American Competitiveness Act

Madam President, I submit on behalf of myself and Senators Harkin, Merkley, Durbin, Klobuchar, Brown, Begich, Blumenthal, Gillibrand, Shaheen, Boxer, Tester, Cardin, Mikulski, Warner, and Manchin a resolution to amend rule VIII and rule XXII of the Standing Rules of the Senate, and I ask unanimous consent to proceed to the immediate consideration of the resolution.

Madam President, let me just inquire through the Parliamentarian, it is my understanding that by objecting to this resolution being immediately considered now, the result is the resolution will go over under the rule, allowing it to be available to be brought up at a future time. Is that understanding correct?

Thank you very much.

Madam President, I rise today to introduce the resolution I just mentioned. I have worked very hard with all of my colleagues, including my two colleagues from Iowa and Oregon, Senators Harkin and Merkley, to reform the rules of this unique and prestigious body. I do so after coming to the floor last January--January 25, in fact, now almost 1 year ago--to issue a warning, a warning because of partisan rancor and the Senate's own incapacitating rules, that this body was failing to represent the best interests of the American people. The unprecedented abuse of the filibuster, of secret holds, and of other procedural tactics routinely prevent the Senate from getting its work done. It prevents us from doing the job the American people sent us here to do.

Since that day in January things haven't gotten better. In fact, I would

say they have gotten worse--much worse. Here in the Senate open and honest debate has been replaced with secret backroom deals and partisan gridlock. Up-or-down votes on important issues have been unreasonably delayed and blocked entirely at the whim of a single Senator. Last year, for example, one committee had almost every piece of legislation held up by holds from one Senator.

The Senate is broken. In the Congress that just ended, because of rampant and growing obstruction, not a single appropriations bill was passed. There wasn't a budget bill. Only one authorization bill was approved, and that was only done at the very last minute. More than 400 bills on a variety of important issues were sent over from the House. Not a single one was acted upon. Key judicial nominations and executive appointments continue to languish.

The American people are fed up with it. They are fed up with us, and I don't blame them. We need to bring the workings of the Senate out of the shadows and restore its accountability. That begins with addressing our own dysfunction, specifically the source of that dysfunction--the Senate rules.

Last year the Senate Rules Committee took a hard look at how our rules have become so abused and how this Chamber no longer functions as our Founders intended. I applaud Chairman Schumer and his excellent staff for devoting so much time to this important issue. I thank Senator Alexander and Senator Roberts. We have some very good Republican colleagues on the committee, and we have had some good exchanges. They know we had six hearings and heard from some of the most respected experts in the field.

But these hearings demonstrated that the rules are not broken for one party, or for only the majority. Today the Democrats lament the abuse of the filibuster and the Republicans complain they are not allowed to offer amendments to legislation. Five years ago, those roles were reversed. Rather than continue on this destructive path, we should adopt rules that allow a majority to act while protecting the minority's right to be heard. Whichever party is in the majority, they must be able to do the people's business.

I think that is what Senator Harkin spoke so persuasively to in his comments on the filibuster--that the majority has to be able to govern. The way the filibuster is being used the minority thwarts the majority's ability to govern.

At a hearing in September, I testified before the committee about my procedural plan for amending the Senate's rules--the constitutional option. Unlike the specific changes to the rules proposed by other Senators and experts, my proposal is to make the Senate of each Congress accountable for all of our rules. This is what the Constitution provides for, and it is what our Founders intended.

Rule XXII is the most obvious example of the need for reform. Last amended in 1975, rule XXII demonstrates what happens when the Members of the current Senate have no ability to amend the rules adopted long ago--rules that get abused.

I have said this before, but it bears repeating. Of the 100 Members of the Senate, only two of us have had the opportunity to vote on the cloture requirement in rule XXII--Senators Inouye and Leahy.

So if 98 of us haven't voted on the rule, what is the effect? Well, the effect is that we are not held accountable when the rule gets abused, and with a requirement of 67 votes for any rules change that is a whole lot of power without restraint.

But we can change this. We can restore accountability to the Senate. Many of my colleagues, as well as constitutional scholars, agree with me that a simple majority of the Senate can end debate--that is the first step--and adopt its rules at the beginning of a new Congress.

Critics of my position argue that the rules can only be changed in accordance with the current rules, and that rule XXII requires two- thirds of Senators present and voting to agree to end debate on a change to the Senate rules.

Since this rule was first adopted in 1917, members of both parties have rejected this argument on many occasions.

In fact, advisory rulings by Vice Presidents Nixon, Humphrey, and Rockefeller, sitting as President of the Senate, have stated that a Senate, at the beginning of a Congress, is not bound by the cloture requirement imposed by a previous Senate. They went on to say that each new Senate may end debate on a proposal to adopt or amend the standing rules by a majority vote. That bears repeating--by a majority vote-- cloture and amendment, majority vote.

Even in today's more partisan environment I hope my colleagues will extend to us the same courtesy, and our constitutional rights will be protected as we continue to debate the various rules reform proposals at the beginning of this Congress.

In 2005, Senator Hatch--someone who understands constitutional issues perhaps better than any other Member of this Chamber--wrote the following:

The compelling conclusion is that, before the Senate

readopts Rule XXII by acquiescence, a simple majority can

invoke cloture and adopt a rules change. This is the basis

for Vice President Nixon's advisory opinion in 1957. As he

outlined, the Senate's right to determine its procedural

rules derives from the Constitution itself and, therefore,

``cannot be restricted or limited by rules adopted by a

majority of the Senate in a previous Congress.'' So it is

clear that the Senate, at the beginning of a new Congress,

can invoke cloture and amend its rules by a simple majority.

That was Senator Hatch's quote. As Senator Alexander and Senator Corker know, he was for many years chairman of the Judiciary Committee, and I think that is a very powerful quote.

This is the basis for introducing our resolution today, just as reformers have done at the beginning of Congresses in the 1950s, 1960s, and 1970s, and it is why I am here on the floor on the first day--to make clear I am not acquiescing to the rule XXII adopted by the Senate over 35 years ago. That Senate tried to tie the hands of all future Senates by leaving the requirement in rule XXII for two-thirds of the Senate to vote to end a filibuster on a rules change. But this is not what our Founders intended.

Article I, section 5 of the Constitution clearly states that ``each House may determine the Rules of its Proceedings.'' There is no requirement for a supermajority to adopt our rules, and the Constitution makes it very clear when a supermajority is required to act. Therefore, any rule that prevents a majority in future Senates from being able to change or amend rules adopted in the past is unconstitutional.

The fact that we are bound by a supermajority requirement that was first established 93 years ago also violates the common law principle that one legislature cannot bind its successors.

This principle goes back hundreds of years and has been upheld by the Supreme Court on numerous occasions. This is not a radical concept. The constitutional option has a history dating back to 1917, and it has been a catalyst for bipartisan rules reform several times since then. The constitutional option is our chance to fix rules that are being abused--rules that have encouraged obstruction like none ever seen before in this Chamber.

Amending our rules will not, as some have contended, make the Senate no different than the House. While many conservatives claim that the Democrats are trying to abolish the filibuster, our resolution maintains the rule but addresses its abuse. But, more importantly, the filibuster was never part of the original Senate. The Founders made this body distinct from the House in many ways, but the filibuster is not one of them.

So here we are today on the first day of a new Congress offering a resolution to reform the Senate's rules. We don't intend to force a vote today; in fact, we hope that we can return from the break and spend some time on the floor debating our resolution, considering amendments to make it better, and debating other resolutions. This should not be a partisan exercise. I think almost every one of us who have spoken today have said that. We know both sides have abused the rules, and now it is time for us to work together to fix them.

But we believe the Senate of the 112th Congress has two paths from which to choose. There is the first path: We do nothing and just hope the spirit of bipartisanship and deliberation returns--the truth is we have been

on this path for a while now, and I think the results are pretty clear--or we can take a second path: We can take a good, hard look at our rules, how they incentivize obstructionism, how they inhibit rather than promote debate, and how they prevent bipartisan cooperation, and then we should implement commonsense reforms to meet these challenges, reforms that will restore the uniquely deliberative nature of this body, while also allowing it to function more efficiently.

I contend that we not only should but have a duty to choose the second path. We owe it to the American people and to the future of this institution we all serve.

The reform resolution we introduce today is our attempt at the second path. It contains five reforms that should garner broad, bipartisan support--if we can act for the good of the country and not the good of our parties.

The first two provisions in our resolution address the debate on motions to proceed and secret holds. These are not new issues. Making the motion to proceed nondebatable or limiting debate on such a motion has had bipartisan support for decades and is often mentioned as a way to end the abuse of holds.

I was privileged to be here for Senator Byrd's final Rules Committee hearing, where he stated:

I have proposed a variety of improvements to Senate rules

to achieve a more sensible balance, allowing the majority to

function while still protecting minority rights. For example,

I have supported eliminating debate on the motion to proceed

to a matter . . . or limiting debate to a reasonable time on

such motions.

In January, 1979, Senator Byrd--then-majority leader--took to the Senate floor and said unlimited debate on a motion to proceed ``makes the majority leader and the majority party the subject of the minority, subject to the control and the will of the minority.''

Despite the moderate change that Senator Byrd proposed--limiting debate on a motion to proceed to 30 minutes--it did not have the necessary 67 votes to overcome a filibuster.

At the time, Senator Byrd argued that a new Senate should not be bound by that rule, stating:

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.

Madam President, I ask unanimous consent for another 2 minutes--also recognizing the Republican side has speakers-- to wrap up.

Madam President, efforts to reform the motion to proceed have continued since. In 1984, a bipartisan Study Group on Senate Practices and Procedures recommended placing a 2-hour limit on debate of a motion to proceed. That recommendation was ignored.

In 1993, Congress convened the Joint Committee on the Organization of Congress. That was a bipartisan, bicameral attempt to look at Congress and determine how it can be a better institution. My predecessor, Senator Domenici, was the co-vice chairman of that committee. He was a long-time Republican here, and he supported that.

The third provision in the resolution is included based on the comments of Republicans at last year's Rules Committee hearings. Each time Democrats complained about filibusters on motions to proceed, Republicans responded that it was their only recourse because the majority leader fills the amendment tree and prevents them from offering amendments. Our resolution provides a simple solution, guaranteeing the minority the right to offer amendments.

The fourth provision in the resolution, which Senator Merkley will cover extensively, is regarding the talking filibuster. We want to replace a silent filibuster with a talking filibuster.

Finally, our resolution reduces postcloture time on nominations from 30 hours to 1. Postcloture time is meant for debating and voting on amendments--something that is not possible on nominations.

Instead, the minority now requires the Senate use this time simply to prevent it from moving on to other business.

These reforms will not, as some have contended, make the Senate the same as the House. We understand, and respect, the Framers intent in structuring the Senate to be a uniquely deliberative body. Minority rights are a critical piece to its unique operations. Which is exactly why they remain protected in our reform resolution.

But the current rules have done away with any deliberation and we have instead become a uniquely dysfunctional body.

Our resolution will make actual debate a more common occurrence. It would bring our legislative process into the light, and hopefully, it would help restore the Senate's role as the ``world's greatest deliberative body.''

With that, I will sum up and say that reform is badly needed. We have a responsibility to the Constitution and to the American people to come together and fix the Senate. We were sent to Washington to tackle the Nation's problems. But we find that the biggest problem to tackle is Washington itself.

With that, I ask unanimous consent that an editorial on the filibuster that appeared in the Washington Post, and an op-ed piece in the New York Times by Walter Mondale be printed in the Record.

I know my colleague, Amy Klobuchar, is here. Senator Mondale was a distinguished former Vice President and leader in the Senate, and he wrote the very passionate piece in the New York Times that I have just had printed in the Record.

I yield the floor.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, with the process we are in right now--and we have had questions back and forth on this whole issue of Senate rules reform--I want to respond to Senator Alexander because Senator Alexander raised some questions, and some of those questions were not answered on our side. So I want to put in a couple responses here.

Senator Alexander asked the question: What is a filibuster? He was asking our side. He was asking in this debate, what is a filibuster? Well, all of us know and we have heard in this debate what a true filibuster is. We saw a hero here on our side in terms of a true filibuster when it came to Bernie Sanders just a week or so ago, where he stood up for 8 hours to oppose a tax package on principle. He took the floor and he spoke and spoke passionately.

I say to Senator Harkin, another example of a true filibuster is from a movie the American public knows the best, a Jimmy Stewart movie, ``Mr. Smith Goes to Washington.'' Senator Merkley earlier had some charts on that, and he showed Mr. Smith on the floor, surrounded by other Senators, where he spoke until he collapsed.

Then you have the old-time tales of the Southern Democrats when civil rights legislation was being pushed in the 1950s and 1960s, when a number of what you would say were Northern Senators were pushing an anti-lynching law because lynching was going on in the South. So they were trying to say you cannot do that, and Southern Senators would stand up--I think sometimes the record was in the range of 20 hours or 25 hours where they were completely exhausted from speaking on the floor.

So that is what the American public thinks about a filibuster.

Well, we know that is not what is happening here. I have been here for 2 years, and the only real filibuster I saw was the Bernie Sanders filibuster. I asked one of the historians, I think: When was the last one? And they said: Well, you would go back to 1992 and Alfonse D'Amato, where he took 12 hours to talk about an issue in New York that he was passionate about.

So when Senator Alexander asked us, What is a filibuster, that is my description of what a filibuster is.

But what I think the real question is--and I would like Senator Alexander, when he returns, to answer this--is, What impact has the threat of a filibuster had? What impact has the threat of a filibuster had? So people are probably asking: What are we talking about when we say ``the threat of a filibuster''? Well, actually we have been talking about it all day.

First of all, it is the secret holds. As our Presiding Officer, who sits on the Judiciary Committee, knows, they work very hard in the Judiciary Committee. They produce a bipartisan result on these judicial nominations. These judicial nominations come out. They are put on the calendar. Then months and months and months later some of them get up for a vote.

I do not know about the exact number, but my understanding is that we had to send back to the President a number of judicial nominations that had received bipartisan support from the committee. We finished our business in December, and we sent those nominations back, only to have to have the President send them back down again because it is a new Congress. We are going to have to have hearings all over. This is the kind of situation we are in. So that is one specific case of the threat of a filibuster. And we have these all the time.

One of the ones that is the most remarkable to me--and I am not going to pick out the Senator or the exact committee--but a number of us, as Senators, saw a stack of bills, a stack of legislation that had come out, on a bipartisan basis, from one of our committees that was very thick, and it was legislation from 2 years--2 years--of that committee legislating in a bipartisan way, and those Democrats and Republicans working together and doing the hard work, and one Senator--one Senator--held up all of that legislation this last Congress, held it up completely.

That is the threat of a filibuster. You may say: Well, how did that happen? What happens is, the legislation comes out of committee, and a Senator--whom we do not even know; a lot of us suspect after various things that have happened over time, but the Senator comes down and says, in a secret way to his leader: Well, if you bring any of those bills to the floor, I am going to filibuster.

That is what the threat of a filibuster is. But that is an agreement that none of us knows about. So the threat of a filibuster has had an enormous impact on this institution.

Let me describe a couple of other things.

I talked about judicial nominations. As to executive nominations, I come from the era when my father was Secretary of the Interior. I was a kid. I remember when he went into office. In visiting with him about that later, I said: We can't get executive people in place. They don't have their team. He said: Tom, I had my whole team in place the first 2 weeks. So you are talking about the whole team for the Department of the Interior in the first 2 weeks.

I remember the Washington Post did an extensive study of the first year of the Obama administration. So imagine: President Obama takes office. He goes through a year, and he only had 55 percent of his executive nominations in place. So he only had 55 percent of his team.

Those of us who believe in government, believe that government does good things out there, find that appalling because we believe if you put people in place, they will be responsive to citizens on the particular issues of those departments. So that is very important, I believe, getting executive nominations in place. So that is what the threat of a filibuster ends up doing.

I see my colleague from Mississippi, and I do not know whether he is going to step in for Mr. Alexander and ask questions. We are in this questioning back and forth period. Senator Harkin may want to say something on the question issue here too. What impact has the threat of a filibuster had?

We can hear the argument--Senator Alexander has made this a number of times--look at all the great things you accomplished in the lameduck and look at all the great things you feel you accomplished in terms of health care, the stimulus package, and financial reform. But the reality is, in order to accomplish those in the constant filibuster we were in, we have basically destroyed our institution. As some of the more senior Senators here have told me, the Senate is kind of a shadow of itself.

What I do mean: ``We have destroyed the institution''? Well, it used to be that our big oversight function was to look over the money bills for the government, the appropriations bills. Guess what. Last year we did not do a single appropriations bill on the floor of the Senate. You do not have to go back very far when we used to bring all 12 of those bills to the floor, and we would have 2 or 3 days of lively debate. Every Senator could put in amendments.

Senator Harkin knows because he is one of the cardinals, he is the chairman of one of these committees. It is a very helpful process, one for the agency to know that all Senators are overlooking that agency, and for a person in Senator Harkin's position, as the chair of the committee, to know what the concern of the entire body is. But we have given that up. We do not do that anymore, and it is because of the constant filibuster and the threat of filibuster. So you have that situation.

I would think my friend from Mississippi, the Senator from Mississippi,

would be very concerned about this one: We did not do a budget last year. The one way we can impact--if you talk about fiscal responsibility, and you talk about keeping the government under control, and guiding it in the right direction, the one thing you want to do is a budget. You want to pass a budget and set some outlines there.

Well, we did not do a budget last year because we were in a constant filibuster, the threat of a filibuster. And the story goes on and on.

So I say to Senator Harkin, we are in the question phase right now. I am going to yield the floor. I am sure there is time still on the other side. But I think the question is not, as Senator Alexander raised it, What is a filibuster? The real question out there--for when Senator Alexander returns--is, What impact has the threat of a filibuster had on this institution we love of the Senate?

I yield the floor.

The Senator from Iowa makes an excellent point. I was here for his talk earlier, where the Senator led with the filibuster and laid it out and Senator Alexander came back and asked these questions. I think the key question is the one the Senator just asked, which is: What has a filibuster become? The Senator seemed to be defending the old-fashioned filibuster that no longer exists. That is the situation we have.

Some of our friends on the other side--I hear them talk about this-- are saying this is the filibuster of the past; it is a very pure thing and a wonderful thing. But it has been distorted, manipulated. The filibuster has been twisted in a way that it does exactly what the Senator is talking about--slowing everything down. It is an attempt, in a way, to defeat the majority from governing.

I think the Senator cited the Federalist Papers. One of the biggest dangers in a democracy is if you give the power to the minority to shut down the ability of the majority to govern. If you do that, you have rendered your democracy useless because then you get yourself into a situation, as the Senator from Iowa knows, where they can prevent the majority from doing anything and then run in a campaign and say: Well, they didn't do anything, which is kind of a hypocritical way to approach legislating.

One of the things that is remarkable to me--and I served over in the House of Representatives for 10 years and I know we don't have to take up every House bill the way it is written and we don't have to respond to every bill, but when you hear the fact that 400 House of Representatives bills in 2 years--the last session of Congress--were sent over here and we ended up--the younger Members of the Senate were interested in some of these bills. We looked into them. We found out that these were on veterans issues and many were good bills. We found out they had to do with small business, and they were good bills. We found out they had to do with building the economy and economic growth and those kinds of things and that they were good bills. But we didn't have the time to act upon them because the way the filibuster is being utilized is to defeat our ability to move forward.

The one other area I wish to mention--and I know this is something that concerns our friends on the other side--if you are talking about making government responsible, fiscally responsible, doing oversight over government--and they say they are going to do all this oversight in the House--one of the best ways to do oversight is in an authorization bill. As everybody knows, we have an authorization process, and we have an appropriations process. Well, apparently now, with the studies being done at the Center for American Research--and Senator Harkin would know this more than others because he serves on the Appropriations Committee--a major part of our appropriations are unauthorized now. I think the figure I saw was close to 40 percent. So that means if these are unauthorized appropriations, it means the side of our Senate and the side of our Congress that deals with authorization, that is an oversight. You go in there in the authorization process and look at an agency and you say: How is this program functioning? Is this program effective, a good program, something that is working?

If the answers come back and you have evidence it is not working, you write in the authorization we are getting rid of that. If you don't do any authorizations at all and the authorization doesn't come to the Senate floor and all Senators don't have an opportunity to participate, then you are giving up that kind of essential oversight. I would think they would be for that. Guess how many authorizations we did last year. How many? We did one. We did it at the very last minute as we went out of town, and that was the Defense Department authorization. That was held up with a filibuster because it had don't ask, don't tell in the bill.

So here we are at war--we have two wars going on. As Chairman Levin said, a lot of the things in that bill were to help the military do a better job and help the fighters on the ground in these two wars and we weren't able to get them done at the start of the fiscal year and move forward. So we were able to get it done before we left. I was happy about that. How about intelligence and the huge agencies that run the health care programs and all those? We have not done that oversight.

To the Senator's question what has the filibuster become, it has become something pretty horrible in the history of the Senate. If we don't fix this, we are going to be in a bad way. The way to fix it is the constitutional option. That is the wonderful thing about where we are today.

Today, we are in the first legislative day of the beginning of the 112th Congress. What everybody has told us on that first legislative day is that we can have all these rules proposals. The Senator from Iowa has one and Senator Merkley and myself have one and Senator Wyden. Guess what. If we round up 51 Senators--and they don't have to be only Democrats--who say, No. 1, here are rules changes we want to make with 51 Senators, we can cut off debate on those changes and 51 Senators--a majority--can vote those rules in, and we can fix the situation we have all been talking about here.

I think the Senator's question is the right one. The filibuster has become a procedural morass.

The Senator from Iowa and my good friend, the Senator from Oregon, want to speak. The Senator mentioned--and I want to put this quote in the Record--the Senator from Texas, Mr. Cornyn, who came to the floor and talked today. One of the reasons I have a real belief that we might have some common ground is he was a judge before he came to the Senate. I think he was on the supreme court in the State of Texas. On this issue of the constitutional option, he wrote a law review article in the Harvard Journal of Law and Public Policy. The name of the article was ``Our Broken Judicial Confirmation Process and the Need for Filibuster Reform.''

Listen to this. This is Senator John Cornyn of Texas:

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.

He is basically driving home the point that we have the authority today, on the first day of the 112th Congress, the first legislative day, to pull together and take a hard look at the rules. The Senator from Iowa raised a very important issue on consensus. I am going to pass this off to Senator Merkley in this colloquy and let him answer that point. Maybe he may have another question.

I wish our friends on the other side of the aisle were here for this discussion. Senator Alexander was here earlier. We had Senator Wicker. But nobody is here to answer the questions we are putting that way, but we are answering the ones this way.

Mr. President, let me first say to our majority whip, Mr. Durbin of Illinois, that I very much appreciate his long-term effort in looking at rules. I know he signed on to several proposals today. I know he is on the one Senator Merkley and I are on, and he is also on the Harkin proposal.

The Senator was here back in those days, and he has seen how much the Senate has changed. So we really appreciate the Senator's contribution to this effort and the remarkable job he has done trying to lead us in these difficult times we are in. It must be tough for somebody like him, who came to a Senate and saw it change over time, and change in the wrong way and get hyperpartisan. I want to say that to the Senator.

I also want to say several of our speakers mentioned things, and I think it is very appropriate to put them in the Record because I think when people read the Congressional Record, and things are mentioned, it is important they be able to find them quickly.

So the first one is from George Packer, who is a writer with the New Yorker magazine. He wrote a piece called ``The Empty Chamber'' dated August 9, 2010. I commend to my colleagues that article. It was mentioned in the course of the debate and it is an excellent article. He is a very good writer.

Secondly, one of the big scholars on Congress--there are a couple of people out there who study Congress over and over and write books and articles and monitor what we are doing, and one of them is a gentleman by the name of Norm Ornstein. Norm wrote--this was also mentioned in the course of the debate by one of the Senators--and Norm wrote a piece in the New York Times called ``A Filibuster Fix.'' That was on August 27, 2010. I ask unanimous consent that article be printed in the Record.

Let me finally say to the Senator from Oregon, the Presiding Officer, that I very much appreciate his support both in working with me on the constitutional option and sorting out the details and making sure we have things right and also for his incredible work in terms of pulling together the talking filibuster part of this. I was here today when he showed his charts, and he took our five ideas and, in the most simple form so the American people could understand it, capsulized those in those five charts.

I have been telling my staff--and you need to do this by the end of the debate--we need to find a way to shrink those and put those in the Record also because here we are sitting on the floor and we have these charts and we need to somehow have those be a representation also.

So with that, I yield the floor.

Mr. President, I rise to speak to the issue which has been considered on the floor today by my colleagues. I thank, especially, the Senators from Utah, Oregon, and Colorado, as well as many others, for their leadership in discussing the procedures of the Senate.

When I went home over the break, I spent my time back in Illinois with my wife in my hometown of Springfield and a lot of time around the house and a lot of things had to be considered. I left the decisions of war and peace behind in Washington, DC, and went home to face the real decisions: Are we going to change our cable TV service? Are we paying too much for the Internet? Things that my wife finally put in front of me and said: We need some decisions here.

As I considered those weighty decisions, particularly when it came to cable television and what we would receive in Springfield, I could not help but reflect on the fact that, similar to many Americans, we like to have C-SPAN so we can follow the House and Senate.

You may know in West Virginia, as I know in Illinois, there are people who are obviously suffering from insomnia who watch C-SPAN all the time and find it very restful and sleep inducing.

If they watch the Senate, it is something else. It is not only sleep inducing because of so little activity on the floor of the Senate, it is, in fact, an unfair economic situation that someone is paying a cable TV bill for C-SPAN covering the Senate when we do so little. They ought to get a refund. Families across America are entitled to a refund if they tune in to C-SPAN, Senate version, and watch us day after weary day, with our delightful and talented staff people slowly reading the quorum call and names of the Senators. That is it. If you have watched C-SPAN in the Senate for the last several years, you will see that more often than not, a lot of people say to me: Senator, why is not anything going on in the Senate? When you talk in the Senate, why isn't anybody there? Basic questions an average person might ask. They reflect on what has happened to the Senate, and that is why we are here with this discussion this evening. I thank the Senators who have been involved, including Senator Lautenberg.

One of the things that surprised me when I first came to the Senate, I heard this was the world's most deliberative body. This was the place to come to debate the big issues. Today when there was a swearing in of the Senator from North Carolina, one of his predecessors was here, Senator Lauch Faircloth. He was the first Senator I faced off with on the floor over an issue when I was elected 14 years ago. It was an issue involving tobacco which I had been following pretty closely in my congressional career, and he was from the State of North Carolina where tobacco is a big issue. He didn't like my amendment, and he came to the floor. I was offering my first amendment. There was a lady who worked in the Senate named Lula Davis. I had served in the House for 14 years, but I didn't quite know the Senate procedures as well.

I said to her: How much time do I have?

She said: You have 1 hour.

I said: Is that equally divided?

She said: No, Senator, you have 1 hour.

House Members don't get an hour for anything. Five minutes is the usual course, 15 minutes if it is a great deal or if they want to stick around until midnight, they might get a special order for an hour.

Here I was with an hour on the Senate floor to debate my amendment. Senator Faircloth sat on the other side. I stumbled through it. I asked unanimous consent to allow the time to be equally divided between myself and Senator Faircloth so we could debate the amendment. I thought that was fairly reasonable. Senator Faircloth said: I object.

I was stunned. Clearly, here I am with my amendment being as fair as can be, and he is not interested in the debate.

I am not going to pick on him because he reflected the feelings of many Senators here: that they are here on the floor to give speeches, many of them written by very talented staff people, and then leave the floor and go off and do something else. There is very little debate on the floor of the Senate, real debate. I could count on one hand the times I have in 14 years engaged another colleague in an actual debate that went back and forth over the merits of an issue.

One of the things we are discussing tonight is what to do with the rules of the Senate so we engage in more debate--we need it--so that we have less time that is being wasted in the Senate, fewer hours that are being ticked off a clock to reach 30 hours or whatever it happens to be on a cloture motion, and more actual debate so Senators with differing points of view can state their points of view and debate them back and forth and other Senators can then listen, certainly the public can listen and those in the gallery and can decide who has the merits of the debate.

Debate isn't something we should shy away from. It is an important part of the Senate that we should value and that we should honor to make sure the rules create that opportunity.

The Presiding Officer from the State of Oregon has suggested, along with others, that we have more debate and more votes. I think we should. For a time there was this feeling that we had to protect Members of the Senate from controversial votes. That is behind a lot of the decisionmaking that has taken place and brought us to this moment in the history of the Senate.

Perhaps I have a different view of it. But having been on Capitol Hill for a long time in the House and the Senate, I have stacked up many controversial votes, tens of thousands of them. It will be fair game. For any political opponent ever running against me in the future, there is plenty to work with. I don't need to give them something new to beat me over the head with. I have plenty of votes in my past. I think I can defend them for the most part, and I am prepared to do so. I am not afraid of tomorrow's controversial vote. In fact, I think it is part of why we are here.

There was a man who served here many years ago from Oklahoma, Mike Synar of Muskogee. He was one of my closest friends. Synar was an unusual character in the House. He was one who, faced with the choice between taking an easy, noncontroversial way out or a controversial, confrontational approach, would always choose the confrontational approach. He would walk right into the wall of fire and welcome it because he thought it was part

of what he was elected to the House to do. He used to stand up in the caucuses of House Democrats when they would be whining and crying over the thought of facing a controversial vote and say to them: What is wrong with you people? If you don't want to fight fires, don't become a firefighter. If you don't want to cast controversial votes, don't run for the House of Representatives or, in this case, the Senate.

I think the same is true today. Although some of my colleagues face tough election campaigns in tougher States than my home State of Illinois, the fact is, coming here and casting tough and even controversial votes is part of why we were elected and why the people expect us to come and face the music on difficult issues.

Bringing debate back to the floor, bringing more votes to the floor certainly is a move in the right direction.

I say to the Senators from New Mexico, Oregon, and others that their proposal that would allow germane amendments as part of the regular order of the Senate is a move in the right direction. That way the minority and majority get an opportunity to amend a bill. Can it be abused? It can. But making these germane and relevant amendments makes a difference. I can recall one colleague on the other side of the aisle who kept coming to the floor repeatedly, day after day and week after week, to offer the same amendment over and over, even when he was passing the amendment. Sometimes he would pass it; sometimes he wouldn't. But he couldn't help himself. He just had to keep offering it over and over. As he offered this amendment, it didn't enhance the bill. It didn't enhance the debate. It gave him a chance to put out a press release.

One can abuse that process. So making sure the amendments are limited to those that are relevant certainly is a reasonable thing to do.

Let me say a word about the 60-vote margin. The 60-vote margin, as former Vice President Mondale wrote in his guest column recently--I believe, in the Washington Post--was a compromise. In days gone by it took 67 votes to end a filibuster, to bring cloture. Then in the 1970s, Vice President Mondale, then a Senator, joined with others on a bipartisan basis and lowered that to 60 votes. But it was still a rare and unusual thing to do, to filibuster and need a cloture vote of 60 votes. Unfortunately, that 60-vote standard has been corrupted into a new standard for passage of legislation.

Allow me to give two examples. We considered a Wall Street reform bill. There were dozens of amendments offered. The Senator from Oregon had a controversial amendment and waited for days, maybe weeks, for a chance for his day on the floor of the Senate. After about 25 amendments had been offered and considered to the Wall Street reform bill with a standard of a majority vote, I had an amendment relative to interchange fees on debit cards, a controversial amendment. Credit card companies and big banks hated it.

At that point the announcement was made unilaterally, incidentally, the Durbin amendment will require 60 votes. Everything else had been a majority vote to that point. There was no way for me to challenge that. If I wanted my amendment to come to the floor, I had to accept a higher margin to pass it than all the other amendments that had preceded it.

Why? Because the threat of a filibuster was there, a filibuster against my amendment. That threat alone raised the margin and standard for that vote to 60. From the other side's point of view, many of whom opposed my amendment, it is a pretty easy thing to start a filibuster if you don't have to engage personally or make a personal commitment to it. They tossed it out as a standard. Sixty votes became the requirement. Fortunately for me, I had 64 votes and passed it.

The same is not true of another provision which means an awful lot to me, the DREAM Act. The DREAM Act is a reform of our immigration laws that is long overdue for children brought to the United States who are asking for a chance to become legal. They can do it through military service or by education, achieving at least 2 years of college. I have tried for 10 years to pass this measure and repeatedly have had majority support on the floor of the Senate. It has been ruled not enough. You need 60 if you are going to pass the DREAM Act. Just in the last 3 weeks, we had it considered again. It failed by not reaching 60 votes but had 55 votes. So the fact is, establishing this new 60-vote margin has become too commonplace for anything that anyone wants to brand as controversial that might require a filibuster. That has to change. Sixty-vote requirements should be rare in this body. They should be used sparingly, and they should not be applied on a daily basis to any amendment or bill that I or any other Senator at any given moment objects to.

Let me also say when it came to unemployment insurance, I had a little debate with the former Senator from Kentucky, Jim Bunning, now retired, and insisted that he stay on the floor as I repeatedly asked for unanimous consent to extend unemployment benefits. Some Republicans came to the floor and charged that was unfair to ask the Senator from Kentucky to stay on the floor so that he could object to my unanimous consent requests. I am sorry. There were millions of Americans who were not receiving unemployment benefits, and I think it is not unfair to say to the Senator who is objecting to those benefits: Stick around, miss that basketball game you want to see tonight, which he had announced on the floor. Stick around and suffer a little bit because you happen to believe that is the right thing to do.

Eventually, after a matter of days, unemployment benefits were extended. But the point I am getting to is that we have reached a point here that is way beyond the protection of the minority. It is the protection of what I consider to be an indolent approach to the Senate where we want the easiest way around things. We don't want to debate them. We don't want to vote on them. We don't want to face a majority vote that we might lose. So we have contrived a new set of standards, procedures, and rules that we are addressing today as part of this reform conversation.

Many times when Senators file a cloture motion or an objection that is noted by their side of the aisle and then the clock starts to run, the 30 hours, before there is a vote, many times those Senators leave. Before the Senator from Oregon arrived in this body there was one Senator who objected to our moving to a measure, forcing the Senate to stay in session until Saturday, when in the afternoon the time expired and a vote was called. The Senator who objected didn't show up. He wasn't there. We asked where he was. He had to go to a wedding. Really? The rest of us stayed here and waited for the vote that he demanded while he went off to a family social obligation. That is not right.

The good part of the rules changes that are being discussed now would require Senators like that Senator, if they believe the business of the Senate should stop or be delayed, to invest themselves personally in the conversation--to be here. Is that too much to ask? As the Senator from Pennsylvania once said: Earn it and own it. If you believe the business of the Senate should come to a halt for 30 hours, then for goodness' sake have at least the decency and the personal commitment to park yourself at your desk and argue your point of view. If you are too tired to do it or too distracted or can think of something better to do with your time, be my guest and walk through the doors and let the Senate proceed with its business. But if it is important enough for you to stop the business of the Senate, I happen to agree with those who are calling for rules reforms; we should have that change.

We should make those who are invested in it stay and invest their time, their personal commitment to that undertaking.

Finally, the nomination process has been corrupted to a point I don't even recognize. When Chief Justice Roberts chastises the Senate for all of the judicial vacancies in America, I know what he is talking about. In my home district of Illinois, the central district, in normal times there are four district court judges. Currently, we have three vacancies. One judge, Mike McCuskey, is running all over downstate Illinois from courthouse to courthouse to try to keep the criminal calendar going. I am afraid he has little or no time for the civil calendar because of three vacancies.

Two of those vacancies the President nominated judges to fill. The judges

were considered by the Senate Judiciary Committee, reported unanimously by the Senate Judiciary Committee to the Executive Calendar, and I literally begged the Republican side of the aisle and leadership to allow these two to come up for a voice vote since there was no controversy attached with them and a judicial emergency existed in that central Illinois district. They refused. They refused, despite repeated efforts.

I then went to the other side and said: All right, you must have Republican Senators facing the same thing in their States. I found Senator Cornyn of Texas, with exactly the same circumstance. I said: John, you have a noncontroversial nominee. Let's team up together, make it bipartisan so there is no question that we are trying to do anything for a partisan advantage. He said: I am with you. It was not enough. The Republican leadership still objected to filling these vacancies when a judicial emergency existed, though I asked for it repeatedly. That to me is an abuse of the process. If either of those nominees had been controversial, if this was a situation where it was a new, extra judge, some question of whether it was needed, that is another story completely. But we need a nomination process where those who are not controversial are brought up and considered in a timely fashion.

I commend my colleagues because I think each and every one of them has added to this conversation--Senators Wyden, Grassley, and McCaskill, on a bipartisan basis, to do away with Senate holds. Senator Udall of New Mexico, Senator Harkin of Iowa, and Senator Merkley of Oregon, who is now presiding, I think have had an excellent proposal here of five different changes that would make this a more effective Senate. Senator Lautenberg, who spoke just moments ago, had his own proposal. Senator Udall of Colorado and Senator Harkin each have a proposal.

It is time for us to sit down on a bipartisan basis to protect the rights of the minority within the Senate, but to bring the Senate procedure into a more efficient and more effective way, not just so C- SPAN viewers are not shortchanged when they sign up for C-SPAN Senate and all they get is an occasional ``Akaka'' or some other name being listed in the quorum call, but actually hear the Senate working for its money.

We can do better. I know what is going to happen now. We are likely to recess for some period of time, and an opportunity presents itself for the leaders on both sides to come together. There is room for us to reach agreement. We can say to the minority: You are going to get your chance for amendments. You always want that. You are going to get it. And we can say to our side: You are going to face some votes on amendments, like it or not. That is part of why we are here. We can have some real debate. We can have an investment in the cloture process that means it is real and personal, and that those who believe in it are taking the time to make sure the Senate continues to function as a responsible part of our government.

Mr. President, at this point I yield the floor.

Madam President, the Senate is broken. During the course of my first 2 years in this body, there have been only a couple serious debates in this Chamber. The first one happened just a couple weeks ago, and that was an impeachment trial of a judge. The magic began because the cameras were turned off. Senators were not speaking to the camera; they were speaking to each other. Second, they were required to be on the floor, so they were required to listen to each other. After all the evidence had been presented, Senators started to engage back and forth about their interpretations of the evidence, about the standards that would constitute grounds for conviction. One would not have been able to tell who was a Republican or who was a Democrat. We had a real debate, but it took 2 years to have that first debate. Then we had a debate over the START treaty. That was a pretty good debate too. That also happened just a couple weeks ago. For the balance of 2 years, there has virtually never been a serious debate on this floor with Senators hearing each other out, listening to each other, considering the pros and cons, addressing each other's amendments.

That is a tremendously different Senate from the Senate I first witnessed when I came here as a young man, as an intern for Senator Hatfield in 1976. I was up in the staff section. I would come down to meet Senator Hatfield on a particular tax reform bill that had a series of amendments. I would brief him on the amendment that was being debated. He would come in, talk it over with folks, and vote. An hour later, there would be another vote, and an hour later, another vote, with debate in between, back and forth, with enormous respect and courtesy among the Members to the principle of the Senate being a body of deliberation, a body of debate. But today, that respect is gone. The most visible sign of the decrease in the mutual accord has been the abuse of the filibuster.

``Filibuster'' is a common term we use for a decision to oppose the termination of debate and oppose voting with a straight majority as envisioned in the Constitution. That starts from a principle of mutual respect, that is, as long as any individual has an opinion that bears on the issue at hand, that Senator should be able to express that opinion and we as a body should be able to hear it. Out of that would come a better policymaking process. Unfortunately, over time, that mutual respect has been yielded more and more as an instrument of obstruction because each time a Senator objects to a simple majority vote, under the rules they create a 1-week delay and a supermajority hurdle. If one objects 50 times a year, they have wiped out every single week of the year.

This chart gives some indication of how grossly the principle of mutual respect and debate has been corrupted and abused.

From 1900 through 1970, there was an average of a single use of the filibuster each year--an average of 1 per year over that 70-year period. In the 1970s, that climbed to an average of 16 per year; in the 1980s, an average of 21 per year; in the 1990s, an average of 36 per year; between 2000 and 2010, this last decade, 48 per year; and in the last 2 years I have served in the Senate, 68 per year--an average of 68 per year or roughly 135, 136 in that 2-year period. If each one of these absorbs 1 week of the Senate's time, one can see how this has been used to essentially run out the clock and obstruct the very dialog on which the Senate would like to pride itself.

There is a statement about the Senate: the world's greatest deliberative body. But today in the modern Senate, that incredible tribute to this Chamber has been turned into an exclamation of despair. Where did that deliberative body go--not only not the greatest deliberative body but virtually devoid of deliberation due to this abuse. We went from mutual respect to essentially mutual legislative destruction using this filibuster.

In 2010, this last year past, not a single appropriations bill passed. We have a huge backlog of nominations. Our role of advice and consent has been turned into obstruct and delay in terms of nominations for the executive branch and the judiciary. We have a constitutional responsibility to express our opinion, but this body, by using the filibuster, has prevented Senators from advising and consenting, either approving or disapproving these nominations. It certainly is terrible to have our responsibilities as a legislature damaged, but not only have we done that, we have proceeded to damage the executive branch and the legislative branch--quite an intrusion on the balance of powers envisioned in our Constitution. Then we have the hundreds of House bills that are collecting dust on the floor because they cannot get to this Chamber because of this abuse.

All of this needs to change. When I first came here in the 1970s, when there was a challenge in 1975, there was a huge debate, and it resulted in changing the level required to overcome the filibuster from 67 Senators to 60 Senators. Yet in 1973 and 1974, the 2 years that preceded, there was only an average of 22 filibusters a year, not 68. We have more than tripled the dysfunction that led to the last rules debate.

That is why we are here today--to find a path forward. There are so many who have been so instrumental in this debate. So many Members of the class of 2006, 2008, and now Members of 2010 are engaged in this effort. My hat goes off to Senator Schumer for leading the hearings in the Rules Committee and trying to find that balance between every Senator's right to be heard and our collective responsibility for the majority to legislate. Senator Udall has done this enormous investigation of the constitutional process for amending the rules and so many others.

The first key part in the package of reforms a number of us--16, I believe, now have cosponsored this resolution--is the talking filibuster. The talking filibuster reform is essentially to make the filibuster what all Americans believe it is; that is, if you believe so strongly that this Chamber is headed in a direction that is misguided, you should be willing to come and take this floor and make your case to the American people.

Let's take a look at our image of that. Here we are: Jimmy Stewart

playing the role of Jefferson Smith, who comes to this Chamber where I now stand and says: I will take this floor to oppose the abuses that otherwise might go forward, and he held that floor until he collapsed.

That is what the American people believe a filibuster is all about. You want to make your case before the American people. But today we don't have a talking filibuster in the Senate. We have the silent filibuster.

Let's take a look at what that looks like. This is the way it works: A Senator takes their phone--maybe an old or modern phone--they call the cloakroom, and they say: I object to a majority vote, and then they go off to dinner. They do not take the floor with principle and conviction to say to the American people: Here is why I am delaying the Senate. Here is why I am going to hold this floor. This is not a situation we can allow to go forward and I am going to stand here and make my case and, American citizens, please join me and help me convince the other Senators in this room. That is the talking filibuster. But now we have the silent filibuster.

My good colleague from Tennessee spoke earlier, and he said: I would like to have the talk-your-head-off proposal. I am glad to hear him back the talking filibuster--the Jimmy Stewart filibuster. That is what this reform does. It says, when folks object to concluding debate, it is because they have something to say, and so we are going to require they come to the floor and say it. It is that simple. When nobody has anything left to say, then we will proceed with a majority vote. We don't change the number of Senators required one bit. It is still 60, which completely honors that principle established in 1975.

The second main proposal is the right to amend. A number of our colleagues on both sides of the aisle have been very concerned about the fact that issues come to this floor and you can only amend if you get unanimous consent to put an amendment forward, and that only works, largely, if there is a deal that has been worked out between the majority and the minority leaders. Some of my colleagues across the aisle say they are offended by their inability to amend.

I can assure my colleagues across the aisle that I am equally offended. I wanted desperately to be able to offer amendments to President Obama's tax package that came through here because I think we could have improved it, and I think we should have seen amendments from the other side. This is an issue of concern from both sides. This proposal addresses that and says there will be a guaranteed set of amendments that the minority leader can pick from among the minority members and a guaranteed set of amendments the majority leader can pick from among the majority members, but we get the process of amendments going.

If they want to have unanimous consent to increase that number to a higher level, get more for the minority or the majority side, that would be terrific, but at least they can't say no amendments. No leader can block the principle that each side has the opportunity to amend.

The third point is on nominations. Right now, we have this huge backlog. This resolution makes a modest change in nominations. It says the period following cloture will be reduced from 30 hours to 2 hours. We have already had the debate over the individual, let's have the vote. That is what that says. This means Senators will be less tempted to use the filibuster on nominations as an instrument to delay and obstruct the Senate. It is not a completely pure reform but a step forward in the right direction.

Our fourth is the ban on secret holds. Senator Grassley has spoken to this, and Senator Wyden will speak to it. Senator McCaskill has joined with them and others, and I believe at one time point there were as many as 70 Senators expressing in a letter their support to get rid of the secret hold. Anyone who wants to hold up legislation should have to stand on this floor and present their objection to this Chamber, to their colleagues, and to the American people.

When folks have to take a position on this floor, whether it be through the talking filibuster or through publicly announced holds, then the American public can weigh in. Then you are taking the business out of the back rooms and onto the floor of this Chamber and American citizens can say: You are a hero for your actions or you are a bum for what you are doing.

The fifth point is a clear path to debate. Right now, a lot of times we suffer through just getting to debate; that is, getting onto a bill to begin with or proceeding to a bill. There is probably no better example of the abuse of the filibuster--which was supposed to be mutual respect for debate--being used to prevent debate. So under this proposal, there would be 2 hours of debate over whether to proceed to a bill and then we would vote. We would either go to the bill or we would not. If Senators then want to filibuster on the bill, they can do it, but it would be a talking filibuster, where we are not in the back rooms, we are out here making our case.

These five concepts are not radical concepts. They are modest steps toward saying that in this incredibly partisan environment we now operate in, where so many press outlets are attacking on each side all the time and so on and so forth, we have to set ourselves on the path to taking ourselves out of that hyperpartisan atmosphere and start to restore the Senate as a place of dialog and debate. Perhaps these are modest steps but modest steps in the right direction, and that is an extremely important way to go. So I call on my colleagues on both sides of the aisle--colleagues who have said there should be amendments, colleagues who have spoken in favor, on both sides of the aisle, of the Jimmy Stewart model of holding this floor and having talking filibusters--to approve this. Let's use the start of this 2-year period to acknowledge that something is deeply wrong when, in a 2-year period, we have 135 or 138 filibusters eating up all the floor time and preventing modest bills from moving forward and keeping us on this path to gridlock. The Senate is broken. Let's fix it.

I thank the Chair.

Mr. President, continuing the conversation, my colleague from New Mexico pointed out the challenge with authorization bills. We

should add to that, during 2010, the Senate did not manage to pass a single appropriations bill. It is dysfunction on top of dysfunction. That is why we are here today.

I put back up the chart of Jimmy Stewart in the well because I think at the heart of this conversation is a notion that, yes, every Senator should be able to hold forth, to share their idea, to advocate that in which they believe, to persuade their colleagues, but not to simply lodge an objection and walk away and never present their case before the American people.

Our good colleague from Tennessee said he wanted to see--how did he put it?--something to the effect of a ``talking your heads off'' form of filibuster, and he referred to Jimmy Stewart.

There is a sense of commonality in our views that if one is going to vote to continue debate, then the debate should continue--it is that simple--so the citizens can see if you have a case to make that makes sense, and they can weigh in and help turn the tide in the direction of the Senator, or that you have no case to make and they want you to sit down and have the Senate get on with its business. That is simple.

There are many ideas for much more radical steps--steps in which we would proceed to say, yes, we will do something different. We will eliminate the filibuster. But that is not the proposal I am speaking to today. It is not the proposal to which many of us are speaking. We are saying, yes, you can keep speaking, but you have to speak. You cannot go on vacation. You cannot hide from the American people. You cannot object and hide. That is not in the tradition of the Senate.

There is a Wall Street Journal article that came out yesterday. I am not sure if it was an editorial or an op-ed, so I will not attribute it to anyone specifically. But it said there is no chance for filibuster reform to address the filibusters on legislation because the Democrats will not want to imperil their ability to obstruct the Republicans when the Republicans are in power someday.

Here we are, we are Democrats, and we are saying we are talking about rules that we have placed against the test of whether we can support these rules, whether in the majority or in the minority. The proposal we signed onto today--the five reforms we have laid out--we have run through the test of saying: Will this meet a fairness standard? Would this be fair if we were in the minority?

One of the proposals is to make sure the minority and the majority get to have amendments. That is a valuable protection for whichever party is in the minority.

Another piece of it is to say, yes, the filibuster can still be used. But you have to invest time and energy and make your case before the American people.

We have believed we can live with that in the minority. If we are going to obstruct the Senate, we are willing to take this floor. We are willing to make our case. But we are saying a Senator should not be able to obstruct and hide. They should not be able to engage in the silent, the secret filibuster but should have to have the talking filibuster.

I applaud my colleague from Iowa, my colleague from New Mexico, and my colleagues who are about to speak--Senator Mark Udall from Colorado--and say we have a couple weeks now in America to have a debate on the dysfunction and brokenness of the Senate. We are asking the American public to engage, to call your Senators, to share your concerns about a Senate that cannot do authorizations, that has not done appropriations, that leaves hundreds of House bills on the floor, and that cannot fulfill its constitutional responsibility to advise and consent on nominations, thereby undermining our other two branches of government.

This has to be addressed. That is why we are here.

Madam President, reserving the right to object, I have had a number of discussions with the Senator from New Mexico and the Senator from Oregon. I respect their proposals and will have more to say about them, but I think since they have waited such a long time to make their presentations I will merely state my objection now and have more to say later. So I object.

Madam President, I have enjoyed this extensive opportunity to hear my colleagues on a very important subject about what the nature of the Senate will be. I am going to have about 10 minutes of remarks on the comments of Senators Merkley and Udall, and then I will yield to Senator Wyden, for his comments.

If I could say anything from deep down within me to my colleagues who are so exercised about this, it would be this: Before we change the rules, use the rules.

We talk about Senator Byrd a lot because he understood the rules so well. I have often told the story of when Senator Baker became the Republican majority leader in 1981. He went to see Senator Byrd, the Democratic leader, and said: Senator Byrd, I am suddenly the majority leader. I will never know the rules as well as you do, so I will make a deal with you. If you will not surprise me, I will not surprise you. Senator Byrd said: Let me think about it. The next morning he told Senator Baker he would do that.

The reason I mention those two Senators is because, before we get too mired down in our differences, let us think for a moment about what our goal ought to be. The goal for the Senate, to me, is to return the Senate to the way it operated during those 8 years when Senator Byrd and Senator Baker were the leaders of their parties. Four years Senator Byrd was the majority leader and 4 years Senator Baker was the majority leader.

I have talked to staff members, some of whom are still around. Senator Merkley's history goes back to Senator Hatfield in 1976, but I first came in 1967 as Senator Baker's legislative assistant, when there was only one legislative assistant per Senator. In 1977, I came back and spent 3 months with Senator Baker when he became the Republican leader, and I followed him pretty closely during the next 8 years.

Here is the way it worked back then.

The majority leader--whether it was Senator Byrd or Senator Baker-- would bring a bill to the floor. He would get the bill to the floor because Senators knew they were going to get to debate and amend the bill. The Senator from Oregon is talking about no debates occurring today. Well, of course there are no debates, because when Republicans

come down here with amendments, the majority leader doesn't let us offer them. All those cloture motions he is talking about means the majority leader is cutting off my right to represent my people and offer an amendment in a debate. They are calling a filibuster a cutoff. It wouldn't be a filibuster if the majority leader weren't cutting off my right, which he has done more than the last six majority leaders combined.

But let's go back to what our goal should be. Senators Byrd or Baker would say: OK. The Energy bill or the education bill is up, everybody get their amendments in. They might get 300 amendments filed. At some point, the majority leader would say: I ask unanimous consent that the amendments be cut off. Of course, they would get that after a while because everybody had all the amendments in that they could think of.

You didn't go to the majority leader down on your knees and say: Mr. Majority Leader, may I please offer this amendment or that amendment. You just put your amendment out there, and then they started voting.

Then Senators Byrd and Baker did something else we don't do today, which is why I am talking about using the rules before we change the rules. They debated, they voted; they debated, they voted; they debated; they voted. Of course, 300 amendments are a lot of amendments to get through. So the leaders and the staff would say to the Senator from North Carolina or the Senator from Oregon: Are you sure you want 25 amendments? It is Wednesday night. No, 10 will be enough. On Thursday night they might say: Are you sure you want these five amendments? It is Thursday night. We are going to be here Friday, and we are going to finish this bill. We will be here Saturday if we have to be, and we will be here Sunday. You are going to get your amendments, and we are going to vote on it, but we are going to finish the bill. That is what the leaders did.

Sometimes there would be a piece of legislation that would come up where one side or the other wanted to kill it and so they would try to kill it. That's just like we would do today, if Democrats were to bring up a bill to abolish the secret ballot in union elections. We would do everything we could to kill it. If the House passes a bill and brings it over here to repeal the health care law, the Democrats are going to do everything they can to kill it. That is separate. But most of the time under the leadership of Senators Byrd and Baker, the bill came to the floor, there was bipartisan cooperation, and there were amendments.

Why was there bipartisan cooperation? Because the leaders knew that unless they had it, they wouldn't move an inch. Being good Senators, they wanted to do their jobs. In fact, Senator Baker would often tell his Republican chairmen: Don't even bring the bill to the floor unless the ranking member, the Democrat, is with you. So most of the time, you would have the Democrat and the Republican there together and they would allow amendments, would fight other amendments off, and they would get to a conclusion. There weren't so many filibusters because the majority leader wasn't cutting off the right to debate and calling it a filibuster. This is a word trick is what this is.

I have talked to a lot of my friends on the Democratic side and a lot of Republicans and I think we basically want the same thing. I think we want a Senate that works better. I think it is now a mere shadow of itself. I agree with Senator Merkley about that but not because of filibusters. It is because the majority leader is cutting off debate and calling it a filibuster.

The majority leader and the Republican leader I commend today because they have been talking about how we can do better. We all know that changing our behavior will be more lasting than changing the rules. I am glad Senators Reid and McConnell are working on this. They have asked Senator Schumer and me to work on it some more, and we are going to do that. We have had several meetings and we have another this afternoon and we will keep working. We will consider carefully these proposals or any others that come, and we will see if we can come to some agreement about how to move ahead.

My heartfelt plea is before we change the rules, let's use the rules. Going down through the list of reform suggestions:

The motion to proceed--that is a difficult one for many of us because if you are in the minority the motion to proceed is your weapon to require the majority to give you amendments.

Secret holds--Senator Wyden tells me he and Senator Grassley have been working on that for 15 years. They have Republican support and Democratic support for it. Maybe this is the time to deal with secret holds. I make my holds public. When I was nominated for the U.S. Education Secretary by President Bush, the Senator from Ohio held me up for 3 months and never said why. I went around to see the Senator Rudman from New Hampshire and asked him what to do. He said when he was nominated by President Ford to the Federal Communications Commission, the Senator from New Hampshire held him up. Finally Rudman withdrew his name and ran for the Senate against the Senator and beat him. That is how Senator Rudman got in the Senate. Secret holds is an area that has had a lot of work and bipartisan support.

The right to offer amendments--the problem I have with altering the current rules is that offering amendments is what we do. I went to see Johnny Cash one time in the 1980s, and I asked him a dumb question, I said: Johnny, how many nights are you on the road? He said: Oh, 200. I said: Why do you do that? He said: That is what I do. If you are on the Grand Ole Opry, you sing. If you are in the Senate, you offer amendments and you debate. That is what we do, that is what we are supposed to do. Yet we have not been allowed to do it.

Talking filibusters--if we are talking about the postcloture period, the problem with that is the majority has not used the rules. If I object to going forward with a bill, the majority, if they think I am abusing the rules, can say OK, Senator Alexander, get down there on the floor because we are going to be here all night. And you can only get 7 hours and then you have to line up 23 other Senators to take 1 hour each, and if you stop talking we are going to put the question to a vote. If you do a number of certain other things we are going to make a dilatory motion. In other words, the majority can make it really hard for a Senator who objects.

Someone said one, two, three, or four Senators can hold this place up. They cannot hold it up. Because if you have 60 votes you can pass anything. If you have 60 votes you can pass anything and Senator Byrd said in his last testimony before the Rules Committee that you can confront a filibuster by using the rules.

The last two things we could do are, No. 1, we could stop complaining about voting. It happens on the Republican side and the Democratic side. If somebody offers an amendment that is controversial and everybody runs up to the leader and says we don't want to vote on that, then too bad. We are here to vote. That is why we are here so we should do that.

The third thing we can do, and Senator Byrd suggested this in his last testimony, is let's get rid of the 3-day work week. There is not enough time for all the Senators to offer their amendments and there is not enough time for the majority to confront the minority if they think the filibuster is being abused if we have a 3-day work week, and we never vote on Friday. We did not vote on Friday one time last year.

Let's use the rules. If you think we are holding something up improperly, confront that Senator. Run over him. You can do it. You have the power to do it if you have 60 votes. In this new Congress there will be plenty of opportunities there.

Finally I am going to take these five suggestions and work with Senator Schumer and work with my friends on the other side. They are very thoughtful. Senator Udall spent a lot of time on this, Senator Wyden and Senator Grassley spent 15 years. Senator Merkley used to be a speaker. We have talked a number of times. I greatly respect his work in his State and the fact that he has seen the Senate for a long period of time. I am taking very seriously everything that is said here. I am just worried about turning the Senate into the House.

We have a majoritarian organization over there. They can repeal the health

care law or they can get rid of the secret ballot in union elections with a majority vote. If you turn this place into that, you just go bam, bam and it is done. The Senate is the place for us to say: Whoa, whoa, let's see if we can get a consensus before we do anything.

When we get a consensus we not only get a better bill, but usually, the country accepts it better. The American people like to see us cooperating. They like to see us coming up with a tax bill or treaty or civil rights bill or a health care bill or a financial regulation bill, where we all have something in it. They feel better about that product. It is the check and the balance that is the genius of our system.

Obviously we can do some things better around here. I am committed to trying. I thank my friends for the amount of time and effort they have given. I am going to take everything they have said very seriously and in the spirit they have offered it. But I hope a part of our solution is that we use the rules before we change the rules because this is the forum to protect minority rights, this is the forum to force a consensus, and we dare not lose that. We dare not lose that.

I yield the floor.

Madam President, reserving the right to object, as I said earlier, Senator Wyden and Senator Grassley and Senator McCaskill and others have worked on this, some of them for as long as 15 years. They have made significant progress in gaining bipartisan support. I am going to object but only for the reason that this is one of the items we will be discussing and working on over the next few weeks with the hope that perhaps we can get agreement over here and agreement over there. It has been mentioned by all of the speakers today. It is a very serious proposal. But because we do not want to resolve it today, I object.

Mr. President, I hope the Senator from New Mexico will stay on the floor. I wish to engage in a colloquy with the Senator from New Mexico on the topic on which he just spoke.

I say to my friend from New Mexico, the Senator from Tennessee, as I understand, had propounded the question, what is a filibuster? The Senator from New Mexico has been very eloquent in responding to that, talking about the filibuster. But I think the better question is, what has a filibuster become, because as the Senator pointed out and as Senator Merkley pointed out, this whole image of someone standing on the floor and speaking until they drop such as Senator D'Amato or Senator Thurman back in the old days on the civil rights bills or even Senator Sanders a few weeks ago, that is not really a filibuster any longer. So what has a filibuster become?

Let me go back again a little bit in history. In the 19th century, in the 1800s, the filibuster was used, if I am not mistaken, about 20 times during that whole 100 years. But it was used under a different set of circumstances. In the 1800s, a Senator or a Congressman was elected in November, but the session of Congress lasted until March. The Senators or Congressmen elected in November actually did not take their seats here until a year and a month later, in December of the following year. So sometimes, in this ``lameduck'' session that ended in March, people in the majority party--especially if they had lost the election--would try to ram through a lot of stuff. The minority party would speak until the session ended in March so that nothing would get done, and then they would pick it up in December when the new Senate and House would meet. So it was a means of stopping onerous legislation for a short period of time.

That was in the 19th century. We have a different situation now. So the filibuster is not used to speak now and to slow up one piece of legislation or to stop one piece of legislation; it is used to slow down everything. One case in point: We had before my committee last year a nominee by the name of Patricia Smith to be Solicitor General of the Department of Labor. We had our hearings, I say to my friend from Kansas who is not here right now. We had our hearings in committee. She answered questions, answered written questions. We reported her out of committee. We came here to the floor. We had to file cloture on Patricia Smith to be Solicitor of Labor, so we filed cloture. We got the 60 votes. But as we know, under postcloture you get 30 hours. Well, the minority forced us to use the 30 hours. Senator Enzi, our ranking member, came and spoke for 15 minutes and left, and I sat here for 30 hours and no one spoke. So for 29 hours and 45 minutes we sat here doing nothing, unable to do anything, on a nominee who had over 60 votes. At that time, the record will show, I kept asking: Why are we here?

Why are we using 30 hours of the Senate's time, when nobody is even speaking and we already have the 60 votes for Patricia Smith? That is an example of what the filibuster has become. It has become a tool in order to slow everything down.

For example, nominees. We had nominees who got through here on a 99- to-0 vote after being held up for 6 months. Well, what if, I ask, we have to file cloture on every nominee and then every nominee has a vote on cloture and then you have 30 more hours. If you did that on every nominee, I believe the majority leader said we would be here from January through August doing nothing every day of the week except nominations. How would we ever get anything else done?

The question is, What has the filibuster become? It has become a means whereby a few--this, I guess, would be the question I might propound to my friend from New Mexico or at least suggest that he might respond. Has not the filibuster or the threat of a filibuster become a tool by which one or two or three or four Senators can absolutely slow down or stop things from coming to the Senate? Has not the filibuster become a tool by which one Senator who publicly announces that his goal is total gridlock of the Senate--total gridlock--has not the filibuster then become the tool by which one Senator can impose gridlock on the Senate? Is that not what the filibuster has become?

I thank my friend from New Mexico. I also thank him for his great leadership on the constitutional option. I am a cosponsor of his resolution, which he sent to the desk earlier today. He is right on target. The dead hand of the past cannot bind us. Every Congress, on the first legislative day--as Senator Byrd said himself in the past-- has the authority, with 51 Senators, to set our rules--not two-thirds, just 51. We are on that first legislative day today.

I understand the leader will put us into recess so we will stay in the first legislative day when we come back. So we will be on this issue when we come back on January 25.

I wonder if I might explore a little bit with my friends who are here--and the Senator from Oregon has been a great leader in this effort. As a former speaker of the legislature in Oregon, he has lent a great deal of expertise to our thinking and in evolving how we modify our rules to make this place function a little better. I thank Senator Merkley for his leadership. A lot of what was in the measure that Senator Udall sent to the desk earlier today is what Senator Merkley has devised. These are things we need to do.

I ask again to bring this up here for maybe a brief discussion, if I might. This is something Senator Cornyn and I got into a little bit earlier. He went on at length about building consensus; that we want to build consensus and have bills over here with a consensus. Well, I agree with that. You try to get as much consensus as possible. Obviously, if you can get 100 Senators, that is nice--or 80 or 70. It is always nice to get as many as possible. I ask my friends, isn't it sometimes true that legislation comes up that can be contentious, and you can open it--I think it ought to be opened in the committee process for amendments. I pointed to the health care bill that we had in our HELP Committee, and the occupant of the chair was so vitally involved with that. We had 54 hours and 13 days of open markup and open session. No Senator was denied the opportunity to offer any amendment on that bill--Republicans or Democrats. Senator Dodd was chairing at the time. We adopted 161 Republican amendments. Imagine that, over 13 days, 161 Republican amendments. As I said, nobody was cut off.

Yet at end of that, when we finally brought it up for a vote, not one Republican voted for it, even though they had a big hand in shaping it. So whenever I hear comments that ``we didn't have a hand in shaping the health care bill,'' I don't understand that. I know in the Finance Committee Senator Baucus bent over backward to make sure Senators on both sides could offer amendments and be a part of the process. I say, if they don't want to vote for it in the end, fine; that is their right and privilege. People can vote their conscience and on behalf of their constituents. But we weren't able to get a consensus on it.

So if you have a bill on which you can't get a consensus, does that mean we should stop? As I asked the Senator from Texas, does that mean every bill has to have 60 votes? Is that what we have become--no bill will pass here unless it has 60 votes or more? The Senator from Texas pointed out, correctly, that some bills pass here by unanimous consent. Fine. That is 100 votes. So do they mean we have to have a minimum of 60 to 100 votes in order for anything to pass? What happened to majority rules? What happened to the idea that you only need 51 percent? Isn't that sort of the basis of a democratic government?

Again, I ask my friends about this idea of consensus. Yes, we all want to get that. We all want as many Senators as possible on legislation, and we try hard to do that. But if that is not possible, does that mean that 53 or 54 or 55 or 56 Senators cannot then vote to pass a piece of legislation or an amendment?

I ask my friends, what about this idea of consensus? Have we come to where we have to have a supermajority? Is that the situation we are in now?

Mr. President, hopefully, I say to my friend from New Mexico, when we come back on the 25th we will engage in more of this discussion.

I should yield the floor. I wanted to raise that question about consensus because it sounds so good, and we all love consensus. Of course we do. But sometimes we cannot get it. Does that mean then that the majority cannot act if they do not get consensus of over 60? Does that mean the majority simply cannot act?

Mr. President, I leave the question hanging and yield the floor.

Mr. President, I thank the Senator from Oregon for his leadership. I want to rephrase my question that I left hanging when I yielded the floor the last time. I see our great friend from New York is here to speak. I will not take more than a minute or two. I want to rephrase the question.

I asked the question: What has the filibuster become? And I further asked a question about consensus. If you do not get a consensus--that is, over 60 people--to agree on something, should then the majority not have the right to act? I want to rephrase that question and put it this way: If consensus--meaning over 60 Senators--if over 60 Senators cannot agree on something, then should the minority have the absolute total veto power over what the majority is proposing? That is the essence of it. If you cannot get a consensus, should the minority have the total, absolute power to determine the outcome?

That is what has happened in the Senate. That is what has become of this filibuster. The end result has become the fact that 41 Senators-- if you do not have 60 Senators or more--41 Senators decide what we do, what we vote on, what comes before this body. How does that square with the principle of democratic government and majority rule?

I leave that out there: Should we have and continue to have, if we cannot reach a consensus, should we continue to have veto power by the minority?

I also see the Senator from Colorado here to speak.

I also want to publicly thank the Senator from New York who I see is about ready to speak, the chairman of our Rules Committee. Senator Schumer has spent so many hours and so many days this past year on this issue of reforming the Senate rules. He was kind enough to let me testify before his committee and kind enough to actually let me sit with his committee to listen to others.

Senator Schumer has been in harness on this issue trying to get us to the point where we can have meaningful changes in the rules so that this place can function a little bit better and a little bit more democratically--with a small ``d,'' not democratically in terms of political affiliation.

I know in the next few weeks Senator Schumer is going to be very much involved as one on our leadership team, along with Senator Reid and others, seeing what we can do to work things out so we can have a meaningful change in the rules.

Again, I am all for getting rid of secret holds, but that seems to be kind of a no-brainer. That would probably get close to 100 votes. But if that is all we are going to do, that is not a very meaningful change in the rules.

I submit that what Senator Udall, Senator Merkley, and others have introduced, or I submitted myself going on for 15 years now, that is meaningful change in the rules. I know Senator Schumer is going to be very much involved in that discussion. I applaud him for his efforts and leadership. We will be back on January 25 to take up this cause again. I know I speak for my friend from Oregon that he is going to be here on the 25th, and my friend from New Mexico and everyone else. We are going to be here because we cannot let this go. We cannot permit the Senate to be so dysfunctional that we cannot respond to the urgent needs of America and our place in the world today. We cannot continue to go downhill as a country and cannot continue to let the Senate be a dumping ground and nothing ever gets done.

These rules need to be changed. We will be back on the 25th to do so. I thank my friend from Colorado for his indulgence.