A resolution amending rule XXII of the Standing Rules of the Senate to revise the number of affirmative votes required to end debate on nominations.

Mr. President, I am especially pleased to see that the Senator from Utah is presiding this afternoon because I come to the floor today to offer a resolution which is his inspiration, really, and on which I am pleased to be working with him.

Simply put, this is a resolution to establish a majority vote on Presidential nominations. This would establish by rule the Senate tradition of approving Presidential nominations by a simple majority vote. The rules change we propose would establish by rule this tradition of approving Presidential nominations of Cabinet Members and judges by a simple majority vote, which existed from the time Thomas Jefferson wrote the rules in 1789 until 2003, when Democrats began filibustering Federal Circuit Court of Appeals nominees.

Most importantly, it would change the rules in the right way, through a two-thirds vote, which is what the existing rules of the Senate provide. Unfortunately, on November 21, 2013, Democrats broke the Senate rules without even attempting to get the 67 votes required to change the rules, which caused former Senator Carl Levin, a Democrat from Michigan, to say at the time, quoting former Senator Arthur Vandenberg of Michigan, that ``if a majority of the Senate can change its rules at any time, there are no rules.'' We are the Nation's rulemaking body. If we cannot follow our own rules, how can we expect the American people to show respect for and follow the rules we help to create?

The proposal Senator Lee and I have made will be considered by the Senate Committee on Rules and Administration, according to the Senator from Missouri, Senator Blunt, the chairman of the Rules Committee. It would ultimately require a two-thirds vote of the Senate to change the Senate rules. This all has to do with the so-called nuclear option.

If I might say an additional word about the so-called nuclear option, I came to the Senate in 2003, which was when our Democratic friends decided they would use cloture, which requires 60 votes to cut off debate, as a way of denying a Presidential nomination on a Federal circuit judge. It had never in the history of the Senate been used before in that way. Cloture had been used twice, I believe, based on my research, to deny a sub-Cabinet member a position in the 1990s, but that was the first time it had ever been used on any such position with the exception of Abe Fortas.

It is important, given all the misinformation that has been spread about the nuclear option, to know what the facts are. The tradition has always been in the Senate that Presidential nominations deserved an up- or-down, 51-majority vote. That has basically been the tradition. Even with the most controversial nominations, such as that of Clarence Thomas, the Supreme Court Justice--I believe the vote was 52 to 48-- there never was a suggestion that someone might use cloture to require it to be 60 votes. Cloture didn't apply to nominations until 1949, so it was never used between the time Jefferson wrote the rules at the beginning of the Senate and 1949.

It was first used in 1968, but not really. President Johnson was trying to save face for Abe Fortas, his friend who was a Supreme Court Justice. He had nominated him for Chief Justice. A problem came out, and President Johnson engineered a 45-to-43 cloture vote, which Fortas ``won.''

That is really the only exception in the whole history of the Senate until 2003, when the Senate said it is going to take 60 votes to confirm a Presidential nomination for a judge rather than the traditional 51.

I have talked to several of my colleagues on the other side about this issue. They are fairly straightforward about why they did it. They thought President George W. Bush's nominees were ``too conservative.''

I knew some of those judges--Judge Pickering of Mississippi, for example. He put his children into a public school in Mississippi in the 1960s, and he was being accused of being a segregationist when he was actually leading the charge in his State of Mississippi to desegregate the public schools.

William Pryor of Alabama was a law clerk for Judge John Minor Wisdom. I know the distinguished Senator from Utah, who was a Supreme Court law clerk, knows of Judge Wisdom. He was regarded by everyone as one of the finest Federal circuit judges in the country. He had the greatest respect for William Pryor. He would have been shocked to hear what was said about him at the time.

It was a shocking thing to me to arrive in the Senate in 2003 and find my friends on the other side of the aisle for the first time in Senate history saying it would take 60 votes to confirm President Bush's judges. I strongly objected to that. I even suggested that if a few Senators on this side and a few Senators on that side would work together, we could break the stalemate. A Gang of 14 was created. It did break the stalemate, but as a result, five judges nominated by George W. Bush were not confirmed because the other side decided they didn't like their philosophical views. So instead of a 51-vote margin, they required 60, and so they weren't confirmed.

This is the tally in the history of the Senate. The number of Supreme Court nominees in the history of our country who have ever had their nomination denied by filibuster, by a cloture vote, is zero, with the exception of the Fortas nomination, if you want to

count that. Not a single one. Supreme Court nominations are among the most controversial nominations ever before the Senate.

The number of Cabinet members who have ever had their nominations denied by a filibuster, by requiring 60 votes in the history of the Senate--zero. Not one. Not an Obama nominee. Not a Clinton nominee. Not a Bush nominee. Zero. Not one.

Let's go to district judges. There has been a lot of talk about district judges and how difficult it was for President Obama to have district judges confirmed. There is no truth to that whatsoever. I was in the Senate; I know that. I will give an example. There was an effort to deny a seat to a judge from the State of Rhode Island by 60 votes, a judge whom I didn't support, but I and a group of other Republicans made sure we did not use cloture to deny a seat to a President's district judge nominee for the first time in history, and so we did not.

So the number of Federal district judges in the history of the United States who have ever had their nomination denied by a filibuster, by the 60-vote cloture rule, is zero.

So Supreme Court Justices, except for Fortas, Cabinet members, district judges--zero. Filibusters have not been widely used in the history of this Senate to deny a President his nomination. However, there are other problems that nominations have.

I was nominated once. I came to be nominated to be the Secretary of the Department of Education. A Senator from Ohio, Senator Metzenbaum, put a so-called secret hold on my nomination and held me up for 3 months, but then when I came to the floor, I was confirmed. We have abolished those kinds of secret holds. We have made changes in the rules to make it easier for the President's nominees to be confirmed.

There have been seven sub-Cabinet members, including John Bolton-- three Republicans and four Democrats--who have had their nominations rejected because of a cloture vote, all since 1994. So no Cabinet members, no Supreme Court Justices, no district judges, seven sub- Cabinet members.

What is the score on circuit judges? This is what brought up the fuss in 2003 when the Democrats filibustered 10 nominations because they were too conservative. As I mentioned earlier, five were confirmed and five were rejected as part of the compromise. Since that time, Republicans have rejected two Democrats. So the score is the Democrats have rejected five Federal Circuit judges and Republicans rejected two. Republicans actually rejected three others, but that led to the events of November 21, 2013, when the Democrats broke the rules to change the rules.

It would be as if in a Super Bowl or in a playoff game, let's say, Seattle gained 9 yards and they needed 10, so they changed the rules because they were the home team and said that is a first down. No one would have any respect for the game if they did that, and no one will have any respect for the Senate if we keep doing that, which is the point Senator Lee and I would like to make because the tradition of the Senate has always been to give to a President the prerogative of allowing his nominations to be confirmed by 51 votes or a simple majority of Senators duly chosen and sworn. We propose to change the rule to reflect the tradition of the Senate.

Some say: Well, why don't you do to them what they did to you?

I don't think that is a very good way to live your life. I mean, if the Democrats did the wrong thing, if they brought the Senate to its knees, if they made the Senate into a place that doesn't follow its own rules, then we should do that to them? No. I think what we should do is replace bad behavior with good behavior, and good behavior means we adopt changes to the rules in the way the rules require, which is, in effect, 67 votes or two-thirds of the Senators present and voting.

So we will be offering our resolution, as we do today. We will be offering it in the Senate Rules Committee. We hope the Senate Rules Committee will approve it and report it to the floor. We hope Senator McConnell will find time on the floor to bring it up. We hope that 67 of our colleagues will agree with it. We will show the country that we know how to follow our own rules and that we know how to take the tradition of the Senate, which has been there since Thomas Jefferson wrote the rules, with very few exceptions, to make sure that Presidential nominees are entitled to an up-or-down vote by a majority of the Senate. That has been the rule, that has been the tradition, and that should be the rule, and the rules should be changed in the way that rules are supposed to be changed.

There is one other issue I wish to mention without going into any length about it. What happened in the Senate on November 21, 2013, was the lowest point in the Senate that I have seen. The majority decided that because it didn't have the votes to put three judges--liberal judges--on the DC Court of Appeals, it would break the rules to change the rules, and it just put them there anyway. It pretended that the reason it did that was because President Obama couldn't get his nominees confirmed.

Well, on every Senator's desk is an Executive Calendar. Everyone who can be confirmed has been reported by a committee to the floor and is listed on the Executive Calendar. There is only one way to get on this calendar--there was only one way on November 21, 2013, and that was for a Democratic majority in a committee to report a nominee to the floor of the Senate. That was the only way you could get there. Republicans couldn't do it; only the Democrats could. So on November 21, 2013 the calendar was filled only with people the Democratic majority had approved of.

There was only one way for anyone to get off the Executive Calendar and onto the floor of the Senate to be confirmed, and that was for the Democratic leader, the majority leader, to move to do that. We can't object to that. We have to vote on it. There is no motion to proceed with a nomination; he can bring it up anytime he wants to.

The charge was made that there was a big backlog of people on this calendar. Well, here are the facts, and anyone who doubts it can look at the Executive Calendar for November 21, 2013, and they will see what the backlog was. There were 78 regular order nominations on November 21, 2013. Fifty-four of those nominees had been on the calendar less than 3 weeks. Sixteen had been on the calendar between 3 and 9 weeks. Eight had been on the calendar for more than 9 weeks.

There was an informal agreement between the floor staffs that 40 of the uncontroversial nominees on this calendar--40 of the 78--could be confirmed before the Senate left at the end of the week.

Let me use a specific example--district judges. We hear a lot about district judges. We had changed the rules at the request of the majority leader to make it easier to confirm district judges. We basically said that there could only be 2 hours of debate on a district judge and the majority could give back 1 of those hours.

On the date the Democrats said there was a big backlog, there were 13 district judges on the calendar. Those were the only ones who could have been brought up by the majority leader. One had been waiting for more than 9 weeks. Four had been waiting for between 3 and 9 weeks. Eight had been waiting for less than 3 weeks. But the important point is that we could have confirmed them all over the weekend. All the majority leader had to do was to move the nomination of each of the 13, wait an intervening day, and then if they did that on Thursday, the intervening day would be Friday, and then we would come back on Monday and we would have 1 hour of debate for each of those nominations. So there was no excuse. There was no backlog.

The Washington Post and the Congressional Research Service said that President Obama's nominees were moving through the Senate at about the same speed that President Clinton and President George W. Bush's nominees had been at that time in their terms. That is what the Congressional Research Service and the Washington Post said.

The calendar speaks the truth about the absence of a backlog. And I was involved three times in working to change the rules to make it easier to do Presidential nominations. It was nothing more than a power grab. So our friends should just admit that and admit that it was the wrong thing to

do for the Senate. A lot of Senators weren't here then.

The resolution Senator Lee and I have proposed gives the Senate a chance to abandon bad behavior and begin to adopt good behavior, to take a tradition of the Senate that has been followed almost without exception since 1789 and make it the order of the day and to do it the way the Senate rules say it should be done--with 67 votes.

In closing, let me simply say that I appreciate the fact that I am able to work on this with Senator Lee. This legislation developed really from a conversation and a suggestion he made to me on the floor of this Senate. I thought about it, and I said: I think you may be right about that. We worked together, and because of his background in the law and his experience in the Supreme Court, his leadership on this issue has been invaluable.

I thank the Senator for his suggestions, I thank him for his leadership, and I look forward to working with him when it comes before the Senate Rules Committee. I hope we can persuade our fellow Senators in a bipartisan way that a good way to begin this year would be to begin to change the rules the right way and to reject the bad behavior and bad habits of the last session of Congress.

I yield the floor.

Mr. President, the House of Representatives has voted to fully fund homeland security, as the President has requested. It sent a bill to the Senate that fully funds all the lawful policies and programs in homeland security. The bill will not deny a penny of funding. In fact, it says, spend the money, but on enforcing the laws of the United States. Don't spend money undermining the laws of the United States. Don't spend money in violation of the laws of the United States. Don't spend money in violation of the established policies of Congress, which rejected the President's ideas that he is now executing. And don't spend money in violation of the will of the American people who overwhelmingly oppose the President's unlawful Executive amnesty.

That is what we are talking about today, and my colleagues continue to suggest that somehow Republicans are not funding the Homeland Security Department. Nothing could be further from the truth.

Our colleagues have now voted to block going to the bill. If they don't like some of the provisions that came over from the House, well, let's get on the bill and let's have some relevant amendments and let's vote on it. That is what Congress is about. That is the way we are supposed to do business here.

But our colleagues have gotten spoiled. They think they can block anything and turn around and blame the Republicans for it and that somehow everybody is going to agree with them.

Look, the American people get this. The President is not entitled to spend money to implement a system of immigration that Congress, representing the American people, rejected. If our Democratic colleagues are unhappy, then, as I said, they can offer amendments.

I feel it would be a stunning event if the Senate removes language from a bill that simply restores the separation of powers and prevents the President from overreaching in violating the Constitution. But if they want to bring up amendments that would allow the President to do this activity, let's do it, let's bring it up, and let's vote on it. Perhaps they might win it. But I think it is untenable constitutionally and it is untenable legally, because it is contrary to the law and the will of the American people.

My good friend Senator Schumer is one of our able Members of this body. He spoke earlier today and he said: The

right wing of the Republican Party is risking a DHS--Department of Homeland Security--shutdown to get their way on immigration. They are saying: Take our hard right stance on immigration, or we won't fund national security.

That is not so, Senator Schumer. Give me a break. Come on. You are blocking the bill. The House has voted to fund homeland security. It is on the floor. We need to pass it, and we will give you an opportunity to offer your amendments if you are not happy with it. It is absolutely not so that they are doing that.

So how is it being reported? Republicans frequently complain they don't get fair reporting in the press, but let's look at this:

U.S. News and World Report, today: ``Senate Democrats Block Bill Undoing Immigration Actions.'' That is the headline, ``Undoing Immigration Actions.'' Those are President Obama's unlawful actions. So they are defending his actions, not defending homeland security.

How about this one, USA Today: ``Democrats again block efforts to derail immigration order.'' The effort would derail the President's unlawful Executive amnesty--but it funds homeland security, as the article makes clear.

Fox News: ``Senate Dems nix debate on Homeland Security bill, blocking it, in protest over immigration.''

Who is blocking the bill?

Politico: ``Democrats filibuster Department of Homeland Security bill.''

That is exactly what is happening. The bill has passed the House. It is on the floor. We are trying to bring it up. We are trying to have debate. We are trying to have amendments. And they are blocking the bill--according to Politico, no rightwing publication.

The Washington Post: ``Senate Democrats block DHS spending bill targeting Obama's immigration actions.''

The Atlantic. This is a good one. For those of us who have been around here a long time, and I think for reporters who cover it, this is really humorous, to have our Democratic colleagues, having complained for years about what Republicans do. This is the headline in the Atlantic: ``The New Democratic Obstructionists.''

Here is the headline in the New York Times: ``Senate Democrats Block Republicans' Homeland Security Bill.''

So I would say, colleagues, the American people know better. The media knows better. They know who is blocking this bill. They know that the Congress of the United States--that the House of Representatives and the Senate is not required to fund any program it doesn't like.

It is absolutely not required, and it has a duty not to fund Presidential expenditures that are illegal. The Department of Homeland Security is provided funds to enforce the laws of the United States. The President right now is taking money that was sent to Homeland Security to enforce laws and he is redirecting it and moving it over to a building just across the river in Crystal City, hiring 1,000 persons to process applications of people illegally in the country and to provide them the earned-income tax credit, which is a direct check from the United States of America, provide them a Social Security number, the right to participate in Social Security, legal status in the country, the right to work in the country, and participation in Medicare, when the law of the United States says if someone is here unlawfully, they cannot work. So that is what this is all about.

I just want to push back. I urge my colleagues--at least seven of my Democratic colleagues have said they oppose President Obama's actions. When do they have a clearer chance to confront that action and demonstrate with conviction that they meant what they said than on this vote?

It allows the bill to come forward. It allows us to have a vote. It allows anybody in the Senate to offer amendments that would be relevant to the bill. I feel strongly about that.

I see the Senator from New York. I think she was in line to speak before I was, and I was able to grab a few minutes. So I would just say this. Colleagues, please review your position on this. Let's move to this bill. Let's fund Homeland Security. Let's discuss and have amendments and vote on the President's Executive order, and the one who wins the votes, so be it. That is the way the Congress of the United States works.

I thank the Chair, and I yield the floor.

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

Mr. President, I rise today to urge my colleagues to pass a clean Homeland Security funding bill for fiscal year 2015. This is an issue of national security, and we cannot allow politics to divert attention from our responsibility as Senators.

The majority in the House sent the Senate a bill with five poison pills that they know will prevent the passage of this legislation. Yesterday and again today, my Senate colleagues and I sent a clear message that these politically divisive immigration provisions have no place in this bill.

I urge my colleagues to dispense with any further delays and allow for an up-or-down vote on the bill as originally drafted.

The Department of Homeland Security funding bill--created in the wake of 9/11, as Senator Durbin reminded us earlier--is not the place to litigate immigration policy; rather, those issues are appropriately addressed in a comprehensive immigration bill, and I hope

the House will draft and vote on that type of legislation soon.

The recent executions of the Japanese and Jordanian hostages by the terrorist group ISIL and the attacks in Paris, Ottawa, and Australia serve as reminders of the very real threat we face.

Each day we delay in providing adequate, reliable resources to the Department of Homeland Security, we undermine the Department's efforts to defend the home front. That is why I am calling on my colleagues to take up and pass a clean bill.

My colleagues on the Appropriations Committee Senator Shaheen and Vice Chairwoman Mikulski have introduced a clean DHS funding bill that reflects the bipartisan agreement reached between the House and Senate appropriators. This bill funds a wide range of programs that keep Americans safe and secure.

For example, the clean version of this bill funds a host of counterterrorism, intelligence, and security functions; investments in cyber security defense technologies and personnel, investments to detect and protect against biological threats, research and development of nuclear detection technologies, TSA and Coast Guard operations to keep our skies and our waters safe. The clean version also funds $6 billion in disaster funds to help States, localities, businesses, and individuals rebuild after a natural disaster, staffing nearly 24,000 Customs and Border Protection officers who ensure legitimate travel of individuals who seek to enter the country, and staffing 20,000 Border Patrol agents who protect the 6,000 miles of our land border and 2,000 miles of coastal waters.

Department of Homeland Security Secretary Johnson has been clear that while the Department operates under the current CR, it cannot fund key homeland security initiatives.

A short-term CR would prevent the Department from awarding new disaster preparedness grants that support our local emergency responders. It would delay the hiring of more investigators for cases related to human trafficking and smuggling. It would also prevent the Secret Service from training for the next Presidential election, and the list goes on.

We cannot expect DHS to do long-term strategic planning with short- term funding measures. The Department needs reliable funding to operate efficiently and effectively.

The House majority is unfortunately playing politics with our homeland security because the President has taken an action that every President since the 1950s has taken: He has provided commonsense direction to our immigration enforcement efforts.

The President's Executive actions on immigration are fundamentally aimed at keeping families together, making our communities safer, and using our resources efficiently. It is hard to understand how someone could oppose that.

The President's actions will ensure that our immigration enforcement efforts are used to secure the border, prevent threats to national security, and protect public safety. These should be our top priorities, and I support those efforts, but if Members of the House take issue with them, they should draft and adopt immigration reform, just as the Senate did on a bipartisan basis 18 months ago.

Our path forward is simple: Pass a clean funding bill. If my colleagues want to fix our broken immigration system, then let's take up a bill, but let's not use this critical funding bill to play partisan politics.

The dedicated men and women of the Department of Homeland Security deserve better. The American people deserve better. Let's put aside politics and let's pass a clean Department of Homeland Security funding bill.

Mr. President, I yield the floor.

I suggest the absence of a quorum.

Mr. President, I wish to speak briefly in support of this resolution. First of all, I wish to thank my distinguished colleague, the senior Senator from Tennessee, for his leadership in introducing this legislation. The Senator from Tennessee has shown great leadership on this issue. With his mastery of the Senate rules, his familiarity with the procedures of the Senate, the Senate's history, and his love for the Senate as an institution, the sponsor of this measure understands and appreciates the importance of maintaining order in the Senate. It is to this issue I would like to speak briefly.

When the Senate made this change in November of 2013, what happened was all of a sudden we had a split--a split that occurred between on the one hand the wording of the rule itself that governs cloture, on the other hand the precedent by which the Senate purports to be governed. So separate and apart from what the history tells us--from how often the Senate either has or hasn't used cloture on the Executive Calendar--there is this separate distinction that has now arisen.

The cloture rule says it takes three-fifths--a vote of three-fifths of the Senators--to bring end to debate on a particular matter. The rule itself makes no distinction between the Executive Calendar and the legislative calendar. It makes no distinction between ordinary legislative business where we are legislating and making law on the one hand and on the other we are meeting to decide whether to confirm a Presidential nominee. The rule doesn't distinguish, but the precedent now does.

When our colleagues on other side of the aisle voted in November 2013, appealing the ruling of the Chair, they reversed the precedent. They acted contrary to the language of the rule itself. This creates a certain amount of uncertainty, and that uncertainty I think needs to be resolved. We don't want to operate in an environment in which we have the rule saying one thing and the Senate precedent saying another thing.

So it was out of a certain amount of practical necessity that we looked to this as an alternative. In order to bring Senate practice back into harmony with the rules of the Senate, the best way we could come up with to do that would be to change the language of the rule.

Of course to change the language of the rule it takes 67 votes. While we are not certain what is going to happen, this is perhaps the only thing we could think of that could possibly get 67 votes--67 Senators saying yes, we can do that.

So it is very important that we have rules that are clear--rules that will apply regardless of who is in the White House, regardless of which party happens to control the majority of the seats in this body. If, after all, we are making the rules that would govern the country, if, after all, we are being asked to confirm Presidential nominees to high positions, we need to be following our own rules.

We have to remember also that one of the things we have prided ourselves on, one of the things that has distinguished the Senate from other legislative bodies--we call ourselves the world's greatest deliberative legislative body--is because from the very beginning this has been the kind of place where in theory we will continue to debate things as long as basically any one Member wants to continue to debate. Cloture is an exception to that. Cloture allows for three-fifths of the Senators present to decide it is time to bring the debate to an end, even if a minority of Senators want to continue. But it requires a supermajority.

There are many reasons to do this, but one of the reasons I think is important to point out is because it protects the right of each Senator to continue to offer improvements, to point out flaws and offer potential improvements to legislation--the amendment process. The amendment process is itself of course different in the context of legislation than it is in the context of a Presidential nominee.

I am personally not aware of any means by which one can amend a nominee. I am not aware of any process by which one can confirm a Presidential nominee's right hand but not his left.

I support this change. I think this change is important for this body and for the continuity of the Senate rules and I am grateful to the senior Senator from Tennessee for his efforts in this regard, which I wholeheartedly support.

Mr. President, I rise to urge my colleagues to do the right thing and pass a bill that would fully fund the Department of Homeland Security, without the politically driven riders that are the focus of this debate.

Protecting our country from terrorist attacks should be our top priority in Congress and we should not be playing games with Homeland Security funding. That is the least our constituents expect of us. I know that for many of my colleagues the question of immigration is a very contentious one and an important one worthy of debate. We should have that debate without risking the safety of our families by once again putting an immigration bill on the floor of the Senate.

But this funding bill for such a vitally important part of our national security is simply not the place for an ideological debate. If we fail to pass and fund the Department of Homeland Security, the consequences for our safety could potentially be devastating. Take for example the Urban Areas Security Initiative. This is the program that helps our cities pay for things such as surveillance equipment, secure communications systems, training for law enforcement personnel, all in order to increase our security and prevent terrorism. These grants ensure that all of the places terrorists have targeted and will continue to target are able to effectively prevent those violent acts from happening.

New York City is my home State. It is the No. 1 terror target in the Nation. It relies on the urban security program to keep its millions of residents and tourists safe. It also relies on our Homeland Security network to stop the plans of would-be terrorists.

Since 9/11, New York City has thwarted at least 16 terrorist attacks, and it has done so because of the constant support the Department of Homeland Security provides. If we cannot pass this bill, the Urban Areas Security Initiative and the extensive network of security systems in New York City would lose their funding, and every visitor to an urban area in this country, including right here in Washington, DC, would be less safe.

If we cannot pass this bill, not only would our security suffer, but the inspectors at our ports would not be paid, our security personnel would not be paid, and our Border Patrol agents would not be paid. If we don't pass this bill, then we have failed at our most solemn responsibility, to keep the American people safe.

I urge all my colleagues to please put politics aside, vote to pass a bill free of divisive policy riders and fully fund the Department of Homeland Security.

Thank you, Mr. President.

I yield the rest of my time.

I suggest the absence of a quorum.