Floor Statements

Mr. President, I ask unanimous consent that Ben Smitton and Rich Vickers of my staff be granted floor privileges for the duration of today's session.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

I ask unanimous consent that the period for morning business be extended until 5:30 p.m. today and that all provisions of the previous order remain in effect.

Mr. President, I come to the floor today to give some remarks that I give about every 2 years, I guess, when the Senate reconvenes for a new Congress. Now this is a new Congress, so once again I come here to point out that we need to make some changes in the way we operate.

I have been in this body for 28 years. I am currently eighth in seniority. As soon as Senator Kerry becomes Secretary of State, I will be seventh in seniority. I am proud to represent the great State of Iowa; I am proud to be a Senator, to serve in this illustrious body. I have been in the majority and minority I think up to five times in the Senate. Before that, I served 10 years in the House. I love the Senate. It is a wonderful institution--it is, as envisioned by our Founders.

The Senate at times has been frustratingly slow to encompass the changes necessary to the smooth functioning of our country. I mention in particular the long, long struggle for civil rights and how that was held up by a small minority--which happened to be in my party, by the way, at that time.

Nonetheless, the Senate through the years has really been the Chamber that takes a long and hard look at legislation, where we have the right to amend, where we have the right to discuss and to embark upon discourse on legislation in a manner that allows even the smallest State to be represented as much as a large State. That is not true in the body that both the occupant of the chair and I used to serve in, the House. There, as you know, large States tend to dominate because we have most of the Members. But here, a Senator from Connecticut is just as important as a Senator from California or a Senator from Iowa or-- let's see, what is the least populous State? I think Wyoming or Alaska--is equal to a Senator from New York or Florida or Texas or California. This has been a great equalizing body.

Having served here for this time, I think I have some perspective on this Senate. As I said, at its best, this Senate is where our great American experience in democratic self-government most fully manifests itself. It is in this body that the American people, through their elected officials, can come together collectively to debate, deliberate, and address the great issues of our time. Through our Nation's history, it has done so. In the nearly quarter of a century I have been here--well, wait, it is 28 years that I have been here, so it is over a quarter of a century--the rights of Americans have been expanded: Americans with disabilities; we have ensured health insurance for millions of Americans.

In the early 1990s we voted here on the course to eliminate the national deficit in a generation, and we are on our way to doing that.

It is because of my great reverence for this institution and my love for our country that I come to the floor today. One does not need to read the abysmal approval ratings of Congress to know that Americans are fed up and angry with this broken government. In too many critical areas, people see a Congress that is riven with dysfunction. Citizens see their legislature going from manufactured crisis to manufactured crisis. They see a legislature that is simply unable to respond effectively to the most urgent challenges of our time.

Of course, there are a myriad of reasons for this gridlock--increased partisanship; a decline in civility and comity; too much power, I believe, in the hands of special interest groups; a polarizing instant- news media; and, I might add, the increasing time demands on all of us here involved in raising large amounts of money to run for reelection. But make no mistake, a principal cause of dysfunction here in the Senate is the rampant abuse of the filibuster.

It is long past time to make the Senate a more functional body, one that is better able, as I said, to respond to our Nation's challenges. The fact is that I am not a Johnny-come-lately to filibuster reform. In January of 1995--when I was in the minority, I might add--I first introduced legislation to reform the filibuster. We got a vote on it. Obviously, we did not win, but I made my points then, and I engaged in a very good debate with Senator Byrd at that time, in 1995. You can read it in the Record. I think it was probably January 8, if I am not mistaken, of 1995.

At that time, I submitted a resolution because, as I said, I saw an arms race in which each side would simply escalate the use of the filibuster and abuse procedural rules to a point where we would just cease to function here in the Senate. I said that at the time. I said that what happens is when the Democrats are in the minority, they abuse the filibuster against the Republicans. Then when the Republicans become the minority, they say: You Democrats did it to us 20 times, we will do it to you 30 times. Then when it switches again and the Democrats are in the minority, they say: Republicans did it to us 30 times, we will do it 50 times. We will teach them a lesson.

On and on, the arms race is escalated. I said at the time that we might get to a point where this body simply cannot function, and sadly that is what happened.

That is why 18 years after I first submitted my proposal, I believe reform is never more urgent and necessary. The minority leader stated that reformers advocate ``a fundamental change to the way the Senate operates.'' To the contrary, it is the abuse of the filibuster, not the reforms being advocated, that has fundamentally changed the character of this body and our entire system of government. Again, I will point out now and I will point out repeatedly in my remarks that Democrats are not guiltless in this regard by any means, but the real power grab and the real abuse has come about when the Republicans have abused this tool--one that was used sparingly for nearly 200 years.

What has happened is that effective control of the Senate and of public policy has been turned over to the minority, not to the majority that has been elected by the American people. In many cases, those who are warning of a fundamental change to the nature and culture of the Senate are the very ones

who have already carried out a revolutionary change. Those of us who are seeking to reform the filibuster rules are not the ones who are doing a nuclear option or blowing up the Senate. Those who have abused the filibuster are the ones who have already changed the character of the Senate. What we are trying to do is restore some functionality to the Senate so that the Senate can operate with due regard for the rights of the minority. I will talk about that more in a moment.

The minority leader has recently called the filibuster ``near sacred.'' I am sorry, he could not be more incorrect. The notion that 60 votes are required to pass any measure or confirm any nominee is not in the Constitution and until recently would have been considered a ludicrous idea, flying in the face of any definition of government by democracy.

Far from considering the filibuster ``near sacred,'' it is safe to say that the Founders would have considered a supermajority requirement sacrilegious. After all, they experimented with a supermajority requirement under the Articles of Confederation, and it was expressly rejected in the Constitution because the Framers believed it had proven unworkable. That is right, the Articles of Confederation basically had a supermajority requirement, and they found that did not work. That is why, as I will mention in a moment also, the Framers of the Constitution set out explicitly five different times that this Senate requires a supermajority. You would have thought that if they wanted a supermajority for everything, they would have said so. No, they specified treaties, impeachments, expelling a Member--those require a supermajority as expressly spelled out in the Constitution.

The filibuster was once a tool used only in rare instances--most shamefully, as I said earlier, to block civil rights legislation. But across the entire 19th century, there were only 23 filibusters, in 100 years. From 1917, when the Senate first adopted rules to end filibusters, until 1969 there were fewer than 50--during all those years. That is less than one filibuster a year. In his 6 years as majority leader, Lyndon Johnson only faced one filibuster.

According to one study, in the 1960s just 8 percent of major bills were filibustered. Think about all the legislation that was passed-- civil rights, Voting Rights Act, Medicare, Medicaid, Older Americans Act, Pell grants, Higher Education Act, Elementary and Secondary Education Act. Think of all the legislation passed in the 1960s. Just 8 percent was filibustered. In contrast, since 2007 when Democrats regained control of the Senate, there have been over 380 motions to end filibusters--380. This does not even include the countless bills and nominations on which the majority has not even tried to obtain cloture either because of a lack of time or because we knew it would be fruitless.

The fact is that for the first time in history, on almost a daily basis, the minority--and in many cases, just one Senator--routinely is able to and does use the threat of a filibuster to stop bills from even coming to the floor for debate and amendment. Unfortunately, moreover, because of outdated rules, an actual filibuster rarely occurs. Too often it is merely the threat of a filibuster, and that is the end of it; it is not debated or anything.

Let's get beyond the outrageous idea that Democrats, in proposing rules reform, would be initiating a revolution. In actuality, the changes that are seriously under discussion right now are simply a modest reaction to decades of escalating warfare which has culminated in 6 years of unrelenting minority obstructionism.

Because I feel so passionately that reform is so badly needed, I fully support the commonsense proposals from Senator Merkley and Senator Udall. Their proposals would simply require the minority to actually filibuster, actually debate. A Senator would have to come to the floor and explain his or her opposition or offer his or her views on how a bill could be improved. Under the proposed reforms, the Senators would actually have to make arguments, debate, and deliberate. Senators would have to obstruct in public and be held accountable for that obstructionism.

Perhaps because this is such a commonsense reform, Republicans who have come to the floor have not addressed why they oppose rules that would require more transparency. Republicans have failed to explain to this body or to the public why a minority--again, the group the public chose not to govern here--why should they be able to kill a nominee by stealth? Republicans have failed to explain why they oppose more debate and more deliberation. Why do they oppose more debate, more deliberation, which is puzzling given that they profess that their sincere concerns are animated by the desire to foster debate and deliberation. But that is not what is happening. In stealth, they oppose a bill. They do not come to the floor, and they fail to defend why they do not even do that, why they will not even come to the floor and speak.

Instead, Republican after Republican has come to the floor and denounced what they claim are Democratic efforts to eliminate the filibuster and to, in their words, ``fundamentally change'' this body. The fact is that they are attacking the wrong plan. The truth is, under the reforms proposed either by Senator Udall or Senator Merkley or one they have together or even under my proposal, the filibuster would still be a tool. Sixty votes would be needed to enact a measure, to confirm a nominee. Under their proposal, it would still require 60 votes.

Under my proposal as I first laid out in this body in 1995, I said: You know, sure, OK, on the first vote after you have the cloture motion filed, the first vote would require 60 votes.

If they didn't have 60 votes, they would have to wait 3 days, file another cloture motion, and then they would need 57 votes. If they didn't get 57 votes, they would have to file another cloture motion, wait 3 days, and they would need 54 votes. If they didn't get that, they would file another cloture motion, wait 3 days, and they would need 51 votes.

Under this proposal I have worked out with other groups and other people over the last almost 20 years, the fact is the filibuster could be used for what it was intended--slow things down. I believe the Senate ought to be a place where we slow things down. It should not be a place where just a few Senators can kill a bill. This should be a place where the filibuster is used not to slow things down but is actually used to kill a bill.

What I have proposed would be a period of time--actually up to about 16 days--where someone could slow a bill down, but eventually the majority would be able to act. I mean, what a revolutionary idea. The majority should be able to prevail. Think about our own elections. I guess maybe it could be extended further to say it is not enough to get 51 percent, or the majority of votes, we have to get 60; if they don't get that, they don't take office. What a revolutionary idea that somehow the majority should be able to move legislation.

I also agree there should be the rights of the minority to debate, discuss, and amend legislation. Again, the majority, after ample debate and deliberation, should have the power to govern, to enact the agenda the voters voted for, and to be held accountable at the ballot box. I guess I fundamentally believe in democracy. Maybe that is a failing on my part. I fundamentally believe the majority should rule, with respect for rights of the minority.

As I have noted, a revolution has already occurred in the Senate in recent years. Never before in the history of this Senate was it accepted that a 60-vote threshold was required for everything. This did not occur as a constitutional amendment or through any great public debate. Rather, this occurred because of the abuse of the filibuster. The minority party has assumed for itself absolute and virtually unchecked veto power over all legislation; over any executive branch nominee, no matter how insignificant the position; over all judges, no matter how uncontroversial.

In other words, because of the filibuster, even when a party has been resoundingly repudiated at the polls, that party retains the power to prevent the majority from governing and carrying out the agenda the public elected it to implement. In this regard, over 380 filibusters is not some cold statistic. Each filibuster represents a minority of Senators--sometimes a mere

handful--who are preventing the majority of the people's representatives from governing.

As one example, Republicans repeatedly filibustered a motion to proceed to legislation that would require more disclosure of campaign donations. The DISCLOSE Act is what it was called. A substantial majority of Senators supported the bill. Polling showed that 80 percent of the public believed the Supreme Court's decision in Citizens United was wrong, that we needed to know more disclosure of campaign contributions. Yet a small minority of Senators was able to prevent the bill from even being debated on the floor of the Senate, let alone receiving an up-or-down vote. That is just one example.

In the last two Congresses, consider some of the measures blocked by the minority, measures that received majority support on a cloture vote: the DREAM Act, Bring Jobs Home Act, Small Business Jobs and Tax Relief Act, Paying a Fair Share Act of 2012, Repeal Big Oil Tax Subsidies Act, Teachers and First Responders Back to Work Act, American Jobs Act of 2011, Public Safety Employer-Employee Cooperation Act, Paycheck Fairness Act, Creating American Jobs and Ending Offshoring Act.

Again, it is not that the bills were filibustered. The right to even debate these bills and vote on them was filibustered. It is one thing if we are on the bill and have a filibuster. No, we could not even debate them even though a majority of Senators voted for cloture. Not 60 votes but a majority. So the majority was thwarted from the ability to even bring these up and debate them or even letting people offer amendments.

It used to be that if a Senator opposed a bill, he or she would engage in a spirited debate, try to change people's minds, attempt to persuade the public, offer amendments, vote no, and then try to hold Members who voted yes accountable at the ballot box. Isn't that what it is about? In contrast, today--and to quote former Republican Senator Charles McC. Mathias in 1994:

The filibuster has become an epidemic, used whenever a

coalition can find 41 votes to oppose legislation. The

distinction between voting against legislation and blocking a

vote, between opposing and obstructing, has nearly

disappeared.

When Senator McC. Mathias spoke and described it as an epidemic, in that Congress there were 80 motions to end filibusters. That is a number which pales in comparison to today, when we have had 380 motions to end the filibuster. To grind this body to a halt, all the minority party has to do is resort to the filibuster of a motion to proceed.

Under the critical jobs legislation, all the minority party had to do was block the motion to proceed and then they turn around and blame the majority for failing to address the jobs crisis. We had jobs bills; we could not get them up. We had jobs bills, but then they blamed us for failing to address the jobs crisis. It is no surprise that Americans are fed up with the broken government. As that list of blocked bills demonstrates, the anger is fully justified. In too many critical areas what people see is a dysfunctional Congress that is unable to respond collectively to the urgent challenges we face.

As the Des Moines Register recently noted:

One message candidates heard from voters this election was

contempt for partisan gridlock in Congress. One of the

biggest obstacles to congressional action is the profusion of

filibusters in the Senate.

It is no surprise that editorials throughout the country have recognized that the use of the filibuster must be changed.

USA Today has noted that the ``filibuster has become destructively routine.''

The Roanoke Times noted that ``filibuster reform alone will not fix everything that is wrong with Washington, but it would remove one of the chief impediments to governing.''

The Minnesota Star Tribune stated:

Most Americans live under the impression that

representative democracy's basic precept is majority rule.

Sadly, that's no longer the case in the U.S. Senate, where

the minority party has so abused the filibuster that it (the

minority) now controls the action--or more accurately, the

inaction. This perverts the will of the voters and should not

be allowed to stand.

Mr. President, I ask unanimous consent that the copies of these editorials, and others from around the country, in support of filibuster reform be printed in the Record.

At issue in this debate is a principle at the heart of our representative democracy. This is from Alexander Hamilton in Federalist Paper No. 22:

The fundamental maxim of republican government . . .

requires that the sense of the majority should prevail.

The Framers, to be sure, put in place important checks to temper pure majority rule. For example, the Bill of Rights protects fundamental rights and liberties. Moreover, the Framers imposed structural requirements. For example, to become a law, a bill must pass both Houses of Congress and then it is subject to the President's veto power, and then, of course, there are always the courts and the Supreme Court to rule on the constitutionality of legislation.

The Senate itself was a check on pure majority rule. As James Madison said:

The use of the Senate is to consist in its proceeding with

more coolness, with more system, and with more wisdom, than

the popular branch.

Meaning the House of Representatives.

To achieve this purpose, citizens from the smallest States have the same number of Senators as citizens from the largest States, which I commented on earlier. Further, Senators are elected every 6 years, not every 2 years. These provisions in the Constitution are ample to protect minority rights and to restrain pure majority rule.

What is not necessary and what was never intended is an extraconstitutional empowerment of the minority through a de facto requirement that a supermajority of Senators be needed to even consider a bill or nominee, let alone to enact a measure or confirm an individual for office.

As I said earlier, the Constitution was expressly framed and ratified to correct the glaring defects of the Articles of Confederation. The Articles of

Confederation required a two-thirds supermajority to pass any law and a unanimous consent of all States to ratify any amendment. Well, we know that the experience under the Articles of Confederation was a dismal failure, one that crippled the national government. The Framers were determined to remedy those defects under our new Constitution.

It is not surprising that the Founders specifically rejected the idea that more than a majority would be needed for most decisions. In fact, the Framers were crystal clear about when a supermajority is needed-- five times. It is spelled out clearly in the Constitution: ratification of a treaty, the override of a veto, votes of impeachment, passage of a constitutional amendment, and the expulsion of a Member. It is expressly pointed out in the Constitution.

It should be clear, especially to those who worship at the shrine of ``original intent,'' that if the Framers wanted a supermajority for moving legislation or confirming a nominee, they would have done so. They would have written it in there. Not only did they not do so, until 1806 the Senate had a rule that allowed for a motion for the previous question. That goes back to the British Parliament. It permitted a majority to stop debate and bring up an immediate vote.

It was Vice President Aaron Burr, as he was leaving the Senate and they were reforming the rules, who said: You know, this is never used. We might as well do away with it because it is never used, anyway. So they did away with the motion for the previous question, but the point being that the first Congress in the first Senate enacted that. They had that motion for the previous question. The Founders were very clear why a supermajority requirement was not included. As Hamilton explained, a supermajority requirement would mean that a small minority could ``destroy the energy of government.''

That is what Madison said. A supermajority would mean that a small minority could ``destroy the energy of government.'' Government would, in Hamilton's words, be subject to the ``pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta.''

James Madison, as I said, said this:

It would no longer be the majority that would rule, the

power would be transferred to the minority.

Federalist Paper No. 58. When James Madison--sort of the author of our Constitution--said, no, you cannot have a supermajority; if you do that, then the minority would rule, the power would be transferred to the minority--unfortunately, Madison's warning has come true. In the Senate today--the United States Senate--the minority, not the majority, controls. In today's Senate, American democracy is turned on its head. The minority rules, the majority is blocked. The majority has responsibility and accountability, but the majority lacks the power to govern. The minority has the power but lacks accountability and responsibility. This means the minority can block bills and prevent confirmation of officials and then turn around and blame the majority for not solving the Nation's problems. The minority can block popular legislation and then accuse the majority of being ineffective.

I firmly believe we need to restore the tradition of majority rule to the Senate. Elections, I believe, should have consequences. That is why I developed my plan, as I said, almost 20 years ago to amend the standing rules to permit a decreasing majority of Senators over a period of days to invoke cloture on a given matter. I believe it is clear in the history of the Senate and of the Framers of the Constitution.

There is the story, of course, that has been told many times. It may be a popular story, I don't know. Thomas Jefferson, of course, was not here for the drafting of the Constitution. He was in France. He came back home and looked at the Constitution. He was having breakfast with George Washington. As the story goes, Jefferson was upset about the Senate. He looked upon it as another House of Lords. So he asked Washington why he allowed such a thing to happen, that the Senate would be created. Washington supposedly said to him: Why did you pour your tea into the saucer? Jefferson said: To cool it down. Washington purportedly said: Just so. That is why we created the Senate, to cool things down, to slow down legislation, apart from that popular body over there, so there could be a more sober second look at things. What Washington did not say, as far as I know, was that the Senate was created to be a trash can where legislation could be killed and stopped. The idea was to slow things down, to deliberate.

Senator George Hoar noted in 1897 the Framers designed the Senate to be a deliberative forum in which a ``sober second thought of the people might find expression.'' That is what the Senate is supposed to be about. But at the end of ample debate and with the right of the minority to be able to offer amendments and have them voted on, the majority should be allowed to act with an up-or-down vote on legislation or on a nominee. In this way, we could restore this body to one where government can actually function and where we can actually legislate.

I think this plan also has another advantage. Recently, the minority leader defended the abuse of the filibuster on the grounds that it forces the majority to compromise and to ``resolve the great issues of the moment in the middle.'' I strongly disagree with the minority leader. Right now, the fact is, because of the abuse of the filibuster, the minority has no incentive to compromise. Why should they? They can stop it. They have the power to block legislation without even coming to the floor to explain themselves. In such a world, as we have seen over the past few years, why would the minority come to the table to cut a deal? I showed my colleagues the list of all the legislation they have blocked the last couple years. There wasn't any overture from the minority to compromise. They just said: We are going to kill it; the majority is not going to be able to bring it up.

The DREAM Act, for example. What are those other bills on the chart? The DREAM Act, and the other ones listed we wanted to bring up. Here is the list again. The DREAM Act. Did the Republicans say we want to compromise? No, they just killed it. The Bring Jobs Home Act, just kill it. The Paycheck Fairness Act, just kill it. Creating American Jobs and Ending Offshoring Act, just kill it. There was no real attempt to compromise because they didn't have to compromise.

In contrast, under my proposal, where we would have 60 votes at the beginning and if we didn't have 60 votes, we would file another cloture motion and wait 3 days, then we would have another vote. Then we would need 57 votes. Then, if we didn't get 57, we could file another cloture motion and then we would wait 3 days and need 54 votes. If we didn't get that, we would wait 3 more days, file another cloture motion and only need 51 votes.

This would be a period of about 16 days, plus 30 hours of debate, that would be allowed under my proposal. Here is why that would be a true compromise. The minority wants the right to offer amendments to be heard on a bill. I understand that. They should have that right. The most important thing to the majority leader--whether Republican or Democrat, whoever the majority leader may be--the most important thing for the majority leader is time on the floor. So someone files a bill, it is filibustered by the minority, they have a cloture vote, and let's say there are only 53 votes for it. The minority knows that at some point, this bill is going to come to the floor. We will get a vote on it. The majority leader knows that will happen, but it is going to chew up a couple weeks' time. The most important thing to the majority leader is time, so the majority leader would like to collapse that time. The minority leader would like to have the right to offer amendments, and therein is the compromise. The minority leader comes and says: If we can offer these amendments, we will collapse the time; if not, we will chew up a couple weeks' time. That provokes compromise. But when one side knows that with 41 votes they can absolutely trash can something, why should they compromise if they have the 41 votes?

Again, I wish to emphasize another fact about my proposal. The Republicans have said the filibuster is necessary because Democrats increasingly employ procedural maneuvers to deprive them of their right to offer amendments. I want my colleagues to

know I am sympathetic to that argument. That is why in the last Congress I included in my resolution the guaranteed right to offer germane amendments; the inherent right of the minority to offer those amendments.

Unfortunately, of course, every Republican voted against my proposal, and that is because Republicans currently want the best of both worlds: the right to offer nongermane amendments and the right to obstruct, and that doesn't make sense.

Again, no one should be fooled. The fact is the radicals who now hold sway in the Republican Party are not concerned with making the government or the Senate function better. That is because the current use of the filibuster has nothing to do with ensuring minority rights to debate and deliberate or the right to amend; otherwise, they could support either one of these proposals, either mine or Senator Merkley's or Senator Udall's. Nor have I ever heard one Republican come to the floor and unequivocally state that if the majority leader stopped filling the amendment tree, they would routinely vote for cloture, even if they opposed the underlying bill. I have not heard one of them say that because the current use of the filibuster has nothing to do with minority rights. It has everything to do with obstruction, hijacking democracy, and a pure power grab designed to nullify elections in which the public has rejected the minority's ideas and placed them in the minority so the majority could act.

The minority leader, I must say, has been frank about this approach to governing. In a speech about the balanced budget amendment, he said the following. Listen to this. This is our minority leader:

The time has come for a balanced budget amendment that

forces Washington to balance its books. The Constitution must

be amended to keep the government in check. We have tried

persuasion. We have tried negotiations. We have tried

elections. Nothing has worked.

Think about that. In other words, when elections--when democracy doesn't work, what does the minority leader want? The ability to undermine the majority from acting in the Senate. Imagine that. We have tried elections and the elections didn't go their way. They have tried elections. So if they can't do that, then they have to do something else. It seems to me the ballot box ought to be determinative of what kind of government we have.

Republicans have repeatedly filibustered motions to proceed. How can they offer amendments if we can't even bring it up? They filibuster judicial nominees. Of course, nominations can't be amended; again, belying the argument that many Republicans use because of filling the tree. There is no tree when it comes to nominations.

I want to now emphasize something. I have been saying all along the Republicans and how they have been using the filibuster. I want to say unequivocally the Democrats don't come to this with clean hands, I can tell my colleagues. It has been both sides. It depends on who is in the majority and who is in the minority. That is all it depends on. As I said earlier when I first brought this up in the 1990s, I warned then of an escalating arms race. I have been in the Senate long enough to have five different changes in the Senate between majority and minority, and every single time the number of filibusters goes up-- every time. Democrats say to Republicans: You filibustered 30 times last Congress. We are now in power; we will filibuster you 60 times. The Democrats get kicked out and the Republicans come back and they say: They did it 60 times and we will do it 100 times, on and on and on.

It is akin to an arms race. So any time I use the word ``Republican'' generically, we can just substitute minority. I don't care what minority, Democrats or Republicans. It doesn't make any difference. The minority in the Senate should not have the absolute power to trash can something. It should have the power to slow things down, to debate, to amend, to deliberate, but eventually the majority--the people whom the people at the ballot box in this country have put in charge to govern-- should at some point be allowed to govern. If I am in the minority, all I want is the right to be able to debate, have my views heard, offer amendments.

I might also say this: The right of the minority is not to win. The minority doesn't have the right to win, but it sure has the right to offer amendments and to be heard and to be able to try to sway people. I have been in the Senate when we have had amendments and, amazingly enough, we get some Republicans and some Democrats and it passes, even though some Democrats and some Republicans oppose it. That very rarely happens any longer.

Again, I have been talking mostly about Republicans generically, and that is because they are in the minority now. I said the same thing about Democrats when the Democrats were in the minority. This is not a minority right. It is nothing less than a form of tyranny by the minority. Who said that? That was Senator Frist, the Republican leader, again, in November of 2004, when he was in the majority and we were in the minority: ``This filibuster is nothing less than a formula for tyranny by the minority.'' He was right. It just depends on who is in the minority and who is in the majority.

That is why we have to make a change. It could be Democrats, it could be Republicans, it could be--even a bipartisan coalition, if it is a minority, a small minority.

As I said, I don't think there is anything radical about what I have introduced. As I noted, the filibuster was not in the Constitution. It was rejected by the Founders. There is nothing sacred about requiring 60 votes to end debate. The Senate has adopted rules and laws that prevent the filibuster in numerous circumstances. Get that. This Senate has adopted rules that forbid the filibuster in certain cases. The budget cannot be filibustered, war powers cannot be filibustered, international trade acts--imagine that. International trade acts cannot be filibustered. Congressional Review Act, disapproval of regulations, cannot be filibustered. So if the filibuster is so sacred, why have we carved out exceptions for international trade acts?

Moreover, article I, section 5, clause 2 of the Constitution, the rules of proceedings clause, specifies: ``Each House may determine the rules of its proceedings.'' Again, my resolution, far from being unprecedented, stands squarely within the tradition of updating Senate rules as appropriate to fostering more effective and functioning legislation. For example, beginning in 1917, the Senate passed four significant amendments to its standing rules, the latest in 1975, to narrow, to shape the filibuster. In 1979, Senator Robert Byrd made clear that the Constitution allows a majority of the Senate to change its rules. He said:

[t]he Constitution, in Article I, section 5, specifies that

each House may determine the rules of its proceedings. Now we

are at the beginning of a Congress.

Senator Byrd said:

This Congress is not obliged to be bound by the dead hand

of the past . . . It is my belief--which has been supported

by rulings of Vice Presidents of both parties and by votes of

the Senate in essence upholding the power and right of a

majority of the Senate to change the rules of the Senate at

the beginning of a new Congress.

Senator Byrd: ``This Congress is not obliged to be bound by the dead hand of the past.'' He said that. `` . . . power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress.''

Again, this was also the opinion of the Republican Party. As I mentioned, in 2005 the Republican policy committee, chaired by our former colleague Senator Kyl, stated:

The Senate has always had, and repeatedly has exercised,

the constitutional power to change the Senate's procedures

through a majority vote.

That is a statement from the Republican policy committee in 2005.

Those who say this is some kind of nuclear option, blow up the Senate, all these terms about nuclear options--no, it is not a nuclear option. As Senator Byrd said and as Senator Kyl said, ``The Senate has always had, and repeatedly has exercised, the constitutional power to change the Senate's procedures through a majority vote.''

There are those now--I must admit, some in my own party on this side of the aisle in the Senate--who say that in order to change the rules, we have to have a two-thirds vote. Now, why is that? Well, because some Senate in the past set down the rules. They said that in order to change these rules, you need a two-thirds vote. Are we bound

by that dead hand of the past? Not at all. Not at all. Each new Congress--each time the Senate convenes after a new Congress forms--can by majority vote change its own rules. It is not a nuclear option at all.

To be very clear, I opposed the Frist motion at that time in 2005, and I made it clear why--because they were attempting to change the rules in the middle of a Congress.

While I believe the Congress has the power--I'm sorry, it was the Republican policy committee. It is at the beginning of a Congress.

Senator Byrd said:

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

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

essence upholding the power and right of the majority of the

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

a new Congress.

I mean, you can't go changing rules every other week. How do you know what is going to happen? But at the beginning of a Congress every 2 years, the Senate has the right by a majority vote to set down the rules, and you operate by those rules for 2 years. What Senator Frist was trying to do was change it in the middle of the game. Well, if you go down that pathway, my goodness, the majority could change the rules next week and the week after, do it one time one week and one time the next. How would you ever know what the rules of the road were? The only reason I opposed the Frist motion at that time was because it was changing it in the middle of a Congress.

Here is a letter from numerous constitutional scholars, including Charles Fried, Solicitor General under President Reagan, and Michael McConnell, a former Federal judge nominated by President George W. Bush. These scholars make clear that at the beginning of a new Congress, a majority of the Senate can change its rules. Here is the letter, and it reads in part:

Some, however, have sought to elevate the debate to

constitutional dimensions by suggesting that it is

institutionally improper for a new Senate to alter the

Senate's rules by majority vote because the internal

procedures adopted by prior Senates have required a two-third

majority to allow a vote on a motion to alter the rules.

With respect, such a concern confuses the power to change

the Senate rules during a session with the unquestioned

constitutional power of each incoming Senate to fix its own

rules unencumbered by the decisions of past Senates. The

standing two-thirds requirement for altering the Senate's

rules is a sensible effort at preventing changes to the rules

in the midst of a game. It cannot, however, prevent the

Senate, at the beginning of a new game, from adopting rules

deemed necessary to permit the just, efficient and orderly

operations of the 113th Senate. . . .

This letter from Charles Fried, Solicitor General under President Reagan, and Michael McConnell, a former Federal judge nominated by President George W. Bush, states:

We agree with the overwhelming consensus of the academic

community that no preexisting internal procedural rule can

limit the constitutional authority of each new Senate to

determine by majority vote its own rules of procedure.

We agree with the overwhelming consensus of the academic

community that no preexisting internal procedural rule can

limit the constitutional authority of each new Senate to

determine by majority vote its own rules of procedure.

That is very profound. So it is not just me as a Democrat. Here are two Republicans, very prominent Republicans, saying the same thing.

The last significant rules change, I might point out, was in 1975, when the number of votes necessary for cloture was set at 60. There is only one Senator today--Senator Leahy--who was in the Senate in 1975 to vote on that current version of rule XXII. No one else was here then. We have had how many different Senates since that time, and yet that dead hand of the past continues to rule.

Mr. President, I would like to emphasize that I firmly agree that amending the standing rules is necessary. Informal agreements are insufficient to return the Senate to functionality. We had this last time--sort of a handshake agreement to make the Senate a better institution through fewer filibusters, procedural delays, et cetera. Looking back over the last 2 years, I don't think anyone would agree that this gentleman's agreement was very effective.

The minority leader recently stated that the reforms being advocated by me and others are being done with the ``purpose of consolidating power and further marginalizing the minority voice.'' Nothing-- nothing--could be further from the truth. I want to be clear that the reforms I advocate are not about one party or one agenda gaining an unfair advantage. It is about the Senate as an institution operating more fairly, effectively, and democratically. Those of us who went to law school all remember that if you come into the court of equity, you have to come in with clean hands. I hope that I have clean hands since I first offered this when I was in the minority. I was in the minority.

Again, I would point out that it belies belief that sometime in the future, Democrats won't be in the minority again. It is going to happen, and it should. No one party should rule here for long periods of time. We need to have that kind of change. But what we need is the ability of whoever is in the majority to be able to govern. That is what the people elected them to do.

Well, the truth is that we do not function here. We do not function in the way we are supposed to under the Constitution--something both Democrats and Republicans should care about. What was never envisioned and what should not be allowed to continue is a system where bills are prevented from being debated or the idea that a small minority can block legislation or nominees without even coming to the floor to explain themselves.

Finally, there is one other red herring that keeps coming up, and that is that somehow the reform I am proposing or any reform will somehow make the Senate like the House. I have heard that from Members from the other side of the aisle--oh, we will just become like the House of Representatives.

I have to ask the question, since when did the Senate become defined by rule XXII, the cloture rule? Why does that define the Senate? It seems to me the Senate was designed in the Constitution where we have two Senators from every State, small and large; where we are reelected every 6 years, not every 2; where the Senate has certain functions on treaties and on nominations that the House of Representatives doesn't have; and where the Constitution is very clear; there are five times where the Senate must have a supermajority to act.

Again, I would point out that the Senate will, by its very nature-- even under my proposed reform or even that of Mr. Udall or Mr. Merkley--still operate based on unanimous consent, and each Senator will continue to understand that maintaining good relationships with all Senators, working hard to become experts in issues, and drafting legislation and amendments will remain the essence of what it means to be a Senator, not the ability to filibuster.

To those who say we have become more like the House, I say that is not going to happen. Well, it could. Sure it could. Some future Senate could wipe out all the rules--wipe out all the rules. Now, they couldn't do away with the constitutional aspect. They couldn't make us elected every 2 years, for example, but take away the function of the Senate in terms of treaties, impeachments, and things like that, sure. Any future Congress can change the rules.

I think that because of the nature of the Senate, the way it is established, because of the way it is set in the Constitution--two from every State, not popularly elected every 2 years--that means Senators will have to work with one another. They will have to exhibit that kind of comity--c-o-m-i-t-y, not comedy--of recognizing that each Senator should have the right to amend, to debate, to discuss the question, to offer amendments.

Again, we were told that somehow the filibuster--this idea that the filibuster somehow defines the Senate, again, until 1970 there was approximately one filibuster per Congress. Did anyone ever suggest then that because there was not the rapid use of a filibuster, the Senate was no different from the House? Was the Senate of Clay, Wagner, Vandenberg, Johnson, and Taft just another House of Representatives? Were the giants in the Senate who came before us--the Daniel Websters, the Henry Clays, the Robert Tafts, the Hubert Humphreys--were they any less a Senator because they were not defined by a de facto 60-vote supermajority requirement?

I believe the Senate should embrace George Washington's vision of this body, if that story is true about him and Jefferson and the saucer and the tea. The Senate was set up to slow things down to ensure proper debate and deliberation. That is what the Founders intended. That is what we have advocated and I advocate. We will not become the House. As one author has noted, however, the increasing use of the filibuster has converted the Senate from the saucer George Washington intended into a deep freeze and a dead weight.

At the heart of this debate is a central question: Do we believe in democracy?

Republicans and, sadly, many of my colleagues in my own caucus repeatedly warn about advancing these reforms because Democrats will find themselves in the minority one day and we may want to stop something. Well, I am sorry, I don't fear democracy. If the people of this country at the ballot box put the Republicans in charge of the Senate, the Republicans ought to have the right to govern. We should have the right to be able to offer amendments and debate and deliberate, but we should not have the right to absolutely obstruct what the majority is doing. Issues of public policy should be decided at the ballot box, not by the manipulation of archaic procedural rules.

The truth is that neither party should be afraid of majority rule, afraid of allowing a majority of the people's representatives to work its will. After ample protections for minority rights, the majority in the Senate, whether Democratic, Republican, or a bipartisan coalition, duly elected by the American people, should be allowed to carry out its agenda, to govern, and to be held accountable at the ballot box.

I wish to conclude by noting that it is often said--and it is true-- that the power of a Senator comes not by what we can do but by what we can stop. That is true. The Senate is a body in which one individual Senator has an enormous amount of power to stop things. No one wants to give up that power. But I believe it is time for us Senators to take a look at ourselves. For the good of the Senate and, more importantly, for the good of the country, we need to give up that power--not all of it but a little bit of it. I am willing to give it up.

All Senators should have fundamental confidence in democracy and the good sense of the American people. We must have confidence in our ability to make our case to the people and to prevail at the ballot box. We must not be afraid of democracy. I am not afraid of it. I, quite frankly, believe my ideas, my support of certain measures, is more widely supported by the American people than my friends on the other side of the aisle. They believe just the opposite. That is good. That is the way we should operate here in grinding out legislation and then at the ballot box every 2 years.

Healthy debate is about the direction of the country and which way we should go. We should have the confidence--the Republicans should have their own confidence and we should have our own confidence--in our ability to make our case to the people and to prevail at the ballot box. I say: Don't be afraid. Don't be afraid of the American people and their inherent ability to make wise and just decisions. Things may go awry one time or another time, but in the great history of our country, the American people--as Winston Churchill once said: After we try everything else, we always do the right thing--the American people make the right decisions. Sometimes I may not agree with it, but then it is my business to go out and try to convince my constituents and others they made the wrong choice; that we should be going in a different direction.

That is the essence of democracy, not the power of me, a Senator from Iowa, being able to stop what the majority wants to do; not me, just with a handful of other people saying: I don't care what they want to do; we can stop it, put it in the trash can.

All I want is the right to debate, to discuss, to be able to offer amendments that are germane to the legislation. So, again, I am not afraid of living with these reforms, both as a member of the majority party and as a member of the minority party, which I am sure we will once again become at some point in the future.

So, Mr. President, as I have over the last, I guess it makes 17 years now, I come to the floor knowing that my proposal will not win. Well, it hasn't thus far. And that is all right. A lot of times people say: Why do you offer it? You know you are going to lose.

I offer it because I believe so deeply in this, and I believe sometimes you just have to stand for what you believe in, and you have to make your case as forcefully, as intelligently as possible. I hope I have done that both in my words and in my statement and in the past debates I have had on this Senate floor that occur about every 2 years when the Senate convenes.

I don't carry this beyond the first day of legislative business. I don't think we should. If we set the rules down on the first day, after that I don't think we should be changing the rules in the middle of the game. But we are still in the first legislative day, and I think now is the time to do this.

Mr. President, before I yield the floor, I know our distinguished minority and majority leaders have been working hard on some reforms on the filibuster. I am not privy to all of that. I don't know exactly all the details of it, although it was discussed in our policy caucus today. But I will say this about it--at least what I understand to be the essence of the reforms that our majority leader has worked so hard on--it is better than what we have right now. From what I understand-- and I don't know all the details--it is a step in the right direction.

I want to make it clear that I might vote for it--as soon as I find out exactly what it all is. I might vote for it because it is probably better than what we have right now. But I just want to be clear that my vote for that does not signify that I prefer that over doing away with this absolute 60-vote threshold because under the reformed rules that I understand are being promulgated by the majority and minority leaders, we still have a 60-vote threshold on anything except for the motion to proceed.

So on any amendment, any bill, we still have 60 votes. So a small group, a handful, can still put bills and amendments and everything else in the trash can. I just fundamentally disagree with that. So if I do vote for that--like I say, I probably will--it is because it looks like it might be better than what we have now.

I know it is tough. I do not denigrate for one minute the effort and the work of the majority leader and the minority leader in trying to reach these agreements. These are tough things. I just think we have to be more forthright in constantly--every 2 years--going after this idea that somehow this dead hand of the past that says we need a two-thirds vote to change the rules and that somehow that controls us--it shouldn't; it doesn't control us--that somehow we have to adhere to this 60-vote threshold forever. That shouldn't control us.

Every 2 years, according to the Constitution, according to Senator Byrd, according to constitutional scholars of both parties, we have the constitutional right at the beginning of a Congress to change our rules with a majority vote. That is what we ought to be about doing.

So, Mr. President, I look forward to seeing the proposed rules reform the majority leader and minority leader have been working on. Again, I know it is tough to work these things out, but I think this body has to move ahead and do away with that dead hand of the past and provide for rules changes that allow us to function, that allow the majority to act, with the right of the minority to debate, to slow things down and to amend--but not the right to win. I have never said the minority has to have the right to win. But the minority ought to have the right to make their voices and their votes heard in this body.

That is what my proposal would do. Again, as I said, I don't expect it to win, but I want people to be able to express themselves if they believe we should move in that direction, and I offer it in that vein. I know there are those who believe somehow that we have to abide by that two-thirds vote, by this dead hand of the past. I just don't believe so.

Mr. President, with that, I yield the floor.

Mr. President, I have long believed that rule XXII does not define the Senate. The Senate is defined in the Constitution, and it does not mention rule XXII or filibusters.

Second, I do not believe the dead hand of the past should control any Senate now or in the future.

Third, I believe the filibuster should be used to slow things down, to make sure the minority has the right to offer amendments and to have them debated and voted on. It does not mean the minority has a right to win, but they have the right to debate and slow things down. The filibuster should not be used as a method to put things in the trash can.

As George Washington supposedly said to Jefferson, it was to cool things down. I can understand that. But the filibuster has been used, and it will still be used even in the future, so that the minority can stop the majority. I have long believed the majority should have the right to enact legislation with due regard for the rights of the minority to be able to offer amendments and slow things down. But that is not what is happening and that is what my proposal I first offered in 1995, and continue to offer today, would do.

Yes, it would protect the filibuster as a means of slowing things down, but eventually the majority would be able to act, and that is as I think the Founders and the drafters of our Constitution really meant it to be.

Mr. President, I ask unanimous consent that Stephanie Lin and Justin Clayton, law clerks, be granted the privilege of the floor for the duration of today's session.

Madam President, I couldn't help but listen to the words of my friend from Alabama regarding the debt and deficit, and then to be reminded that we did balance the budget not too long ago. In fact, in 1993, we passed a tax bill here in the Senate and in the House--it was signed into law by President Clinton--which set us on a course to reduce the deficit. In fact, by the years 1999 and 2000, we balanced the budget. We had a surplus. Can you imagine that? We had a surplus for 3 years in a row. The Congressional Budget Office and OMB said that if we had continued on that pathway, we would have fully paid off the national debt by 2010.

When I hear my friends on the Republican side talk about reducing the deficit and the debt, we did that. When the Democrats were in charge of the Senate and the House and we had the Presidency, I would also point out that not one Republican on that side of the aisle voted for that bill in 1993. I can remember standing here and debating with my friend from Texas at that time on this bill, and there were all kinds of dire warnings that if this bill passed, we were going to have depressions and recessions; the business community would stop, and it would be the worst thing that ever happened to this country if we passed the Clinton tax proposal. Well, we passed it, but without one Republican vote.

And what happened? We had the largest spurt of economic growth this country had seen almost since the 1950s and 1960s. This was to the point to where, as I said, by the end of the 1990s we had a balanced budget and we had a surplus.

Then President Bush comes into office, and we had surpluses, enough to retire the entire national debt by the year 2010. So what did President Bush say? Well, now we are going to give tax cuts. They pushed through this big tax cut bill for which this Senator did not vote.

That tax cut bill gave a lot away to corporations and to the wealthy of this country, so that they didn't have to pay their fair share. Also, there were two wars we didn't pay for, plus a recession, and now we are in this huge deficit.

We know how to get ourselves out of this fix. We did it in 1993. It was by having the people in this country pay their fair share of taxes, to make sure that corporations, to make sure that those who enjoy the benefits of living in this free and productive society, pay their fair share. This is for all of us to raise the revenues necessary to meet our obligations in education, health, infrastructure building, the security of our Nation, and also to raise enough revenues so we can reduce the deficit.

But it can only be done with fairness and with fair sharing by all, and that is what President Obama has spoken about. He spoke about that in his inaugural address. That is what we have been talking about here for a long time; that is, shared sacrifice on behalf of all, and to make sure that all pay their fair share of taxes in this country so we can once again do what we did in 1993. We can do it again if only my friends on the Republican side will join with us in making sure we raise the necessary revenues to get us out of this hole.

I yield the floor.

Mr. President, I wish to announce that the Committee on Health, Education, Labor, and Pensions will meet in open session on Tuesday, January 29, 2013, at 10:00 a.m. in room SD-430 of the Dirksen Senate Office Building to conduct a hearing entitled ``30 Million New Patients and 11 Months to Go: Who Will Provide Their Primary Care?''

For further information regarding this meeting, please contact Sophie Kasimow of the committee staff on (202) 224-2831.

Mr. President, I wish to announce that the Committee on Health, Education, Labor, and Pensions will meet in open session on Thursday, January 24, 2013, at 10:00 a.m. in room SD-430 of the Dirksen Senate Office Building to conduct a hearing entitled ``Assessing the State of America's Mental Health System.''

For further information regarding this meeting, please contact Kathleen Laird of the committee staff on (202) 224-6840.

Mr. President, I understand we are in a period of morning business.

Mr. President, I was disturbed to read in the Washington Post this morning that some agreements were being made, that Democrats have agreed to raise the level from $250,000 to $450,000 and we would keep the estate taxes at the $5 million level at 35 percent.

All I can say is this is one Democrat who does not agree with that at all. What it looks like is all the taxes are going to be made permanent, but those items that the middle-class in America truly depend on are extended for 1 year--maybe 2 years at the most. I think that is grossly unfair.

We are going to lock in forever the idea that $450,000 a year is middle class in America? Need I remind people that those making $250,000 are the top 2 percent income earners in America? I know the President keeps saying he wants to protect tax cuts for the middle class, which is fine. I am all for that. If we go up to $250,000, that is a pill we can swallow because that covers everyone except the top 2 percent. Those who make $250,000 a year are not middle class. They are the top 2 percent of income earners in America.

What have we forgotten? Have we forgotten that the average income earners in America are making $25,000, $30,000, $40,000, $50,000, $60,000 a year? That is the real middle class in America, and they are the ones who are getting hammered right now. They are getting hammered with housing and rental costs, heating bills, kids going to school, and they have no retirement. Now there is talk about raising the retirement age on people who work hard every day. There are women who have been standing on their feet every day for 30 or 40 years. Are they going to raise the retirement age on them again?

If we are going to have some kind of deal, the deal must be one that truly does favor the real middle class. Those who are making $30,000, $40,000, $50,000, 60,000, $70,000 a year are the real middle

class in America. Quite frankly, as I see this develop--and as I have said before--no deal is better than a bad deal and this looks like a very bad deal the way this is shaping up. I wish to make it clear I am all in favor of compromise. I have been here a long time, and I have made a lot of compromises. I am willing to make more compromises, but this is one point in time where decisions which are made on this so- called deal will potentially lock in what kind of country and society we are going to be for the next 10 years. So we better be darned careful.

If no deal is reached, then on the tax side we go back to the taxes that were enacted under President Clinton. All the Democrats who were here then voted for the Clinton tax bill in 1993. We heard all kinds of talk from the other side of the aisle of how this was going to be disastrous, kill the economy, and it was going to be awful. Not one Republican supported it, but we passed it. President Clinton signed it into law, and guess what happened. The economy took off. Unemployment came down, the economy started going, and we were paying down the deficit. We had 3 or 4 straight years of surpluses. CBO said if we continued down that path, we would pay off the national debt by 2010.

Then George Bush came into office. They looked at all the surpluses out there and said: Guess what. We have to take some of that and give it back in tax cuts, and that is what they did. That is what will end tonight. Those Bush tax cuts will end, and we will go back to the tax system we had under Bill Clinton. What is so bad about that? It worked pretty darned well. The economy was going well, and we were paying down the deficit. Things were going well under Bill Clinton and that tax system and that is what we will go back to tomorrow. What is so bad about that?

What has happened in the last 10 years is a lot of people have gotten very rich in this country and now they want to protect their wealth. That is what they want to do. They want to lock in this system on estate taxes and lower tax rates up to $450,000, $500,000, $1 million or whatever they want and they want to lock that in. I think it is time for them to start paying their fair share, as they did under the Clinton tax provisions we had in place at that time.

To go back to the tax provisions we had under Bill Clinton does not frighten me one bit, but now we hear the same song and dance from the Republicans: Oh, if we do that, the sky is going to fall, the world will end tomorrow, and the markets will go all to heck. We heard that in 1993, and they were wrong. We are hearing it again today about what will happen if we go back to the Clinton-era tax provisions. They say the sky is going to fall, and they are wrong again. They are just wrong again.

I, for one, do not fear going back to a system of taxation that basically worked very well for our country. It was the Bush tax cuts that messed everything up for 10 years and allowed a few people to get very rich but kept the middle class from advancing at all.

Again, this idea that somehow a deal is going to be cooked up and all these tax advantages people had over the last 10 years and have now in estate taxes will be permanent does not sit well with this Senator. Yet when we are talking about unemployment insurance, investments in other parts of our economy, the sustainable growth rate for our hospitals, doctors, and Medicare, that is only good for 1 or 2 years. But the tax side that lets those most privileged in our society continue to not pay the share that I think they should be paying is not a good deal. That is not fair, that is not equitable, and that is not just.

I hope those who are negotiating continue to negotiate. If there is a deal that could be made which truly does focus on the middle class and gets our estate taxes back where they were before--at some reasonable level and not at the level they are right now--then maybe we could live with something such as that. But from what I read this morning, the direction they are headed is absolutely the wrong direction for our country.

I yield the floor.

I suggest the absence of a quorum.

Mr. President, over the last few decades, the real middle-class families in America--and when I say ``real middle class'' I mean those who are making $40,000, $50,000, $70,000, not $400,000 a year--have seen their jobs become more insecure and their wages stagnate. In fact, their income adjusted for inflation is less now than it was in the late 1990s. Their savings and pensions have shrunk or disappeared.

The cost of education has soared at the same time as the wealthiest Americans and large corporations grow ever richer and pay less and less in taxes. For example, just take dividends. Prior to 2003, dividends were always taxed as ordinary income. Now they are taxed at a less rate than the capital gains rate. Income of hedge fund managers is taxed at a lower rate than middle-class families--the so-called carried interest rule.

The share of our Nation's wealth going to corporate profits has been rising as the share going to wages and salaries is declining. This has led bit by bit, Tax Code change by Tax Code change, pension cuts by pension cuts, job outsourcing by job outsourcing to an economy that is out of balance, that threatens the very fabric of our society. That is because the gap between the rich and the real middle class grows ever wider. That is because our economy is driven from the middle out and not from the top down.

Our economy is driven by middle-class families with good jobs and money in their pockets to spend. So our first goal must be to put Americans back to work and to get our economy moving, to rebuild the real middle class now.

The average American across our land tonight--today--probably thinks what we are about here is just that, to solve our country's most pressing problem--creating new jobs, laying the foundation for future economic growth and, thus, reducing our deficits in the long term. But instead we are here tied in knots to avert a manufactured fiscal cliff which could have been avoided 6 months ago by the House passing S. 3412 to avert the tax hikes on 98 percent of Americans.

As I have said repeatedly, I will evaluate any such fiscal cliff legislation on how these proposed policies affect working families and the real middle class--again, the real middle class being those making $30,000, $50,000, $60,000, $70,000 a year. So I am disappointed to say, in my opinion, this legislation we are about to vote on falls short.

First, it does not address the No. 1 priority: creating good middle- class jobs now. Unemployment remains way too high. This bill should include direct assistance on job creation makers; for example, our infrastructure, education, and job retraining. How many jobs we see out there going wanting because people aren't trained for those jobs; yet we don't have enough money to put into job retraining. The legislation before us neglects our most pressing concern at the present time, and that is

the lack of jobs and the lack of qualified people to fill those jobs.

Secondly, this proposal does not generate the revenue necessary for the country to meet its needs for everything from education to job training, infrastructure, and research and development. The idea that people earning $300,000 to $400,000 a year could not pay the taxes they paid in the 1990s when the economy was booming is just plain absurd. But that is what we are being told; that people who make $300,000 or $400,000 simply cannot pay the same taxes they would have been paying in the Clinton years.

Furthermore, these wealthiest Americans made a lot of money in the last decade. So what do we do? Now we are raising the estate tax exemption to $5 million. It was $1 million under the Clinton tax years. Now the few who are really wealthy, who made a lot of money, and who have accumulated this wealth, we now have raised the estate tax so they can pass it on without any of that gain ever being taxed because the heirs now get it with what they call a stepped-up basis. So none of that is taxed.

So what we see, then, are the few who are wealthy getting more and more wealthy. So wealth becomes even more concentrated under this system.

Now, some will say: What is the problem? You want to protect the middle class. They are in this bill. How can you object if some higher income individuals are protected as well? Well, I point out these are not unrelated matters. With government investments and government spending dropping, being squeezed every year by my conservative friends on the other side of the aisle, and with deficits remaining high, every dollar of sacrifice the wealthy forego is a sacrifice we will later be asking of real middle-class, modest-income Americans. Every dollar the top 2 percent of taxpayers do not pay under this deal, we will eventually ask folks of modest means to forego--to forego on Social Security or Medicare or Medicaid or Head Start benefits or other items that benefit the real middle class.

I believe it is gravely shortsighted to look at these issues in isolation from each other, especially since the Republicans have made crystal clear that they intend to seek mandatory spending cuts just 2 months from now using the debt limit as leverage.

No. 3. Why in this deal do we make the tax benefits for the rich permanent while the progressive tax benefits we put in place in 2009 to help people of modest means--why are those temporary? For example, the estate taxes that benefit the wealthiest are made permanent. The earned-income tax credit that affects the lower income, that is temporary. The income tax rates that are set now are going to be made permanent to benefit higher income individuals, but the child tax credit is made temporary. The AMT fix is made permanent, but the American opportunity tax credit for modest families to be able to afford to send their kids to college is made temporary.

In this deal we are about to vote on, logic is turned on its head. We provide permanent benefits to those who need it the least, and yet this deal sunsets the modest assistance to middle-class families--again, I repeat, middle class, real middle class; not $400,000-a-year middle class, I mean the real middle class.

I think it is quite telling that earlier this last evening, Grover Norquist said he is for this bill, but our former Secretary of Labor Bob Reich is opposed.

So maybe now I guess we are all believers in trickle-down economics. Not I. I guess we now redefine the middle class as those making $400,000 a year when, in fact, that represents the top 1 percent of income earners in America, not the middle class. So I guess that we now accept as normal practice in reaching bipartisan deals that the most vulnerable in our country, such as those who are out of work and who depend on unemployment benefits, can be held hostage as a bargaining tool for more tax breaks for the richest among us.

I am not saying that everything in this deal is bad. There are some good parts. But I repeat, I am concerned about this constant drift, bit by bit, deal by deal, toward more deficits, less job creation, more unfairness, less economic justice--a society where the gap grows wider between the few who have much and the many who have too little.

Mr. President, for these reasons, I must in conscience vote no on this bill.

Mr. President, I guess we have 5 minutes?

Mr. President, I rise in strong opposition to the amendment offered by my friend from Kentucky. As we work to rebuild these communities in the east coast from Superstorm Sandy, we need policies in place that make these communities stronger. Davis-Bacon is a critical part of that effort because it ensures that the people who are doing the work to rebuild our roads, schools, and bridges in these cities and towns are paid a fair wage. Again, the Davis-Bacon Act ensures that workers on taxpayer-funded projects are paid locally prevailing wages--locally prevailing wages. These protections ensure that the substantial influx of Federal dollars for reconstruction work after a disaster will help prevent a race to the bottom for workers and not contribute to the problem.

After a disaster such as this, people are disrupted, and people are out of work. So we have a lot of fly-by-night operators who flock to these areas and abuse the workers. For example, we saw this after Hurricane Katrina. According to a 2006 study, 47 percent of workers in New Orleans reported not receiving all of the pay they were entitled to under law. The same report indicated that 55 percent of workers did not receive overtime pay for working more than 40 hours a week.

Now, again, my friend from Kentucky says this could save up to 22 percent of the money we are going to put out in Federal taxpayer dollars to help recovery efforts. Well, how can that possibly be? Labor costs are typically only 25 to 30 percent of the total cost of public works projects. So there's no way we could save 22% by repealing Davis- Bacon, we'd have to pay people next to nothing. That just doesn't make sense.

So, again, Davis-Bacon has been in law a long time to help prevent the kinds of abuses we saw after Katrina from happening again because it ensures that workers will be paid locally prevailing wages--not necessarily union-type wages but locally prevailing wages. It helps ensure that responsible contractors--responsible contractors, contractors who abide by wage and hour and safety and health laws--will win the bids to perform federally funded work. We do not want this race to the bottom where you get some fly-by-night operator who does shoddy work. Oh, but it is cheap. When we buy into that philosophy we might save money now, but we lose a lot of money later on.

We keep hearing from our friends on the other side that this is going to save money. That is just not true. Numerous studies confirm that prevailing wage laws--Davis-Bacon--do not raise construction costs and actually lower the taxpayer bill on these projects. A study of nine States found that prevailing wages led to costs of building construction that were on average $6 dollars to $35 per square foot less than without prevailing wages. Similarly, a 2004 study analyzing Federal highway wage data found that better wages led to an average savings of $30,000 to $34,000 per mile of highway construction. Better wages also led to higher productivity. Higher wage States require 32 to 35 percent fewer labor hours to complete the same work than lower wage States. Why is that? Because, as one contractor I know in Iowa says, he always hires people to do work under Davis-Bacon because he knows he gets quality work, he gets high productivity, the work is done right the first time and it does not have to be done over. So these are the responsible contractors we want to do this kind of work because in the long run, it saves us all a lot of money and we get better work done.

I might also add parenthetically that Davis-Bacon--Senator Davis and Representative Bacon, the authors of this law, were both Republicans. They wanted to ensure that large Federal contractors would not drive down the price of labor, so they passed a law saying that workers on Federal Government projects should earn at least the typical local wages. That is what it is--typical local wages. That is all the Davis- Bacon Act does. It is not a giveaway to unions or the workers they represent; it is just a commonsense policy that helps workers and communities recover and makes sure taxpayers get the best bang for their buck.

The workers affected by Hurricane Sandy are not just rebuilding businesses, houses, schools, and roads, they are rebuilding entire communities and neighborhoods. The foundation for communities is good jobs with fair wages. The Davis-Bacon Act is a critical part in helping communities across the east coast recover.

I urge my colleagues to oppose the Paul amendment.

Mr. President, as a Senator, I have no greater responsibility than to work to ensure our Nation's security. Our Armed Forces must have the tools they need to keep our country safe. That is why I support the vast majority of the provisions in the National Defense Authorization Act and why I supported the bill that passed the Senate. I particularly note provisions that increase pay and benefits for our servicemembers and retirees, ensure a drawdown of our troops in Afghanistan, allow female servicemembers access to basic health services if they are victims of sexual assault, and limit the annual increases in TRICARE prescription drug premiums. All of these provisions I support and believe are important.

I oppose this bill because I do not believe it adequately reflects our principles. I believe we can do a better job of protecting our national security without compromising important values than what is contained in this legislation.

This Nation has long been a beacon of liberty and a champion of rights throughout the world. Yet since 9/11, in the name of security, we have repeatedly betrayed our highest values. The

past administration believed it could eavesdrop on Americans without a warrant or court order. It utilized interrogation techniques long considered immoral, ineffective, and illegal, regardless of laws and treaties. And, it intentionally sought to put detainees beyond the rule of law. Thankfully, the current administration has ended the worst abuses of these practices, despite the efforts of some of my colleagues to stymie these efforts.

However, I am deeply concerned that the conference report continues us on a dangerous path of sacrificing long-held principles.

To begin, this bill fails to make clear that under no circumstance can an American citizen be detained indefinitely without trial. When the bill was considered in the Senate, I was proud to join 66 of my colleagues in supporting an amendment, authored by Senator Feinstein, which sought to clarify that the law does not authorize the President to indefinitely detain an American seized in the United States and indefinitely detain them without charges and without due process. I am heartened that President Obama has made clear he will not attempt to exercise such power, but I am greatly disappointed that the conference report omitted this language.

Moreover, the bill would make it much more difficult to close the detention center at Guantanamo Bay. There simply is no compelling reason to keep the facility open and not to bring these detainees to maximum security facilities within the United States. The detention center has been, and continues to be, a stain on our Nation's honor. I agree with former Secretary of State Colin Powell who said ``we have shaken the belief that the world had in America's justice system by keeping [the detention center at Guantanamo Bay] open. We don't need it and it's causing us far more damage than any good we get for it.''

In the immediate aftermath of 9/11, the Bush administration declared a broad and open-ended ``war on terror.'' I have always considered this a flawed description of the challenge that confronted us after the 9/11 attacks. After all, ``terror'' is an endlessly broad and vague term. And a ``war on terror'' is a war that can never end, because terrorism and terrorists will always be with us. Because of the never-ending nature of this so-called ``war on terror,'' it offers a rationale for restricting civil liberties indefinitely. This is not healthy for our democracy or for our ability to inspire other countries to abide by democratic principles.

We will not overcome terrorism with secret prisons, with torture, with degrading treatment, with individuals denied basic rights. Rather, we shall overcome it by staying true to our highest values and by insisting on legal safeguards that are the very basis of our system of government and freedom.

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

Mr. President, with the retirement of Senator Ben Nelson at the close of the 112th Congress, the Senate will lose one of its most respected members, and a distinguished career in formal public service will come to an end. I use that adjective ``formal,'' because it's hard to imagine Ben Nelson not finding new avenues for public service as a private citizen in the years ahead.

Senator Nelson and I come from neighboring States in the rural, upper Midwest, and we have much in common. But we differ in at least one respect: I come from the small town of Cumming, IA, population 351; Ben comes from the big city, McCook, NE, population 8,000.

Senator Nelson is often described as one of the most conservative Democrats in the Senate, frequently voting with the minority party. I prefer to describe him simply as the most independent Democrat in the Senate, a progressive at heart who--like so many from our part of the country--is also deeply imbued with respect for traditional values and fiscal prudence.

As we all know, Senator Nelson prides himself on reaching across the aisle to get things done. He is a pragmatist, not a partisan. He has never allowed ideology or party to stand in his way of doing what he believes is right for Nebraska and the United States of America.

As my colleague on the Committee on Agriculture, Nutrition, and Forestry, Senator Nelson has been a passionate advocate for family farms and rural America, and he has been a leading advocate for increasing the use of clean, renewable biofuels in order to decrease our Nation's dependence on foreign energy sources.

As a member of both the Committee on Armed Services and the Committee on Veterans Affairs, no one has been a stronger supporter of both active duty and retired servicemembers.

Ben Nelson has been a successful CEO of an insurance company, a popular two-term governor of Nebraska, and, for the last 12 years, an accomplished and effective United States Senator. He has been a wonderful hunting colleague of mine on more than one occasion.

Our friendship, of course, will continue. And I wish Ben and Diane the very best in the years ahead.

Jim Webb

Mr. President, in these final days of the 112th Congress, the Senate is bidding farewell to a very special member, the junior Senator from Virginia, Senator Jim Webb.

He came to this body with unique and extraordinary credentials: a graduate of the Naval Academy and first in his class of 243 at the Marine Corps officer school at Quantico, a much-decorated combat veteran of the Vietnam War, and Secretary of the Navy during the Reagan administration.

I would point out one more of his sterling credentials. I guess I can say this now, because he is retiring, and a political opponent will not use it against him: Jim Webb is an intellectual with a passion for ideas and knowledge. For goodness sake, he writes books, excellent books, the kind that win glowing reviews in the New York Times, and get turned into documentaries on the Smithsonian Channel.

Senator Webb has put this past experience to superb use here in the Senate as an active member of the Committee on Armed Services, the Committee on Veterans Affairs, and the Committee on Foreign Affairs.

To his great credit, before coming to the Senate, he was an outspoken critic of the invasion of Iraq, warning that it would be a unilateral war with no exit strategy. After the invasion, he was equally outspoken in challenging the Bush administration's conduct of that war.

At the same time, as a member of the Committee on Veterans Affairs, he worked hard to pass legislation to provide enhanced education benefits for veterans, a 21st century GI Bill, for those who have served in the military since the attacks of 9/11.

I admire Jim Webb as a friend and colleague. I have the greatest respect for his life-long commitment to protecting America's national security, and fighting for economic and social justice here at home. There is no question in my mind that Jim will find other avenues for public service in the years ahead. I certainly wish Jim and Hong Le all the best in the years ahead.

joe lieberman

Mr. President, with the close of the 112th Congress, our friend and colleague Senator Joe Lieberman is retiring after nearly a quarter century of dedicated service in this body to the people of Connecticut and the United States.

As we all know, Senator Lieberman is a fiercely independent Senator who prides himself on speaking his conscience and reaching across party lines in order to get things done. He is a pragmatist, not a partisan. Yet he has never allowed his ideology or his party or what is popular to stand in the way of doing what he believes is right for Connecticut and the United States of America.

In the years since Senator Lieberman left the Democratic Party to become an independent, he has sometimes disagreed with his colleagues on this side of the aisle, but he has never been disagreeable. To the contrary, he has been unfailingly decent, gracious, and reasoned. He has been unfailingly a gentleman and a friend, a person with a great sense of humor and always has a smile. It is these sterling personal qualities that are a big reason he will be greatly missed by Senators on both sides of the aisle.

During his four terms in this body, Senator Lieberman has earned a reputation as one of the Senate's most influential and knowledgeable voices on interests of national security. In the wake of the attacks of 9/11, he was the lead sponsor of the bill to establish the Department of Homeland Security. As chairman of Homeland Security and Governmental Affairs, Senator Lieberman has been a vigilant leader in safeguarding America.

Throughout his distinguished tenure in this body--and before that as a Connecticut State senator and attorney general--Joe Lieberman has been a proud and principled progressive with a passion for social and economic justice for all Americans.

To cite just one example: Senator Lieberman deserves enormous credit for introducing and successfully championing legislation to repeal the military's discriminatory don't ask, don't tell policy, which banned patriotic gay and lesbian Americans from serving openly in our Armed Forces.

As we all know, Joe Lieberman is a person of deep faith, a faith that inspires him to public service and informs his progressive vision for America. Last January, when he announced his decision to retire, he said:

I go forward with a tremendous sense of gratitude for the

opportunities I have had to make a difference.

With Senator Lieberman's retirement in the days ahead, a truly distinguished career in formal public service will come to an end. I use the adjective formal because it is hard to imagine that Joe Lieberman will not be finding new avenues for public service as a private citizen.

Senator Lieberman's career in this body will end, but our friendship will continue. I know that his smile and his gracious unfailingly gentlemenly ways will also continue. I wish Joe and Hadassah much happiness in the years ahead.

I yield the floor and note the absence of a quorum.

Would the Senator yield?

The Senator has been a great friend. I enjoyed hunting with my friend before, and I read that in the paper before about Senator Schumer going out.

Here is a real test for my friend from Nebraska: Aren't I a better shot than Chuck Schumer?

No, the Senator doesn't want to get in the middle of that.