A resolution amending the Standing Rules of the Senate to provide for cloture to be invoked with less than a three-fifths majority after additional debate.

Mr. President, I have a resolution for myself, Senator Durbin, Senator Mikulski, and Senator Shaheen, which I send to the desk and ask for its immediate consideration.

Mr. President, I am sorry my good friend from Tennessee had to object, but I understand. We are going to engage for some time now on the Senate floor in a discussion on the filibuster, something that has been around a long time but which, in the last several years, few years--I would not say ``several''--in the last 20, 30 years, has gotten to the point where it has paralyzed the Senate and has paralyzed the country.

I intend to make some remarks for a while. I appreciate my friend from Tennessee and also my friend from Kansas who is here. I hope we can engage in a nice colloquy and a discussion about this in a back- and-forth way. I look forward to doing that. I do wish to take some time to at least lay out my case, as I did 15 years ago--I am sorry, 16 years ago. On January 4, 1995, I submitted this same resolution. I was a member of the minority party in the Senate for the first time in 8 years. When I first came to the Senate, the Republicans were in charge and then the Democrats got in charge and then the Republicans got in charge and then the Democrats got in charge and then the Republicans got in charge and then the Democrats got in charge. Since I have been here, since 1985, five times the Senate has changed hands.

I note that at the beginning of that Congress in 1995, the Republicans outnumbered Democrats 53 to 47, the same majority-minority ratio that exists today, just on the other side. Even though I was opposed to the then-majority party's agenda, I submitted the

same basic resolution to change the Senate rules regarding the filibuster.

My plan would have ensured ample debate and deliberation. The stated purpose of a filibuster is to have debate and deliberation. But it would also have allowed a bill or nominee to receive a ``yes'' or ``no'' vote. Unfortunately, my proposal did not pass. It received 19 votes. My cosponsors were Senator Lieberman, Senator Pell, and Senator Robb of Virginia.

I submitted my bill--and if you care to go back and read that debate, it is the January 4, 1995, Congressional Record in the Senate. I saw an escalating arms race, where each side ratcheted up the use of the filibuster. That is what I called it then.

Sadly, in the intervening years, my prediction has been fulfilled. The sad reality is that today, because of the indiscriminate use of the filibuster, the ability of our government to legislate and to address problems is severely jeopardized. Sixteen years after I first submitted my proposal, it is even more apparent that for our government to properly function, we must reform and curb the use of the filibuster.

The filibuster was once an extraordinary tool used in the rarest of circumstances. When many people think of the filibuster, many times it brings to mind the classic film of ``Mr. Smith Goes to Washington.'' It is ironic that in 1939, the year Frank Capra filmed ``Mr. Smith,'' there were zero filibusters in the Senate. From 1917 across the entire 19th century--for 100 years--there were 23 filibusters in 100 years. Indeed, through 1879, there were only four. From 1917, when the Senate first adopted rules to end the filibuster, until 1969, there were fewer than 50--less than 1 filibuster a year. Unfortunately, since then, the number has skyrocketed.

The current concerns I raise are not new. The problem has become far more serious. In 1982, my good friend and colleague, Senator Dale Bumpers of Arkansas, said this about the filibuster: ``Unless we recognize that things are out of control and procedures have to be changed, we'll never be an effective legislative body again.'' That was 1982.

During the 2 years of that Congress, there were 31 filibusters as measured by the number of cloture motions filed. In 1985, former Senator Thomas Eagleton of Missouri remarked:

The Senate is now in the state of incipient anarchy. The

filibuster, once used, by and large, as an occasional

exercise in civil rights matters, has now become a routine

frolic in almost all matters. Whereas our rules were devised

to guarantee full and free debate, they now guarantee

unbridled chaos.

That was 1985, my first year here. But during that Congress there were 40 filibusters.

Again, I wish to refer to the number of filibusters as a visual aid to see what has happened.

As we go back to 88th, 89th, 90th, and on up, we can see the number of filibusters escalating from less than 10 a year--4 or 5--up to almost 140, 139. In 1994, former Republican Senator Charles Mathias of Maryland said:

Today, filibusters are far less visible but far more

frequent. The filibuster has become an epidemic,--

An epidemic. That is former Republican Senator Charles Mathias--

used whenever a coalition can find 41 votes to oppose

legislation. The distinction between voting against

legislation and blocking a vote between opposing and

obstructing has nearly disappeared.

That was Senator Mathias of Maryland.

During that Congress, again right before I first submitted legislation to modify the filibuster, there were 80 filibusters that year. If I may quote myself, 1 year after Senator Mathias made his statement about the filibuster, this is what I said in 1995:

It is used, Mr. President, as blackmail, for one Senator to

get his or her way on something they could not rightfully win

through the normal process. I am not accusing any one party

of this. It happens on both sides of the aisle.

I said that in 1995. Quoting myself from the Record:

Mr. President, I believe each Senator needs to give up a

little of our pride, a little of our prerogatives, and a

little of our power for the good of this Senate and the good

of this country. I think the voters of this country were

turned off by the constant bickering, the arguing back and

forth that goes on in this Senate Chamber, the gridlock that

ensued here, the pointing of fingers of blame. Sometimes in

the fog of debate, like the fog of war, it is hard to

determine who is responsible for slowing something down. It

is like shifting sand. People hide behind the filibuster. I

think it is time to let the voters know that we have heard

their message in the last election.

I said this in 1995.

They did not send us here to bicker and to argue and to point fingers. They want us to get things done to address the concerns facing this country. They want us to reform this place. They want this place to operate a little better, a little more openly, and a little more decisively.

I said that when the Republicans were in charge.

With all those filibusters, it was not until the 110th and 111th Congress that the true scope of the filibuster abuse would truly be realized. In the 110th Congress, there were an astonishing 139 motions to end filibusters. In the 111th, there were 136--275 filibusters in just 4 years.

The fact is, in successive Congresses, Democrats and Republicans have made the filibuster an everyday weapon of obstruction, not as a way to ensure debate and deliberation but as a way of obstruction. I say both sides have done it. I said that in 1995. I predicted an escalating arms race. I said: If we do not do something about it, it is going to get worse--and, unfortunately, it has.

On almost a daily basis, one Senator is able to use just the threat of a filibuster to stop bills from coming to the floor for debate and amendment. In the past Congress, we started seeing the minority filibuster bills they did not even object to solely in order to slow down unrelated measures they did oppose. The result is a legislative process that is simply overwhelmed, squeezing out the ability to do important, relatively noncontroversial legislation.

It is no accident that Norm Ornstein, the esteemed congressional scholar, wrote an article, titled ``Our Broken Senate,'' in which he wrote that ``the expanded use of formal rules on Capitol Hill is unprecedented and is bringing the government to its knees.''

Just the other day, I received a petition signed by nearly 300 top historians, legal scholars, and political scientists urging Senators ``to restore majority rule to the United States Senate.'' I ask unanimous consent to have this petition printed in the Record.

Mr. President, last month, our former colleagues, Gary Hart, a Democrat, and Chuck Hagel, a Republican, published an essay in Time magazine calling on us to ``restore democracy to the U.S. Senate'' by reforming the filibuster. In their words, the abuse of the filibuster ``is no way to govern a great democracy.''

I ask unanimous consent to have that essay printed in the Record.

Mr. President, editorialists from across the country have recognized the filibuster must end. The Concord Monitor of New Hampshire called on the Senate to ``Remove the Senate filibuster roadblock,'' noting, ``The filibuster rule has rendered the Senate dysfunctional and harmed the nation's ability to deal with pressing issues.''

The Los Angeles Times said `` . . . both parties should be willing to eliminate such anti-democratic practices as the filibuster. . . .''

Editorials throughout the country have called for reform of the filibuster. I ask unanimous consent to have printed in the Record these editorials.

Mr. President, 275 filibusters in 4 years is not just a cold statistic; it represents the minority blocking measures that sometimes--not all the time but sometimes--enjoy broad support among the American people. Just in the last Congress, the filibuster was used to kill many bills that enjoyed majority and often bipartisan support. Need I mention the DREAM Act? It had broad bipartisan support and big support among the American people. There was the DISCLOSE Act, which polls showed that over 80 percent of the American people supported. We had a majority vote here for it, but we didn't have a supermajority. So it is no surprise that Americans are fed up and angry with their Federal Government. In too many critical areas, people see a legislature that is simply unable to respond effectively to the most urgent challenges of our time.

Make no mistake, the problem goes beyond the sheer number of filibusters. This once-rare tactic is now used or threatened to be used on virtually every measure and nominee, even those who may enjoy near universal support. In the past Congress, for nearly 8 months, the minority filibustered confirmation of Martha Johnson as Administrator of the General Services Administration--certainly a relatively noncontroversial position. She was ultimately confirmed 96 to 0. So what was that filibuster all about? And for nearly 5 months, the minority filibustered confirmation of Barbara Keenan to the Fourth Circuit Court of Appeals. She was ultimately confirmed 99 to 0.

What was that filibuster all about?

Again, to quote Norm Ornstein:

The Senate has taken the term ``deliberative'' to a new

level, slowing not just contentious legislation but also

bills that have overwhelming support.

Secondly, the filibuster has increasingly been used to prevent consideration of bills and nominees. Rather than to serve to ensure the representation of minority views and to foster debate and deliberation, by filibustering motions to proceed, the minority has been allowed to prevent debate and prevent deliberation. The filibuster has been used to defeat bills and nominees without their ever receiving a discussion here on the floor of the Senate. In other words, the Senate, which was formerly renowned as the world's greatest deliberative body, has now become the world's greatest nondeliberative body. We can't even debate important national issues.

That is why I fully support the commonsense proposals to reform the filibuster and restore the Senate to a body in which issues can be fully debated and deliberated. I support eliminating the filibuster on the motion to proceed, and I believe those who are filibustering a bill or a nominee should be required to come to the floor, hold the floor, and make their case to their colleagues and the American people. Senators should not be able to hide behind a curtain of secret holds. The reality is, however, because of the filibuster, the minority has unchecked veto power in this body.

Now, I want to make it clear, when I say ``the minority,'' I am not talking about the Republicans; I am talking about the minority. It may be the Democrats or it may be the Republicans. As I said, five times it has changed since I have been--since 1985. When I say ``the minority,'' I mean the minority; I don't mean a political party.

This is what James Madison noted when rejecting a supermajority requirement to pass legislation:

. . . it would no longer be the majority that would rule,

the power would be transferred to the minority.

Unfortunately, Madison's prediction has come true. We are the only Democratic body that I know of in the world where the minority, not the majority, controls. In today's Senate, American democracy is turned on its head. The minority rules; the majority is blocked. The majority has responsibility and accountability but lacks the power to govern. The minority has power but lacks accountability and responsibility. This means the minority can block bills that would improve the economy, create jobs, and turn around and blame the majority for not fixing the economy. The minority can block popular legislation and then accuse the majority of being ineffective.

I repeat, when I say ``the minority,'' I am not saying Republicans or Democrats; I am saying the minority, whoever it may happen to be. Both parties have abused the filibuster in the past, and both will, absent real reform, abuse the filibuster in the future. Although Republicans are currently in the minority, there is no question that control of this body will change, as it periodically does.

The fact is, reform is urgently needed. That is why I am reintroducing my proposal which would permit a decreasing majority of Senators over a period of days to invoke cloture on a given matter. Under my proposal, a determined minority could slow down any bill. Senators would have ample time to make their arguments and attempt to persuade the public and a majority of their colleagues. This protects the rights of the minority to full and vigorous debate and deliberation, maintaining the hallmark of the Senate. But at the end of ample debate, the majority should be allowed to act. There should be an up-or-down vote on legislation or a nominee. As former Senator Henry Cabot Lodge, a Republican, stated many years ago, ``To vote without debating is perilous, but to debate and never vote is imbecile.''

My plan has another advantage. The fact is that right now, the minority has no incentive to compromise. Not only do they know they have the power to block legislation, but they can go out and campaign on the message that the majority can't get anything done. In contrast, if the minority knows that at the end of a period of time a bill or nominee will be subject to majority vote, they will be more willing to come to the table and negotiate seriously. Likewise, the majority would want to compromise because they want to save time. There is nothing more valuable to the majority party in the Senate than time.

So under my proposal, on the first cloture vote, you would need 60 votes.

If you don't get 60 votes, you would have another vote in 3 days and you would need 57 votes; in 3 more days, 54 votes; 3 more days, 51 votes. So the majority would finally act, but you would chew up almost 2 weeks of time. So on the first vote, let's say 53 Senators voted for cloture. Well, the minority would know that in several days or maybe in a couple weeks' time, 53 Senators will get cloture. The minority then would go to the majority and say: Look, we can drag this out for a couple of weeks, chew up all your time, but we have some things we would like to have considered. The majority--and I say there is nothing more important to the majority than time here--not wanting to spend a couple weeks on a bill, on a cloture or a filibuster, would say: OK, maybe we can make an agreement. We will collapse the timeframe, the minority gets some of the things they want, and the majority is able then to have a vote. So I see my proposal as a means of encouraging compromise. Right now, there is no reason to compromise for the minority.

Again, I am not talking about Republicans or Democrats; I say ``the minority'' because they know they can absolutely block it.

I have changed my resolution since I introduced it in 1995, and I have changed it because Republicans have said and I heard the minority leader say earlier that they have done this because Democrats in the majority--the majority this time--have employed procedural matters to deprive the Republicans of the right to offer amendments. Well, I am very sympathetic to this argument. That is why I included in this resolution a guaranteed right to offer germane amendments to the minority, filed in advance of the cloture vote so everyone would know what was coming. Again, the minority should have the right to offer some amendments that are germane to the bill. No matter who the majority is, both parties are concerned about amendments from the minority. Perhaps you have a bill dealing with housing and someone wants to offer an amendment dealing with abortion. Well, there may be a time and place for that but not on that bill. So that is why I say it should be germane to the bill. If the minority has ideas to improve the bill, strike something from the bill, that would be germane to that bill.

I have heard it said--and I heard it on the radio this morning driving in--that this is something like a power grab by a Democratic Senator reacting to recent elections in which my party lost numerous seats. Well, I want to make clear that the reforms I advocate are not about one party or one agenda gaining an unfair advantage; it is about the Senate as an institution operating more fairly, effectively, and democratically. Again, I wish to point out that I first offered this in 1995 when I was in the minority. So to use the legal term, I come here with clean hands. The truth is, with Republicans controlling the House, any final legislation will need to be bipartisan with or without the filibuster.

So I don't see reform of the filibuster as a Democratic or Republican issue. Indeed, it was former Republican majority leader Senator Frist who, when he nearly shut this body down over the use of filibusters on a handful of judges, said:

This filibuster is nothing less than a formula for tyranny

by the minority.

That was in 2004, Senator Frist, the Republican majority leader at that time.

Well, as I said, one of the problems here was this was done in the middle of a term. See, I think the Senate ought to be able to set its rules at the beginning, on the first legislative day, which we are in now and which will extend for some time. The Senate ought to be able to set its rules at the beginning of a Congress. You can't go changing the rules every month, but you should be able to set the rules at the beginning of a Congress so that you know for 2 years what the rules are that you are operating under.

So it is time for the arms race to end. That is what this is--it is an arms race. I daresay that if we don't do anything about this, if the Republicans take control of the Senate, as they think they will in 2 years, well, Democrats are going to do the same thing to them. Guarantee it. Guarantee it. The Republicans did--what did I say?--136 filibusters--139? Bet your bottom dollar, if we don't change the rules, Democrats will match them. You wait and see.

Well, a lot of people sometimes say: Well, Harkin, what you are advocating is the Senate would become like the House. I ask my friends and any Senator on either side of the aisle, since when did the Senate become defined by rule XXII, which is the filibuster? Why does that define the Senate? I thought the Senate was defined by the fact that you get two Senators from every State--two Senators from North Dakota, two Senators from California, two Senators from New York, two Senators from Iowa. I thought the Senate was defined by the fact that we have unlimited debate. When a Senator gets the floor, you can't take it away from him. We operate under unanimous consent. The power of one single Senator would remain. But in the Senate, what do we do? We do treaties, we do nominations, we sit in judgment on impeachments. The Senate is not like the House. And just because we don't have the filibuster as we have known it for the last 94 years does not mean the Senate becomes like the House. Eliminating the filibuster will not change the basic nature of the Senate. So I say to those who say the Senate would be like the House if we did away with this filibuster, would they also suggest that the Senate of Henry Clay or Daniel Webster or Lyndon Johnson or Everett Dirksen was the same as the House of Representatives? I don't think so.

The fact is, what was never intended was that a supermajority of 60 votes would be needed to enact virtually any piece of legislation or for any nominee. In fact, the Framers of the Constitution were very clear about where a supermajority is required. There were only five in the original Constitution: ratification of a treaty, override of a veto, votes of impeachment, passage of a constitutional amendment, and expulsion of a Member. If they wanted to have supermajorities, they would have said so. But it is not in the Constitution. The filibuster is not in the Constitution.

The first Senate expressly included a rule permitting the majority to end debate and bring a measure to a vote by moving the previous question. I repeat: The first Senate--the first Senate--had a rule that permitted the majority to end debate. Alexander Hamilton explained that a supermajority requirement would mean a small minority could ``destroy the energy of government.''

Hamilton said that the government would be subject to the ``caprice or artifices of an insignificant, turbulent or corrupt junta.'' Those are Hamilton's words.

Moreover, reform of filibuster rules stands squarely within the tradition of updating Senate rules as needed to foster an effective government that can respond to the challenges of the day. The Senate has adopted rules that forbid the filibuster in certain cases, such as the War Powers Act and the budget. Imagine that. What should be more debatable than the budget? But our rules do not permit a filibuster of the budget. So we passed rules here limiting the filibuster.

Since 1917, we have passed four significant reforms concerning the filibuster. The fact is, as Senator Tom Udall has powerfully made clear, article I, section 5, clause 2 of the Constitution specifies that ``each House may determine the rules of its proceedings.''

As Senator Robert Byrd, who was opposed to filibuster reform--he and I had a great debate back in 1995 on this--as he emphasized, and he said this--Senator Byrd: ``At any time that 51 Senators are determined to change the rule . . . that rule can be changed.''

I am reading here from what Senator Byrd said. He said at that time:

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.

``The dead hand.''

I listened to the minority leader when he said we have--the majority has never changed rules except by following those rules. The rules set down by a Congress a long time ago, by a Senate a long time ago, said that in order to change the rules, you need a two-thirds vote of the Senate. I submit that is unconstitutional. I submit that this Congress, this Senate, on this first legislative day, does not have to abide

by that. What if, in some Senate, one party got 90 Senators one time, and they adopted a rule that said that from here on out, you have to have 90 votes in order to change the rules, here are the rules, and they set up rules that pretty much made it impossible for the minority to ever become the majority? Would that be constitutional? I don't think so.

Senator Byrd said we are not obliged to be bound by the dead hand of the past. The first Senate, Senator Byrd said, which met in 1789, approved 19 rules by majority vote. Those rules have been changed from time to time. So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think or believe or pretend that all succeeding Senates would be bound by that Senate.

Here is the essence of what Senator Byrd said:

It is my belief--which has been supported by rulings of

Vice Presidents of both parties and by votes of the Senate--

in essence upholding the power and right of a majority of the

Senate to change the rules of the Senate at the beginning of

a new Congress.

I would say Senator Byrd has not been alone in his views or tactics. The constitutional option has been endorsed by three Vice Presidents and three times by the Senate itself. Why was it not used? Because Senators then reached a compromise, and therefore we never had the constitutional option. But that does not mean we cannot use that. The Constitution is very clear. I think three votes of the Senate and three former Vice Presidents have made clear in their rulings that at the beginning of a Congress, we can set the rules.

Chief Justice John Marshall once said:

Any enduring Constitution must be able to respond to the

various crises of human affairs.

I said many times that I don't believe we can be a 21st-century superpower bound by archaic rules of the 19th century. We have to have a responsive government, responding to the challenges of our time.

I am not afraid. I say to my friends on the Republican side, I am not afraid. What the minority leader said--he said that at some time the Republicans might be in charge, and they might want to undo what the Democrats did, and the Democrats better be careful. That was in his op- ed piece in the Post this morning. I am not afraid of democracy. I am not afraid of the votes of the people. If the people vote to put certain conservatives in power, then they ought to have the right to govern. They ought to have the right to respond to the people of this country. The minority--I would be in the minority at that time--I think the minority ought to have the right to be heard, we ought to have the right to debate, we ought to have the right to amend, but we should not have the right to totally obstruct. I am not afraid.

People say that the tea party in the House--they are going to do all this stuff. I am sorry, I am not afraid. The people voted. There ought to be things that happen because people vote a certain way. No wonder so many people are frustrated. They vote, they think things are going to happen, they don't happen, and they say: A pox on both your Houses.

So, yes, I don't know why we should be so afraid of each other. Why should I be afraid that the Republicans are going to institute legislation I don't like? They have in the past, and our country has endured. I would say there are times when the Democrats have passed legislation Republicans did not like and our country has endured. So I just do not like this fear, that we have to be afraid that somehow the majority is going to do things.

What we want to make sure of is that the rights of the minority are guaranteed--the right to be heard, the right of the minority to offer amendments. But I don't think it ought to be the right of the minority to obstruct, and I don't think it ought to be the right of the minority to demand that their views be implemented. That is the right of the majority.

I close where I began, and I thank my friends for this indulgence. I believe the bedrock of the principle of our Constitution, our Founders, was majority rule with respect for minority rights. But I say this, and I have said it many times. It is kind of the dirty little secret of the Senate. And here is the dirty little secret: The power of an individual Senator comes not by what he can do but by what he can stop. That is the dirty little secret of the Senate. One Senator can stop something, can block it. I say that each Senator--each of us needs to give up a little of our privilege, give up a little of our power, give up a little of our prerogatives for the greater good of this country.

I yield the floor.

I will respond to my friend from Tennessee who makes cogent arguments, as he always does. He is a good friend of mine, and we have worked together on a lot of things. I hope this is the beginning of some colloquies we can have here. I do want to indulge and let other Senators have their say because they were so kind to let me have my say too. But I intend to be here as long as anybody wants to say anything or to engage in some colloquies here on the Senate floor.

I say to my friend from Tennessee, that as I listened to him, and I did very carefully, there are a couple of things I want to point out in terms of this idea of a filibuster and being able to amend things. My friend referred many times to the health care bill. I do not know if my friend said this, but I have heard it said that we wrote it behind closed doors and all of that kind of stuff.

Let me point out that when it came to our committee, the HELP Committee, we had 13 days of markup, 54 hours. We allowed any amendment to be offered. The Senator is a member of that committee. We allowed any Senator on our committee to offer any amendment. We adopted 161 Republican amendments, either through some votes, which they won, or through just adopting the amendments. Then after that, after all of that, all Republicans voted no. That is fine. There are a lot of times I know in the past when I have had an amendment on a bill which I thought improved it, but overall I did not like the bill, and I voted against it. I think that is the right of the minority. But then to obstruct it and to try to obstruct it to keep it from even being enacted I do not think is right. So I would say to my friend that I do not think the health care bill is a good example.

I say to my friend, he quoted someone, I think maybe it may have been Senator Reid, saying, do people think they are wiser than our Founding Fathers. Please show me where our Founding Fathers ever set up a system where the Senate could have unlimited debate? They never did that. It is not in the Constitution.

As I pointed out, the first Senate actually had the motion, the previous question, to cut off debate. And they did not set up a majoritarian House. Article I section 5, I say to my friend from Tennessee, article I, section 5 is very clear. Each House sets up its rules. If the new majority in the House wanted to, they could set up rules to be like the Senate. They could do that. They could set up rules however they wanted, as long as they were constitutional. I suppose someone could take it to court to see if it was constitutional. But they do not have to operate under those rules. We do not have to operate under these rules. The Constitution gives us the right to change those rules.

Our Founding Fathers never set up this system, by the way, never. There is no mention of it anywhere in the Constitution. They did not set up a majoritarian House, they set up article I, section 5, which said each House can set up its own rules. But then in the Constitution, they outlined certain prerogatives. The Senate has certain prerogatives, the House has certain prerogatives, such as, for example, all bills of revenue have to originate in the House, not in the Senate. Treaties are done by the Senate, not by the House. But they never set up any kind of majoritarian type of thing.

I say to my friend, on the filibuster, I think there is a reason for a filibuster. I think there ought to be filibusters. I think there ought to be times when the minority can slow down things in order to get their views heard, or in order for them to be able to offer amendments, to make the bill better, in their views. That is the right of the minority.

I do not think it is the right of any minority--I say minority. When I say that, I am not talking about Republicans. I am saying any minority here. I do not think it is the right of any minority here to say, if I do not get my way, I am going stop everything. That is kind of what I see happening around here. If I do not get my way, one Senator can stop things.

I point out one other bill, I say to my friend from Tennessee, that I thought was a great bipartisan bill. We worked hard on it in our committee. The Senator from Tennessee was instrumental. That was the food safety bill. We reported it out of our committee a year ago in November, unanimous vote. Everyone voted for it, Republicans and Democrats on our committee. We got it out. But there were some things in the bill that Senators not on our committee, and maybe one Senator on our committee, did not like. So we had to work through the ensuing months to get everybody onboard and to work it out, which is fine. I have no problems with that. That is the legislative process. I have patience. As my friend from Kansas knows, I have a lot of patience working on farm bills. They take time.

But we worked it all out. And yet one Senator, one Senator who really disagreed with it, was able to hold it up from coming on the floor. We finally got it on the floor, but it took almost a year. One Senator was able to do that.

So I say, one Senator should be able to have the right to offer amendments, to be heard, but not to stop everything. I guess that is what I come down to, I say to my friend from Tennessee, that there ought to be a--I think there is a reason and a good reason for the Senate to be that saucer that cools things down, the story about Jefferson and Washington. But it should be at some point in time where the majority has not only the authority but the power to act after a due consideration and a due period of time.

I believe, I say to my friend in all sincerity, that will promote more compromise than the present system. You may disagree, but I feel that would. I am not trying to take away compromise. I believe in compromise. I believe in working things out. As chairman of the Agriculture Committee for two farm bills, we worked things out. I am sure there were things in the farm bill that the Senator from Kansas did not like, and there were things in there that I did not like, even though I was chairman. But you work these things out. You compromise and you get things done. So I believe in that spirit of compromise. But I think what we have here now--and that escalating arms race--is doing away with that spirit of compromise and working things out and moving things. That is why I think we have to change the rules.

I do not know if I adequately responded to my friend from Tennessee, but these were my thoughts at the end. I am looking forward to other comments from other Senators and engaging in our colloquies. I promise I will not take so long.

Madam President, I thank my friend from Kansas. I think he makes some good points.

I would say to my friend, I think we ought to go through processes in our committees to have hearings on nominees to flush out things such as that. So to that extent, the Senator from Kansas is right. We should not have, especially if there is any controversy at all--I suppose some of them are noncontroversial--but if there is some controversy out there, yes, I think the committees ought to have the responsibility to bring them forward. Let the committees question them. We did that in our HELP Committee, I say to my friend from Kansas. I am trying to remember the person we had--oh, a lot of controversy about Craig Becker, I think, who was going to the NLRB.

If it was out of our committee, obviously it was a better bill than coming out of the Finance Committee. But I say to my friend, again, that----

I thought there were some things we should talk about. I say to my friend, in listening to my friend from Kansas say this, it occurred to me that certain of his amendments were allowed. The Senator was allowed to debate them and offer them, but they were not adopted. It seems to me, as I have said before, the right of the minority ought to be to offer amendments, to have them considered, to have them voted on, but it does not mean it is the right of the minority to win every time on those amendments.

I say to my friend, on that financial services bill, I had an amendment too and I could not get it in. I was on the majority side, and they would not let me offer one either. So both sides have some legitimate points.

I also say to my friend from Kansas, and others, we can get into this tit for tat, who started it. I think we have to kind of quit that. I could come back and say: Well, yes, in the last 2 years, the tree was filled 44 times. In this last session, 44 times the tree was filled, but there were 136 filibusters. Why wouldn't there be 44 filibusters? Why were there 136? We can get into that tit for tat, who did what to whom. I wish to forget about all that. We could go back, probably, to the 18th century--tit for tat, who did what to whom at some point in time.

I ask my friend from Kansas, who has been here a long time--we served together in the House; my friend was chairman of the Agriculture Committee in the House. We have done a lot of legislation together-- does my friend from Kansas feel the Senate is operating today in the best possible way? Does my friend from Kansas believe there could be some things done to make the Senate operate a little bit more openly and fairly with rights for the minority to be protected but without letting the minority--and I do not mean Republicans when I say ``minority,'' I mean whoever happens to be in the minority--to keep the minority from obstructing things? Does my friend feel there could be some changes made?

Madam President, will the Senator yield for a question?

I thank my friend from Texas. Again, he and I have worked together on some legislation in the past too. He is a thoughtful Senator and a good legislator.

I ask my friend from Texas this: In listening to him, I almost have the feeling that my friend from Texas is saying we ought to have a supermajority to pass anything, that we should have 60 votes in order to pass anything.

I ask my friend, is that what my friend really means or implies, that everything should have 60 votes before it can go through here? Is that what my friend is suggesting?

Madam President, if my friend will yield further, again, in my resolution there is a guarantee that the minority has the right to offer amendments--absolute guarantee. As I said, that is something I have urged since 1995. I am very sympathetic to the argument that people are cut out from offering amendments. I know because that has happened to me by the majority at times. So I believe there ought to be rights for the minority. I always hasten to add when I say ``minority'' I am not saying Republicans, I am saying the minority. It may be us pretty soon. It goes back and forth, as my friends knows. There ought to be the right for the minority to offer amendments and to have their voice heard and to, as the Senator says, represent the people of our States adequately.

But I ask my friend again, what happens when we have one or two or three or four Senators who don't want to see a bill passed in any form--some bill, just take any bill--that maybe has been worked on by both Republicans and Democrats, has broad bipartisan support maybe to the tune of even 70 or so Senators, but there is one or two or three Senators who don't want it to pass anyway, and they are able to gridlock the place under rule XXII. I know the Senator talked about exercising self-restraint, and I say that is fine. But what if we had that situation where we have two or three Senators saying: I don't care how many Senators are on it I don't want it to move. And

they invoke their rights under rule XXII. How do we get over that hurdle?

Madam President, if the Senator would indulge me for one more moment, so it is not the position of my friend from Texas that everything needs 60 votes in which to move in the Senate; is that correct?

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

Madam President, exactly 16 years ago, in January of 1995, for the first time in 8 years I found myself as a member of the minority party here in the Senate. At the beginning of that Congress, Republicans outnumbered Democrats 53 to 47; the exact same majority-to- minority ratio that exists today, just in reverse order. Yet even though I was opposed at that time to the majority party's agenda, I introduced legislation to change the Senate rules regarding the filibuster.

My plan would have ensured ample debate and deliberation, which I always hear is the stated purpose of the filibuster, but would also have allowed a bill or a nominee to eventually receive a yes-or-no vote. Again, my proposal didn't pass.

I first proposed this at a conference of our Democratic Senators that was held in 1994, because at that time I saw and I predicted--and it is in the Congressional Record that I had predicted this at that time-- there was an escalating use of the filibuster that was being used not for debate purposes, not just to slow things down, but to actually provide for a veto of pending legislation by the minority.

I predicted, at that time, if this arms race were not nipped in the bud, it would escalate because it had been escalating since the 1980s. Democrats were in power. Republicans would have X number of filibusters, and then when the Republicans were in power, the Democrats would do the same to the Republicans. Then the Republicans would come back in power and the Democrats would do the same to them and back and forth, but each time it escalated--an escalating arms race.

I predicted, at that time, if we did not do something about it, it was going to get worse. Unfortunately, my prediction became all too true. In the intervening years, because of the extraordinary use of the filibuster, the ability of our government to legislate and to address the critical problems has been severely jeopardized.

Sixteen years after I first introduced my proposal, it is even more apparent that for our government to properly function, we must reform the use of the filibuster. There are those who have criticized me and argued that Senator Harkin would not be doing this if he were in the minority. Well, again, that is not true. I repeat. In 1995, when I was a member of the minority party, I first introduced my proposal.

The truth is, in the future, whether the Chamber is controlled by Democrats or Republicans, I will continue to work to accomplish a couple things. One, to provide that if there is going to be a filibuster, that it is a real filibuster; that the filibuster is used to slow down processes, to give the minority ample time to debate and discuss and to amend, but in the end the majority rule must come to the Senate.

I thank Senator Schumer and Senator Alexander for the effort they made to negotiate a package of badly needed reforms. Of course, eliminating secret holds is long overdue. It is wrong that not only can the minority block the majority from acting, but, too often, it does it secretly and without any public accountability. So eliminating that and eliminating the confirmations of many low-level executive branch nominees I think is meaningful movement in the right direction.

While I fully support these steps, they are far from the meaningful reforms that I think are essential to make the Senate a properly functioning legislative body. Keep in mind, we are a legislative body. The filibuster was once an extraordinary tool, used in the rarest of instances. Across the entire 19th century, there were only 23 filibusters. From 1917, when the Senate first adopted rules on this until 1969, there were fewer than 50 in that whole timespan--less than one a year.

During the 104th Congress, in 1995, when I first introduced my resolution, there were 82 filibusters. But it was not until the 110th and 111th Congresses that the abuse of the filibuster would spin wildly out of control. In the 110th Congress, there were an astonishing 139 motions to end filibusters. In the 111th Congress just ended, there were 136. That is 275 filibusters in just over 4 years. It has spun out of control.

This is not just a cold statistic of 275 filibusters. It means the filibuster, instead of a rare tool to slow things down, has become an everyday weapon of obstruction, of veto. On almost a daily basis, one Senator is able to use just the threat of a filibuster to stop bills from even coming to the floor for debate and amendment, let alone a final vote.

In the last Congress, the filibuster was used to kill many pieces of legislation that enjoyed majority and often bipartisan support. The reality is, because of the way the filibuster is abused today, the minority--the minority--has unchecked veto power over public policy. When I say minority, I do not say Republicans, I say the minority. It could be the Democrats, it could be the Republicans.

Think about this. We are a legislative body, elected by the voters of this country every 6 years to legislate, to pass legislation with the House, to send it to the President or to defeat legislation, one way or the other, through our votes.

But it would seem to me that reason alone--reason alone--would suffice to

say that legislation should be able to be passed with a majority vote. But that is not what has happened in the Senate. The power to pass legislation has been given to the minority. Reason alone would dictate there is something inherently wrong and inherently unconstitutional about this.

As James Madison noted when rejecting a supermajority requirement to pass legislation, here is what James Madison said: ``It would no longer be the majority that would rule: the power would be transferred to the minority.''

Unfortunately, Madison's prediction has come true. We are the only democratic body in the world--and I challenge anyone, I challenge anyone, to contradict me on this with proof--we are the only democratic body in the world where the minority, not the majority, controls.

In today's Senate, democracy, of which we all claim to be such strong supporters, democracy is turned on its head. The minority rules; the majority is blocked. The majority has responsibility and accountability but lacks the power to govern. The minority has power but lacks accountability or responsibility.

This means, as we have seen recently, that the minority can block bills that would improve the economy, create jobs, and then turn around and blame the majority for not fixing the economy. The minority can block popular legislation, then accuse the majority of being ineffective.

Again, I wish to note that when I refer to the minority, I am not saying Republicans, I am saying the minority. Both parties have abused the filibuster in the past and both will, absent real reform, abuse the filibuster in the future. Although Republicans are currently in the minority, there is no question that control of this body will change again at some point, as it always does periodically.

Some have argued that filibuster reform is nothing more than a ``power grab'' by a Democratic Senator reacting to the recent elections in which his party lost seats. I have heard that said. Well, it is true it is now harder for either party to obtain the 60 votes needed to pass legislation. But I wish to make clear that the reforms I advocate are not about one party or one agenda gaining an unfair advantage, it is about the Senate, as an institution, operating more fairly, effectively, and democratically.

I wish to repeat, I first introduced this in 1995 when I was in the minority. So as we say in law school, in the court of equity, I come with clean hands. The truth is, as it is situated right now with Republicans controlling the House, any final legislation will need to be bipartisan, with or without a filibuster.

Let me also say, again, that for a bill to become law, it has to be passed by the House and the Senate in the same form--in the same form. Then it must go to the President. The President can veto it and then it takes a two-thirds vote to override a veto. There are a lot of checks and balances out there. So the need for the check on legislation by the minority with the ultimate power to veto that is not needed--not needed; in fact, inimical to a democratic institution.

It was former majority leader Bill Frist who said, when he normally shut down the body over the use of filibusters to block a handful of judges, again by Democrats, ``This filibuster is nothing less than a formula for tyranny by the minority.''

Further, I wish to make it clear it is not those of us who seek reform who are engaged in a power grab. It is those who insist on hanging on to an antiquated rule who are grabbing for power. It is those who have taken an extraordinary tool, once used sparingly, to ensure ample debate and deliberation and turned it into a monstrosity, destroying the power of the majority to govern, turning over effective control of the Senate to the party that failed to elect a majority of Senators.

That is the real power grab. That is the real power grab. Moreover, despite the dire predictions of opponents of reform, filibuster reform does not mean the end of minority rights in the Senate. Senators of all parties will continue to have ample time to make arguments, attempt to persuade the public or a majority of their colleagues.

The reform proposals that are being considered fully protect the rights of the minority to full and vigorous debate and deliberation, maintaining the hallmark of the Senate.

Presently, Republicans have stated the filibusters were necessary because Democrats employed a procedural maneuver to deprive them of the right to offer amendments, the so-called filling of the tree. Well, notwithstanding the rejoinder that Republican abuse amendments, such as offering amendments totally unrelated to the pending matter--and there again this is where you get into the chicken and egg, who did it first to whom? Nonetheless, I am sympathetic to the argument that the minority ought to have the right to be able to offer amendments. That is why I have included in my resolution guaranteed rights to offer germane amendments--germane amendments, not an amendment dealing with something totally unrelated to the legislation on the floor--to offer legitimate, germane amendments which the minority feels would improve or change, to the minority's liking, whatever legislation, amendment or bill might be on the floor.

Too many people, I believe, confuse minority rights with minority winning. Having the right to debate and to deliberate and to offer amendments does not mean you have the right to get your way. Being allowed to vote on your amendment does not mean you have a right to win the vote. The minority does not deserve the right to prevail in every instance.

The minority obviously can convince some of the majority to join them. Then they become the majority on a given issue or given amendment. That used to happen all the time around here. There is nothing wrong with that. But the minority, I submit, does not deserve the right, under our Constitution, nor under any reasonable interpretation of a Democratic legislative body--they do not have the right to systematically block action by the majority and to veto, to have veto power, over what can even be considered on the floor of the Senate.

The fact is, provided that the minority is vested with ample protections, as it is in my proposal, at the end of ample debate, the majority should be allowed to act. What is so radical? What is so strange about the notion that in a legislative body, the peoples' representatives should vote up or down on legislation or a nominee?

As Senator Henry Cabot Lodge stated many years ago: ``To vote without debating is perilous, but to debate and never vote is imbecile.''

I think at the heart of this debate is a central question that we are not coming to grips with. Do we truly believe in democracy? Do we truly believe the issues of public policy should be decided at the ballot box and not by the manipulation of archaic procedural rules? I think the truth is, both parties appear to be afraid of majority rule, afraid of allowing a majority of Senators to work their will.

At its heart, those who hang on to this outdated rule, those who vigorously oppose the majority having the ability to govern fear the American people. They fear that the people's choices and wishes will be translated into action here in Washington.

The central question for this body is clear: Do we or do we not believe in democracy and majority rule? Elections should have consequences. After ample protections for minority rights, the majority party in the Senate, whether Democratic or Republican, duly elected by the American people, should be allowed to carry out their agenda and be allowed to govern.

Should I be opposed to reform of the filibuster because I am afraid Republicans someday will become the majority party in the Senate and proceed to enact their agenda? No. I believe in democracy for Republicans and Democrats alike. I believe in majority rule for Republicans and Democrats alike.

The distinguished minority leader said recently in regard to this proposal that Democrats ought to be concerned because a couple years from now Republicans might take over this place and would be able to undo a lot of the things we did--fear that somehow the Republicans will get the majority and be able to enact their agenda. I say to my friends, God bless them. If they win the election and become the majority party, they ought to govern. What are

the checks and balances? We don't know whether the President will be a Democrat or a Republican. We don't know what the House is going to be. There are still a lot of internal checks and balances in the committee structure.

The minority, under my proposal, can still slow things down. I read in the paper that one Senator said it ought to be the right of the minority to slow things down. I believe that. I believe that in the Senate the minority ought to have the right to slow things down. That is why my proposal provides for that. There is ample opportunity to slow things down, throw some sand in the gearbox of the majority. But in my proposal, at the end of a period of time of 8 days, the majority can govern. So one can slow it down--slow down everything, every amendment, every bill--so compromise negotiations would still go on.

I hear from my side: What if the tea party gains a majority in the Senate? We will need to filibuster to stop them. I say to my friends on this side and others, it is a sad day in America when the only way we can stop the tea party or any other extreme group is through subterfuge, through filibusters, secret holds, and parliamentary trickery. We have to have a fundamental confidence in democracy and the good sense of the American people. We have to have confidence in our ability to make our case to the American people and to prevail at the ballot box. We must not be afraid of the American people. We must not be afraid of how they cast their votes or for whom. I am not afraid of the will of the people expressed at the ballot box. That is what sent me to this Chamber. I should note, that used to be the operating principle of this body, but over the years, especially recently, it has become grossly distorted.

We all have our views on the recent election and what the American people said. Everybody has a view on that. I will say what my view is. The American people spoke loudly that they are fed up and angry with Washington, with government, and with Congress. They want change, and they want an end to the dysfunction in this city. In too many critical areas--job creation, energy, the economy--people see a Congress that is unable to respond effectively to the urgent challenges of our time.

My proposal is basically the same as I offered 16 years ago. It would amend the Standing Rules of the Senate to permit a decreasing majority of Senators over a period of 8 days to invoke cloture on a given matter. A determined minority could slow things down for 8 days. Senators would have ample time to make arguments and attempt to persuade the public and a majority of their colleagues. This protects the right of the minority to full and vigorous debate and deliberation, again maintaining the hallmark of the Senate. At the end of ample debate, however, there would be an up-or-down vote on an amendment, a bill, a nominee. My proposal would restore a basic and essential principle of representative democracy: majority rule in a legislative body.

I also think there is another advantage--that it would lead to greater compromise. Many have argued that it is the filibuster that forces compromise and collaboration. I disagree. The fact is, right now the minority has no real incentive to compromise. Why should they if they can totally block something and then go out and campaign on a message that the majority just couldn't get anything done? Again, the minority has a great deal of power but zero incentive on compromise.

I believe my proposal would encourage a more robust spirit of compromise. If the minority knows that at the end of the day, at the end of 8 days, 51 votes will be enough to bring a bill to the floor or to end debate on an amendment or a nominee, it seems they would be more willing to come to the table and compromise. And for the majority, the reason to compromise is because for the majority party in the Senate-- either one, Democratic or Republican--one of the most valuable things is time, allocation of time. The majority always wants to save time. So rather than chew up 8 days on a nominee or an amendment, the majority would like to get it done in a day or so. The minority, knowing that at the end of 8 days, 51 votes can pass something, will say: Maybe we ought to compromise now and get what we can out of it without dragging it out 8 days. Right now, there is literally zero incentive to compromise.

I also strongly encourage colleagues to support the talking filibuster proposal of Senator Merkley. They claim it is about silencing the minority. The fact is, the filibuster has nothing to do with debate and deliberation. It is used to prevent consideration. Rather than serve to ensure the representation of minority views and to foster deliberation, the minority uses the filibuster to prevent debate and deliberation. The filibuster has been used to defeat bills and nominees without their receiving a discussion on the floor. So the world's greatest deliberative body has now become the world's greatest nondeliberative body.

I think a ``yes'' vote today on a vote for reform, for change, and for a government that can effectively address our Nation's challenges is a vote to move ahead. It is a vote for progress--or we can vote for continued gridlock, continued obstruction, and broken government. This body does not function the way it is supposed to.

To be sure, the Founders put in place a system of checks and balances that makes it enormously difficult to enact legislation. It must pass both Houses of Congress. It has to go through committees first. It must pass both Houses of Congress, go to a conference committee, then it goes to the President. He can veto it. And then it can be challenged in court. All are very significant checks.

I often hear opponents of reform claim that what I am proposing would turn the Senate into the House of Representatives because at the end of 8 days, 51 votes could move something. I ask my friends: When did the Senate become defined by Senate rule XXII, which is the filibuster rule? I thought the Senate was defined in the Constitution. Rule XXII, the filibuster rule, is not the essence of the Senate. Regardless, the Senate will continue to be totally different from the House. We have two Senators from small States, two Senators from large States. We are elected every 6 years. We have sole jurisdiction over treaties, impeachments. And the Senate operates, as we know, in so many instances based on unanimous consent. That will continue. So the power of one single Senator remains to object to any unanimous consent request. Eliminating the filibuster will not change the basic nature of this body, nor the constitutional structure of the Senate.

For most of the Senate's history, there were very few filibusters--at most one or two a year. Can someone suggest that the Senate of Henry Clay or Daniel Webster, Lyndon Johnson, Everett Dirksen, that that Senate was the same as the House of Representatives? Even in my short time here--26 years--we used to have amendments on the floor that we would debate and vote, and if you got 51 votes, you won. We don't do that anymore. Under the present structure of the Senate, under the present rule XXII, the way it is being used today, every measure that passes the Senate must have 60 votes. Whatever happened to the idea of majority rule? Now one has to have 60 votes.

I have heard some say that if we have to have 60 votes, this encourages compromise to get to the 60 votes. I am all for compromise. I have brought a lot of legislation to the floor in my time here, and some has been adopted 100 to nothing. Farm bills, appropriations bills, others that I have brought to the floor, both in the majority party and in the minority party as the ranking member on a committee--and we didn't need 60 votes. If someone offered an amendment, they had the right to offer an amendment and get 51 or 52 or 53 votes and win. I have never stood at that desk, either as a committee chair or as ranking member, and insisted that a bill we had on the floor had to have 60 votes in order to pass. But that is what has happened in the Senate now.

Some say that promotes compromise. Anyone who has a bill or an amendment wants to get the most votes possible, right? They want to get more votes. That is the nature of legislation. But sometimes there is a bill or an amendment that does not lend itself to easy compromise. It may be contentious. We may have to take a hard vote. Maybe it only gets 51 votes.

Should that amendment go down to failure because it got 51 or 52 or 53 or 54 or 55 or 58 or 59 votes? Go out and explain that to the American people. Go to the next townhall meeting and say: No matter what happens, you can't pass anything with 51 votes. You have to have 60 votes to pass anything in the Senate. That gives the minority the right to veto anything. See how people react to that. When they understand it, they say: That is nuts.

We all stand for election every 6 years. If we only get 52 percent of the vote, maybe we shouldn't be here because obviously there was no consensus among the people who voted for us that we should represent them if we didn't get 60 percent of the vote. Is that what is coming, that we have to have 60 percent of the vote to even serve in the Senate? I know I am taking it to its extreme. I know no one is suggesting that. But boiled down to its essence, what we are saying is, without adopting reform of the filibuster, yes, we as a U.S. Senate believe a minority has the right to veto anything in this Senate.

I would much rather be on the side that says the minority has a right to slow things down, the minority has the right to debate, the minority has the right to amend, and the minority has a right to win those amendments with 51 votes. But a minority should not have the right to veto and stop legislation.

That is what my proposal does: adequate time for debate, adequate time for amendments, ensuring that the minority can offer an amendment, but, in the end, the majority would rule. It was never intended--never, never intended--that a supermajority of 60 votes would be needed to enact any piece of legislation, any amendment, or confirm a nominee.

Indeed, the Framers of our Constitution were very clear about where a supermajority was required. There were only five to the original Constitution: ratification of a treaty, overriding a veto, votes of impeachment, passage of a constitutional amendment, and expulsion of a Member.

It may come as a shock to many people, but the filibuster is not in the Constitution of the United States. In fact, historically, the first Senate, when it met, included a rule that permitted the majority to end debate and bring a measure to a vote with a majority. It was called ``invoking the previous question.'' But they had the right to do that. It was done away with by Aaron Burr, then-Vice President of the United States. We know what happened to him. But that was done away with.

So the Senate embarked upon a little over 100 years of having no rules. But, then again, the Senate did not do much. They really did not do much. However, in the 21st century, as a major superpower, with things happening with lightning speed around the world, we have to be able to react a little bit more rapidly than how we reacted in the 19th century.

Moreover, reform of filibuster rules stands squarely within a tradition of updating Senate rules as needed to foster an effective government that can respond to the challenges of the day. The Senate has adopted rules that forbid the filibuster in numerous circumstances, such as war powers and the budget. Think about that. For some reason, the Senate, at some point in time, said you cannot filibuster the budget. Imagine that. You can filibuster other things, but you cannot filibuster the budget. How about war powers? What could be more important than whether or not we go to war? It is a power granted to the Congress by the Constitution, but you cannot filibuster it. Think about that.

So we have rules that forbid the filibuster. We have passed four significant reforms of the filibuster since 1917. Today, unfortunately, it has become abundantly clear that we cannot govern a 21st-century superpower when a minority of 41 Senators can dictate action or inaction to a majority of the Senate and a majority of the American people--a majority of the American people.

We had a bill here last year; it was called the DISCLOSE Act. The House passed it twice overwhelmingly. They sent it to the Senate. Now, what did the DISCLOSE Act say? All it did is say the Supreme Court decision in Citizens United, that allowed corporate money to be funneled into campaigns to defeat or support an opponent and did not have to be accounted for, did not have to be made public. Many people suspected there was foreign money coming in through various sources to influence campaigns in the United States because they did not have to report it. So the bill came through that did not overturn the Supreme Court decision. It just said: If you are going to do this, you have to disclose where you got the money.

It passed the House. Polls showed it was supported by well over 80 percent of the people, a majority of Republicans and Democrats around the country. It came to the Senate twice. It got 59 votes. Why isn't it law today? Because you need 60 votes--60 votes. Go back and explain that at your town meetings. Go back and tell them: We don't have that today. We don't have that sunshine law because we need 60 votes, even though we got 59.

This is not the kind of representative democracy the Founders envisioned. It is not the kind of representative democracy that our sons and daughters have fought and died for for over 200 years. How many of our young men and women in uniform today--risking their lives in Afghanistan, Iraq, around the globe--how many of them know they are risking their lives for minority rule--for minority rule, not majority rule--minority rule? Very few, I submit. Very few.

It is time to end the paralysis, the drift, and the decline in the Senate. Yes, let's commit ourselves to debate and deliberation. There is nothing wrong with that, nothing wrong with extended debate. There is nothing wrong with having compromises. There comes a time when maybe a compromise is not in the cards. But should that mean we cannot vote on it, I say to my friends? Should that mean if we cannot get 60 votes, we do not even deserve to have 51 or 52 or 53 votes? Is that what we are saying?

I have heard my friends on the other side--I think I heard; I do not know exactly who it was today--say: Well, the 60 votes promotes compromise. I am all for that. But what if we cannot get the compromise, I say? Then are we saying we cannot have a vote because we cannot get 60 votes? That is, in essence, what they are saying. It is not the bedrock of democratic principle to deny the majority to rule, to finally have a vote.

So there may be a lot of misinterpretations of the amendment I am offering: Oh, it is going to make us like the House. Nonsense. It is going to take away minority rights. Nonsense. It is going to take away the right of the minority to slow things down. Nonsense.

What my amendment does is it says, finally, at some point in time, we are going to exercise our constitutional obligation.

I will close on this: Every 6 years we have an election and we go down here and hold up our right hand and we swear an oath. We swear an oath to uphold and defend the Constitution of the United States against all enemies, foreign and domestic, and to bear true faith and allegiance to the same.

I submit we are not living up to our oath of office in terms of bearing true faith and allegiance to the Constitution when, on the other hand, we enact rules that deny the majority the right to govern-- when we deny the majority the right to govern.

So I say every Senator has a lot of power here. The power of a Senator comes not from what we can do but from what we can stop. I have often said that is kind of the dirty little secret of the Senate.

Well, I think it is time for each of us to give up a little bit of our power, to give up a little bit of our power for the good of the country, to give up a little bit of our power of being able to stop something in order that the majority--whomever that majority may be-- can carry out their agenda on behalf of the American people.

I do not fear--I do not fear--the voters. I do not fear the ballot box. What I fear is this Senate will continue to be dysfunctional, it will not be able to act, we will continue to drift, we will not be able to respond to the exigencies of our time, the American people will get more and more frustrated and disappointed in the workings of our government, and the end result will be a decline in America.

Look, I am not Pollyannaish. I know none of these proposals will succeed. It

takes 67 votes, they say, to change the rules of the Senate. I believe that is inherently unconstitutional. Can one Congress bind another? Can one Congress bind all future Congresses? Can one Senate bind all future Senates? Can one Senate in a moment of time say we need 90 votes to pass anything here because 90 Members happen to be of one party, so they enact a rule and they say we have to have 90 votes to change any rule, knowing it will probably never happen again?

As Senator Byrd said one time--I know he is being quoted a lot around here today and when it comes to these debates--we should not be bound by the dead hand of the past--the dead hand of the past.

I believe it is the inherent right of the Senate to change its rules by a majority vote at the beginning of any Congress. That is what it says in the Constitution. Each House shall make its rules. It does not say each House makes its rules and every succeeding House must abide by those rules. It does not say that.

So I think we are left with a situation where the Senate--where the Senate--cannot live up to its constitutional obligation. I think it is almost inherently impossible for the Senate to do so. Therefore, I think we must now have to look to the courts to provide some relief in this matter, just as the Supreme Court decided in Baker v. Carr that legislatures could not reapportion themselves. So, therefore, they found it unconstitutional.

I, quite frankly, think a case can be made to the courts that the Senate rules, as they are now applied with the 67-vote threshold, prevent me, a Senator from Iowa, prevent a Senator from Georgia, prevent a Senator from Oregon from fulfilling his or her constitutional obligations to their constituents, to the people who elected them, to try to get legislation passed on a majority basis.

So, like I said, I am not Pollyannaish. I know where the votes are today. I do not know--I know my proposal will not get many votes. It did not get many in 1995 either. And people say: Well, Harkin, why are you doing this? Why do you do it when you know you do not get many votes? I do it because I believe in it. I believe with all my heart and all my soul that the Senate is not operating constitutionally right now. So I feel this fight must continue.

As I said, I now come to that point in time where I believe that perhaps we must look to the courts for their decision on whether the Senate is capable of fulfilling its constitutional responsibilities and obligations.

So I hope we do not have to go there. I hope we could adopt some of these reforms, such as the Merkley amendment or my proposal. Quite frankly, at the essence of it is the proposal by the Senator from New Mexico. That is the heart of it. Can a majority of the Senate change its rules at the beginning of a Senate? I believe it is constitutionally not only permissible, but I think we are obligated by the Constitution every 2 years to adopt the rules of the Senate by a majority vote and not by 67 votes.

So I close my part of the debate by appealing to the conscience of our Senators to think about majority rule, think about the rights of the minority but think about the rights of the American people to have their voices heard here by a majority vote and not by a supermajority. I believe that is our constitutional obligation.

Madam President, I yield the floor.

Mr. President, this is the same resolution I offered 16 years ago. I continue to offer it. If you believe the minority ought to have the right to slow things down, that is fine. But if you believe the minority should have the right to veto anything that comes on the floor, you don't want to vote for my resolution.

What my resolution says is that basically you need 60 votes. Then, if you don't get it, 3 days later you have another vote, it would be 57 votes; 3 days later, 54 votes; after 8 days, 51 votes could move a nominee, an amendment, or a bill. So it gives the minority the right to slow things down, the right to amend, the right to debate, the right to make their voices heard, but in the end it gives the majority the right to move legislation. We are a legislative body. The majority ought to have the right to move legislation. The minority should not have the right to veto.

Right now in the Senate you have to have 60 votes to pass anything. We used to be able to bring up amendments here and get 51 or 52 votes and pass it. That no longer happens.

If you believe in democracy, trust the American people, trust the ballot box. I am not afraid. I am not afraid of the majority enacting its will as long as I have the right to debate an amendment.

Mr. President, I ask for the yeas and nays.

Reserving the right to object.

Mr. President, I had a good discussion with the Senator from Iowa. This is a longstanding proposal of his. He has thoughtfully considered it. Even though I admire him, I do not admire the proposal.

What we would like to do is let the Senator from Iowa make his proposal. I will listen, and when he has made the proposal, I will ask him to yield me a few minutes and we may have a little discussion back and forth on the merits of the proposal. With that in mind, I object.

I thank the Senator from Iowa for his consistency over the years with his proposal. I wonder if I can make a few remarks on his proposal, and if he has time, if he is still here, maybe I will pose a question to him. I see the Senator from Kansas is also here. He spent a lot of time on the Rules Committee on this subject. He is one of our most forceful speakers on the matter, and I would defer to him, and then I know there are other Senators--the Senator from Oregon, the Senator from New Mexico--who have some proposals to offer. There may be other Senators on the Republican side who come to the floor.

First, I ask unanimous consent to have printed in the Record an address I made yesterday at the Heritage Foundation entitled ``The Filibuster: Democracy's finest show . . . the right to talk your head off.''

I borrowed those words from H.V. Kaltenborn and ``Mr. Smith Goes to Washington.''

I am a little amused by the suggestion the Senator from Iowa made and others made that somehow the Senate has been paralyzed for the last couple of years. Most of the people I know are concerned about what the Senate did do, not what it did not do. It is hard to say you are paralyzed when you pass a $1 trillion stimulus bill, health care law, financial regulation law, et cetera, et cetera.

As far as the claim that Republicans are holding things up goes, I have a few comments. We did not have a budget last year. Most households have to have budgets. The Senate ought to have one. Why didn't we have a budget? It wasn't the Republicans holding it up. As the Senator from Iowa said, under our rules, it only takes 51 votes to pass a budget. During the last couple of years, the Democrats had 59 or 60 votes. So the reason we did not have a budget is because the Democrats did not want to pass a budget, or at least that they did not pass a budget. It had nothing to do with the Senate being ``broken.''

The Senator from Iowa made this Rules proposal in 1995. He has made some modifications in his proposal but basically this is the same as he offered in 1995. I remember those days pretty well. It was right after the so-called Gingrich revolution, in 1994. Republicans took control of the Senate and of the House of Representatives. The Senator from Iowa made his proposal to diminish the effectiveness of a filibuster. What did the Republicans do? The Republicans, had the most to gain--at least temporarily--from being able to get their agenda through the Senate. But every single one opposed the proposal. Every single Republican Senator in 1995 said: No, we may love our agenda, but we do not want to change the Senate. We don't want to jeopardize the Senate as a forum for forcing consensus and protecting minority rights and letting the voices of all of the people be heard on the Senate floor.

Not only the Republican Senators in 1995 had that opinion. Here are some things that were said mostly in 2005 by Democratic leaders. There were some Republicans who had the same idea the Senator from Iowa has about diminishing the effectiveness of the filibuster. In this case, they wanted to diminish the use of filibusters on judicial nominations. There was great consternation because Democrats decided to filibuster President Bush's judges. I didn't like that either. This is what has been said by Democrats.

Senator Robert Byrd in his last testimony before the Rules Committee:

We must never, ever, ever, ever tear down the only wall,

the necessary fence, that this Nation has against the

excesses of the Executive Branch.

What is that necessary fence? That necessary fence is anchored in the filibuster.

Senator Schumer of New York in 2005:

The checks and balances which have been at the core of this

Republic are about to be evaporated.

This was in response to the Republicans who were trying to diminish the effectiveness of the filibuster in 2005. ``The checks and balances'' Senator Schumer said, ``which say that if you get 51 percent of the vote, you don't get your way 100 percent of the time.''

Former Senator Hillary Clinton:

You've got majority rule. Then you've got the Senate over

here where people can slow things down, where they can

debate, where they have something called the filibuster. You

know, it seems like it's a little less than efficient. Well,

that's right, it is. And deliberately designed to be so.

Senator Dodd more recently:

I'm totally opposed to the idea of changing the filibuster

rules. I think that's foolish, in my view.

Senator Byrd:

That's why we have a Senate, to amend and debate freely.

Senator Dodd:

I can understand the temptation to change the rules that

make the Senate so unique and simultaneously so terribly

frustrating. But whether such temptation is motivated by a

noble desire to speed up the legislative process or by pure

political expediency, I believe such changes would be unwise

. . .

Therefore, to my fellow Senators who never served a day in

the minority, I urge you to pause in your enthusiasm to

change Senate rules.

Just two more.

Senator Reid, who was then the Democratic leader but the minority leader, said in 2005:

The filibuster is far from a ``procedural gimmick.'' It's

part of the fabric of this institution that we call the

Senate. For 200 years we've had the right to extend the

debate. It's not procedural gimmick. Some in this chamber

want to throw out 214 years of Senate history in the quest

for absolute power. They want to do away with Mr. Smith, as

depicted in that great movie, being able to come to

Washington. They want to do away with the filibuster. They

think they're wiser than our Founding Fathers. I doubt that's

true.

Then there was one other Senator who spoke and who said this, the Senator from Illinois, Senator Obama:

Then if the majority chooses to end the filibuster, if they

choose to change the rules and put an end to the Democratic

debate, then the fighting and the bitterness and the gridlock

will only get worse.

I think the last 2 years in the Senate have been an aberration. We have had no incentive for the majority to take the ideas of the minority because the majority had these huge majorities, nearly 60 votes here, and a Democratic President.

So when Senator Corker, my colleague from Tennessee, began to work on the financial regulation bill, there came a time in the process where the Democrats said: Well, you know, we like Corker, and he has got some good ideas, but we do not need his vote to pass this bill. We have got the votes. We won the election. We will write the bill.

So the Senate has had no consensus. Instead, we had a Democratic financial regulation bill. We had a Democratic health care bill. We had a mostly Democratic stimulus bill. We might have had one or two Republicans vote for it.

For the last 2 years, we have not had any experience in working across party lines. What the filibuster does is say, you are not going to pass anything in the Senate unless at least some Republicans and some Democrats agree. You will not pass anything unless you get a consensus.

Then that will change behavior, and people say, okay, let's bring a No Child Left Behind bill to the floor. But it has got to have the support of Senator Enzi and Senator Harkin or it is not going anywhere, because it has got to have 60 votes to move forward. What is the advantage of that? The advantage of that is the comparison of the Civil Rights bill in 1964, and the health care law of 2009.

In 1964, after a bitter fight led by Senator Russell of Georgia, the Civil Rights bill passed the Senate, overcoming a filibuster. The bill was written in the Republican leader's office. It was not just sent over there in the middle of the night during Christmas, it was written in his office. You had President Johnson, a Democrat, and Senator Dirksen saying, this is good for the country. A lot of people hated the bill. And some people thought it did not go far enough.

What did Senator Russell do, who had fought that bill for his whole term here? He went home to Georgia and said, I did everything I could to stop it, but it is the law, and we must obey it. So not only does the Senate need a consensus to get a better bill, we need a bill that the country will accept.

Compare that to the health care law in 2009. A lot of good intentions went into the health care law. I know that. Senator Harkin was in the middle of that, but the fact of the matter was that it was a Democratic bill. It was rammed through Christmas Eve in the middle of the night. We barely had a chance to look at the bill, and it passed with a solely partisan vote.

And what happened? Instead of everybody going home and saying, it is the law of the land, we support it, an instant movement was created to repeal it and replace it. I hope we will not do what Senator Harkin suggests. I think his proposal will create a situation where the majority says: well, we are going to hang you, but we will hang you in 3 days instead of tonight. They will narrow it down until they can pass a measure with 51 votes.

So if the Republican House of Representatives passes a bill to repeal the health care law, then you know Senate Republicans would pass it, too, if we have got 51 votes. Or if the Democratic House, as they did last year, passes a bill to repeal the ballot in secret elections then the Democrats over here will pass it, too, if they have 51 votes. But when a consensus is required, if bills such as that come from the House to the Senate, we in the Senate say, whoa, let's think this over. We do not pass it. We do not pass it unless we have some kind of consensus.

That does not mean all the Republicans and all of the Democrats must always agree. We had almost all of the Republicans and some of the Democrats on the tax agreement that was passed in December. On the New START treaty, we had almost all of the Democrats and some of the Republicans support it. But in each case, at least you had substantial consensus from both parties, and I think the country respects and appreciates that.

I think the Framers knew what they were doing when they created a majoritarian House, in other words, the freight train that can run through whatever the result of election is. And when they created a different kind of Senate. A different kind of Senate that Senator Byrd eloquently has said has been one where we can say, you are not going to pass anything unless we do it together. That is called consensus. That is called cooperation. I think the American people would be greatly relieved.

My question I wish to pose through the Chair to Senator Harkin is, what is a filibuster? Senator Sanders was on the floor for several hours on the tax debate last month. He spoke for 8 or 9 hours. I guess that is a filibuster in the traditional sense. But I think the kind of filibuster the Senator from Iowa is counting is this: let's say Senator Reid brings a health care bill to the floor, and I rush over to offer an amendment to the health care bill, and Senator Reid says: Sorry, I am going to cut off your amendment. Then I object. Senator Reid calls what I tried to do a filibuster.

If we are just talking and amending and debating, that is not a filibuster. It is not a filibuster until the majority leader cuts off debate and amendments. So what the Democrats are counting as filibusters is the number of times they have cut us off from doing what we are supposed to do, which is, amend and debate.

It is like being invited to sing on the Grand Ole Opry, and getting there and you are not allowed to sing. The people of Tennessee do not expect me to come up here and sit on a log just because the distinguished majority leader says he does not want my amendments. What was traditional in the Senate is that Senators could offer amendments and debate, at almost any time, on almost any bill. In the days of Senator Byrd and Senator Baker, they would have 300 amendments filed. They would start voting. So some Senators would say, well, it is Thursday, don't we go home? The Leaders would say no, we are going to vote, unless you want to

give up your amendment. Instead of doing that, we did not vote on one Friday in the Senate this past year, and a lot of Senators on both sides of the aisle do not want to vote on controversial issues. If we look for consensus, if we were willing to vote on controversial issues, and if we ended the 3-day work week, if the majority thinks the minority is abusing the filibuster, they can confront it. They can sit over there and they can say to us, okay, Senator Alexander, 60 of us are ready to cut this off. We are ready to get on to a vote. So you have got 7 hours that you can speak, then you have got to get 23 other Senators to take the other hours. If you stop talking, we are going to put the question to a vote, and we have got some motions we can make about your being dilatory. In other words, we can make life miserable for you, because we are going to do this all night long.

Senator Byrd said in his last testimony: The rules exist today to confront a filibuster.

So my question to the Senator from Iowa which I would pose through the Chair is: What is a filibuster? Is a filibuster when I come down to the floor to amend the health care bill, and the majority leader says, sorry, I am going to use my powers to cut it off? You cannot amend the bill. And then he files cloture.

That is what he calls a filibuster, I think. What I call it is cutting off my right to amend, right to debate, right to do my job.

Exhibit 1

The Filibuster: ``Democracy's Finest Show . . . The Right To Talk Your

Head Off''

(Address by Senator Lamar Alexander, Heritage Foundation, Jan. 4, 2011)

Voters who turned out in November are going to be pretty

disappointed when they learn the first thing some Democrats

want to do is cut off the right of the people they elected to

make their voices heard on the floor of the U.S. Senate.

In the November elections, voters showed that they remember

the passage of the health care law on Christmas Eve, 2009:

midnight sessions, voting in the midst of a snow storm, back

room deals, little time to read, amend or debate the bill,

passage by a straight party line vote.

It was how it was done as much as what was done that

angered the American people. Minority voices were silenced.

Those who didn't like it were told, ``You can read it after

you pass it.'' The majority's attitude was, ``We won the

election. We'll write the bill. We don't need your votes.''

And of course the result was a law that a majority of

voters consider to be an historic mistake and the beginning

of an immediate effort to repeal and replace it.

Voters remembered all this in November, but only 6 weeks

later Democratic senators seemed to have forgotten it. I say

this because on December 18, every returning Democratic

senator sent Senator Reid a letter asking him to ``take steps

to bring [Republican] abuses of our rules to an end.''

When the United States Senate convenes tomorrow, some have

threatened to try to change the rules so it would be easier

to do with every piece of legislation what they did with the

health care bill: ram it through on a partisan vote, with

little debate, amendment, or committee consideration, and

without listening to minority voices.

The brazenness of this proposed action is that Democrats

are proposing to use the very tactics that in the past almost

every Democratic leader has denounced, including President

Obama and Vice President Biden, who has said that it is ``a

naked power grab'' and destructive of the Senate as a

protector of minority rights.

The Democratic proposal would allow the Senate to change

its rules with only 51 votes, ending the historical practice

of allowing any senator at any time to offer any amendment

until sixty senators decide it is time to end debate.

As Investor's Business Daily wrote, ``The Senate Majority

Leader has a plan to deal with Republican electoral success.

When you lose the game, you simply change the rules. When you

only have 53 votes, you lower the bar to 51.'' This is called

election nullification.

Now there is no doubt the Senate has been reduced to a

shadow of itself as the world's greatest deliberative body, a

place which, as Sen. Arlen Specter said in his farewell

address, has been distinctive because of ``the ability of any

Senator to offer virtually any amendment at any time.''

But the demise of the Senate is not because Republicans

seek to filibuster. The real obstructionists have been the

Democratic majority which, for an unprecedented number of

times, used their majority advantage to limit debate, not to

allow amendments and to bypass the normal committee

consideration of legislation.

To be specific, according to the Congressional Research

Service:

1. the majority leader has used his power to cut off all

amendments and debate 44 times--more than the last six

majority leaders combined;

2. the majority leader has moved to shut down debate the

same day measures are considered (same-day cloture) nearly

three times more, on average, than the last six majority

leaders;

3. the majority leader has set the record for bypassing the

committee process bringing a measure directly to the floor 43

times during the 110th and 111th Congresses.

Let's be clear what we mean when we say the word

``filibuster.'' Let's say the majority leader brings up the

health care bill. I go down to the floor to offer an

amendment and speak on it. The majority leader says ``no''

and cuts off my amendment. I object. He calls what I tried to

do a filibuster. I call what he did cutting off my right to

speak and amend which is what I was elected to do. So the

problem is not a record number of filibusters; the problem is

a record number of attempts to cut off amendments and debate

so that minority voices across America cannot be heard on the

floor of the Senate.

So the real ``party of no'' is the majority party that has

been saying ``no'' to debate, and ``no'' to voting on

amendments that minority members believe improve legislation

and express the voices of the people they represent. In fact,

the reason the majority leader can claim there have been so

many filibusters is because he actually is counting as

filibusters the number of times he filed cloture--or moved to

cut off debate.

Instead of this power grab, as the new Congress begins, the

goal should be to restore the Senate to its historic role

where the voices of the people can be heard, rather than

silenced, where their ideas can be offered as amendments,

rather than suppressed, and where those amendments can be

debated and voted upon rather than cut off.

To accomplish this, the Senate needs to change its

behavior, not to change its rules. The majority and minority

leaders have been in discussion on steps that might help

accomplish this. I would like to discuss this afternoon why

it is essential to our country that cooler heads prevail

tomorrow when the Senate convenes.

One good example Democrats might follow is the one

established by Republicans who gained control of both the

Senate and House of Representatives in 1995. On the first day

of the new Republican majority, Sen. Harkin proposed a rule

change diluting the filibuster. Every single Republican

senator voted against the change even though supporting it

clearly would have provided at least a temporary advantage to

the Republican agenda.

Here is why Republicans who were in the majority then, and

Democrats who are in the majority today, should reject a

similar rules change:

First, the proposal diminishes the rights of the minority.

In his classic Democracy in America, Alexis de Tocqueville

wrote that one of his two greatest fears for our young

democracy was the ``tyranny of the majority,'' the

possibility that a runaway majority might trample minority

voices.

Second, diluting the right to debate and vote on amendments

deprives the nation of a valuable forum for achieving

consensus on difficult issues. The founders knew what they

were doing when they created two very different houses in

Congress. Senators have six-year terms, one-third elected

every two years. The Senate operates largely by unanimous

consent. There is the opportunity, unparalleled in any other

legislative body in the world, to debate and amend until a

consensus finally is reached. This procedure takes longer,

but it usually produces a better result--and a result the

country is more likely to accept. For example, after the

Civil Rights Act of 1964 was enacted, by a bipartisan

majority over a filibuster led by Sen. Russell of Georgia,

Sen. Russell went home to Georgia and said that, though he

had fought the legislation with everything he had, ``As long

as it is there, it must be obeyed.'' Compare that to the

instant repeal effort that was the result of jamming the

health care law through in a partisan vote.

Third, such a brazen power grab by Democrats this year will

surely guarantee a similar action by Republicans in two years

if Republicans gain control of the Senate as many believe is

likely to happen. We have seen this happen with Senate

consideration of judges. Democrats began the practice of

filibustering President Bush's judges even though they were

well-qualified; now Democrats are unhappy because many

Republicans regard that as a precedent and have threatened to

do the same to President Obama's nominees. Those who want to

create a freight train running through the Senate today, as

it does in the House, might think about whether they will

want that freight train in two years if it is the Tea Party

Express.

Finally, it is hard to see what partisan advantage

Democrats gain from destroying the Senate as a forum for

consensus and protection of minority rights since any

legislation they jam through without bipartisan support will

undoubtedly die in the Republican-controlled House during the

next two years.

* * *

The reform the Senate needs is a change in its behavior,

not a change in its rules. I have talked with many senators,

on both sides of the aisle, and I believe most of us want the

same thing: a Senate where most bills are considered by

committee, come to the floor as a result of bipartisan

cooperation, are debated and amended and then voted upon.

It was not so long ago that this was the standard operating

procedure. I have seen the Senate off and on for more than

forty years, from the days in 1967 when I came to the Senate

as Sen. Howard Baker's legislative assistant. That was when

each senator

had only one legislative assistant. I came back to help Sen.

Baker set up his leadership office in 1977 and watched the

way that Sen. Baker and Sen. Byrd led the Senate from 1977 to

1985, when Democrats were in the majority for the first four

years and Republicans were the second four years.

Then, most pieces of legislation that came to the floor had

started in committee. Then that legislation was open for

amendment. There might be 300 amendments filed and, after a

while, the majority would ask for unanimous consent to cut

off amendments. Then voting would begin. And voting would

continue.

The leaders would work to persuade senators to limit their

amendments but that didn't always work. So the leaders kept

the Senate in session during the evening, during Fridays, and

even into the weekend. Senators got their amendments

considered and the legislation was fully vetted, debated and

finally passed or voted down.

Sen. Byrd knew the rules. I recall that when Republicans

won the majority in 1981, Sen. Baker went to see Sen. Byrd

and said, ``Bob I know you know the rules better than I ever

will. I'll make a deal with you. You don't surprise me and I

won't surprise you.''

Sen. Byrd said, ``Let me think about it.''

And the next day Sen. Byrd said yes and the two leaders

managed the Senate effectively together for eight years.

What would it take to restore today's Senate to the Senate

of the Baker-Byrd era?

Well, we have the answer from the master of the Senate

rules himself, Sen. Byrd, who in his last appearance before

the Rules Committee on May 19, 2010 said: ``Forceful

confrontation to a threat to filibuster is undoubtedly the

antidote to the malady [abuse of the filibuster]. Most

recently, Senate Majority Leader Reid announced that the

Senate would stay in session around-the-clock and take all

procedural steps necessary to bring financial reform

legislation before the Senate. As preparations were made and

cots rolled out, a deal was struck within hours and the

threat of filibuster was withdrawn. . . . I also know that

current Senate Rules provide the means to break a

filibuster.''

Sen. Byrd also went on to argue strenuously in that last

speech that ``our Founding Fathers intended the Senate to be

a continuing body that allows for open and unlimited debate

and the protection of minority rights. Senators,'' he said,

``have understood this since the Senate first convened.''

Sen. Byrd then went on: ``In his notes of the

Constitutional Convention on June 26, 1787, James Madison

recorded that the ends to be served by the Senate were

`first, to protect the people against their rulers, secondly,

to protect the people against the transient impressions into

which they themselves might be led. . . They themselves, as

well as a numerous body of Representatives, were liable to

err also, from fickleness and passion. A necessary fence

against this danger would be to select a portion of

enlightened citizens, whose limited number, and firmness

might seasonably interpose against impetuous councils.' That

fence,'' Sen. Byrd said in that last appearance, ``was the

United States Senate. The right to filibuster anchors this

necessary fence. But it is not a right intended to be

abused.''

``There are many suggestions as to what we should do. I

know what we must not do. We must never, ever, ever, ever

tear down the only wall--the necessary fence--this nation has

against the excess of the Executive Branch and the resultant

haste and tyranny of the majority.''

What would it take to restore the years of Sens. Baker and

Byrd, when most bills that came to the floor were first

considered in committee, when more amendments were

considered, debated and voted upon?

1. Recognize that there has to be bipartisan cooperation

and consensus on important issues. The day of ``we won the

election, we jam the bill through'' will have to be over.

Sen. Baker would not bring a bill to the floor when

Republicans were in the majority unless it had the support of

the ranking Democratic committee member.

2. Recognize that senators are going to have to vote. This

may sound ridiculous to say to an outsider, but every Senate

insider knows that a major reason why the majority cuts off

amendments and debate is because Democratic members don't

want to vote on controversial issues. That's like

volunteering to be on the Grand Ole Opry but then claiming

you don't want to sing. We should say, if you don't want to

vote, then don't run for the Senate.

3. Finally, according to Sen. Byrd, it will be the end of

the three-day work week. The Senate convenes on most Mondays

for a so-called bed-check vote at 5:30. The Senate during

2010 did not vote on one single Friday. It is not possible

either for the minority to have the opportunity to offer,

debate and vote on amendments or for the majority to

forcefully confront a filibuster if every senator knows there

will never be a vote on Friday.

There are some other steps that can be taken to help the

Senate function better without impairing minority rights.

One bipartisan suggestion has been to end the practice of

secret holds. It seems reasonable to expect a senator who

intends to hold up a bill or a nomination to allow his

colleagues and the world know who he or she is so that the

merits of the hold can be evaluated and debated.

Second, there is a crying need to make it easier for any

President to staff his government with key officials within a

reasonable period of time. One reason for the current delay

is the President's own fault, taking an inordinately long

time to vet his nominees. Another is a shared responsibility:

the maze of conflicting forms, FBI investigations, IRS

audits, ethics requirements and financial disclosures

required both by the Senate and the President of nominees. I

spoke on the Senate floor on this, titling my speech

``Innocent until Nominated.'' The third obstacle is the

excessive number of executive branch appointments requiring

Senate confirmation. There have been bipartisan efforts to

reduce these obstacles. With the support the majority and

minority leaders, we might achieve some success.

Of course, even if all of these efforts succeed there still

will be delayed nominations, bills that are killed before

they come to the floor and amendments that never see the

light of day. But this is nothing new. I can well remember

when Sen. Metzenbaum of Ohio put a secret hold on my

nomination when President George H.W. Bush appointed me

education secretary. He held up my nomination for three

months, never really saying why.

I asked Sen. Rudman of New Hampshire what I could do about

Sen. Metzenbaum, and he said, ``Nothing.'' And then he told

me how President Ford had appointed him to the Federal

Communications Commission when he, Rudman, was Attorney

General of New Hampshire. The Democratic senator from New

Hampshire filibustered Rudman's appointment until Rudman

finally asked the president to withdraw his name.

``Is that the end of the story?'' I asked Rudman.

``No,'' he said. ``I ran against the [so-and-so] and won,

and that's how I got into the Senate.''

During his time here Sen. Metzenbaum would sit at a desk at

the front of the Senate and hold up almost every bill going

through until its sponsor obtained his approval. Sen. Allen

of Alabama did the same before Metzenbaum. And Sen. John

Williams of Delaware during the 1960's was on the floor

regularly objecting to federal spending when I first came

here forty years ago.

* * *

I have done my best to make the argument that the Senate

and the country will be served best if cooler heads prevail

and Democrats don't make their power grab tomorrow to make

the Senate like the House, to permit them to do with any

legislation what they did with the health care law. I have

said that to do so will destroy minority rights, destroy the

essential forum for consensus that the Senate now provides

for difficult issues, and surely guarantee that Republicans

will try to do the same to Democrats in two years. More than

that, it is hard to see how Democrats can gain any partisan

advantage from this destruction of the Senate and invitation

for retribution since any bill they force through the Senate

in a purely partisan way during the next two years will

surely be stopped by the Republican-controlled House of

Representatives.

But I am not the most persuasive voice against the wisdom

of tomorrow's proposed action. Other voices are. And I have

collected some of them, mostly Democratic leaders who wisely

argued against changing the institution of the Senate in a

way that would deprive minority voices in America of their

right to be heard:

From Mr. Smith Goes to Washington

Jimmy Stewart: Wild horses aren't going to drag me off this

floor until those people have heard everything I've got to

say, even if it takes all winter.

Reporter: H.V. Kaltenborn speaking, half of official

Washington is here to see democracy's finest show. The

filibuster--the right to talk your head off.

Sen. Robert Byrd's final appearance in the Senate Rules Committee

SENATOR ROBERT BYRD: We must never, ever, ever, ever, tear

down the only wall, the necessary fence, that this nation has

against the excesses of the Executive Branch.

SEN. CHUCK SCHUMER: The checks and balances which have been

at the core of this Republic are about to be evaporated. The

checks and balances which say that if you get 51% of the

vote, you don't get your way 100% of the time.

FORMER SEN. CLINTON: You've got majority rule. Then you've

got the Senate over here where people can slow things down

where they can debate where they have something called the

filibuster. You know it seems like it's a little less than

efficient, well that's right, it is. And deliberately

designed to be so.

SEN. DODD: I'm totally opposed to the idea of changing the

filibuster rules. I think that's foolish in my view.

SEN. BYRD: That's why we have a Senate, is to amend and

debate freely.

SEN. ALEXANDER: The whole idea of the Senate is not to have

majority rule. It's to force consensus. It's to force there

to be a group of Senators on either side who have to respect

one another's views so they work together and produce 60

votes on important issues.

SEN. DODD: I can understand the temptation to change the

rules that make the Senate so unique and simultaneously so

terribly frustrating. But whether such temptation is

motivated by a noble desire to speed up the legislative

process or by pure political expediency, I believe such

changes would be unwise.

SEN. ROBERTS: The Senate is the only place in government

where the rights of a

numerical minority are so protected. A minority can be right,

and minority views can certainly improve legislation

SEN. ALEXANDER: The American people know that it's not just

the voices of the Senator from Kansas or the Senator from

Iowa that are suppressed when the Majority Leader cuts off

the right to debate, and the right to amend. It's the voices

that we hear across this country, who want to be heard on the

Senate floor.

SEN. GREGG: You just can't have good governance if you

don't have discussion and different ideas brought forward.

SEN. DODD: Therefore to my fellow Senators, who have never

served a day in the minority, I urge you to pause in your

enthusiasm to change Senate rules.

SEN. REID: The Filibuster is far from A `Procedural

Gimmick.' It's part of the fabric of this institution that we

call the Senate. For 200 years we've had the right to extend

the debate. It's not procedural gimmick. Some in this chamber

want to throw out 214 years of Senate history in the quest

for absolute power. They want to do away with Mr. Smith, as

depicted in that great movie, being able to come to

Washington. They want to do away with the filibuster. They

think they're wiser than our Founding Fathers, I doubt that's

true.

FORMER SEN. OBAMA: Then if the Majority chooses to end the

filibuster, if they choose to change the rules and put an end

to Democratic debate, then the fighting and the bitterness

and the gridlock will only get worse.

Mr. President, Senator Grassley and Senator Wyden and more recently Senator McCaskill, have pointed out the obvious fact that so-called holds that Members of the Senate place on nominations or legislation should be public. I think that is a good idea. That has bipartisan support. I believe today we will change the rules to make that clear, and I congratulate Senators Wyden, Grassley, and McCaskill for their perseverance and persistence in pushing this ahead.

I have always been glad to be public with my holds. I remember when Senator Reid filibustered my TVA nominee by putting a hold on him, so I filibustered one of his Nevada citizens by putting a hold on him. Then we were able to work it out. But Senator Reid and I made our objections public. I knew what he was doing and he knew what I was doing. That is important to build confidence in the Senate.

Senator Grassley is on his way over and he has been the partner with Senator Wyden on reforming holds for some time. I would like to say to Senators Wyden and McCaskill and others--as I have already said to Senators Udall and Merkley--that the efforts they have made to change the rules of the Senate have created a window of opportunity which I believe those of us on both sides of the aisle believe will make the Senate a better functioning forum. These Senators will not succeed in all the changes they are seeking to make but this window of opportunity will allow the Senate to better function as a place to discuss serious issues.

The majority leader and the Republican leader earlier today said they were going to do their best to see that most bills come to the floor after first going to committee. Then once bills get here we will have amendments. I think that is what most of us want. We want a chance to represent the views we have and those we are elected to represent. Sometimes our views are in the minority. Sometimes we are very solitary with our views. Maybe we are the only one who has a particular view. But we want a chance to be heard and a chance to offer amendments to express our views.

I think we are preserving the Senate as a forum in which that can be done, but at the same time we are making it a more effective place in which to do that. I congratulate Senator Wyden and his colleague, Senator Grassley, and others for their efforts.

Mr. President, the Senator from Oregon has talked about the number of nominations that couldn't be considered. I am sure the Senator from Oregon remembers that there cannot be a filibuster on a motion to proceed to a nomination. All the majority leader has to do is bring it up. You can't debate that. If he should bring up the motion to proceed to a nomination, and if a Senator over here or over there objected, then the motion can be put to a simple majority vote. When I was nominated by President George H.W. Bush to be Education Secretary, a secret hold was placed on my nomination. Senator Metzenbaum, as it turned out, had a hold on my nomination for 3 months when all it would have taken for me to be confirmed was for the majority leader to bring my name to the floor. Then if we had gotten 60 votes for it, we could have debated for 30 hours and had a final vote on my nomination.

What would happen during the 30 hours? We don't have Senators going out to dinner except on the other side of the aisle. Because under the current rules, in those 30 hours, one Senator gets 7 hours to speak. We know a Senator can do that because a distinguished Senator from Vermont demonstrated very capably that he was capable of doing that not long ago. He did a great job. People all over the country saw it, wrote him, and he became a little bit of a celebrity for that day. Senators are still capable of that. But if a Senator had wanted to take the whole 30 hours in a postcloture period, he then has to get 23 more Senators to join him in taking an hour of that 30 hours. Without getting into the complications of it, if Senators fail to talk, then the majority leader can say those are dilatory tactics and force any Senator who wants to extend the debate to be very uncomfortable. That Senator would have to get up to 23 Senators to come join him at some time during the speech and take 7 hours himself. The reason why that hasn't been done is because the majority didn't want to do it.

Now I am not just saying that. The master of the Senate rules, Senator Byrd, said it in his last testimony before our Rules Committee last May.

He said this:

Forceful confrontation to a threat to filibuster is

undoubtedly the antidote to the malady.

Senator Byrd was talking about what some considered the abuse of a filibuster. Most recently, before he died, Senator Byrd said:

Senate Majority Leader Reid announced that the Senate would

stay in session around the clock and take all procedural

steps necessary to bring financial reform legislation before

the Senate. As preparations were made and cots rolled out, a

deal was struck within hours and the threat of a filibuster

was withdrawn. I heartily commend the majority leader for

this progress, and I strongly caution my colleagues as some

propose to alter the rules to severely limit the ability of a

minority to conduct a filibuster.

I know what it is to be majority leader, and wake up on a

Wednesday morning in November, and find yourself a minority

leader.

Senator Byrd said the Senate rules provide the means to break a filibuster. He went on to describe that.

Mr. President, I don't want to suggest to the distinguished whip, who knows the rules of the Senate much better than I, or to Harry Reid, the majority leader, how to break a filibuster that he thinks is an abuse. But they know how to do it. That takes a little trouble. You cannot go out to dinner and have a glass of wine, as the Senator from Oregon was talking about. You have to sit on that side of the floor and have 50 Senators ready. You can sit there and say: I would like for the Senator from Tennessee to assert himself. And you can stay all night. I imagine if you do that once or twice, or if we voted on more than zero Fridays, which was the number of Fridays we voted on last year, you could confront filibusters.

After I finish my sentence, I will yield the floor to the Senator from Illinois.

I say to my friends, what we are trying to do today is to move past this time where we point out that the majority leader has cut off our right to amend and debate six times more than recent majority leaders. That is what gets everybody stirred up over here. It is like telling us we can join the Grand Ole Opry, but we can't sing.

We are here to let people know what the people in Tennessee and other States think. We might be in the minority, but we are in the Senate where the minority is supposed to have a voice.

When, time after time, you bring a bill to the floor and cut it off, and you call that a filibuster--that is why we are upset. You are upset because as a result of that you didn't get to bring as many bills to the floor as you would like. We are trying to put that all behind us today. This window of opportunity has produced what I think is important. These rules changes we are going to adopt are good and will move us in the right direction.

The real value of this whole effort has been to cause us to think about how the Senate operates and realize the best way to do it is for most bills to go to committee, come to the floor, and for most Senators to get to offer most of the amendments they want to offer and get them voted on. We might have to vote on a Friday--maybe even a Thursday night or maybe even a Saturday. It might be that the majority has to confront a filibuster by saying: Senator so-and-so, if you are going to slow us down, we are going to make you use that 30 hours. You are going to have to talk your 7 hours and get 23 other Senators, and we are going to be here to see that you do it.

My guess would be that you do that about once, maybe twice, and that would end that particular problem. My real guess is if this general attitude that the majority and minority leaders talked about earlier today occurs, then you will see very few uses of the filibusters you think are inappropriate. The Leaders described an attitude which is that we are going to do our best to see that most bills come to the floor, that most Senators get to offer the amendments they want, and that Senators get the votes on those amendments they want. If you think inappropriate filibusters are occurring, according to Senator Byrd, you have the means to confront them.

My hope is that this whole exercise not only is producing some rules changes that are valuable but a change in behavior on both sides of the aisle which will be valuable. We will wait and see.

I am happy to yield to my friend from Illinois.

Will the Senator yield for a question?

Mr. President, since the distinguished whip has apparently renamed this amendment the ``which side of the aisle goes out to dinner'' amendment, let me ask him this: Isn't it true that if your side didn't go out to dinner--since you asked to be elected to the Senate, you raised a lot of money, and you worked hard and defeated some Republican to get here--if you really think somebody over here is abusing their minority rights by filibustering, then why would you go out to dinner, and why would you not want to be here and hear that person talk and respond to him? Why would you not do that?

Isn't it true that Senator Byrd said that forceful confrontation to the threat of a filibuster is undoubtedly the antidote to the malady? He did not want us tampering with this 60-vote procedure we have that forces consensus.

My question to the majority whip is this: Why did you go out to dinner so often--through the Chair--when instead, you could have been here, under the rules as Senator Byrd suggested, dealing with abuses to the filibuster or what you consider they were?

Madam President, I have already congratulated Senator Udall, Senator Wyden, Senator Merkley, and Senator Harkin for stimulating a good, full discussion about two objectives. No. 1 is, how do we make the Senate the best possible place to deal with serious issues that come before our country, because we have plenty of them right now, starting with our national debt and the high unemployment rates. They have done a good job on that. They have led us today to adopt what I believe are two important steps, one having to do with secret holds and another having to do with taking time away, that might otherwise be better used, by having the clerk read an amendment.

This debate has also produced a couple of other things. One is to create broader support than we have had over a number of years on dealing with the persistent problem of the difficulty a President has in staffing the government. Senator Reid and Senator McConnell, when they were whips, tried to deal with this issue. We had three bipartisan breakfasts on this, working with the White House, 2 years ago. Senator Lieberman and Senator Collins, who are the committee chairs, have tried to deal with this issue. And we have all failed so far.

But Senator Schumer and I will be introducing a bill which we will be discussing with committee chairmen and ranking members especially, and it will have the support of the leaders, Senators McConnell and Reid. It will have the active involvement of Senator Lieberman and Senator Collins. What we hope to do is two things. One is to reduce the number on Senate confirmed positions--Senator Harkin spoke about this a little earlier. He has been a ranking member and a chairman. He basically said that we don't need to spend our time here having Senate confirmation of hundreds of part-time boards and commission members or the public relations official for some department. We should focus our attention on issues that affect the American people such as jobs, debt and terror.

The second thing we should do is to end this practice of making it so that the citizens who are invited by the

President of the United States to serve in our government are innocent until nominated. We drag them through a maze of conflicting forms, many of them created by the executive branch and many of them created by the Senate. These nominees fill out forms that trap them and trick them and embarrass them. It is surprising that anybody will accept the opportunity to serve. I remember majority leader Howard Baker was nominated by President Bush to go to Japan as Ambassador. Everybody in the Senate knew him very well. He was voted ``Most Admired Senator'' by Senators on both sides of the aisle in the 1980s. It cost him $250,000 to fill out the forms so that he could be the Ambassador to Japan. I could give many examples of similar difficulties.

Washington, DC, has become the only place where you hire a lawyer, an accountant, and an ethics officer before you find your house and put your kid in school if you come to work here. We need good people in the government. We need to be able to attract them here. We should fix the current system. I greatly appreciate the work Senators Schumer, Reid, McConnell, Lieberman, Collins and others have done. I hope our colleagues will join us in bringing this forward in an expedited way.

I ask unanimous consent to include at the end of my remarks, remarks I made on March 9, 2009, on the Senate floor entitled ``Innocent Until Nominated.''

Madam President, only two other things.

I wish to congratulate Senator McConnell and Senator Reid for leading us in this way. Changing rules is an important step forward. I do not in any way want to diminish what I believe we are about to do, but we need a change in behavior more than we need a change in rules. This debate has caused us to talk across party lines about what we want, and I think what we want is what Senator Udall said as a whole. We would like most bills to come through committee and then come to the floor. We want to have a chance for most Senators to be able to offer most of their amendments and then to get votes. That is what we should try to do most of the time. Sometimes the Republicans will want to repeal the health care law, and the Democrats will use all of their resources to defeat our efforts. Sometimes the Democrats in the House will send over a bill to repeal the secret ballot in union elections, and Republicans will try to defeat that. We will use all of our resources in those instances. But that won't be most of the time. Most of the time, we will be able to do our jobs better to represent the people who sent us here.

I hope those who have provoked this discussion feel a sense of satisfaction about what they have done, even though I know that in every case they didn't get exactly what they want.

Finally, I ask unanimous consent that a long response to Senator Harkin's excellent comments on his amendment which he has been fighting for for 16 years, be printed in the Record at the conclusion of my remarks.

Senator Harkin is very straightforward about his difference of opinion. He believes we ought to bring every debate eventually to 51 votes. So I would respectfully term his amendment as sort of a ``hang me now or hang me later.'' We know that eventually it is not 60 votes we are going to require, it is 51, and he says that is the way it ought to be. I disagree. So do many others.

I will just cite two distinguished Senators who spoke on the floor of the Senate about 5 years ago when a number of Republicans got it in their minds that they would like to change the filibuster rule as it affects judges. This is what Senator Harry Reid said then:

The filibuster is far from a procedural gimmick. It is part

of the fabric of this institution that we call the Senate.

For 200 years we've had the right to extend the debate. It's

not a procedural gimmick. Some in this Chamber want to throw

out 214 years of Senate history in the quest for absolute

power. They want to do away with Mr. Smith as depicted in

that great movie being able to come to Washington. They want

to do away with the filibuster. They think they are wiser

than our Founding Fathers. I doubt that's true.

The then-Senator from Illinois, Barack Obama, referring then to the Republican majority:

Then if the majority chooses to end the filibuster, if they

choose to change the rules and put an end to Democratic

debate, then the fighting and the bitterness and the gridlock

will only get worse.

I would suggest that, as a result of this discussion, we preserve the Senate as an institution, a forum for deliberation where minority rights are protected.

But we have also taken some important steps forward--or are about to--with rules changes to make them function better. We have reached a consensus among ourselves--informally, anyway--that is represented by the colloquy that will be placed in the Record by Senator Reid and Senator McConnell. They said what we want is an opportunity to represent the American people the way they sent us here to do it, which is to take legislation, bring it through committee, bring it to the floor, and for us to have a chance to amend, debate, and vote. That would be most of the time. Some of the time we will exercise our minority and majority rights to defeat a bill, because that is also what we are sent here to do.

I thank the Senators for this spirited debate. As far as I know, there are no more speakers on the Republican side.

Exhibit 1

Floor Remarks of U.S. Senator Lamar Alexander (R-TN), ``Innocent Until

Nominated''

(March 9, 2009)

Mr. President, in the midst of much talk about

bipartisanship and not much to show for it, I have a

nomination for an issue upon which we can work together, and

that is this: review the maze of conflicting forms, FBI

investigations, IRS audits, ethics requirements, and

financial disclosures to make it possible for President Obama

and future Presidents to put together promptly a team to help

them solve big problems.

This is an urgent problem today because during the worst

banking crisis since the Great Depression, the man in charge

of fixing the crisis, Treasury Secretary Timothy Geithner,

apparently is sitting in his office without much help, at

least from any Obama Presidential appointees.

According to news accounts, among the key vacant positions

at the Treasury Department are the Assistant Secretary for

Tax Policy; the Deputy Assistant Secretary for Tax Policy;

the Deputy Assistant Secretary for Tax Analysis; the Deputy

Assistant Secretary for Tax, Trade, and Tariff Policy; and

the Deputy Assistant Secretary for International Tax Affairs.

The first choice for Deputy Secretary of the Treasury appears

to have withdrawn her name from consideration.

Four months after the President's election, according to

TheBigMoney.com, the list of vacancies on the Treasury

Department Web site shows that ``Main Treasury Building is a

lonely place, conjuring up visions of Geithner signing dollar

bills one by one . . ., watering the plants, and answering

the phones when he's not crafting a bank rescue plan.''

Of course, there are the career employees available and at

least one holdover Assistant Secretary and various czars in

the White House--but even one of the czars has expressed

concern about the slow pace of filling Treasury Department

jobs at a critical time.

Part of the problem may be attributed to the Treasury

Secretary's boss, our impressive new President, who is

nevertheless subject to the criticism that he is living over

the store but not minding it.

Presidents have many problems to solve, but no one ever

suggested that the wisest course is to try to solve them all

at once. There is a tradition that Washington, DC, can only

do one thing well at a time. And Presidents are supposed to

exclude from the White House the merely important issues so

they may deal with the truly Presidential problems, which

surely must not include being distracted by debates with

radio talk show hosts.

President Eisenhower, who knew something about leading

complex organizations, said in 1952: ``I will go to Korea.''

The country relaxed and elected him, confident that the

general would end the Korean war.

We need for President Obama to say in Eisenhower fashion

``I will fix the banks''--and then stay home long enough to

do it. Then the country might relax a little and gain some

confidence that this might actually happen, which is the

first step and perhaps the main step in economic recovery.

But the President needs a team at Treasury to help persuade

the American people that he can and will get the job done.

The President has brought on himself some of the difficulty

of putting together a team. In addition to having too many

balls in the air at once, in my opinion, his standards for

hiring sometimes seem to have the effect of disqualifying

people who know something about the problem from being hired

to solve the problem.

But another part of the President's difficulty in filling

jobs--one that has afflicted every President since

Watergate--is the maze of investigations and forms that

prospective senior officials must complete and the risk they

run that they will be trapped and humiliated and disqualified

by an unintentional and relatively harmless mistake.

I voted against the nomination of Secretary Geithner

because I thought it was a bad example for the man in charge

of collecting the taxes not to have paid them. And I thought

his excuse for not paying was not plausible. But that does

not mean that we should disqualify every Presidential nominee

for minor tax discrepancies that result from the complexity

of our Byzantine Tax Code, a Tax Code which has reached 3.7

million words, according to a January report by the National

Taxpayer Advocate, and which is badly in need of reform.

I suspect very few Americans with complex tax returns can

go through a multiple-year audit without finding something

with which the IRS might disagree.

Take the case of former Dallas mayor Ron Kirk, President

Obama's nominee to be U.S. Trade Representative, who

headlines report paid back taxes primarily because he failed

to list as income--and then take a charitable deduction on--

speaking fees that he gave away to charity. Common sense

suggests, and his tax preparer thought, what Mr. Kirk did was

appropriate. After all, he did not keep the money. The IRS

apparently has a more convoluted rule for dealing with such

things. In any event, the matter is so trivial as to be

irrelevant to his suitability to be the trade nominee.

Tax audits are only the beginning. There is the FBI full

field investigation during which friends of the nominee are

asked such questions as: Does he live be and his means?

When I was nominated for Education Secretary a few years

ago, one of my friends replied to the FBI agent: Don't we

all?

There are Federal financial disclosures. Then there is the

White House questionnaire, and, of course, the questions from

the confirming Senate committee. The definition of what

constitutes ``income'' on some forms is different than the

definition of ``income'' on others. It is easy to make a

mistake.

This is not as bad as it could be. We have a Democratic

President and a Democratic Congress with big majorities in

both Chambers. So the nominees have gone through fairly

quickly. But when the Congress is of a different party than

the President, the congressional questionnaires expand and

sometimes delay the nomination for more weeks.

Washington, DC, has become the only place where you hire a

lawyer, an accountant, and an ethics officer before you find

a house and put your kid in school.

The motto around here has become: ``Innocent until

nominated.''

Every legal counsel to every President since Nixon would, I

suspect, agree that in the name of effective government, this

process needs to be changed. Most have tried to change it,

but in Washington style, new regulations pile up on top of

old ones, creating a more bewildering maze. So I have this

suggestion--and one of the Senators to whom I want to make

the suggestion is here today, the Senator from Connecticut. I

suggest Senator Lieberman and Senator Collins, who are the

chairman and ranking member of the committee with

jurisdiction over this mess and who have a tradition of

working well together, should set as a goal to clean it up by

the end of the year. Invite all the former White House

counsels of both parties to give their opinions. Consolidate

and simplify the forms so we learn only what we need to know.

To help with this, I suggest that Senators Lieberman and

Collins form one of those ``gangs'' that we occasionally form

in the Senate, maybe a dozen or more Senators equally divided

among both parties--some from the Homeland Security and

Governmental Affairs Committee and some not--in order to

limit the possibility that everyone will run away from the

final recommendations because they fear someone might think

Senators are not interested in ethical and good government.

Good government right now means fixing the banks and having

the best possible team to do it.

As a Washington Post editorial writer said yesterday of the

President:

As he convened his ``health care summit'' at the White

House . . . the stock market was hitting another 12-year low,

General Motors was again teetering on the brink of insolvency

and the country was still waiting to hear the details of the

Treasury's proposal to bail out banks. Maybe we can make this

grand bargain with our new President: If you will keep your

eye on the ball--in this case, fixing the banks so the

economy will get moving again--we will work in a bipartisan

way to make it easier for you and for future Presidents to

promptly assemble a team and govern us properly.

I thank the Chair. I yield the floor.

Madam President, this amendment puts into effect what the Republicans called in the health care debate the Bunning rule, which is, if it is not on the Internet and not available for 72 hours, it shouldn't be brought up.

We think this is a sensible--I think this is a sensible amendment, and I urge a ``yes'' vote.

Mr. President, this amendment might be called the ``if you are going to hang me later, hang me now'' amendment. This would eliminate the filibuster by making certain that it only took 51 votes, eventually, to pass a bill. This filibuster, according to the current majority leader in 2005, ``is a part of the fabric of this institution we call the Senate.'' Former Senator Obama said in the same year, ``If the majority,'' he then referred to the Republicans, ``chooses to end the filibuster, if they choose to change the rules and put an end to democratic debate, then the fighting and the bitterness and the gridlock will only get worse.''

We have agreements today that will begin to end fighting and gridlock, bring bills to the floor, having more amendments.

I urge a ``no'' vote on the proposal.

Mr. President, in his last appearance before the Rules

Committee, Senator Byrd quoted James Madison's description of this body as a necessary fence against rulers and transient impressions and said the right to filibuster anchors this necessary fence and we must never, ever tear down the only wall, the necessary fence, that the Nation has against these excesses.

This amendment does not tear down that fence, but it seriously weakens it. I recommend a ``no'' vote.

Mr. President, in his last appearance before the Rules Committee, Senator Byrd said:

Forceful confrontation to a threat to filibuster is

undoubtedly the antidote to the malady.

He also said:

I also know that current Senate rules provide the means to

break a filibuster.

If Senator Byrd, who knew the rules better than any of us, thought that, we don't need to change the rules.

I urge a ``no'' vote.

Madam President, I wish to thank the Senator from New York, the Senators from New Mexico and Oregon, and Senator Harkin of Iowa for their efforts--some over many years--to achieve two goals: to help make the Senate a place that is better able to deal with the serious business that comes before us, and second, to preserve the Senate as a unique forum--unique in the world, really--as a legislative body that protects minority rights.

This is an important step forward--the reform of the Senate--but the reform the Senate needs is a change in behavior, not in its rules. These rules move us in the right direction, but the behavior that the Senator from New York spoke about and that the majority leader and the minority leader spoke about is what, in the end, will make the most difference.

I have talked with many Senators on both sides of the aisle. We have done a lot of talking both on the floor here and off the floor about where the Senate is today, and a great many of us feel the Senate is a shadow of its former self in terms of its ability to function as a truly deliberative body.

It is hard to see how the majority can complain after a legislative session where they passed health care legislation, financial reform legislation, and other legislation that may have even resulted in the diminishing of their numbers. They had a productive session, from their point of view. But the truth is, on both sides of the aisle--on both sides of the aisle--we wish to see the Senate function in a different way.

The majority leader and the Republican leader have put out in a colloquy what that way is, and that will govern what we do. But basically, I believe it is this: We want the same thing--a Senate where most bills are considered by committee, where most bills come to the floor as a result of bipartisan cooperation, where most bills are then

debated and amended and then voted upon.

To someone who may have just tuned into the Senate, they may say: Well, that is a very simple solution. I thought that is what the Senate was supposed to be. It is what the Senate is supposed to be. It wasn't so long ago that it was the standard operating procedure. Senator McConnell said it was just a few years ago. He and Senator Reid have both been here a number of years.

I remember watching the Senate--and I have mentioned this before in this debate--between 1977 and 1985, when Howard Baker of Tennessee and Robert Byrd of West Virginia were the Republican and Democratic leaders. I had worked for Senator Baker before that as a legislative assistant. I knew Senator Byrd. Here is what went on then, and here is what could go on today: Most pieces of legislation that came to the floor started in committee. That gave us a chance to see what they did and to improve them and to hear from voices from all over the country. That legislation then came to the floor.

During Senator Baker's day, when he was the majority leader, he would rarely bring a bill to the floor unless both the Republican chairman and the Democratic ranking member supported it because he didn't want to waste the Senate's time. He knew that the Senate's 60-vote requirement forces consensus.

People talk about the filibuster. But what we have is a requirement that most important bills get 60 votes. If you are sitting with 53 Democrats and 47 Republicans, you don't have to have an advanced degree in mathematics to figure out if you don't have some Democrats and some Republicans, you don't get to 60.

So Senator Baker was saying back in the 1980s, bring the bill to the floor if it has the Republican chairman and the Democratic ranking member's support. Then the call would go out for amendments, and sometimes there would be 300 amendments filed.

The Senator from North Carolina or Tennessee might file 40. And no one said: Whoa, stop. You cannot do that. Instead, they said: Bring them on in. Sometimes there would be 300 amendments. Then Senator Baker or Senator Byrd would ask for unanimous consent to close off amendments. Well, I guess because the Senators by that time were exhausted from writing amendments, they all agreed to it, and then they started voting.

Now, it got to be Wednesday or Thursday, and the party secretaries would go to the Senators and they would say: I notice you still have 30 amendments waiting. Maybe you would only like to offer 15. It might get to Friday, and they would say: I notice you have five left. Maybe you would only like to have one. But if they had one they wanted to get, they almost always got the amendment. That is what the real importance of this agreement is today.

The difference of opinion we have had that has caused us to degenerate, in some cases, to a body that has not functioned as well as it should has been because on that side of the aisle--the majority-- people did not want to vote. It is like joining the Grand Ole Opry and saying: I do not want to sing. Some Republican Senator might offer an amendment that side does not want to vote on, and they say, well, we do not want to vote or they say, well, we do not want to work on Friday. So they go home. And they put pressure on the majority leader to use a procedure called filling the tree which cuts off votes and the right to amend. The majority leader used that power to cut off all amendments and debate 44 times. That's more than the last 6 majority leaders combined. Then what happens over here? Well, then Republican Senators, now in the minority, say: Well, we are not going to get amendments; we are going to start objecting. So we have what is called a lot of filibusters. We say: You are counting filibusters when you cut off our right to offer amendments. They say: You guys over there are keeping us from doing our business. On both sides, there is some truth to what has been said.

So I think most Senators are happy with this result. I think they will be. I hope it works. I mean, the idea would be that the leaders will do their best to see that most bills go to committee, come to the floor, and that when they do, if the Senator from North Carolina has an amendment the Senator from Tennessee would rather not vote on, she offers it anyway if she wants to, or if I have one she would rather not vote on, I may offer it anyway because it is important to the people of my State, even though we might be in a political minority at the moment. I believe that in most cases, if most Senators in the minority have that opportunity, that will help us get back to the kind of Senate we want to see.

I wish to compliment Senator Udall, Senator Merkley, and Senator Harkin. I learned a long time ago in life that if you start out in one direction, you do not always get exactly where you want to go, but you do not get anywhere if you do not start out. I think what they have done with their intelligence and diligence and persistence in this has created a period of time here where the Senate is taking some steps today that will help the people of this country know that serious issues--and we have plenty of them--the debt, for example, where 42 cents out of every dollar we spend is borrowed; jobs, for example, and in my State we have had 24 months of 9-percent unemployment or higher-- these changes will help us deal better with those issues. I will have more opportunity to talk about those after lunch later this afternoon. I want my friends on the other side to have a chance to make their points before we adjourn or take a recess for an hour.

Fundamentally, the steps we are taking make a difference. The one I am especially glad to see is the effort to make it easier for a President--any President--to staff his or her government. One of the problems--and Senator Reid talked about it--is we confirm too many people. It is not necessary for us to confirm the PR officer for a minor department. There is no need for that. The Secretary needs to go ahead and be able to appoint that person. We need to be able to work on more important issues.

Secondly, we have created a phenomenon in this town that I refer to as ``innocent until nominated.'' We have created a situation where any citizen who is invited by the President to serve in his government has to run such a gauntlet that it is almost impossible to get to the end of the gauntlet without being branded as a criminal. The reason is, we have a maze of conflicting forms in the executive branch, plus an IRS audit, and a maze of conflicting forms in the Senate. It not only delays, but it traps people and it tricks people into filling out one definition of ``income'' here and another one there. We all know this is true. We all know it needs to be fixed.

We have tried to fix it before--not just some of us; the majority leader and the Republican leader tried to fix it, and they didn't get it done. Senator Lieberman and Senator Collins tried to fix it, and they could not get it done. And 2 years ago, at a bipartisan breakfast which Senator Lieberman and I hosted, we had a whole group of us who said: Let's try to get this done. We talked to President Obama's administration about it. They said: Sure, go ahead. We would like to see that happen, either for us or for the next President. But we could not get it done because of resistance in this body to giving up any sort of power.

Right now, we have a unique confluence of support for the idea of making it easier for any President to staff his or her government. The majority leader and the Republican leader are solidly behind the effort. Senator Lieberman and Senator Collins are solidly behind the effort. Senator Schumer and I are working on a bill to do that, and we hope we can succeed. This opportunity, this window would not have happened if it had not been for the work of the Senators who have been arguing for reforms.

The other step we are likely to take is abolishing the secret hold. I think that is a good idea. I speak from experience. When I was nominated by the first President Bush to be Education Secretary, a Senator put a hold on my name, and it took 3 months to get it off. I finally found out who it was. I never knew exactly why he did it or why he took it off, but it might have helped if I had known it a little earlier. So I think it is a good idea. The majority leader put a hold on one of my TVA nominees, but he did it publicly. So I put a hold on one of his nominees, and

I did it publicly. And we worked it out. So there is nothing wrong with asserting our rights, but we might as well do it in public. I congratulate the Senators for making that effort. Senator Wyden and Senator Grassley have been working for more than a decade on that, as well as other Senators.

The step that says that if an amendment has been filed and on the Internet for 72 hours, we cannot require the clerks to read it all night long--that is a very commonsense proposal. I know it will be greatly appreciated by the employees of the Senate who have the job of reading the amendment. If they had a chance to vote, this would probably be the resolution on which they would like to have a chance to vote yes.

So these are important steps in the right direction which we will have a chance to talk about more today as the debate goes on. But I would like to end where I began. What we need most in the Senate is a change in behavior in addition to this change in rules. We need to preserve the Senate as a forum for minority rights. We need to preserve the 60-vote requirement for major votes. That will force consensus. That will cause us to work together. That will build support out in the country for the result of what we do because they can see that both Republicans and Democrats think, for example, that the way we have gone about trying to make Social Security solvent is a good way, rather than one side or the other just jamming through their partisan way.

There is a reason it is a good idea for this not to be a body that operates by a simply majority as the House does. I mean, the House can repeal the health care bill overnight. Bring it over to the Senate, and that side says: Let's stop and think about it. The House, if it is Democratic, can repeal the secret ballot in union elections overnight, and it did with its vote in the last Congress. But when it came over here, the Republican side said: Let's stop and think about it. The American people are better served by having these two different kinds of bodies, and the Senate and the American people will be better served both by the rules changes we are likely to adopt this afternoon and especially by the agreement by the majority leader and the Republican leader, which I feel confident has the backing of almost all of us, that we would like to work in a Senate where most bills are considered by committee, where most bills come to the floor, and where Senators, most of the time, have an opportunity to offer their amendments and debate. To be sure, there will be times when, if it is repeal of health care, that side does everything it can to exercise its rights to stop it, or if it is repeal of the secret ballot in union elections, this side will do everything we can to exercise our rights to stop it. But that will not be the ordinary course of events if this works the way we hope it does.

So I hope my friends on the other side feel good about what they have done. They have not achieved everything they sought to achieve, but we rarely ever do, particularly in a body of 100 that operates by consent of 100. What they have done, I believe, in addition to the rules changes we are likely to adopt, is create a window in which we have had a good, open discussion about the kind of place we want to work, the kind of Senate we hope would serve the American people the best, and we have come to a consensus about a change in behavior, which I believe in the end will be more important than the change in the rules.

I yield the floor.