between those who farm in a more traditional fashion and those who farm in an organic fashion is going to be righted. You know, under crop insurance there was a provision for organic farmers that said: We are going to charge you a lot more for your insurance, but in recognition for that, you are going to get the price of organic goods, which is higher, if you have a disaster that this covers. But the Department of Agriculture never got around to calculating the organic price, and therefore the farmers got short shrift, paying high premiums on the front end without the compensation we promised on the back end.

    This Chamber fixed that, but last night the minority leader stuffed a farm bill into this package that stripped it out. So much for the conversation I have been hearing about good committee work and good floor work. I absolutely agree with the Senator who spoke earlier today about good committee work and good floor work, but that was not honored in the farm bill that was stuffed in last night.

    I will tell you there is a lot more to this. Research on specialty crops has a big impact on my home State. We have a lot of specialty crops. The Willamette Valley grows virtually anything. It is one of the best farming places in the country. It is not pure wheat or pure rice or pure soy; you can grow a lot of specialty crops. But a lot of that research was stripped out. So we did not get the bill this Chamber decided upon.

    The chair of Agriculture has come to this floor and expressed extreme duress and frustration. She is absolutely right. The Senate actually did a very good job of process. It does not often do such a good job of process. It went through committee, it went through a floor debate, it went through an amendment process, and all of that was ignored. So the next time we hear lectures about process, I would like it to be noted about what happened last night and how ranchers and farmers across this country were betrayed by the farm bill that was stuffed in at the last second.

    We have a lot of work to do in this Chamber. The path we were starting on last night is one that addresses immediate emergencies, people being able to get in their doctors' doors, and folks being able to continue to have a coherent unemployment insurance policy while they are looking for work while unemployment rates are still high. But we have a lot of work to do from here forward or we are going to end up in some places that make our path forward as a nation much more difficult.

    I certainly am committed to continuing the effort to put this country on a sound financial footing and continuing to try to make the process here in the Senate work better. In that context, we have a debate that is going to begin in just 2 days about the process in the Senate.

    In the course of my lifetime and in the lifetime of everyone here, the Senate has gone from a deliberating chamber, a decisionmaking chamber admired around the world, to perhaps one of the most dysfunctional legislative chambers to be found anywhere. There are still Members who like to think of the Senate with the words ``the world's greatest deliberative body,'' but they are the only ones who might think that about the Senate because no one else paying attention considers the Senate to be a great deliberative body. It has become deeply paralyzed.

    The root of this goes partially to the circumstances of the bitter partisanship that has dominated our politics, and that is unfortunate. But it also goes to the fact that as the social contract unraveled--and perhaps related to that partisanship--you have rules that worked well in the past that do not work well now. One of those is certainly the filibuster.

    In the early Senate, you can imagine 26 Senators, 2 from each State, saying: We should have the courtesy of hearing each other out to make sure we make great decisions so we get everybody's opinion on the table. That is the courtesy of not ending debate until everyone has said what they want to say.

    Over time, the Senate grew larger. It became a little more difficult, but the principle was honored because when the debate had wound down, someone asked unanimous consent to hold a vote, and generally they would get unanimous consent and the vote would be held. It was understood that this was a simple-majority body. If you were going to stand in the way of that final vote after everyone had their say, then, in fact, you were interrupting the process by which this Chamber makes decisions and helps take this country forward. Certainly the heart of it was the understanding that the pathway favored by the most is most of the time better than the pathway favored by the few. The majority vote is the heart of the democratic process. And we had challenges along the way. There were occasionally periods where folks gave long speeches and managed to stop a vote before this Senate went on recess, but in general it worked pretty well, in part because the individuals who might abuse the process realized the rules could be changed by a simple majority. If they abused it on one occasion, the privilege of being able to express their full views for an extended period might be changed by the majority changing the rules. So it kept the process in check. There was an understanding that everyone got to be heard, everyone got to have their opinion considered, but if it was abused there could be a response to that.

    Well, in 1917 it was abused. A small faction blocked the ability of the bill to go forward that would put armaments on U.S. commercial shipping, and those ships were being sunk by Germany. President Woodrow Wilson and Senate leaders were outraged. How could a small faction allow our ships to go unarmed in a situation where they are being sunk; that is unacceptable.

    Well, that small faction had their reasons. They believed once they put armaments onto a ship, they were probably going to be firing shots. When they fired shots, they were involved in the war. They wanted to block the United States from getting involved in the war, but there was only a small group in the Senate who believed we should allow Germany to sink our ships with no response.

    So the Senate came together and said: OK. We are going to respond to a small faction obstructing the will of this body of not allowing us to go forward. They had their say, we heard them out, and they have their opinions. We are going to allow two-thirds to shut down debate and get to a final vote. That was in 1930. It was the first such motion, and it was the cloture motion--as in closing debate. This continued to work pretty well. It worked well until about 1970. So for 50 years it worked pretty well.

    Why did it work well? In part because there was a big overlap between Democrats and Republicans. If I were to chart out those who were the most liberal Republicans and the most conservative Democrats, there would be a lot of overlap in the middle. It was generally understood that this was a simple majority body and there should only be an objection to a simple majority vote when everyone had their say. If it was a principle that was of a deep and exceptional nature, such as a personal principle or an issue affecting a Senator's State, and because that Senator was objecting to the ordinary [[Page S8624]] functioning of this body, that Senator felt a compulsion to stand and make the case before colleagues. In a sense it was because the Chamber had reporters on the upper level who followed Senators making their cases before American citizens.

    Well, over time, the filibuster, which is an objection to a simple majority vote, evolved in two ways. Instead of it being a faction standing on principle, it started to be utilized as an instrument of the minority party to obstruct the ability of the majority party to put forth an agenda. Instead of it being a small group and an important principle, it became a legislative tactic of the minority leadership. It is true for Democrats and Republicans. There is not one party who is more guilty of this, if you will. They both employed this tactic over time.

    In addition to the increasing polarization of America, we started to get less overlap in the perspective of Democrats and Republicans. Twenty years ago we might have had 30 Senators in that span between the most conservative Democrat and the most liberal Republican, so normally they would have that overlap of 30 Senators so they could still get two-thirds of the Senate, and that served as a check on the use by the minority of the filibuster as a tactic of penalization.

    As the Senators from World War II started to move out of this Chamber, and as those from the House who had adopted kind of a ruthless partisan strategy started to move into this Chamber, we saw that social cohesion break down, and we started to see more and more use of the filibuster.

    I have some charts. The first chart probably sums it up pretty well. During the time that Lyndon Johnson was majority leader for 6 years, he faced one filibuster. During Harry Reid's 6 years--a week or so ago when I made this chart, the filibusters were 387. Now it is in the 390s. In 2 days I guess we will not have any filibusters, so we may not break 400. What a contrast between the amount that Lyndon Johnson had when he was majority leader and basically 400 in the 6 years Harry Reid has been the majority leader. That is an enormous change.

    In addition, normally the objection to a majority vote was done on the final vote of a bill. But starting in about 1970, folks realized that on any debatable motion, the same paralysis could be brought. They could object to a simple majority vote on a simple debatable motion.

    I will lay out how this has changed over the last 40 years in different categories. One change is in nominations. Here we see that before approximately 1968 there were virtually no filibusters on nominations. In fact, I believe the rule was changed in 1949. There was a question raised over whether the filibuster could be used on nominations, and after some debate this Chamber decided to change the rule and allow it on nominations. So when people say: Well, this is the way we have always operated, it is 200 years of history, first, there was no cloture motion before 1917. In fact, the simple majority could change the rules back then. Also, there were no cloture motions on nominations, so we have this new world.

    If I move this podium so everyone can see the far right edge, we can see this steady increase in this tactic. Note this very tall bar in 2012. This impact is not just on this number of these two dozen nominations, this affects and creates a whole backlog of unfilled positions in the executive branch and the judicial branch. Since 1970, this Chamber has essentially said: You know what. There is supposed to be three equal branches of the government, but we are going to use our advice and consent power under the Constitution to effectively undermine and attack the judiciary and executive branches.

    That is not what the Framers had in mind. In the discussions over how the Constitution was put together, show me a Federalist Paper where any of our Framers argued that advise and consent is designed so that Congress can basically damage the executive and judicial branches by refusing to consider nominations. So that is one big change.

    Well, let's take a look at motions to proceed. We see back in 1932 there was a filibuster, and in the early 1960s we see a few filibusters. Then in about 1970 we see that it took off. It was not thought to be appropriate to filibuster just any debatable motion. The idea was there was an issue of deep principle in which a Member had to make a stand to block the bill from final passage.

    Now, suddenly, we can paralyze the process by even keeping a bill from getting to the floor. What sense does it make to argue that a Member is facilitating the debate by blocking the debate from happening? Many people come to the floor and say the filibuster is all about facilitating debate and making sure everybody has a say. Blocking the bill from getting to the floor doesn't facilitate at all. We see this as a growing form of paralysis.

    The same story is true on amendments. So on amendments again, we see from the early 1970s forward there is big growth. Well, previously it was the perspective that the filibuster was going to stop the bill from getting enacted. Members didn't know what the bill would be until the amendments were fully debated, so a Member didn't block the amendments from coming to a vote. Again, the process grew.

    So let's take a look at final passage. Here we see the traditional use of the filibuster. One or two was the average during this time period, from 1917 until the early 1970s, and then we have this explosion. No longer were Members blocking a bill on a deep issue of personal value or something that was key to their State that they were willing to take to this floor and talk about, but instead it would be just a routine obstruction using an instrument not of principle but of politics.

    We even have a challenge of getting bills to conference committee. This was a case where the Senate and the House passed a bill, and we just wanted to start negotiations. How does it facilitate debate in any kind of way to block getting it to a conference committee and starting those negotiations? That was never done until the early 1970s. There we have it, the growth of this measure.

    Once this instrument of obstruction was utilized, then this Chamber often decided to forego the conference committee. We gave up on it. When I was here in 2009, I would say: Well, let's get the conference committee going. Well, they would not do that because it would take weeks of this Chamber's time to get the conferees appointed and the three debatable motions done to be able to get to a conference committee. What? Isn't it outrageous that we cannot even have a negotiation with the House? So we have to go through this complicated process of sending the bill over to the House, and the House has to amend it and send it back to us, and we have to amend it and send it back to them.

    Sometimes there are even informal negotiations that are out of public view instead of a conference committee that would be in an official setting with official recordings of what was being said and what amendments were being proposed and how it was being worked out. Instead of doing it in public, it was done in a back room. So this is certainly damaging to our process.

    We could go on about one other area, which is conference reports-- those reports coming back. This is a little bit more like final passage in that this is before something becomes law and goes to the President's desk. Again, here we see this was rarely used until the early 1970s, and then there was an explosion of this tactic not for deep personal principle but for paralysis.

    I have found it quite interesting to hear some of my colleagues say this was the constitutional design, the Senate be a supermajority chamber. That is beyond out of sync with American history or any facts. They say: Well, isn't there a story about George Washington talking to Thomas Jefferson where George Washington says: The Senate's meant to be the cooling saucer, and, therefore, wasn't the Senate always a supermajority body? The answer is, no. It wasn't a supermajority body.

    As I have demonstrated by these charts, it was very rare before 1970 to oppose a final majority vote; and when it was done, it was done for principle. People also took to this floor. They didn't have to, but they took to this floor and explained themselves to their colleagues and the American public. The Framers were very suspicious of using a supermajority in the setting of legislative action. They thought it should be used for serious changes in the design of the government.

    For example, they considered that if we are going to pass a treaty, it should [[Page S8625]] be a supermajority. They put that into the Constitution. They laid out that if we are going to override a veto by the President, it should take a supermajority to do that, and they put it into the Constitution. They said, if we are going to amend the Constitution itself, we should take a supermajority. They put that in the Constitution. They didn't put a supermajority for legislating in. Oh, they thought about it. They talked about it. They wrestled with it. They kept coming back to the belief that the heart of the Democratic process is the path the majority chooses as the right path is the path that should prevail, not the path chosen by the minority.

    So there were commentaries on this in various of the Federalist Papers. Here we have Alexander Hamilton on supermajority rule. He said supermajority rule in Congress would lead to ``tedious delays; continual negotiations and intrigue; contemptible compromises of the public good.'' That is what Hamilton thought. That overlays pretty well with a lot of what we see on the floor of the Senate today.

    How about Madison. Madison had commentary on this. He said, ``The fundamental principle of free government would be reversed'' if this Chamber did legislation by supermajority. Why did he say that? Because it would mean the path chosen by the few would prevail over the path chosen by the majority.

    There is a lot of nostalgia when people think back to a time when the filibuster was an instrument of principle. Many Americans think about this. They think about the movie where Jimmy Stewart portrays Jefferson Smith, a newcomer to the Senate, and he comes to the well of the Senate and he fights for the principle of avoiding the corrupt practices regarding a boys camp. He didn't have to take the floor and demand a supermajority vote for blocking the simple majority, but he was determined to both make his case before the American people as well as his colleagues and certainly eat up as much time as he could physically, which was another strategy of the standing, talking filibuster, so the public would have a chance to respond.

    Many folks say that is just a romantic Hollywood thing. But the charts I have shown my colleagues show the filibuster was used only rarely. It was viewed as an exceptional instrument of fighting for a personal principle when you were willing, when you had the courage to stand before your colleagues and make a stand. It was that way when I came here in the early 1970s. I came as an intern in 1976. In the previous year, there had been a big fight over the filibuster because of the early abuses we saw on those charts in the early years of the 1970s. The attitude changed. The filibuster started to become used as an instrument for partisan politics rather than personal principle.

    So they had a debate in 1975, and they said we are going to change it from 67 to 60. That is where they ended up. It started with this body affirming multiple times that its intent was to use simple majority to change the rules as envisioned under the Constitution. It is also the way it was envisioned under the rules of the Senate: A simple majority could change the rules, until 1970. There are a lot of observations by ordinary Americans that the Senate is broken, and we should listen to ordinary Americans who expect us to be a legislative body that can deliberate and decide.

    This is a cartoon that came out recently by Tom Tolls of the Washington Post showing a Senator at the podium and the Senator says: I will tell you all the reasons we shouldn't reform the filibuster. No. 1, it will restrict my ability to frivolously stymie everything. No. 2--and he thinks for a while and he can't think of any other reason we shouldn't reform the filibuster, so he asks the staff: How long do I have to keep talking? The little commentary down here: You can read your recipes for paralysis.

    The filibuster has become a recipe for paralysis. It is up to us 2 days from today, when we start a new session of Congress, to take responsibility for modifying the rules of the Senate because we have a responsibility to the American people to address the big issues facing our Nation and we can't do that when this Chamber is paralyzed.

    I thank the Presiding Officer for the time to address this issue. I look forward to the debate we are going to have 2 days from today.

    I see our majority leader has come to the floor, and I thank him for all the dialogs over the last 2 years on this topic. The majority leader may not have seen the chart I put up to start with, but it is his picture.

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