Floor Statements

Mr. President, I would like to continue the conversation that our two leaders were engaged in earlier and also on yesterday. This is going to be a very important issue for the Senate.

To put it into perspective for the American people, let me just say that a rules change in the Senate is not a small or an inconsequential matter. It is even more important if it is attempted to be done without going through the normal process of changing the rules, which requires a two-thirds majority. This is important because the Senate has always considered itself a continuing body. It does not end and then begin again as the House of Representatives does because the House has an election every 2 years. In this body, Members are elected for 6-year terms. As a result, every 2 years we have some turnover in the body, but two-thirds of the body has already been here and continues forward.

So the rules of the Senate have always been continuing rules of the continuing body, amendable by a two-thirds majority of the body. To suggest a nuclear option by which a mere majority of the body can amend the rules is itself a violation of the rules. It is an assertion of power. But as the old saying goes: Might does not make right. And the fact that the majority may have the power to overrule a ruling of the Chair, thus establishing a new precedent and a new rule of the Senate, does not make it right. That is why it hasn't been done.

In point of fact, there was a time a few years ago, as has been discussed, when some members of the Senate Republican majority were considering the use of the same parliamentary tactic to ensure a vote on nominees for the U.S. Supreme Court and also for the Court of Appeals. The feeling was that the Democratic minority had filibustered over and over and over and had prevented votes, I think, on Miguel Estrada, who was being nominated for the DC Circuit Court of Appeals. I think he was filibustered seven separate times.

The Republican leadership was investigating the possibility of ensuring that we could get a vote. The only way that seemed possible was to assert this power of overruling the Parliamentarian's ruling through the Chair and thus establishing by 51 votes--or a mere majority--a new rule of the Senate.

That was deemed to be such a change that it was called the nuclear option because it hadn't been done, and we could say that it was comparable to the use of a nuclear weapon in a war. It was such a game- changing proposition, to say the least, that Members on both sides of the aisle got together in what they called the Gang of 14. I think almost everyone in this body is glad that cooler heads prevailed; that those 14 Members decided they would reach an agreement amongst themselves that would make it impossible for either the Democratic Party to automatically filibuster nominees or for the Republican Party to have this right to change the rules just because they had 51 votes. Therefore, they reached the compromise which, for judicial nominees, was that there would be no filibuster except in extraordinary circumstances.

Both sides deemed that a sufficient way of resolving the issue that came before us at that time. Everybody stood down. The war did not occur. The nuclear weapon was not used, and that was for the best of the country and certainly for the best of the Senate. We avoided a crisis and, certainly, there would have been a crisis. I can't imagine that my friends on the Democratic side of the aisle would not have reacted very badly to the use of that nuclear option had it been done by the Republican majority.

Well, today the shoe is on the other foot. The Democratic majority now has reason to believe that it would like to move forward with more alacrity on legislation. Therefore, it believes that by this same nuclear option procedure it should change the rules so that the ability to filibuster at the beginning of the consideration of the bill is eliminated.

The Republican minority naturally has said: Wait a minute. That is wrong for two reasons. First of all, just as you accused us of doing, you are changing the rules without going through the rules process change. This is your own version of the nuclear option. If it was wrong then, it is still wrong now. And most of us agreed after the fact that it was wrong then. But, secondly, what you would do, if you eliminate the requirement for cloture and a cloture vote if there is an objection to a unanimous consent request to take up the bill or motion to proceed to a bill, what you are doing is putting all of the power into the hands of the majority leader--in this case, the Democratic leader--to decide whether there will be any amendments at all from the Republican side or even from the Democratic side. The only leverage that the minority has to ensure that it will be able to offer amendments is to negotiate with the majority leader and ensure that right exists. And the only leverage it has is to deny cloture on the

motion to proceed in order to instigate that negotiation. It is political leverage. Let's call it by its true name. But without that political leverage, that check and balance, the majority leader in the Senate takes a very giant step toward becoming exactly what the Speaker of the House is, in effect, a dictator.

Now, I use that term in a very kind sense because the Speakers of the House under whom I served as a Member of the House of Representatives, and certainly the current Speaker of the House, are fine people who care a lot about the institution of the House of Representatives and, in some cases, care for some degree of minority rights. But they all have one thing in common: They run the House. If they decide, through the Rules Committee, there aren't going to be any amendments offered by the other side, there aren't any amendments offered. Frequently the minority is in the position of complaining about the fact that the Speaker, through the Rules Committee, denies them the right to offer amendments or controls which amendments they can offer, controls the time.

So if you are a Member of the House of Representatives and you want to offer an amendment, you can't automatically do that, as has been the case in the Senate. You have to go to the Rules Committee--which is hand-picked by the Speaker--and you have to ask them for permission to offer an amendment and how long you will have to talk about that amendment and the wording of the amendment and all of the other conditions that the Rules Committee establishes for debate of the matter on the floor of the House of Representatives.

When the Constitution was originally written, the Founders' idea was that we would have two different legislative bodies that would provide a check and a balance on each other. One would represent the immediate passions of the people, the House of Representatives, the people's body. If the people were emotionally invested in a particular issue, the House was elected, and they would hurry up and pass that legislation. They could do it with a majority because the power of the Speaker was able to run over any minority rights. The minority wouldn't be able to get in the way.

But when it came to the Senate the idea was, slow it down, think it over. Let's make sure we want to do this. That is why we have the 6- year terms, the continuing body, and the minority rights to offer amendments.

That right to offer amendments is perhaps the most important way in which the Senate is distinguished from other legislative bodies around the world and from the House of Representatives because it does guarantee minority rights. And not just party minority.

If you are a member of the majority party from a State that has a very distinct and serious interest in a bill, the majority leader can simply say: I don't want to consider your amendment. You are out of luck under this proposal, whether you are a member of the minority or the majority.

It is not just minority rights in the sense of political minority, but also, let's say, you are from a small State rather than a big State, and there is a bill on the floor that helps the big States, and you want to offer amendments from a little State. It will be up to the majority leader to decide whether you can even offer that amendment if this rule change is adopted. So there are two very important reasons the Senate should be very careful about proceeding down this path. That is what the Republican leader has been talking about the last couple of days here on the floor.

It is important for the Senate to reflect in a longer view not only the views of the majority--political or otherwise--but also those who might have some disagreement with the majority, the theory being that the majority isn't always 100 percent right. In any event, people around the country have a right to be represented through their Senator to get their points of view argued and discussed and perhaps considered for a vote here in the Senate. That has always been the way it is. It is a tradition that has served this country well. To eliminate that with this so-called rules change would do great disservice to the American people, to the legislative process, to our Constitution, and to the great ability of this body to perform its function in the way that has been deemed so important for over 200 years now.

There is a reason this is called the greatest deliberative body in the history of mankind--because we deliberate. We think about things. We debate them. We have all kinds of points of view offered or potentially offered through the amendment process, and if that is denied, this will no longer be the body it has always been.

People before us have cautioned both Democratic and Republican majorities not to take advantage of their sheer majority, Democratic and Republican leaders. In fact, there is a very interesting new book out by I believe the former chief of staff of the great Democratic leader George Mitchell--I think joined in by a Parliamentarian at a time when Republicans were in control, so it is a bipartisan-written book--that talks about the necessity of maintaining the rules the way they are and not using this nuclear option to change the rule, denying minority rights. It is a book worth reading, and it is a book I commend to my colleagues before we embark on what might be a very fateful step in this body.

Let me make a couple of other points. Under Senate rule V--not to be too in the weeds on this, but I think it is important for us to actually know what we are talking about here. Here is the Senate rule speaking to the amendment process. I am quoting now:

The rules of the Senate shall continue from one Congress to

the next Congress unless they are changed as provided in

these rules.

And then Senate rule XXII says that to end debate on a motion to amend or change the Senate rules:

. . . the necessary affirmative vote shall be two-thirds of

the Senators present and voting.

What I said earlier, that it takes a two-thirds vote to change the rules of the Senate, is very clear in our rules. They are continuing rules. So the notion that somehow this can be done with just a 51-vote majority is explicitly rejected by the rules themselves. As I said, when this issue has previously been raised, we have been very careful not to use the mere power of the majority to change the rules but have abided by the requirement of our own rules to do it according to those rules with a two-thirds majority.

I spoke before about the rights of the political minority. I think it is worth noting again that each Senator represents a lot of people in a separate State, two of us per State. Our constituents deserve the right to be heard in this body. It is one of the great opportunities that as a matter of comity we have always accorded to each other. We are courteous to each other on the floor because we understand it is the best way for all of us to be heard. If a colleague wishes to raise a matter while I am speaking and says, ``Will you just give me 2 minutes so that I can raise this matter on the floor, and then I will be done,'' of course we grant that request because we understand how important it is for our constituents to be represented, to have a voice. If another Senator needs to raise a point on behalf of the voters in his State, we acknowledge that as necessary and important.

That is why we think it is virtually sacred that all Senators should have the right to represent their people, their State. No State should be disenfranchised, whether it voted Democratic or it voted Republican. There are a lot of Democrats and Republicans in every State and a lot of folks who do not belong to either party. They need a voice in the Senate, and each of us represents those people. It is not right that the voice of some Senators, and therefore their constituents, be silenced because of, in effect, a power grab here through what has been referred to as the nuclear option.

As my leader Senator McConnell noted yesterday, what is potentially being proposed here would undermine the very purpose of the Senate as the one place in our system where minority views, whether they are a political minority or any other kind of minority, and opinions have always been respected and in most cases incorporated into law. That would be lost to the U.S. Senate.

Here is what the late Senator Robert Byrd, who all acknowledge was an expert on the Constitution and the Senate rules, once said:

The Senate is the only place in government where the rights

of a numerical minority are so protected. The Senate is a

forum of the states where, regardless of size or population,

all states have an equal voice. . . .

The Presiding Officer and I can appreciate that because we don't come from one of the bigger States.

Senator Byrd goes on:

Without the protection of unlimited debate, small States

like West Virginia might be trampled. Extended deliberation

and debate--when employed judiciously--protect every Senator,

and the interests of their constituency, and are essential to

the protection of the liberties of a free people.

He was specifically speaking to the point I made there: to ``the interests of their constituency.'' It is not a Senator's right that we are arguing about here; we are the voice of the people we represent. It is our constituents' rights that would be denied by this process. They deserve a voice. They have been guaranteed a voice through us, the temporary stewards of their voice. To deny that voice, especially through the procedure that has been suggested here, as the late Senator Byrd said, would be a denial of something essential to the protection of the liberties of a free people.

The current Democratic leader was one of the staunchest defenders of the Senate's protection of minority rights for all of the reasons I mentioned. He spoke eloquently about this on earlier occasions. He believes and he has said that he is frustrated by the process that he sees not working as quickly as he would like to see it work and, as a result, has apparently changed his mind as to the process for changing the rules as well as the rules themselves. But I think the whole question of the filibuster needs to be properly understood here as really meaning different things to different people. It is essentially a tool that brings the Senate to the center because it requires compromise. It requires people to get together and talk.

As I said, the right the minority has to filibuster the motion to proceed is to say: Mr. Leader, unless you are willing to guarantee us that we can have some amendments on this bill and that we get to pick our own amendments, then we are going to force you to get 60 votes lined up in order to proceed to the bill. That is the only leverage we have. So you are not really filibustering. You are not trying to talk the bill to death. You don't have any intention of taking a lot of time. You just want to be heard. You want to have your amendment up. A lot of times we say it will take just 10 minutes a side to debate it and have a vote, but if the majority leader can say, ``Nope, you are not going to be able to do that,'' then he can say Republicans have engaged in a filibuster when all it is is an objection to his motion to proceed without having the right to offer any amendments. So it is an important tool but not the way most people think of it--to delay and to talk things to death. That is not what has happened here. In most cases, the majority leader has filed a cloture motion on a Friday and we voted on it on Monday, so no time of the Senate has been taken in the intermediate time period.

I know there is a narrative that the Senate has not been able to get anything done during the past couple of years, but it is not because of some unprecedented use of the filibuster. As I said, have you seen Members down here talking hours on end about a particular issue or all through the night or whatever? No, you have not seen that. That was kind of done in a bygone era, when Strom Thurmond was here and some others, but it has not been done.

We have not done a budget in 3 years. That has been a sore point among a lot of people. You cannot filibuster the budget. So is the reason we have not done a budget because there has been a filibuster? Absolutely not, because the rules don't permit a filibuster of the budget.

There are a lot of misconceptions here. I hope my colleagues will take a deep breath, step back. Those who came from the House of Representatives, as I did, remember what it was like when you were in the minority in the House. Essentially you had no rights. Is that the way you want it to be here? Because someday you are going to be a minority in the Senate. This body will change majorities.

In any event, whether we are talking political majorities or not, as I mentioned with respect to the Presiding Officer from the same State as the late Robert Byrd, his State did not always have the power to be heard because it is a small State, as is mine. So it doesn't matter whether you are Republican or Democratic, your constituents have a right to be heard. Our current Senate rules protect that right on behalf of our constituents, and I believe it would be a grave error for the current Members of this body or those who take office next year to conclude that because they have been frustrated sometimes in what they wanted to accomplish, it is worth it to just brush the minority aside and say: Because I couldn't get everything I wanted, I was frustrated with your desire to offer amendments, I am going to take that right away from you by changing this rule in this way.

I think it would be regretted later in time. I think the reaction would be the same as occurred with regard to the so-called Gang of 14 when this nuclear option was considered several years ago. I think most people in this body now say they were wise people who brought us back from the brink of this precipice. Had we gone over that, this body would not be the same as it is today and we probably would be regretting that decision greatly.

I urge my colleagues, who I know in good faith are frustrated at their inability to do exactly what they want to do because they are in the majority, to just stop and reflect on the damage this would do to this institution, how they would feel if they were in the minority. Members of my party are going to be pretty hard to convince we should go back to the rule the way it is today if the rule is changed to our disadvantage. That is really starting a nuclear war--from a parliamentary point of view, I mean. It is not a good idea for anybody, least of all for the American people.

I urge my colleagues who are considering this to be open to alternatives, have an open mind, be willing to think this through, talk it through, to have a congenial debate on the floor about the possibilities, and eventually, I suspect, as has happened so many times in this great body, reasonable positions have prevailed--maybe after a lot of unreasonable ones were proposed, but generally we have come to the right conclusions. We have done so because we respect each other's rights. That has produced the best legislation in the 230 years of our country's history.

The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk) and the Senator from Kansas (Mr. Roberts).

The following Senators are necessarily absent: the Senator from North Dakota (Mr. Hoeven), the Senator from Georgia (Mr. Isakson), and the Senator from Illinois (Mr. Kirk),

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

The following Senators are necessarily absent: the Senator from Arkansas (Mr. Boozman), the Senator from North Carolina (Mr. Burr), the Senator from Nevada (Mr. Heller), the Senator from Oklahoma (Mr. Inhofe), the Senator from Illinois (Mr. Kirk), the Senator from Florida (Mr. Rubio), and the Senator from Louisiana (Mr. Vitter).

Further, if present and voting, the Senator from Nevada (Mr. Heller) would have voted: ``yea.''

The following Senators are necessarily absent: the Senator from Arkansas (Mr. Boozman), the Senator from North Carolina (Mr. Burr), the Senator from Nevada (Mr. Heller), the Senator from Oklahoma (Mr. Inhofe), the Senator from Illinois (Mr. Kirk), the Senator from Florida (Mr. Rubio), and the Senator from Louisiana (Mr. Vitter).

Further, if present and voting, the Senator from Nevada (Mr. Heller) would have voted: ``aye.''

The following Senators are necessarily absent: the Senator from Arkansas (Mr. Boozman), the Senator from North Carolina (Mr. Burr), the Senator from Nevada (Mr. Heller), the Senator from Oklahoma (Mr. Inhofe), the Senator from Illinois (Mr. Kirk), and the Senator from Louisiana (Mr. Vitter).

Further, if present and voting, the Senator from Nevada (Mr. Heller) would have voted: ``yea.''

The following Senators are necessarily absent: the Senator from Arkansas (Mr. Boozman), the Senator from North Carolina (Mr. Burr), the Senator from Nevada (Mr. Heller), the Senator from Oklahoma (Mr. Inhofe), the Senator from Illinois (Mr. Kirk), and the Senator from Louisiana (Mr. Vitter).

Further, if present and voting, the Senator from Nevada (Mr. Heller) would have voted: ``yea.''

The following Senators are necessarily absent: the Senator from Arkansas (Mr. Boozman), the Senator from North Carolina (Mr. Burr), the Senator from Nevada (Mr. Heller), the Senator from Oklahoma (Mr. Inhofe), the Senator from Oklahoma (Mr. Coburn), the Senator from Illinois (Mr. Kirk), and the Senator from Louisiana (Mr. Vitter).

Further, if present and voting, the Senator from Nevada (Mr. Heller) would have voted: ``yea.''

Mr. President, reserving the right to object, I am very disappointed in this request. Senator McCain has been asking that the leader take up the Defense authorization bill for weeks. This evening he tried very hard to get agreement from the Senator from Michigan, the chairman of the committee, and others to try to work out a way that we could take up this bill right after we come back or at some point after we come back after the election.

After he leaves the Chamber, and after virtually everybody is gone, at 1:40 in the morning the majority leader asks unanimous consent to take up the bill limited to relevant amendments. Now that would be fine with me, and I am sure it is fine with Senator McCain, but everybody knows you can't get unanimous consent of your colleagues when they are all gone at 1:40 a.m. in the morning without any advanced notice that the request was going to be made.

As a result--though I would be happy personally to agree to the request--we don't know what our Members would agree to and whether they would agree to limiting this to relevant amendments. To me that is the only thing that seems to be out of order, but obviously we can't agree to it because we can't hotline this at this time of the evening and get consent from our Members.

What mostly bothers me is the implication, therefore, that the leader is all for taking it up and it is the Republicans who are objecting. I hope anyone who is aware of what has been going on here appreciates the fact that no one wants to go to the Defense authorization bill more than my colleague from Arizona, John McCain, and our leader, Mitch McConnell.

With great regret and only because at this time of morning there is no way to survey our Members to see whether they would agree to the request, we have no option but to object.

I would certainly hope the leader would contact Senator McCain. He left the Chamber now, but perhaps he could contact him tomorrow or the next day and ask if we can begin to work this out and allow us to talk to our Members so when we come back we can take up the Defense authorization bill. We should.

The Republican Members of this body want to do so, and I would hope we could work that out so it could be dealt with in the very early days after the election.

Mr. President, I said I object.

Mr. President, would the majority leader yield for one question from me?

Mr. President, my question is, Is the Senator saying that Senator

McCain was aware the Senator was going to make this request tonight in the form it was made?

I know they talked all evening long, but I am not sure that Senator McCain was made aware that the Senator would propose this tonight.

Thank you, Mr. President.

Mr. President, the American people are asking two big questions: Why has the Senate not acted to stop the $4\1/2\ trillion tax hike that will occur on January 12 unless we act; and, second, why has the Senate not voted to replace the across-the-board defense cuts that will devastate our national security? The unfortunate answer is because Senate Democrats and the Obama administration are too afraid to tackle, let alone vote on, the tough issues in an election year.

For Americans outside the Beltway, the consequences are very serious. The Congressional Budget Office tells us that failure to avoid this fiscal cliff will shrink the economy next year and push unemployment above 9 percent. That means 2 million jobs will be lost and we will be back in recession.

The House has acted. Election year or not, there is no excuse for the Senate to not follow the House's action, its lead, to avoid the job- killing consequence of this fiscal cliff.

The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Inhofe) and the Senator from Illinois (Mr. Kirk).

The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Inhofe) and the Senator from Illinois (Mr. Kirk).

The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Inhofe,) and the Senator from Illinois (Mr. Kirk).

Further, if present and voting, the Senator from Oklahoma (Mr. Inhofe) would have voted: ``yea.''

Mr. President, reserving the right to object, I had asked the distinguished majority leader if I requested an amendment to his request to add a piece of legislation that he and I both support whether he would have to object to that, and I am presuming his answer is he would have to object. As a result, rather than doing that and forcing him to object, I will simply pose my objection at this time.

Mr. President, reserving the right to object, I appreciate the majority leader's attempt to put several of these items together. I would note that our side has only had a little over an hour to try to work this through our membership. I know there is one objection that I will need to interpose, but I would encourage the majority leader to meet with Senator McConnell when he is available so they can continue to work on this as a potential way to proceed. But at this time, on behalf of Senator John McCain, I will interpose an objection.

Mr. President, reserving the right to object, I ask unanimous consent the agreement be modified so that rather than amending H.R. 8, that bill--namely H.R. 8--would be considered read a third time and passed. This request would let that bill go directly to the President's desk.

And the leader is right with regard to intentions. His intention was to object to my request; mine is to object to his request. That is correct.

Mr. President, reserving the right to object, it is our view that the extension of many provisions of the Tax Code, which is the subject of the leader's request, makes some sense if we extend all of the provisions of the Tax Code we can.

With that in mind, I ask that the consent be modified so that the text of House-passed bill H.R. 8 be added to the substitute referred to by the leader; further, that the bill then be read a third time and passed as amended.

We would also then object to the original request.

Mr. President, might I make a response to the leader?

Mr. President, if I might continue, I think the point is this unanimous consent was made before everyone had been fully consulted. I appreciate the leader is trying to move things along, but it does illustrate the proposition that everyone needs to be consulted so the question of time and potential other considerations could be dealt with. I suspect, through the leader's good offices, that will be done this evening and tomorrow morning. Perhaps something can be worked out, as I said when I interposed my objection.

But one point I wanted to make is this. The objection I interposed on behalf of Senator McCain tonight has nothing whatsoever to do with the Romney campaign against President Obama. We just heard my colleague, Senator McCain, talking about the concerns he has cutting off aid cold turkey to some very important countries in the world in the middle of a crisis.

Who will be another speaker raising those same concerns tomorrow? Our Democratic colleague, Senator Kerry. This is a bipartisan question of whether this is the right policy for our country. I suspect the Obama administration and the President himself would generally be supportive of the position expressed by Senator McCain and Senator Kerry.

I wish we could have a conversation around here, just once, without having it portrayed as some kind of partisan political exercise. This is not a partisan political exercise. It is a question of reasonable people having different views about what the best policy is, and the lives of Americans are on the line so it needs to be considered carefully, thoroughly, and with other options possibly being raised. That is what my colleague Senator McCain is saying. That is why I interposed the objection on his behalf.

I do think, if the parties can get together tonight, tomorrow, potentially work out a way to approach the issue so it can be debated for the appropriate length of time and any alternatives presented, then we could move on with things. But let's do it in the context of the issue before us, not suggesting it has something to do with the Presidential campaign because that would be incorrect.