Floor Statements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier, we had a speech by one of my colleagues, who was saying that it is so important that we do the hard work in committee and that we do the hard work on the floor with an open amendment process. That is what we did with the Senate farm bill. Senator Stabenow from Michigan, the chair of the committee, Ranking Member Roberts--they worked very hard to have

an honest, open, public debate and votes on the individual elements. In the course of that, we adopted disaster aid for farmers and ranchers across America who were scorched by the worst fires in a century and one of the worst droughts in the last century. They should have been helped immediately upon those disasters, but they could not be helped because the farm bill had expired. Leaders said we will quickly reauthorize it. The Senate reauthorized it, we put those provisions in, we sent it over to the House, and the House never acted on it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why did it work well? In part because there was a big overlap between Democrats and Republicans. If I were to chart out those who were the most liberal Republicans and the most conservative Democrats, there would be a lot of overlap in the middle. It was generally understood that this was a simple majority body and there should only be an objection to a simple majority vote when everyone had their say. If it was a principle that was of a deep and exceptional nature, such as a personal principle or an issue affecting a Senator's State, and because that Senator was objecting to the ordinary

functioning of this body, that Senator felt a compulsion to stand and make the case before colleagues. In a sense it was because the Chamber had reporters on the upper level who followed Senators making their cases before American citizens.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For example, they considered that if we are going to pass a treaty, it should

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

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

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

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

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

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

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

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

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

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

He has been suffering, if you will, through these nearly 400 filibusters in the 6 years he has been majority leader, while so many issues in America go unaddressed; each one of these filibusters procedurally taking up as much as a week of the Senate's time, even if we can get to vote to shut it down.

We must change the way we do our business in this Chamber to honor our responsibility under the Constitution to legislate in order to address the big issues facing Americans.

I thank the Chair, and I yield the floor.

Would the Senator from Michigan yield for a question?

I thank the leader of the Agriculture Committee, my colleague from Michigan, who has steered this Chamber through such a complex set of issues in trying to address the true agricultural needs of our Nation while spending the taxpayers' dollar efficiently, and, in fact, producing a huge amount of savings in the overall bill.

But I wanted to ask a couple of questions in regard to the points the Senator from Michigan is making. If I understood the Senator right, first, the disaster assistance for America's ranchers and farmers and orchardists that has been approved in the farm bill and sent to the Senate is not in the Republican leader's version that he wants to put through the floor of this Chamber?

Just a couple of days ago, due to the efforts the Senator engaged in, and I engaged in and others joined us--Senator Blunt was very instrumental--we had a debate about putting those emergency provisions into the emergency bill for Hurricane Sandy. I heard the Republican leader of the Budget Committee stand up and say: Don't worry, farmers and ranchers of America, because we are going to get those provisions passed in the farm bill.

But from what I am hearing now, that promise is being broken tonight by the Republican leader?

So if I can try to translate this for the farmers and ranchers in my State of Oregon and the orchardists and ranchers in the Senator's State, this Chamber committed itself to restoring the emergency disaster program either through the farm bill or through some other mechanism, but we have left them hanging since the fires and the drought of July and August. Since the cold weather problems that occurred a year ago, we have left them hanging without disaster assistance. Now, the promise made a couple of days ago that we get this done in the farm bill is being broken.

How can I possibly explain to my farmers and ranchers that when they had the worst fire in a century, larger than the State of Rhode Island, that burned their fences, burned their forage, burned their cattle, when others had some of the coldest weather that destroyed the crops, how can I explain to them that not only do some of our Republican colleagues, and apparently the Republican leader, consider that not to be a disaster, but the very argument made a couple of days ago to not put it in the Sandy bill is now being thrown aside?

The Senator from Michigan has worked over the past year to find a bipartisan strategy to reform elements of the farm bill that we were spending too much money on in certain places and to reform those overly generous subsidies, if you will, and make them kind of fit the circumstances. The Senator saved a lot of money in the process. Am I to understand that the Republican leader has taken those reforms, designed to wisely spend the taxpayers' money in the right places, and has thrown them out the window?

I would say to my colleague, I have sat on this floor and listened to lectures of fiscal responsibility and the need to move things and work things in committee before they come to the floor. Now, the work that the Senator did was the best of those two qualities: Everything being done in committee, being in open conversation, dialogue, working on it, bringing it to the floor, having a debate on the floor in front of the American people, in front of our colleagues, complete openness and a complete sense of fiscal responsibility. So are those lectures that I have been hearing about fiscal responsibility and committee process, are they just lectures but no real belief in them?

There is one more piece of this I want to clarify because I am not sure where the minority leader's version came out on this; that is, our organic farmers have gotten a very unfair deal, and that deal was that they were going to be charged extra for their insurance. In exchange they were supposed to get the organic price of a particular crop. We fixed that on the floor of the Senate. We addressed that. We said, no, the Department of Agriculture that was supposed to get the studies done to get the organic prices in place so that the upfront price had the back side as well, we gave them a confined number of years to get that done, to rectify that injustice. Is that now missing from the proposal from the Republican leader?

How can one possibly justify charging organic farmers more because they are going to get a higher insurance compensation, but then say they will not get a higher insurance compensation? We are going to take that away?

So it operates as a structural effort to basically take money away from the organic community and give it to the nonorganic community--I mean, complete unfairness in a competitive marketplace. How can one possibly justify stripping that from this extension?

In closing my part of this colloquy, I want to thank the Senator for clarifying those three points--that the disaster relief is out, that the pork is in, and that the organic farmers are going to continue to get the short end of the stick. It seems to me that is three strikes and you are out. And I didn't even address many of the other points I heard the Senator raising.

The Senator's outrage about this is so deeply justified, and I am certain I

will be standing with her as we try to make sure that the good work done in committee and on the floor of the Senate for fiscal responsibility, for fairness to farmers, for fairness to those who have suffered disasters, for fairness to those who are in the organic or the inorganic world or nonorganic world--that these mistakes, these three strikes-plus, do not carry forth through this Chamber.

I thank the Senator for her leadership.

Mr. President, I am delighted to partner with Senator Blunt and Senator Stabenow on this important amendment which addresses the disasters that occurred this last summer in terms of a century's worth of the worst fires and the worst drought. This is a true emergency in which our response has been delayed because programs are tied up in the farm bill.

I ask that my colleagues address this real emergency.

I yield the floor and reserve the remainder of my time.

Mr. President, this is a budget point of order against this being an emergency. If a person is a farmer or a rancher and their property or the property they rent from the BLM----

I ask unanimous consent to complete 30 seconds of remarks.

If a person is a farmer or a rancher, saying this is not an emergency is cold comfort. Saying this will be addressed in the farm bill is cold comfort. When a person's land is burned up, when they have the worst drought in a century, it is an emergency, and getting help 6 or 8 months after it happens is unacceptable.

We have a responsibility, having not gotten the farm bill done, to do these emergency provisions today. Please vote for the following waiver:

Pursuant to section 904 of the Congressional Budget Act of 1974, I move to waive all applicable sections of that act for purposes of the pending amendment, and I ask for the yeas and nays.

Mr. President, given that the emergency designations in this amendment have been stricken, I ask unanimous consent to withdraw my amendment No. 3367.

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

Mr. President, I wish to make a few comments on what has transpired today on the floor of the Senate.

First, some enormously important work has been done in regard to addressing the disaster caused by Hurricane Sandy. I know that in a number of States unprecedented devastation has occurred, and we should respond extremely quickly--more quickly than we have. I hope the House will immediately take up this package. Certainly, disaster relief delayed is disaster relief denied. So I hope the House will indeed move extremely quickly to address the devastation throughout the Northeast.

I also wanted to note that tonight 55 Senators stood and said: As we assist the victims of Hurricane Sandy, we should also assist the victims of unprecedented drought and fires that devastated much of our country this last summer.

How is it, we might wonder, that we had devastating fires in July and August and into September and devastating drought and we still haven't approved the disaster assistance? I must say it is 100 percent unacceptable.

If you lost your ranch in a fire, if you lost your fencing, if you lost your corn, if you lost your livestock, and a program that would have helped that has always been in place for disaster assistance wasn't reauthorized, then you have been stranded since June or July or August. Perhaps in that interim you have lost your farm, perhaps you have lost your ranch, perhaps you have mortgaged everything to hold on. Yet here is the Senate saying: Hey, it is OK that we are not helping you now because, you know what. We are going to help you in the farm bill.

Where is the farm bill? It is not on the President's desk. It is not en route to the President's desk. It has not even been brought up on the floor of the House. A bipartisan group of Senators in this body approved the farm bill and had the disaster relief for our ranchers and farmers in it and sent it over to the House, and it has never been discussed. That is completely unacceptable. It is a moral failure to leave those struck by disaster stranded.

Tonight 55 Senators agreed that it is unacceptable. We should help right now. But you know what. Under the budget point of order that was put forward, you needed 60 votes. We needed 60 votes tonight to help our ranchers and farmers. We only had 55.

Here is the interesting point. This budget point of order is supposed to be about saving money, but this body already approved all of those disaster relief programs in the farm bill, and when that farm bill is done, we are assured tonight that these provisions will be maintained, that we will assist our ranchers and farmers. Thus, we will not save a dime. There is not a dime saved because the same program will eventually be approved. But the relief will be coming so late to the victims of the drought and the victims of the fire who lost their livestock and their forage and their fences.

Tonight, what happened for those 40 who voted against helping our ranchers and farmers is they did not save a penny, but they did enormous damage to citizens across this country, ranchers and farmers who were counting on us.

I rise to say that I deeply regret the Senate's decision tonight. I deeply regret the 40 votes against our ranchers and farmers. I deeply regret that 40 said: Even though it will not save a dime, we are going to hold them hostage to the farm bill, to its eventual passage someday. Holding people hostage who have been victims of disaster is morally unacceptable.

Again, I thank the 55 tonight who voted on the bipartisan amendment. My partner on the Republican side of the aisle, Senator Blunt, should be profoundly complimented for stepping in to help carry this charge. I was pleased to be his partner. I was pleased to be a partner with Senator Stabenow, chair of the Agriculture Committee, who worked closely with us to arrange for this Senate amendment to be possible tonight, to be able to have this vote. I thank her, and I thank Senator Blunt. I thank the other Senate cosponsors, and I thank everyone who voted tonight to say that disaster relief should no longer be delayed for the victims of the fires and droughts of the summer of 2012.

I suggest the absence of a quorum.

Mr. President, I call up my amendment which is at the desk.

Mr. President, I ask unanimous consent that further reading be dispensed with.

Mr. President, I rise this morning to talk about the Foreign Intelligence Surveillance Act and the concerns I and many of my colleagues have.

Earlier this morning, Senator Wyden, the senior Senator from Oregon, was discussing at length the importance of the fourth amendment, the importance of Americans knowing the boundaries and the rules under which our government collects intelligence and to know their rights to privacy are protected.

Under this Foreign Intelligence Surveillance Act, there are a variety of ways in which that assurance is compromised, and Senator Wyden did a very good job of laying those out. I wish to emphasize that same message; that our country was founded on the principles of privacy and liberty, of protection from an overreaching central government.

During the founding, we set out and said we are going to be a new kind of nation; one that will not permit an overbearing, intrusive government spying on citizens or meddling in their private affairs. This belief was enshrined in our fourth amendment:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

I think that is an extraordinarily complete description saying that the government is bound--bound--by having to demonstrate before a court probable cause a case that is put forward and backed up by oath or affirmation, a case that is put forward with great detail about the places to be searched and the persons or things to be seized.

So the concept is laid out very clearly about what constitutes unreasonable searches and seizures. It is certainly not that the government can't collect information, just they have to show probable cause of a crime in order to create that boundary that says the information we have in our daily lives. I don't know how much broader it can be than houses, papers, and effects. It pretty much covers the entire parameter.

One of the problems we have is that sometimes lawyers start looking for loopholes, and we can address those loopholes if they are discussed in a public setting, if we can get our hands around them. But if they are loopholes created in secrecy, then indeed it is very hard to have a debate on the floor of the Senate about whether those loopholes or interpretations are right or whether we should change the law in order to address them.

Of course, our laws have had to be updated and changed over time to adapt to new technology and changing threats, and one of those developments was the creation of the Foreign Intelligence Surveillance Act in the 1970s.

In 1972, the Supreme Court held the fourth amendment does not permit warrantless surveillance for intelligence investigations within our country. One may wonder how this even took a Supreme Court decision since the fourth amendment is so absolutely clear on this point.

In 1978, Congress enacted FISA--Foreign Intelligence Surveillance Act--to regulate government surveillance within our country that is conducted for foreign intelligence purposes. Under FISA, the government had to obtain an order from a special court called the FISA Court in order to spy on Americans. This is certainly an appropriate boundary to implement. The order required the government to obtain a warrant and show probable cause. These are the same basic, commonsense protections we have had in place for other types of searches. This development required individualized and particular orders from the FISA Court to collect communications.

But now let's fast forward to 2001. President Bush decided in secret to authorize the National Security Agency to start a new program of warrantless surveillance inside the United States. This is in complete contravention of the fourth amendment and in complete contravention of the law at that time. As I am sure many of my colleagues will certainly recall, this was revealed to the American people 4 years later when it was reported in the New York Times in 2005. In response, after years of back and forth contentious debate, Congress passed the FISA Amendments Act--the bill we are considering on this floor today. We are considering a reauthorization. This law gave the government new surveillance authority but also included a sunset provision to ensure that Congress examines where the law is working and the way it was intended.

The debate we are having right now on this floor is that reexamination. I will note that I think it is unfortunate that we are doing this at the last second. We have known that this intelligence law is going to expire for years. It was laid out for a multiyear span.

Certainly, it is irresponsible for this Chamber to be debating this bill under a falsely created pressure that it needs to be done without any amendments in order to match the bill from the House. That is a way of suppressing debate on critical issues here in America.

If you care about the fourth amendment, if you care about privacy, you should be arguing that we should either create a very short-term extension in order to have this debate fully or that we should have had this debate months ago so it could have been done in a full and responsible manner, with no pressure to vote against amendments in order to falsely address the issue of partnering with the House bill.

This law included that sunset provision. Now here we are looking at the extension. It is a single-day debate, crowded here into the holidays when few Americans will be paying attention. But I think it is important, nonetheless, for those of us who are concerned about the boundaries of privacy and believe the law could be strengthened to make our case here in hopes that at some point we will be able to have the real consideration these issues merit.

In my opinion, there are serious reforms that need to be made before we consider renewing this law. This law is supposed to be about giving our government the tools it needs to collect the communications of foreigners, outside of our country. If it is possible that our intelligence agencies are using the law to collect and use the communications of Americans without a warrant, that is a problem. Of course, we cannot reach conclusions about that in this forum because this is an unclassified discussion.

My colleagues Senator Wyden and Senator Udall, who serve on Intelligence, have discussed the loophole in the current law that allows the potential of backdoor searches. This could allow the government to effectively use warrantless searches for law-abiding Americans. Senator Wyden has an amendment that relates to closing that loophole.

Congress never intended the intelligence community to have a huge database to sift through without first getting a regular probable cause warrant, but because we do not have the details of exactly how this proceeds and we cannot debate in a public forum those details, then we are stuck with wrestling with the fact that we need to have the sorts of protections and efforts to close loopholes that Senator Wyden has put forward.

What we do know is that this past summer, the Director of National Intelligence said in a public forum that on at least one occasion the FISA Court has ruled that a data collection carried out by the government did violate the fourth amendment. We also know that the FISA Court has ruled that the Federal Government has circumvented the spirit of the law as well as the letter of the law. But too much else of what we should know about this law remains secret. In fact, we have extremely few details about how the courts have interpreted the statutes that have been declassified and released to the public. This goes to the issue of secret law my colleague from Oregon was discussing earlier. If you have a phrase in the law and it has been interpreted by a secret court and the interpretation is secret, then you really do not know what the law means.

The FISA Court is a judicial body established by Congress to consider requests for surveillance made under the FISA Amendments Act, but, almost without exception, its decisions, including significant legal interpretations of the statute, remain highly classified. They remain secret.

I am going to put up this chart just to emphasize that this is a big deal. Here in America, if the law makes a reference to what the boundary is, we should understand how the court interprets that boundary so it can be debated. If the court reaches an interpretation with which Congress is uncomfortable, we should be able to change that, but of course we cannot change it, not knowing what the interpretation is because the interpretation is secret. So we are certainly constrained from having the type of debate that our Nation was founded on--an open discussion of issues.

These are issues that can be addressed without in any way compromising the national security of the United States. Understanding how certain words are interpreted tells us where the line is drawn. But that line, wherever it is drawn, is, in fact, relevant to whether the intent of Congress is being fulfilled and whether the protection of citizens under the fourth amendment is indeed standing strong.

An open and democratic society such as ours should not be governed by secret laws, and judicial interpretations are as much a part of the law as the words that make up our statute. The opinions of the FISA Court are controlling. They do matter. When a law is kept secret, public debate, legislative intent, and finding the right balance between security and privacy all suffer.

In 2010, due to concerns that were raised by a number of Senators about the problem of classified FISA Court opinions, the Department of Justice and the Office of the Director of National Intelligence said they would establish a process to declassify opinions of the FISA Court that contained important rulings of law. In 2011, prior to her confirmation hearing, Lisa Monaco, who is our Assistant Attorney General for National Security, expressed support for declassifying FISA opinions that include ``significant instructions or interpretations of

My understanding is that 30 minutes was allocated?

Mr. President, if there is no one else waiting to speak, I ask unanimous consent to speak as in morning business and will yield when someone is ready, prepared to speak to the bill.

Mr. President, I thank my colleagues for setting out the parameters. I am going to wrap this up in fairly short order.

I again wish to emphasize that if any of my colleagues would like to come down and argue that this in any way compromises national security, I will be happy to have that debate because this has been laid out very clearly so the Attorney General has complete control over any possible compromise of information related to national security. Indeed, although I think it is important for this body to continue to express that the spirit of what we do in this Nation should be about citizens to the maximum extent possible having full and clear understanding of how the letter of the law is being interpreted.

Let me show an example of a passage. Here is a passage about what information can be collected: `` . . . reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2),'' and so on.

Let me stress these words: ``relevant to an authorized investigation.''

There are ongoing investigations, multitude investigations about the conduct of individuals and groups around this planet, and one could make the argument that any information in the world helps frame an understanding of what these foreign groups are doing. So certainly there has been some FISA Court decision about what ``relevant to an authorized investigation'' means or what ``tangible things'' means. Is this a gateway that is thrown wide open to any level of spying on Americans or is it not? Is it tightly constrained in understanding what this balance of the fourth amendment is? We do not know the answer to that. We should be able to know.

If we believe that an administration and the secret court have gone in a direction incompatible with our understanding of what we were seeking to defend, then that would enable us to have that debate here about whether we tighten the language of the law in accordance with such an interpretation. Again, is this an open gateway to any information anywhere in the world, anytime, on anyone or is it a very narrow gate? We do not know. American citizens should have the ability to know, and certainly a Senator working to protect the fourth amendment should know that as well. We have always struck a balance in this country between an overbearing government and the important pathway to obtaining information relevant to our national security.

The amendment I am laying forth strikes that balance appropriately. It urges the process to continue by providing an understanding of what the secret court interpretations are, which is very important to democracy. It provides the appropriate balance with national security, gives clear decisionmaking authority to the Attorney General of this process, and in that sense it gives the best possible path that honors national security concerns while demanding transparency and accountability for this issue of privacy and protection of the fourth amendment.

Mr. President, if I could interject for a moment.

I thank my colleague from Oregon for spearheading this whole conversation about privacy and national security and how the two are not at war with each other. We are simply looking for appropriate warrant processes, an assurance to the public that the boundaries of privacy are being respected. Certainly, a piece of that is the secret law. I appreciate the comments of the chair of the Intelligence Committee on this issue. I do feel that in a democracy, understanding how a statute is interpreted is essential to the conduct of our responsibility in forging laws and ensuring that the constitutional vision is protected.

I thank Senator Wyden.

The Senator mentioned an Oregonian sitting in Coos Bay working on his or her laptop and calling the Senator's office and saying: Hey, the law says the government can collect tangible material related to an investigation. Does that mean they can collect all of my Web conversations--knowing that the Web circuits travel around the world multiple times and at some point they travel through a foreign space. They ask this question in all sincerity because they care about the fourth amendment and their privacy.

How much ability do we have to give them a definitive answer on that?

Absolutely. I think about other questions our constituents might ask. They might ask if our spy agencies are collecting vast data from around the world and they become interested in an American citizen, can they search all that data without getting a warrant--a warrant that is very specific to probable cause and an affirmation.

Again, I suspect the answer we could give to the citizen would be that we cannot give a very precise evaluation of that, not knowing how the concept of information related to an investigation has been interpreted and laid out.

I thank my colleague from Oregon for being so deeply invested in the details of this over many years, utilizing a fierce advocacy in support of the fourth amendment and privacy to bring to these debates. I also thank the chair of the Intelligence Committee for her comments earlier today about secret laws and her own concerns about that and her willingness to help to work to have the administration provide the type of information that clarifies how these secret opinions interpret statutes. My thanks go to the Senator from California, Mrs. Feinstein.

The PRESIDING OFFICER (Mrs. McCaskill.) The Senator from Oregon.

Mr. President, will my colleague from Georgia yield for a question?

I thank the Chair, and I thank my colleague.

My colleague did address issues regarding the Merkley-Lee amendment, which has three stages in it designed to be sensitive to national security. It says that if the Attorney General determines that an opinion is not dangerous to national security, it asks them to release it to the public. It says that if the Attorney General finds that it is sensitive to national security, to release only a summary so written as to protect national security. Then it goes even further to say that if, in the Attorney General's opinion, that is not possible, then please just give us a report on the process the executive branch has already said they are doing, which is to go through a systematic process of determining what they feel should be released independent of any advice we in the Senate might have.

So in these three stages, national security is given full consideration at each step. What it means is that in a situation where we have language such as ``the government can collect information relevant to an investigation,'' and the public wonders, well, is that investigation any investigation in the world, is it--what does ``relevant'' mean? What does ``tangible information'' mean? There are decisions that may confirm that the plain language operates in a fashion that protects the fourth amendment or those interpretations of FISA may, in fact, stand the statute on its head and open a door that was meant to be, by what we did when we passed it here, open just a slit, to be turned into a wide-open gate.

So with those provisions to carefully protect national security, as the Senator so rightly pointed out is necessary, can I perhaps win the Senator's support?

I thank my colleague for sharing his insights. And certainly national security is extremely important. I obviously reach a different conclusion.

I encourage my colleagues to support the amendment that Senator Lee and I have put forward because it appropriately balances national security concerns against issues of privacy and the fourth amendment. It says simply that where national security is not affected, the public should be able to see these interpretations of what the statutes we write in this Chamber mean so the public can weigh in on whether they feel comfortable with where the secret court has taken us and so we can weigh in, so we can have a debate on this floor not about our best guess about what possible implications might occur from some secret court opinion, but we can actually share a situation where national security is not affected. Well, here is how related to investigations it has been interpreted: Oh my goodness. What was intended to be a door open 1 inch is a door flung open like a barn gate, and the fourth amendment is in serious trouble. That should be debated here.

Certainly, the amendment Senator Lee and I have put forward is very sensitive to the concerns my colleague has presented. I do appreciate his viewpoints. But, Mr. President, through you I ask my colleagues to weigh in on the side that the American people have a right to know what the plain language of the statute actually means after being interpreted by a court.

Thank you.

I suggest the absence of a quorum.

Mr. President, is it time to speak to amendment No. 3435?

Mr. President, I rise in support of the Merkley-Lee amendment. I thank him for being lead cosponsor.

I say to my colleagues, this is all about supporting the fourth amendment and opposing secret law. As we all know, in this Nation law consists of both the plain language and the court interpretations of what the plain language means. In the case of the FISA rulings, the public never finds out the second half and therefore doesn't really know when information will be collected, if you will, that is relevant to an investigation. No one ever knows

what that means. The public should be able to know and should be able to weigh in.

This amendment is constructed so it protects national security. It says this will only happen in cases when it is compatible with national security to release the FISA findings, and, second, you can do summaries instead, and if summaries are still causing a national security problem, a schedule is sufficient as to how the administration is reviewing these. It balances national security while it fights for the fourth amendment.

Mr. President, I call up amendment No. 3367 and ask that it be further modified with the changes at the desk.

Mr. President, I ask that Senator Blunt be added as a cosponsor.

Mr. President, I would like to thank very much Senator Blunt and Senator Stabenow, who have worked so hard to bring together a common vision in how we can address the terrible disasters of drought and wildfires that ravaged many parts of the country this last summer.

Now, we are no longer in the summer, so we are months late but better now than to wait a single additional day.

With that, I yield to Senator Stabenow from Michigan and thank her so much for working so hard and well on this.

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

Mr. President, I rise to talk about the challenge of this Chamber being a Chamber that can deliberate and decide issues, the big issues facing America.

I don't think it will come as a surprise to anyone that the Senate, once famed as the world's greatest deliberative body, has become paralyzed. At the heart of that paralysis is a change in the use of the filibuster. ``Filibuster'' is a term I believe comes from the Dutch, and it refers to piracy. In this context, it is about someone taking over this Chamber--taking over the normal process by which we debate issues and decide issues by majority vote.

In the past, when everyone understood the very heart of what we do is to make decisions by majority vote, the filibuster--the takeover of this Chamber, the objection to a simple majority vote--was very rare. People did this only once or twice in a career for some issue of profound personal values or of extreme concern to an issue in their State, and it was most often small factions who would do this.

In 1916, there was a debate--a debate that went on about whether to put weaponry on our commercial shipping. This was pre-World War I. In the course of that debate, there was a small faction who said: We are going to interrupt and we are going to object to the simple majority because we strongly oppose the United States putting any defenses on its merchant vessels, even though those vessels were being sunk by the Germans as they went over to Europe.

This was enormously frustrating to President Woodrow Wilson, and it was enormously frustrating to the Members of this Chamber who said: We must complete debate and make a decision and only a small number want to block us from making that decision.

The following year, in 1917, they adopted a rule that we could close debate if we had two-thirds of this Chamber voting to close debate. That is called cloture. Cloture continued to be an instrument that in situations where there was an individual or a small group who stretched the limits of the courtesy of full debate, then the Chamber as a whole could say: Enough is enough. We need to bring this debate to an end and make a decision.

Over time, things have changed. This objection to a simple majority-- which makes it impossible for the Chamber to end debate--has grown from its occasional use to a routine instrument of legislative destruction. It is used on virtually every debatable motion.

A single bill can have as many as seven or so steps where you have a debatable motion. In that situation, then an objection to a simple majority can be done multiple times. Each one of those objections wastes a week of the Senate's time on this floor, which means the Senate not only cannot decide the issue at hand, it runs out of

the time to debate and deliberate on the other issues that we should be doing on the floor.

As I will show in a chart later, we can measure this in part by the action on appropriations bills. We have an expectation of--it used to be 13 appropriations bills; now it is 12. In the last 2 years we have done exactly 1, 1 out of 24--totally unacceptable in terms of this Chamber fulfilling its responsibility just in that one area of appropriations, decisions about how to spend moneys in different parts of the government.

I know when people hear the word ``filibuster'' they do not think of simply a silent objection. Yet that is what is in the rules, a silent objection to a simple majority. They think of someone taking the floor and making their case on an issue of deep principle or deep concern to their State. They might be thinking a little bit about a picture that looks a little like this.

This is that famous scene from ``Mr. Smith Goes to Washington.'' Jimmy Stewart is on the floor. He talks through the night, making his case. He is fighting for fairness and justice in the face of corruption. That is what people think of when they think of a filibuster.

But the way it works today, it is a simple objection. We ask for a unanimous consent request, meaning do all 100 Senators agree to go to final vote, and someone says: I object. That is all that is required. That is all it ever meant. But in the past, that objection to the heart of democracy, to the simple majority, meant you felt honor bound to come to the floor of the Senate and make your case while you stood in the way of the decisionmaking of this august Chamber. But that sense of honor-bound responsibility to make your case before your colleagues, make your case before the American people, has disappeared. Indeed, instead of the filibuster being something done by an individual or a small group, it is now used as an instrument of party warfare.

The minority party, be it the Democrats or be it the Republicans, say: You know, we can slow down the majority by eating up their time. We can do it by filing an objection on every debatable motion, and we will simply eat up the calendar and prevent them from getting their work done. Then we will say how incompetent they are, that they can't get their work done--after we have caused them to be unable to do it.

I thought I would go through the enormous expansion of this tool of legislative destruction in many different categories in the years since 1970. Before we do that, by the way, every now and then someone says: You know, the Senate was designed as a supermajority body. Indeed, that could not be further from the truth. There are specific cases where our forefathers said a supermajority makes sense; for example, in the case of overriding a Presidential veto, in the case of approving a treaty, in the case of having a constitutional amendment. But they viewed that these legislative Chambers, like every legislative chamber in the world, would make decisions by simple majority.

In fact, they addressed this in the Federalist Papers. Here we have Alexander Hamilton and his commentary on supermajority decisionmaking that was fierce. He said--and this is just a small part of his diatribe about how destructive it would be to have this Chamber tied up in a supermajority. He referred to it as driving ``tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.''

We have seen some of those tedious delays, we have seen some of those contemptible compromises, and certainly he was looking into a crystal ball and accurately summarizing the situation.

He was not alone. Here we have compatriot James Madison, also in the Federalist Papers. He noted ``the fundamental principle of free government would be reversed.''

By ``fundamental principle,'' he is talking about the fact that when you make a decision by simple majority, you make the decision that most people think is the right direction in which to go. But when you make a decision by supermajority, and a minority can block it, you are making the decision the smaller number thinks is the right decision. In that sense, you have a series of worst decisions rather than a series of best decisions. So the wisdom of the group tapping into the expertise of colleagues who came from many directions, many walks of life, is not realized.

Let's take a look at what has happened in this use of the objection to a simple majority, otherwise known as a filibuster. Here we are evaluating it in terms of the cloture motions that are filed. These are motions that are designed to drive a vote on whether to close debate. It is one way of measuring the number of filibusters. How about nominations? We can see that basically the first filibusters on nominations were in about 1970. I was about 14 years old. I was starting high school. That is when this started to be done. We can see that as time passed, we have an enormous increase in the number of filibusters on nominations. Over here, in 2012-24. It is a situation where these are only cloture motions. So many other nominations were blocked because of threatened filibusters.

We have this vast number of positions in the executive branch, this vast number of judge positions that are unfilled. The advice and consent clause in the Constitution that gives this Chamber, the Senate, the chance to weigh in has been turned, through the expanded use of the filibuster, into a tool that damages the other branches of government. It prevents the President from having his team that he would like to have, and that blocks us from getting the judges onto the courts so we can have the sort of speedy criminal justice system we envision and promise.

That was just nominations. Let's take a look at some other areas. The motion to proceed is the very first step for a bill. It is just a motion to get the bill on the floor to debate. That was virtually never filibustered. We have one time down here in 1932, until we are in the 1960s, and then early 1970s. It takes off. We see this massive expansion that makes no sense unless you are just trying to paralyze the system because these filibusters are not in any way construed to enhance debate.

These are to prevent debate, prevent us from getting to a bill to debate it, prevent an agenda from ever being considered by this body. Here we have over 30, and over 20--in recent years just a huge number of efforts to prevent these bills from ever coming to the floor to be debated. How can we weigh in and address the big issues facing our Nation if we cannot get the bill on the floor to begin with? Again, in recent times, and enormous change in strategy used by the minority to prevent debate.

Here we have amendments. The first time, about 1962, the filibuster was used on an amendment because people envisioned the filibuster as something to be used at the end of the process on a bill when all the different pieces have been put in place, and you say: Is their a core principle compromise after I have fought and won or fought and lost? But then folks got the clever idea: We can do this on any debatable motion, including an amendment. So the number of filibusters on amendments also grew enormously from the early 1970s forward.

Final passage? This is where we see the traditional role of the filibuster, one or two or three a year over these many years from the 1920s on through the 1960s. Stop the chart right here in the middle. That is what the filibuster was, very occasional battles over core principles. Then we have 1970 and look what happened. We had this explosion of 25--that was 1974. What happened as a result?

In 1975 there was a big battle on this floor about changing the rules because this abuse was preventing the Senate from doing its business. So in 1975 we have this enormous battle. There are three votes in which a simple majority says, yes; we can change the rules by simple majority, and we intend to do so. The majority leader who opposed this finally said: OK, I get the message. A simple majority is prepared to change the rules if we do not address the paralysis of the Senate, and they changed the rules.

The compromise was to change it from 67 required to close debate down to 60, from two-thirds down to three-fifths. You can see the number of filibusters then dropped off, and they were resolved more easily.

But what do we have? Again, this enormous explosion until 2012, 35 filibusters. We are deeply afflicted. This is

why we are having this conversation over how to save the Senate from itself, from this instrument of the objection to a simple majority that is being used to thwart the ability of the people's elected leaders from addressing the issues our Nation faces.

After a bill has gone through passage, it goes over to the House or the House bill comes to the Senate. When both Chambers have passed the same bill in different forms, then you need to get it to negotiation. That is done through a conference committee. It used to be nobody filibustered a conference committee. Here we have in 1972 the first filibuster on a conference committee.

Why would you object to getting the three motions done that are required to get a bill into negotiation with the House? That doesn't facilitate debate in any conceivable way. But it was an instrument to eat up the time of this Chamber so they could not address other issues. It is like walking knee deep in molasses. You just cannot get very far very quickly.

Then we see this huge explosion in using this filibuster, the objection to a simple majority, in the latter part of this last decade. The result has been this: We have basically given up on conference committees. It is too hard to get to conference. So we have informal negotiation, or we have kind of a process called ``pinging,'' where we change the House bill after we pass our own version, we change it, send it back over, they change it, send it back over to us--not a very effective way to negotiate a compromise that can pass in the same form. And until and unless it passes both Chambers in the same form, it cannot get to the President. So this was a huge change as well.

Then we have, after conference committee, reports coming back from conference. Now you have the same version; it normally has not changed very much. Again, we see this explosion--once, basically, in about 1945, and then about 1970 an explosion, and then we see the dropoff in part because we just started giving up on conference committees.

In each one of these debatable motions we have a problem, a problem that has grown enormously from 1970 forward, the last 40 years. This is something I have witnessed within my own lifetime. I came here in 1976 as an intern for Senator Hatfield. I was assigned to the Tax Reform Act of 1976. In those days there was no camera on this floor and there was no e-mail, so essentially the only way the Senator had to monitor a bill was that he or she would meet with a staff member outside these doors where the elevators are.

I would sit up in the staff gallery and monitor the debate on the Tax Reform Act, and I would rush down with each vote, meet Senator Hatfield coming out of the elevators, and brief him on the details of the amendment. There were sometimes a couple of layers of motions, and I would proceed to say: Here is what the folks are thinking about back home; here is what folks back home are thinking about this issue.

He would come back to vote, and I would rush back upstairs and see how he voted, how everyone else voted, how it came out.

I would rush back and start making notes on the next debate. Well, this Chamber deliberated on amendment after amendment. When one amendment was done, then a series of folks near the Chamber would raise their hand and call on the Presiding Officer. Whoever the Presiding Officer called on--and according to the rules, the Presiding Officer is supposed to call on the first person he or she hears--and that person would present the next amendment and then the debate would begin. They would debate for an hour, hour and a half, and then they would vote.

These amendments were germane and relevant to the issue. They had to do with different aspects of the Tax Code: Was it Employee Stock Ownership Plan, ESOPs. That was something Senator Hatfield cared a great deal about. Was it the change in a provision regarding teachers' home offices? It seemed that was something every teacher in Oregon was writing us about. We debated these issues, we decided these issues, and it was a simple majority. That is the way the Senate deliberated and decided on issues over our history until the last 40 years when this massive expansion of the use of the objection to the simple majority has paralyzed this body.

I thought it was interesting to see this cartoon. It says: I will tell you all the reasons we shouldn't reform the filibuster. I assume it is depicting a Senator on the floor of the Senate. And it says, No. 1, it will restrict my ability to frivolously stymie everything. And then the Senator says, No. 2--well, the Senator thinks about it, grimaces, frowns, and cannot think of any other reason that we should not reform the filibuster other than the ability to frivolously stymie everything. Finally the Senator says: How long do I have to keep talking? A little farther down here it says: You can read recipes for paralysis.

Well, that is what we have in the Senate right now. Due to the extraordinary abuse of the filibuster, we have a recipe for paralysis.

It is time to do something about that. The first thing we should do is eliminate the filibuster on the motion to proceed. That was the first step in the process I showed in the earlier chart. It doesn't make sense to debate whether to debate. We should be able to vote on whether the bill comes to the floor. Let's have a couple of hours to debate that. Then we have a simple majority vote. Either we decide we are taking up that bill or nomination or we are not taking up that bill or nomination, and we go on to the next order of business. We should not waste a week of Senate time trying to decide whether we are going to have a debate on a bill or nomination.

Those listening may wonder why there is a week of wasted time. Well, it works like this: First of all, we have the motion and then we have debate that takes place and we think we will wrap it up, but we don't. Then we think we have a motion to close debate, but to do that there has to be a petition signed by 16 Senators. So on day three we get the petition. Then the petition has to ripen, which means it has to sit over on intervening days. So we start the debate on Monday, sign the petition on Tuesday, and now we cannot vote on whether to close debate until Thursday. Then if we are able to vote and get 60 votes, we have to have 30 hours of postcloture debate. Now the week is gone. The 30 hours wipes out Friday.

If that is done multiple times on a bill, it means multiple weeks are wiped out with nothing productive. There is no productive conversation on this floor, no point and counterpoint, no insights with people's life experience, no questions asked or questions answered. Nothing productive gets accomplished.

If we want to sum up all of the filibusters on all of these different motions, here is one way to compare it. Lyndon Johnson was the majority leader for 6 years. During those 6 years, he had to file one petition. Technically it is called a motion, but actually 16 people have to sign a petition. He had one motion to end debate in 6 years.

Now we have Harry Reid who has been the majority leader for 6 years. As this poster says, ``387 and counting.'' I think the number today is 391. There have been 391 1-week delays in 6 years. How many weeks are there in 6 years? Well, that would be about 312 weeks. Is that right? Yes, 312. So that is 312 weeks, and as it says here, ``387 and counting''--390 weeks wasted.

No wonder we don't get things done, such as our nominations for the executive branch or the judiciary, our appropriations bills, our authorizing bills, or the policy changes that are going to make a big impact on the challenges we face in America. As we can see here it is 1 versus 387. This is now a couple of days old, so it is 391 and counting. We cannot allow this to continue. We have a responsibility to the people who elected us to be a seasoned, deliberative body.

Some say: Well, this is what the Senate is all about. There is a story recited by historians that says that is apocryphal. It is a story about President Washington and Thomas Jefferson. They are having a discussion. Washington says the Senate is meant to be the cooling saucer. Just as we poured our hot tea out of our cup and into our saucer to let it cool so we can drink it, the Senate is meant to be a cooling saucer. Well, perhaps the Senate was meant to be a cooling saucer, but it was not meant to be a deep

freeze. The cooling saucer concept is that the Senate is a little more detached from the immediate fashion of the moment. It is a little more detached because we are elected for 6-year terms, not 2-year terms. It is a little more detached because we are staggered so some have been here 2 years, some 4 years, and some 6 years. After their first term, then they will be here many years thereafter. It is supposed to have a little more distance on the immediate trends because in the beginning we were indirectly elected by State legislators. Of course, we changed that. We changed that in the early 1900s because of the abuses that occurred and went to directly electing Senators.

The idea was longer terms, a little bit more deliberation, a smaller body of folks in the Senate, two per State. That was so we could deliberate thoughtfully, not so we could not deliberate. There is a big difference. This is unacceptable. If this majority leader were a Republican and the Democrats were doing this, it would be unacceptable. It is unacceptable for either minority party to devise and execute a strategy that prevents this body from doing its work.

The thing that is diabolical about the filibuster is that in the procedural sense it is invisible. So we have this unanimous consent request--this courtesy--is everyone ready? Should we vote? When the Senate was a small Senate, and prior to 1970, virtually the answer was always yes, except for those rare moments on issues of deep values. But now it is done as a minority party strategy to obstruct, and it is done on virtually every motion. And because it is an objection to a vote, it has never required people to talk on the floor. Of course, we all believed someone would talk on the floor because that is the way it was done. If someone violated the majority principle, that person had the courage and principle to come to this floor and explain that to colleagues and the American people. That is no longer true. Now there is no courage. It is in hiding.

I will give an example. We had a bill on the floor in 2010. It was called the DISCLOSE Act. The DISCLOSE Act said that for every donation, the public should know where it comes from. If it comes from ranchers, people should know about it; if it comes from Oklahoma, people should know about it; if it comes from the tobacco industry, people should know it. The people have a right to understand who is financing the ads they are seeing or who is financing the literature they are seeing. That is part of a transparent and accountable democracy.

We had 59 folks on the floor of the Senate say: Yes, we have debated enough, let's close debate, and we could not get the 60th vote. Not because there was more to be said, but no one among those who were voting for additional debate would want to be seen debating. They didn't want to be seen defending secrecy. They didn't want to be seen defending the creation of vast pools of cash that flowed freely between super PACs and dumped into campaigns at the last second with nobody knowing where it came from. They didn't want anyone to know where vast pools of money were going under deliberately misleading names. Maybe it was a group that wanted to keep some polluting factory open, but they called themselves the Blue River Coalition or the Blue Skies Coalition because the money could not be traced. No one wanted to come here and debate that, but they voted for a debate. That is the silent secret filibuster that has wiped out accountability to colleagues and accountability to the American public. We need to end that.

Right now the minority leader has come down and said several times he doesn't like this idea. He doesn't like it at all. He has called those of us who promoted transparency and accountability sophomoric. Well, I didn't think that was particularly a polite thing to say, but let's say we have a difference of opinion. I am out here advocating for this Chamber to be able to do its responsibility before the American public. I am out here advocating that if someone votes for more debate, they have to have the courage of their convictions to make their case before their colleagues and come to the floor. If they don't have the courage, then we go ahead with the simple majority vote. It is that straightforward.

There are some folks who say: We can already have a talking filibuster under current rules. We don't need to change the rules. I found this interesting because the fact is that all of the writing about the theory and historical efforts--I will say one thing, and that is that over any length of time it is impossible for the majority to keep a filibustering minority talking. Why is that? It is because it takes the majority of 51 Senators to create a quorum and force 1 filibustering Senator on the floor. That has been a myth that some of my colleagues have been perpetrating. I thought I would go over it a little bit more. There was a recent book by two very well-steeped scholars. Richard Arenberg was one of those scholars. Richard Arenberg was an aide to Senator Carl Levin as well as to Senator Tsongas and majority leader George Mitchell, so he has had a long career of experience here on the floor of the Senate. The other scholar is Robert Dove. Who is Robert Dove? He was a Parliamentarian in this Chamber. He spent his time working here from 1966 until 2001. In the chapter of their book entitled ``Bring in the Cots,'' they explained how this works. Here are a couple of passages between pages 146 and 152 that I thought summed it up:

Those who call for forcing the filibusterers to talk either ignore or are unaware of the fact that for a sizable organized minority, and certainly for a minority of forty-one senators or more, lengthy sessions are a little more than exercises in scheduling.

The filibusterers are able to take turns holding the floor, and since they can demand the presence of a quorum at virtually any moment, it is the majority that carries the heavier burden because they need to keep fifty-one senators nearby. If the filibusterers call for a quorum and it is not produced, under the rules the Senate must adjourn.

So they lay out the theory, and they go on for several pages doing this. They also quote some other experts. One of those they quote is Franklin Burdette. He was a scholar who wrote ``Filibustering in the Senate.'' It is referred to as the classic text on the filibuster. Franklin Burdette said this:

Any experienced maneuverer in the Senate knows that a

determined group of filibusterers, before they are themselves

exhausted, can usually manage to wear out the patience and

endurance of the majority.

Dove and Arenberg go on to quote commentator Elizabeth Drew and she says this:

Many people now insist that those who use filibusters

should actually be made to stand up and talk through the

night, but there's a reason that doesn't happen anymore. In

the 1970s, Majority Leader Mike Mansfield realized that the

real punishment was not to the small band of all-night

speakers, but to the majority party, which had to keep a

quorum on hand, sleeping on the famous cots near the Senate

floor, lest the person conducting the filibuster suddenly

make a motion to adjourn the Senate, thus defeating the

purpose of keeping them talking.

Then Elizabeth Drew quotes Historian Ritchie who says:

The all night filibuster wore down the majority much faster

than it did the minority, and majority leaders haven't used

the tactic since.

But then Dove and Arenberg go on to cite the historical record, go through the different filibusters that have been on this floor, and one of the examples they cite is majority leader Lyndon Johnson's 1960 effort to defeat a civil rights filibuster:

Senator Johnson's effort did not work. . . . Civil rights

supporter Senator William Proxmire, Democrat from Wisconsin,

described the scene.

Now we are quoting Proxmire. He said:

We slept on cots in the old Supreme Court chamber and came

out to answer quorum calls. It was an absolutely exhausting

experience. The southerners who were doing the talking were

in great shape, because they would talk for two hours and

leave the floor for a couple of days.

Then Arenberg and Dove proceed to take a look at other cases, including majority leader Robert Byrd's 1988 effort to break a filibuster against campaign finance reform:

Senator Alan Simpson frustrated this effort for much of the

time, simply by repeatedly requesting quorum calls. . . . The

bottom line is the bill never passed. The minority that was

blocking the bill was able to sustain their filibuster

through a record eight cloture votes. In the end, Majority

Leader Byrd had to back down.

In most theory and practice, we can't sustain a process of having those who are filibustering actually debate what they voted to debate. So what many of us are proposing is that we change the rule and say that if a Senator votes to debate, then that takes a minimum of 41 saying, yes, we want more debate, and of those 41, at least 1 has to be on the floor talking. This is only fair to the American people. They turn on C-SPAN and they see quorum calls. They see silence, and they wonder why the Senate isn't working on that jobs bill they had on the floor a few days before. They don't know it is still on the floor, but the silent secret filibuster is being used to prevent the Senate from proceeding and nobody is even willing to talk because they don't want to be seen in public defending their position. That needs to end. This process in which Senators do not have the courage to come down and make their case before the American people has to end because only if folks make their case on the floor can the public weigh in, can colleagues weigh in and say: Yes; you are a hero. Thank you for your filibuster because you are defending some core principle I too share or you are defending some key interest for my State that I too care about or they can weigh in and say: You know what. You are a bum. You aren't making any points. You haven't described any position. You are simply paralyzing the Senate or, worse yet, I disagree with you. You are defending big, vast pools of secret funds used to corrupt the American political system. Why would you do that? Why don't you, my Senator, join the next cloture vote to close debate and get on with solving this problem of vast pools of secret funds or some other key issue.

The Presiding Officer and I have been here just 4 years. Had I not been here as a young man and seen this Chamber as one that deliberates and decides, I wouldn't feel so passionately because I wouldn't understand what we had lost. What we have lost is something that started with a constitutional vision of the design of this Senate, including the courtesy of hearing everyone out before making decisions, and what we lost in losing the deliberative, decisionmaking body was everything--everything in terms of this body upholding its responsibility to address the big problems facing America.

When we come into session on January 3, we are going to have a debate over rules. There are some who say let's get rid of the debate on the motion to proceed, the filibuster on the motion to proceed. We know what happens then. We get a double down in the paralysis at the later stage at which a bill goes through. At a minimum, we must change this dynamic of the secret silent filibuster and say if a Senator votes for more debate, a Senator must make their case on this floor.

I encourage citizens around this country--citizens who have watched this Chamber decline and be broken and fail to address the issues we should address--to weigh in with their Senators and their home States and let all the Senators know it is irresponsible and unacceptable for us to continue the current procedures in which we are so paralyzed and incapable of fulfilling the work that needs to be done.

Thank you. I note the absence of a quorum.

Mr. President, I ask for the regular order with respect to my amendment, No. 3367.

I have a modification at the desk. I ask that my amendment be so modified.

I also ask unanimous consent to add Senator Franken, Senator Tim Johnson, and Senator Tom Udall as cosponsors to the amendment.

Mr. President, I yield the floor.

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

Mr. President, I ask unanimous consent to speak as in morning business.

Mr. President, tonight we are wrapping up affairs here on the floor, and what is going on right now is that the main substitute amendment that had a whole series of other amendments attached to it that has been the result of the work over the last couple of days has been withdrawn, so we are back to square one in terms of addressing a series of national disasters around the country.

Tomorrow, with the new amendment, we will start off the day with a new basic amendment and a new chance to have amendments to the replacement. I explain this simply to say that a number of Senators who had amendments over the last couple of days will come back tomorrow and will ask to have their amendments be considered. I will be one of them, and I wanted to explain why.

In my home State of Oregon, we had the worst forest fires in a century this summer, and the devastation to ranchers and farmers was enormous. There was the loss of forage on their own land, the loss of forage on BLM land, certainly the loss of livestock, and the loss of miles of fencing in these fires. Basically, whole ranching enterprises were destroyed.

The largest of these fires was larger than the Presiding Officer's State, the State of Rhode Island. That is an enormous fire. That was just one of the many fires we had sweeping our State, and this was not just something that happened in Oregon. This happened in many States this summer because it goes along with something else, which is we had the worst drought in many parts of the country. So we have farmers and ranchers across this Nation devastated this past summer by drought, devastated by fires which were larger because of drought conditions.

Normally we would have had disaster programs to assist with these disasters. These disaster programs were authorized in the farm bill. In this Chamber we had a bipartisan coming together. We passed the farm bill, and we sent it over to the House. There it has sat, month after month after month, while our farmers and our ranchers all across this Nation faced these disasters with no assistance, no assistance in a situation in which they should be able to expect assistance. It is the tradition of our Nation that when there are extraordinary disasters, we rally together, respond and rebuild those communities, whether they be urban disasters or whether they be rural disasters. But because the farm bill has not been passed, not gotten to the President, these disaster programs have not been reauthorized, and our farmers and ranchers watch us and wait. They say where is our government, our partner, when disaster occurs?

They know the tax dollars they pay go into the central government and have many times been allocated to others around this Nation facing disasters of all kinds--earthquakes, hurricanes, floods, droughts. But these individuals, now that Mother Nature has struck them, stand waiting.

We have an opportunity tomorrow to right this wrong. We have a bill that is about the enormous terrible disaster that affected our Northeastern States in the form of Hurricane Sandy.

We should be absolutely expedient in taking care of communities so dramatically affected. But at the same time, isn't it right that we take care of the other communities around this country that have faced disasters this last year that are waiting on us?

I invite my colleagues to come to the floor and explain to me if they feel it is not right to take care of the other disasters we have had this last year. I would like to be able to go to the ranchers and farmers in my State and explain to them the arguments that others might bring about why their disaster, the destruction of their livelihood that the great hand of Mother Nature struck, why we shouldn't address and assist them when we are assisting others so dramatically affected around this Nation. Quite frankly, I have no answer. I have no answer. I can't think of an answer.

Will any of my 99 colleagues come to me and explain why we shouldn't pass this amendment tomorrow, the amendment that I will propose? I will tell you that a number of us came together to propose this amendment. Senator Stabenow, Senator McCaskill, Senator Baucus, Senator Wyden, Senator Tim Johnson, Senator Franken, Senator Tom Udall, representing all kinds of parts of our Nation, who understand the impact that drought has had, understand the impact the fires have had. They have come together from different parts of the Nation to say we are in this together. Let's not leave stranded our ranchers and farmers when we gather to debate tomorrow. Let's let this amendment be brought forward, and let's get it passed as part of this very appropriate response to this very terrible disaster called Hurricane Sandy.

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

Mr. President, I ask unanimous consent that the Veterans' Affairs Committee be discharged from further consideration of H.R. 4057 and the Senate proceed to its consideration.

I ask unanimous consent that the Murray substitute amendment which is at the desk be agreed to; the bill, as amended, be read three times and passed; the motion to reconsider be laid upon the table, with no intervening action or debate; and that any related statements be printed in the Record.