Floor Statements

Madam President, I suggest the absence of a quorum.

Madam President, before Senator Alexander leaves, and I know we have our conferences, and I guess we are going to go to about 1:00 today, I would like to thank him for all of his efforts. I really look forward to Senator Alexander being the ranking member--I believe he is going to be the ranking member--on the Rules Committee now that Bob Bennett has moved on to other things. He has participated in many of these hearings. I look forward to continuing the exchange on rules that we have had. I do not think this is the end of the rules debate. I think that is why we have a full-time Rules Committee to take a look at this.

I hope these new Senators who are listening to us today--whom you are going to talk to on your side, I am sure, in about 15 minutes--that they look at our rules and offer suggestions and that we still continue this discussion in the Rules Committee.

I thank all of the leaders who came down here today and talked.

Senator Reid and Senator McConnell have announced an agreement. We are moving forward with reforms.

Senator Schumer has been a real champion on rules reform. I remember going to him and asking for hearings, and he said: Well, what kinds of hearings are we looking at? What do we want to do? And I explained to him, went through--we need to talk about the history of the filibuster. You know, the filibuster was not in the original Senate. There were rules for 17 years where you had what was called a motion to order the previous question. That is a majority motion to cut off debate. And then later it was changed. So I said: We have to get the history out there for everybody to see because some of these charges are not very accurate. And he was a champion. He allowed us to do six hearings. We brought in constitutional scholars. Both sides participated, and it was very productive.

So here we are at the beginning of a Congress, and we have been pressing--with my good colleague and friend from Oregon--for rules reform through the Constitution, relying on the Constitution. In article I, section 5 of the Constitution, it gives us the power and the authority--a majority of us at the beginning of an organizing session-- to determine what rules we function under for the next 2 years. That is the exercise in which we have been engaged.

Both the Senator from Oregon and I realize if we hadn't utilized our rights under the Constitution, if we hadn't pushed this very hard and said we are trying to round up 51 Senators who will stand with us and say they want change in this institution, we want to get back to being the greatest deliberative body, we want to consider all the important bills in a timely way--budget bills, appropriations bills--by utilizing our constitutional option or our rights under the Constitution, we have come a long way in 1 year. We have had many debates in our caucus. We have had many discussions.

We are not exactly where the Senator and I think we should be at this particular point in time. These reforms--and let me say, these reforms are steps forward and in some ways significant. The fact that we are getting rid of secret holds, if we have that vote today and get 60 votes, is a good thing. Nominations, letting the President get his team in place, that is a good thing. Reading of amendments, my cousin, Senator Mark Udall, is involved in that. The motion to proceed, the gentlemen's agreement on the motion to proceed and filling the tree, that is a significant step in behavior to say: Let's change our behavior, and then the fact that we will have votes today on S. Res. 10, on the Merkley talking filibuster and the Harkin proposal, these are significant votes to be taken and significant steps forward.

I strongly disagree with one thing announced here, the idea that the two leaders are taking off the table us utilizing our constitutional rights. That was what was announced. I think we both heard it the same way. Leader McConnell and Leader Reid both said they are not going to rely on a majority vote for rules in the future, no matter who is in power and what is happening.

The beauty of the Constitution--and we all realize this--is that is a good agreement for them. It doesn't apply to 98 other Senators. Each Senator under the Constitution has his or her right to rely on those constitutional rights. I urge, as has been done every time in the past when we have had a movement for change on rules, that it be bipartisan. We are seeking 51 Senators who will join with us. Because if 51 Senators join at the beginning of a Congress and say they want rules reform, they want this place to function better, they want to do the people's work better, they want to take up some House bills, the 400 bills that died, they want to do appropriations bills in a timely way-- all these things are very important to a better functioning Senate, and a better functioning Senate is all about the people's work.

I know the Senator from Oregon has some initial comments. But I thought we could talk about the idea that we have moved a long way. We have pushed the constitutional option. I don't think there is any doubt that he and I are giving up on our constitutional rights. Other Senators can say what they want to do, but we are going to stand and utilize our rights as we move down the road. We are hoping we will be at a place where we have 51 Senators, Democrats and Republicans, who will continue to look at this and find a better way to make this institution work in terms of modern issues, modern times. I think we are kind of stuck back in another century with some of these rules. We need to bring it up to date.

With that, the Senator from Oregon and I are going to engage in a colloquy, but I know he had some additional comments. I am happy to yield.

Madam President, I wish to thank all of the Senators who have come down for this debate. These are just a couple of cleanup, housekeeping things I need to do.

First of all, the charge was made that we are trying to make the Senate like the House. Rather than get in a long debate here, I ask unanimous consent to have printed in the Record Federalist Paper No. 62 and a letter from a number of scholars who testified before the Rules Committee.

Time and time again last year, during the Rules Committee hearings on rules reform, my Republican colleagues said that any attempt to change the filibuster would make the Senate no different than the House. They said reforming the filibuster would be contrary to our Founders' intent to make the Senate a more deliberative body.

This argument makes little sense to me. The filibuster was never part of the original Senate--the Founders made this body distinct from the House in many ways, but the filibuster is not one of them.

A letter from seven prominent political science scholars, six of whom testified in last year's Rules Committee hearings, states the following:

[T]here is no explicit constitutional right to filibuster.

In fact, there is ample evidence that the framers preferred

majority rather than supermajority voting rules. The framers

knew full well the difficulties posed by supermajority rules,

given their experiences in the Confederation Congress under

the Articles of Confederation (which required a supermajority

vote to pass measures on the most important matters). A

common result was stalemate; legislators frequently found

themselves unable to muster support from a supermajority of

the states for essential matters of governing.

But we do not have to rely on today's scholars to tell us that the Senate's uniqueness is not premised on the filibuster and unlimited debate. Our Founders explained their vision for our Republic in the Federalist Papers, and Federalist No. 62 explained quite clearly the ways the Senate is unique from the House of Representatives.

In Federalist 62, Alexander Hamilton and James Madison wrote the following:

The qualifications proposed for senators, as distinguished

from those of representatives, consist in a more advanced age

and a longer period of citizenship. A senator must be thirty

years of age at least; as a representative must be twenty-

five. And the former must have been a citizen nine years; as

seven years are required for the latter.

They go on to explain about how Representatives will be directly elected by the people, but Senators will be appointed by the State legislatures. This of course was changed in 1913 by the 17th amendment, which established direct election of Senators by popular vote.

This, I would argue, is a far more drastic change to the Senate than anything we could do with rules reform, yet even that change did not turn the Senate into the House.

But perhaps the most important distinction between the bodies is whom we represent.

Federalist 62 explains that the equality of representation in the Senate was the:

result of compromise between the opposite pretensions of the

large and the small States. . . . [T]hat among a people

thoroughly incorporated into one nation, every district ought

to have a proportional share in the government, and that

among independent and sovereign States, bound together by a

simple league, the parties, however unequal in size, ought to

have an equal share in the common councils . . . [and] the

government ought to be founded on a mixture of the principles

of proportional and equal representation.

It is this fact that makes the Senate very different than the House. As a Senator from New Mexico, I represent just over 2 million people. Senators Feinstein and Boxer represent over 37 million constituents in California. And Senators Barrasso and Enzi, representing Wyoming with a population of just over half a million, actually have fewer constituents than members of the House.

Yet we all have the same vote in the Senate. This is what makes this body unique. Our founders did not intend to protect a minority party from being steamrolled by a majority party, but instead to protect small States from being run over by the large States.

Federalist 62 goes on to discuss how the number of Senators, and the duration of their term, is another key distinction between the bodies. Unlike the House, who are always facing reelection less than 2 years away, two-thirds of the Senate is always free from the same worry.

Coupled with the fact that senators were appointed by the State legislatures, the Founders believed that the

Senate would be a check on the House against legislation that was passed too quickly and without sufficient consideration. But they intended the structure of the Senate to make us a more deliberative body, not the rules that govern us.

So whatever changes we might make to our standing rules, whether minor or significant, the Senate will always be distinct from the House of Representatives. The cloture rule was only implemented in 1917--any changes we make to it today cannot destroy the uniquely deliberative nature of this body.

So to speak more generally now, today we come to the floor as a body to debate changes to the rules that guide this institution. All of the proposals we consider today have merit, in my opinion, and all deserve an up-or-down vote by this prestigious body.

Each proposal is important, but as we consider them one-by-one, we must remind ourselves what brought us to this point in the first place.

The reason we are here is simple: This Senate is broken. Because of partisan rancor and our own incapacitating rules, this body is failing to represent the best interests of the American people.

The unprecedented abuse of the filibuster, of secret holds, and of other procedural tactics routinely prevents the Senate from getting its work done. It prevents us from doing the job the American people sent us here to do.

In the Congress that just ended, because of rampant and growing obstruction, not a single appropriations bill was passed. There wasn't a budget bill. Only one authorization bill was approved--and that was only at the very last minute. More than 400 bills on a variety of important issues were sent over from the House. Not a single one was acted upon. Key judicial nominations and executive appointments continue to languish.

The American people are fed up with it. They are fed up with us. And I don't blame them. We need to bring the workings of the Senate out of the shadows and restore its accountability.

That begins with addressing our own dysfunction. Specifically, the source of that dysfunction--the Senate rules.

That is what I--along with my colleagues and friends Senator Merkley of Oregon and Senator Harkin of Iowa--have been trying to do these past weeks. We have been trying to restore the uniquely deliberative nature of this body--while also allowing it to function more efficiently.

On Tuesday, Senator Harkin, Senator Merkley and I each were denied unanimous consent to bring up our resolutions for immediate debate in accordance with article 1, section 5 of the Constitution.

Denying us the ability to debate the important constitutional issue of how this body adopts its rules was unprecedented.

Ten times previous to this--from 1917 to as recently as 1975--the Senate debated reforms to the use of the filibuster, as well as the underlying constitutional issue of adopting reforms by a simple majority at the beginning of a Congress.

The results of these debates varied. But the point I make today is this: each and every time a rules change was proposed, this Senate never denied those Senators the right to debate their proposals through the constitutional option.

During many of these debates, the reform proposal was defeated, often by tabling it--but they had the debate.

1975 was the last time we had a major reform to our filibuster rules.

On three occasions that year, the Senate voted by a simple majority to table points of order against Senator Mondale and Senator Pearson's reform proposal--a proposal that would have amended the cloture threshold from ``two-thirds to three-fifths present and voting.''

It was these votes by a simple majority of the Senate that forced the compromise reform that changed the Senate's cloture threshold to the present rule ``three-fifths duly chosen and sworn.''

We are here today debating the substance of several different proposals, all of which share a goal of restoring debate, deliberation, and transparency to this great body. And this afternoon, we will have votes on these proposals.

But, we will have those votes under thresholds that I strongly believe the Constitution does not require. To deny us the right to have that debate about the constitutional question was unprecedented and, I believe, a mistake.

But, however misguided I believe that decision to be, that decision has been made, and it is one we have to live with.

Now we must seize the opportunity that remains, and that opportunity is the chance for the most substantive debate of the Senate rules in 35 years.

I believe this debate is fundamentally important to the health of this institution. Reform is badly needed. We have a responsibility to the American people to come together and fix the Senate.

Whether that is through the constitutional option--as I believe we have the right and the responsibility--or through other means, I welcome the debate.

As I said more than a year ago when I first proposed the constitutional option: It is time for reform. There are many great traditions in this body that should be kept and respected, but stubbornly clinging to ineffective and unproductive procedures should not be one of them.

Mr. President, I want to close by saying this.

Since the beginning of this process, my actions have been guided by the great respect I have for the institution of the U.S. Senate, my reverence for the many great men and women who have served here, and my sincere affection for my colleagues.

That remains true today. I want to thank my colleagues for their consideration of our proposals, for their willingness to listen, and for their friendship.

And I want to make clear to all those who have supported this effort--our work is not complete: our cause endures. History has made clear that substantial rules reform is--more often than not--the work of many Congresses, not just one.

The debate that began in this Congress will serve as a foundation for reform moving forward. And I commit to doing all I can to ensure that the Senate is not a graveyard for good ideas--but instead remains a shining light of Democracy around the world.

So now we come to the concluding point in the debate where I think it is very appropriate to thank staff. My two staff members who have worked the hardest--all my staff have worked very hard on this, but Matt Nelson and Tim Woodbury deserve individual recognition for their tireless work. I know that as a result of this, we put a lot of pressure on the Rules Committee. Jean Boudwich and her whole crew over there have done a great job and the Parliamentarian shop headed by Alan Frumin. We have also had great assistance from them in terms of answering questions and working with them, so I applaud Alan and all of the Parliamentarians.

At several places in the Record, a variety of different items were mentioned. To clarify the Record, I ask unanimous consent to have printed, No. 1, a New York Times editorial from January 25; No. 2 includes quotes from constitutional scholars and conservative scholars on the constitutional option; and No. 3 is an op-ed from the Washington Post entitled ``Fixing a Broken Set of Rules.''

I also commend to my colleagues a Harvard Law and Policy Review article entitled ``The Constitutional Option: Reforming the Rules of the Senate to Restore Accountability and Reduce Gridlock.''

Finally, once again, I wish to thank our leaders. Lamar Alexander and Chuck Schumer, both working on the Rules Committee, have done a remarkable job in terms of negotiating. Leader Reid and Leader McConnell have made a decision which was announced earlier today, and that decision was to change some of the rules, to let us vote on some changes to the rules. And also, I think one of the most significant things--and I know Senator Alexander has mentioned this--is to try to change behavior. More than anything, I think that could be very significant. They talked and decided they would like to do this differently. We would like to get back to the Senate functioning where we bring things up, we debate them, we allow robust debate, we allow the amendment process to work forward. I know Senator Alexander addressed this at one point in his Heritage speech, saying the Senate is a shadow of itself. We want to get back to that Senate with the robust debate and amendment process, and I think both sides have tried to pull that together.

So I very much hope this is a new day in the Senate.

Mr. President, S. Res. 10 does five simple things: limits debate on the motion to proceed to 2 hours; eliminates secret holds; No. 3, guarantees the majority and minority three amendments with a 60-vote threshold; No. 4, institutes a talking filibuster; and, No. 5, shortens postcloture debate on nominations, both executive and judicial, from 30 hours to 2 hours.

I would ask my colleagues to support the resolution. I yield back.

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

Mr. President, I ask unanimous consent that the Ad Hoc Subcommittee on Disaster Recovery of the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on January 27, 2011, at 1:30 p.m., to conduct a hearing entitled, ``Gulf Coast Recovery: An Examination of Claims Administration and Social Services in the Aftermath of the Deepwater Horizon Oil Spill.''

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on January 27, 2011, at 9:30 a.m.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on January 27, 2011, at 2:15 p.m., to hold a European Affairs subcommittee hearing entitled, ``Crackdown in Belarus: Responding to the Lukashenko Regime.''

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet during the session of the Senate, to conduct a hearing entitled ``The Affordable Care Act: The Impact of Health Insurance Reform on Health Care Consumers'' on January 27, 2011, at 10 a.m.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate, on January 27, 2011, at 11 a.m., in SD-226 of the Dirksen Senate Office Building, to conduct an executive business meeting.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on January 27, 2011, at 2:15 p.m., to hold a European Affairs subcommittee hearing entitled, ``Crackdown in Belarus: Responding to the Lukashenko Regime.''

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet, during the session of the Senate, to conduct a hearing entitled ``The Affordable Care Act: The Impact of Health Insurance Reform on Health Care Consumers'' on January 27, 2011, at 10 a.m.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate, on January 27, 2011, at 11 a.m., in SD-226 of the Dirksen Senate Office Building, to conduct an executive business meeting.

Mr. President, I ask unanimous consent that Tim Woodbury on my staff be granted floor privileges for today's debate.

Madam President, I ask unanimous consent Tim Woodbury, my law clerk, be granted the privilege of the floor for the duration of this debate.

Madam President, first of all at the beginning, let me thank two of my colleagues who have worked incredibly hard with me on the issue of Senate rules reform--Senator Merkley from Oregon and Senator Tom Harkin from Iowa. Senator Harkin will be joining us at some point.

I also wish to thank the Chair. One of the very early leaders on the constitutional option on Senate reform of the rules was Senator Jeanne Shaheen from New Hampshire. She is in the chair today. I know she cares about this a lot. I know she wants to see this move forward.

What we are trying to do is follow what has been the history in the Senate. At various points in the Senate, there has been respect for each other, the ability to get legislation on the floor, to have debate. With the rules, it is pretty extraordinary when we look at the history.

When we look at the history of the Senate rules, one of the things that is very clear in the movements in the fifties, sixties, and seventies to consider rules reform, both leaders would allow proposals onto the floor, allow these proposals onto the floor to be voted upon.

We have the extraordinary situation today--extraordinary, and we will see when our colleagues show up--where our friends on the other side of the aisle are basically saying: We don't want your rules reform on the floor today. We are not going to allow that to happen.

As everybody in the Senate knows, we have to have unanimous consent to do this. We are not going to get consent today, but we want to lay out for people what it is that could happen if we were able to get something on the floor.

It is my belief, I say to Senator Merkley, that the proposals we make--the proposal Senator Merkley and I are on and the Presiding Officer, Senator Shaheen, and 26 other Senators are on, S. Res. 10, that we filed on January 10, is a reasonable proposal; it is a commonsense proposal. The five proposals that are contained in the resolution have had substantial bipartisan support in the past.

I am going to be asking unanimous consent to put S. Res. 10 onto the floor so we can have a debate on it, so we can move forward. What is, as I said, extraordinary is we are not going to get that consent. Our research indicates--and I know Senator Merkley and his staff worked very hard. They had a chart that was three pages long. In the fifties, sixties, and seventies, these proposals were on the floor. They were debated on the floor. Sometimes there was a motion to table, sometimes there was an up-or-down vote. But we are having great difficulty getting this reasonable, commonsense proposal on the floor.

Let me talk a little bit about S. Res. 10, which 26 other Senators cosponsored on the first day. First of all, it deals with a serious problem. There are five parts to this issue. The first one is debate on motions to proceed. It may

sound a little crazy to people out there, but when we try to get something onto the floor, it does not happen automatically. Actually, what has to happen is if both sides do not agree, the majority leader files what is called a motion to proceed. We can end up on the motion to proceed, going along for 1 week, have to file cloture, which means to cut off debate on the motion to proceed, and then with all the ripening time it takes about 1 week to get through that. We can get to the end of the week, and if we do not get the 60 votes to cut off debate on the motion to proceed, we are back to square one and have wasted a week. That is what we believe is a dilatory tactic. It does not let us get to the point, the people's business.

Senator Merkley hit it on the head. That is a problem, and we have had that consistently in the 2 years that he and I have been here. My understanding is, it happened in many of the years before that time. In fact, Senator Byrd was very upset about the way the motion to proceed was being used. In 1979, he came down to the floor--he was the majority leader--and he did everything he could to change the motion to proceed and try to make sure it was used more rationally and more reasonably.

What our proposal is, I say to Senator Merkley, and other Senators on this resolution know, we are talking 2 hours of debate on the motion to proceed. Rather than wasting a week, if Majority Leader Reid comes down and says we are going to proceed to legislation about jobs and he puts it on the floor, the side over there gets an hour and our side gets an hour and then we are on the legislation, ready to have amendments filed, ready for debate to take place.

We have saved us what we believe would be 1 week of time. That is dealing with the first proposal on the motion to proceed.

The second proposal is very simple, but it is going to move the Senate along in a dramatic way; that is, section 2, eliminating secret holds. I know we have several Senators who have worked for years and years on secret holds. When I talk about the bipartisanship on secret holds, Senator Grassley, Senator Wyden, from Senator Merkley's great State of Oregon, Senator Claire McCaskill of Missouri more recently, have all been working on the issue of secret holds.

We very simply do this in one little section. We say:

No Senator may object on behalf of another Senator without

disclosing the name of that Senator.

That gets right to the heart of secret holds.

One of the things that happens--and we have seen a lot of this--we know some Senator is objecting, for example, to a nomination, a high nomination in an executive department and does it secretly so we do not know on the Senate floor, the press who covers this does not have an idea, and the people do not know. Then, the same Senator goes to the department and negotiates policy, national policy about a particular issue that concerns the whole Nation, all our States, and tries to get an agreement, a backroom deal and an agreement. That is not the way we should be doing business, and that is why this very simple proposal: ``No Senator may object on behalf of another Senator without disclosing the name of the Senator.''

You own the hold.

Then it is transparent, then if you as a Senator on the Klamath Basin want to do something, you can go to that Senator--whoever it is--and say: I have an issue with my State. Can we work together to try to work it out?

Right now the problem we have is that some Senator is putting on a secret hold and we do not know who it is and we do not have the ability to clear that away. This is a good, solid proposal.

I am going to move on to the third section of S. Res. 10, which is the right to offer amendments. As Senator Merkley knows very well and our Presiding Officer, one of the big issues around here--and this is getting into a little bit of the weeds, but one of the big issues that can help us function better is if we just agree, whether we are in the majority or in the minority, that we want both sides to have the opportunity to debate and to offer amendments. And so we are trying to protect that right. Many of us are thinking in terms of these rulings, and we are saying we want them to be fair to both sides. So the provision on the right to offer amendments is in the legislation. It talks about them being majority and minority amendments. It doesn't talk about parties because a lot of the pundits are saying we are going to be in the minority in 2 years, and I think it is only fair in the Senate that we have that kind of relationship.

Senator Merkley.

The fourth provision--and I think the Senator is very right on section 3, but section 4 is the issue of extended debate, and I would like to have the Senator talk about that issue because that is the issue on which you worked the most closely.

The Senator from Oregon has raised the issue of what we have going on right now is what we call a silent debate. It is a silent filibuster. We have people who say they want to filibuster and object, but then they go home or they go on vacation or something like that. So my colleague has drafted a

provision--he is the architect of this provision in S. Res. 10, if he could just go through that and talk about that section on extended debate, what it does and why it is important to what we are dealing with today.

Let me also say one thing about the talking filibuster that hit me, and that is bipartisanship. As we know, both of us, I think, were on the Senate floor when Senator Arlen Specter gave his farewell address. I believe the Presiding Officer was also here. Senator Specter served in the minority for 2 years and then was in the majority for almost 2 years and both times he came forward with a proposal where he was calling for the same thing--a talking filibuster, whether he was on the minority side or the majority side.

So I think, once again, that just demonstrates that each of these provisions has bipartisan support in it.

We don't think this debate is about partisanship. We don't think it is about a power grab. We don't think it is about those kinds of things. It is about, as the Senator has elucidated, making the Senate work better. When we say ``make the Senate work better,'' we are talking about it working better for the American people.

I think if we did the oversight of government when it comes to appropriations bills, a budget, getting the budget out on time, getting appropriations bills done on time, that does a lot to make sure the public's money is well spent, and that is something I hear a lot about back home.

I will ask unanimous consent to have printed in the Record a Republican Policy Committee paper titled ``The Constitutional Option: The Senate's Power To Make Procedural Rules by Majority Vote,'' dated April 25, 2005.

We keep hearing that any use of the constitutional option is simply a power grab by Democrats. That is simply not true--and a 2005 Republican Policy Committee memo provides some excellent points to rebut the power grab argument.

Let me read part of the 2005 Republican memo and I will ask that the entire memo be printed in the Record:

This constitutional option is well grounded in the U.S.

Constitution and in Senate history.

The Senate has always had, and repeatedly has exercised,

the constitutional power to change the Senate's procedures

through a majority vote. Majority Leader Robert C. Byrd used

the constitutional option in 1977, 1979, 1980, and 1987 to

establish precedents changing Senate procedures during the

middle of a Congress. And the Senate several times has

changed its Standing Rules after the constitutional option

had been threatened, beginning with the adoption of the first

cloture rule in 1917. Simply put, the constitutional option

itself is a longstanding feature of Senate practice.

The Senate, therefore, has long accepted the legitimacy of

the constitutional option. Through precedent, the option has

been exercised and Senate procedures have been changed. At

other times it has been merely threatened, and Senators

negotiated textual rules changes through the regular order.

But regardless of the outcome, the constitutional option has

played an ongoing and important role.

The memo goes on to address some ``Common Misunderstandings of the Constitutional Option.'' Let me read some of those.

Again, this is a direct quote:

Senate procedures are sacrosanct and cannot be changed by

the constitutional option. This misunderstanding does not

square with history. As discussed, the constitutional option

has been used multiple times to change the Senate's practices

through the creation of new precedents. Also, the Senate has

changed its Standing Rules several times under the threat of

the constitutional option.

The next misunderstanding addressed in the memo is that ``Exercising the constitutional option will destroy the filibuster for legislation.''

The Republican rebuttal is:

The history of the use of the constitutional option

suggests that this concern is grossly overstated. Senators

will only exercise the constitutional option when they are

willing to live with the rule that is created, regardless of

which party controls the body.

And a final misunderstanding in the memo, and one which the Republicans are happy to use now, is that ``the essential character of the Senate will be destroyed if the constitutional option is exercised.''

The memo rebuts this by stating:

When Majority Leader Byrd repeatedly exercised the

constitutional option to correct abuses of Senate rules and

precedents, those illustrative exercises of the option did

little to upset the basic character of the Senate. Indeed,

many observers argue that the Senate minority is stronger

today in a body that still allows for extensive debate, full

consideration, and careful deliberation of all matters with

which it is presented.

I ask unanimous consent that the memo be printed in the Record.

I think this shows this isn't about a power grab; this is about trying to work to make sure the Senate is going to work better for the American people.

The fifth provision of S. Res. 10--and as Senator Merkley knows, we are down here today to try to get S. Res. 10, rules changes, onto the Senate floor, and so we are going to be asking unanimous consent for that. But the fifth provision is called postcloture debate on nominations.

Now, what are we talking about? Well, when we have a nomination that comes to the floor--a judicial nomination, an executive nomination--in the rule nominations have 30 hours of postcloture debate. So when you decide to cut off debate, when you get to the point that you say we are going to cut off debate, that 30 hours is normally used for amendments and to work through the amendment process.

Well, when you have a nomination, you are not amending a nomination. You are trying to either move forward with an up-or-down vote on the nomination--the person is either voted up or down. It makes no sense to have 30 hours. So the other commonsense proposal we have is to shorten that postcloture time to 2 hours, from 30 hours, because there is no reason to amend in that phase.

I know Senator Merkley is also familiar with this provision.

That is correct. So what we are doing today--and I know Senator Merkley has introduced a freestanding proposal on the talking filibuster, and we have joined together; I have also signed on to that--we have S. Res. 10, filed on January 5, which has the five solid provisions for reforming the rules. I think if you look at these in history, they have had broad bipartisan support.

I would at this point recognize our colleague in this rules debate, our partner and hard worker and more senior in experience on these rules matters, who has joined us--Senator Tom Harkin from Iowa. We are in a colloquy situation, so I will yield.

You bet.

Mr. President, I know the Presiding Officer has also been a part of this rules reform effort. We very much appreciate that.

It was mentioned here about Senator Byrd. I think one of the most interesting stories about Senator Byrd, I say to Senator Harkin and Senator Merkley, in 1979 when he came to the floor, he was talking about--and we have used this quote many times--the dead hand of the past, not being ruled by the dead hand of the past.

What was he talking about? He was talking about the idea that one Senate could establish a set of rules and bind future Senates. He gave a passionate speech. We are in the situation that he talked about right now. He said, now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.

Take rule XXXII, which is a different numbered rule today. But, for example, the second paragraph thereof says that: The rules of this Senate shall continue from Congress to Congress until changed in accordance with these rules.

That rule was written in 1959, by the 86th Congress. The 96th Congress is not bound by the dead hand of the 86th Congress. The first Senate--now he talks a little bit about history here, which is very important. The first Senate, which met in 1789, approved 19 rules by a majority vote. First Senate.

Those rules have been changed from time to time, and that portion of the Senate rule XXXII I quoted was instituted in 1959. The members of the Senate who met in 1789 and approved that first body of rules did not for one moment think or believe or pretend that all succeeding Senates would be bound by that Senate. The Senate of the 86th Congress could not pretend to believe that all future Senates would be bound by the rules it had written. It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by a two-thirds vote.

Any member of this body knows that the next--any member of the body knows that the next Congress would not heed that law and would proceed to change it and would vote to repeal it by a majority vote, no doubt about it.

So he says: I am not going to argue the case any further today except to say that it is my belief, which has been supported by rulings of three Vice Presidents of both parties and by votes of the Senate, in essence upholding this power and the right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress.

That is the essence of where we are right today--that we are able, if we have a majority, to move forward with adopting our rules that are going to function for this session of Congress. That is why we are in such a battle here to try to get those proposals onto the floor. We want to get S. Res. 10. We want to get the talking filibuster proposal. We want to get those put onto the floor so we can have debate, we can have votes. And our understanding is there is going to be objection from the other side.

As Senator Harkin said earlier, we function here by unanimous consent, and they apparently are not going to give us that consent. I know that Senator Harkin--changing the subject a little bit here--but both Senators Harkin and Merkley mentioned earlier the whole issue of why we want the Senate to function better, that we have pressing national problems and challenges.

I think one of the Senators who said it best made a comment back in 1971. This is Senator Hart, Senator Phil Hart of Michigan. It still resonates decades later.

The apparent inability of the Senate to take action on our

domestic ills, when the needs are so painfully clear, is a

basic cause of unrest and disaffection among the citizenry.

The imperative of change is obligatory if institutions such

as the Senate are to have the capacity to respond well to the

complex array of overlapping domestic and international

issues.

Long ago Thomas Jefferson said: As new discoveries are made and new truths discovered and manner and opinions change with the change of circumstances, institutions must advance also and keep pace with the times. Institutions must advance also and keep pace with the times.

That is why we are here. We have rules that were adopted long ago that are not working today. You and I have talked several times about, if you want your government to spend money wisely, you want it to be efficient, why do we not give them a budget until half way through the fiscal year? It makes absolutely no sense.

That is the situation we are in right now. We hold hearings, we bring the agency in, we think we are going to have an appropriations bill on the floor--by the way, this year we did not have--but last year we did not have a single appropriations bill on the floor. So they think they are going to get one budget. Then when we pass the fiscal year, last October 1, we start the fiscal year, we start into it, we have done a couple of continuing resolutions. A continuing resolution just gives them month-by-month funding. The next continuing resolution does not expire until March. So who would tell any agency, nonprofit government agency, that we are going to give you a budget but we are not going to quite tell you what it is, and maybe go month to

month, and then about halfway through the year we are going to give you the rest of the budget.

That is not the way to take care of the people's money. It is not the way to be efficient. It is not the way to make sure the people's money is very well spent. I think it is important that we do that work, the work of appropriations bills.

Of the Senators who are on the floor right now, Senator Harkin is an appropriator. When you bring an appropriations bill to the floor and have all 100 Senators take a look at the appropriations bill, take a look at what is working in that department and what is not, and how we move down the road with that particular set of policy initiatives and programs, that is something the agency pays tremendous attention to, those amendments that are put in, the arguments that are made. And we are neglecting all of that now.

Last year we did not do a single appropriations bill. In my understanding, the House--and I know we were very frustrated when I was over in the House. We would say: Well, why are we even passing the appropriations bills? The Senate does not do them. We are going to end up, at the end of the year, doing one of these continuing resolutions or an omnibus bill.

For the first time in I do not know how long, last year the House gave up doing appropriations bills. So here, one of our core functions as a legislative body, what we all call the power of the purse, tremendously important, that power of the purse has been emasculated, it has been warped beyond recognition to the point where I think we are dysfunctional, the agencies are dysfunctional, and we have got to get it all back.

I know the chairman of the Judiciary Committee has outlined a number of times--and I find it appalling that we do not have the judicial people in place to do the job for the country. Right now the Federal courts are looking at fraud on Wall Street. They are looking at all sorts of major cases that have to do with financial reform and insider trading and all of those kinds of things.

Guess what. If you do not have judges to hear those cases, then all of that justice is going to be delayed. There is an old saying in the law: Justice delayed is justice denied. Today we have 94 judicial vacancies. The Judicial Conference of the United States has weighed in with the Senate and the House and said: These are judicial emergencies. Of 94 vacancies, 44 of them they consider emergencies. They need somebody in there immediately. Yet, still, because of this constant filibuster we are in--it is a filibuster without real debate--it wastes a lot of time, it prevents our ability to put those judicial nominations on the floor and to get an up-or-down vote.

The same thing is true of the executive branch.

I know Senator Merkley saw the article in the Washington Post which was at the end of the first year of the Obama Presidency. He only had 55 percent of his team in place of the top people in the agencies to run the government. And it is not all our fault. I think they were slow in sending some things up, but it is a pretty appalling number when you think of the job of a President to put his people in place in the agencies so his policies can be carried out. What has happened is that has been delayed and slowed down.

I harken back when I was a youngster here in Washington growing up. I was about 12 years old when my father became Secretary of the Interior. Here you have only half of the people in place in the Federal Government. I remember my dad, as Secretary of the Interior, telling me when I would travel home: Tom, I have my whole team in place, virtually whole team in place in 2 weeks.

So he had his top people. He was ready to carry out policy, ready to move forward with the President's policies at the Department of Interior. I remember, we had holes, we had a variety of things going in the Department of Interior.

We had a very talented woman from New Mexico who was going to become the Solicitor, who had moved her young family to Washington. They had a 3-month hold on her nomination. Nobody could ever figure out why. But she was finally allowed to become the Solicitor of the Interior Department.

With all of these kinds of things, from holds to the constant filibuster without any real debate, have slowed down the government in a significant way and prevented us from doing the important oversight job we need to do.

I know the Senator from Oregon has other comments he would like to make.

Mr. President, I am also waiting. Senator Merkley is waiting to put in his unanimous consent request on the talking filibuster proposal which goes to the heart of the problem we have today. One of the things I have learned the last 2 years in the Senate is that when 41 Senators vote for more debate, that is basically what is happening. When Senators vote for more debate, 41 of them, then we don't get more debate. A lot of times we are in quorum calls. A lot of times if we have a live quorum, we pull 51 Senators over to the floor to try to get through that, there are a series of dilatory motions, and it is very difficult in the modern Senate to keep 51 Senators here surrounding the floor. In the old days, they used to pull out cots and stay through the night so that Senators would be able to sleep someplace to keep that live quorum going. But in the modern Senate, with everything going on, it is a tremendously unfair advantage for one side to have one Senator and the other side have to have 51 in order to try to conduct any business. That is the situation we are in today. That is what the talking filibuster goes to. It goes to dealing with that situation.

How does it deal with it? If 41 Senators request more debate, if they say to the other 59 Senators they want more debate, we very simply say, just as Senator Alexander said, quoting Jimmy Stewart in ``The Right to Talk Your Head Off'' from ``Mr. Smith Goes To Washington,'' then come down and debate. We are going to have a debate period where nothing else is brought up but debate. The job of the Chair, as the Presiding Officer knows, will be in that period to ask the question: Are there any other Senators on the floor who wish to debate?

At that particular point, the American people could look down and be able to make an observation: Is this debate educating the public? Is it moving things forward, or is it just a filibuster to waste time?

One of the old-time Senators from California made a comment about the filibuster wasting time. This is from Senate Republican whip Tom Kuchel of California. He asked the question on the floor: What is a filibuster? My definition would be that it is irrelevant speech making in the Senate designed solely and simply to consume time and thus to prevent a vote from being taken on pending legislation.

He is pretty condemning of that kind of filibuster. But that is a judgment. We don't want to take people's right to debate away. We just want to make sure there is an honest, fair debate on the floor. That is what I compliment Senator Merkley on. He has drafted a proposal, worked long and hard on it. What it ends up doing is, at the end of the debate, when 41 Senators call for debate, we go into a period of extended debate. They talk and they talk. At some point, when the Chair asks: Are any other Senators on the floor who wish to debate, and there is silence, they are then rolled over into what is called postcloture 30 hours.

Mr. President, that is the essence of it. What we have now is Senators leaving. We actually had the case where a Senator wanted the cloture vote to take place but then left and went home. That is a pretty disgraceful situation. I have heard that our good friend, Senator Alexander, is going to join us in a little bit. I know the Senator from Oregon was quoting from a speech he recently gave at the Heritage Foundation on January 4, 2011.

One of the things Senator Alexander said in there that I think we, all three of us, have echoed--Senator Harkin, Senator Merkley, and myself--is:

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

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

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

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

Senator to offer virtually any amendment at any time.

I say to Senator Harkin, I know he has spoken passionately about the idea of offering amendments, how our democracy has deteriorated in the Senate because it takes now 60 votes--every amendment. I say to the Senator, it did not always used to be like that, did it? I would ask the Senator, did it? The Senator has been here a while. What was the Senate like 10, 15 years ago? Could you get an amendment through with a majority vote?

Of course.

I say to Senator Harkin, one of the things that happened to us right at the end of the Congress was when we had a vote on a piece of legislation called the DREAM Act. I believe the majority had 55 votes for the DREAM Act.

Here is a piece of legislation where we were talking about inmigrant children--through no fault of their own; they were probably brought in as tiny babies--who have grown up in the United States and have reached the age of adulthood and they have a ceiling on them. They cannot go to college. They do not have Social Security numbers. So we were basically trying to give them a dream they could go out and be Americans. They could join the military, and after they did their military service get in line for citizenship. They could go to college, and if they did well, get in line for citizenship.

In any other country, if you had the two legislative bodies--the House passed it by a majority; we passed it by a big majority, 55 votes--you would have a law. The President would be signing it, and it would be law today.

That is what has happened to this filibuster rule. A lot of the steps we are taking do not necessarily get right to the heart of that, but I think the people understand that part of it. When I have gone home, people say: What happened? What is going on? Fifty-five Senators voted for the DREAM Act and it did not become law.

Senator Harkin.

I thank the Senator.

We see our good friend, Senator Alexander from Tennessee, has arrived, and we very much appreciate that.

I say to Senator Alexander, one of the things we have been discussing--and Senator Merkley had a chart and had the history of what had happened as far as rules debates. There have been a lot of rules debates--in the 1950s, 1960s, 1970s, and always--always--the two leaders would allow a rules proposal to be on the Senate floor and be debated and be disposed of.

We now have a situation today where we cannot get our rules proposals onto the floor. Senator Merkley is here with a talking filibuster proposal. I say to the Senator, I believe he has been talking with you. I say to Senator Alexander, you have been very open with us in saying: Let's have discussions. And your theme has really been, like you say in your speech at the Heritage Foundation:

[T]he Senate needs to change its behavior, not to change

its rules.

That has been the Senator's function. But the Senator is also working on rules changes with Senator Schumer, and we very much appreciate that.

But I know Senator Harkin has a proposal. Senator Merkley has a proposal. I have S. Res. 10. I say to the Senator, he was here on the first day of the Senate session on January 5 when we put in, with my two friends, S. Res. 10. We are just trying to get it to the floor, and that is what I am going to ask right now, with my unanimous consent request. We very much appreciate the Senator being here.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 10, a resolution to improve the debate and consideration of legislative matters and nominations in the Senate; that there be 6 hours for debate equally divided and controlled between the two leaders or their designees, with no amendments in order; and that upon the use or yielding back of time, the Senate proceed to vote on adoption of the resolution.

Madam President, in addition to his UC, we have myself for 15 minutes, Senator Merkley for 15 minutes, and I believe Senator Wyden has asked for 30, and then to accommodate the Republicans, our UC would say if there is a Republican seeking recognition that we alternate between the two sides and they be under the same time limitations as listed above. So Senator Alexander can see I would speak for 15, and then he would have a block for 15, and then Senator Merkley, and then it would be 30 for Senator Wyden.

I very much agree with that. I have been sitting here following the debate, and I think Senator Alexander, among others, has propounded some very good questions. I actually have another question I was going to ask on top of his question of what is a filibuster. So I am looking forward to that portion of it. Senator Harkin, thank you very much for that.

Madam President, I submit on behalf of myself and Senators Harkin, Merkley, Durbin, Klobuchar, Brown, Begich, Blumenthal, Gillibrand, Shaheen, Boxer, Tester, Cardin, Mikulski, Warner, and Manchin a resolution to amend rule VIII and rule XXII of the Standing Rules of the Senate, and I ask unanimous consent to proceed to the immediate consideration of the resolution.

Madam President, let me just inquire through the Parliamentarian, it is my understanding that by objecting to this resolution being immediately considered now, the result is the resolution will go over under the rule, allowing it to be available to be brought up at a future time. Is that understanding correct?

Thank you very much.

Madam President, I rise today to introduce the resolution I just mentioned. I have worked very hard with all of my colleagues, including my two colleagues from Iowa and Oregon, Senators Harkin and Merkley, to reform the rules of this unique and prestigious body. I do so after coming to the floor last January--January 25, in fact, now almost 1 year ago--to issue a warning, a warning because of partisan rancor and the Senate's own incapacitating rules, that this body was failing to represent the best interests of the American people. The unprecedented abuse of the filibuster, of secret holds, and of other procedural tactics routinely prevent the Senate from getting its work done. It prevents us from doing the job the American people sent us here to do.

Since that day in January things haven't gotten better. In fact, I would

say they have gotten worse--much worse. Here in the Senate open and honest debate has been replaced with secret backroom deals and partisan gridlock. Up-or-down votes on important issues have been unreasonably delayed and blocked entirely at the whim of a single Senator. Last year, for example, one committee had almost every piece of legislation held up by holds from one Senator.

The Senate is broken. In the Congress that just ended, because of rampant and growing obstruction, not a single appropriations bill was passed. There wasn't a budget bill. Only one authorization bill was approved, and that was only done at the very last minute. More than 400 bills on a variety of important issues were sent over from the House. Not a single one was acted upon. Key judicial nominations and executive appointments continue to languish.

The American people are fed up with it. They are fed up with us, and I don't blame them. We need to bring the workings of the Senate out of the shadows and restore its accountability. That begins with addressing our own dysfunction, specifically the source of that dysfunction--the Senate rules.

Last year the Senate Rules Committee took a hard look at how our rules have become so abused and how this Chamber no longer functions as our Founders intended. I applaud Chairman Schumer and his excellent staff for devoting so much time to this important issue. I thank Senator Alexander and Senator Roberts. We have some very good Republican colleagues on the committee, and we have had some good exchanges. They know we had six hearings and heard from some of the most respected experts in the field.

But these hearings demonstrated that the rules are not broken for one party, or for only the majority. Today the Democrats lament the abuse of the filibuster and the Republicans complain they are not allowed to offer amendments to legislation. Five years ago, those roles were reversed. Rather than continue on this destructive path, we should adopt rules that allow a majority to act while protecting the minority's right to be heard. Whichever party is in the majority, they must be able to do the people's business.

I think that is what Senator Harkin spoke so persuasively to in his comments on the filibuster--that the majority has to be able to govern. The way the filibuster is being used the minority thwarts the majority's ability to govern.

At a hearing in September, I testified before the committee about my procedural plan for amending the Senate's rules--the constitutional option. Unlike the specific changes to the rules proposed by other Senators and experts, my proposal is to make the Senate of each Congress accountable for all of our rules. This is what the Constitution provides for, and it is what our Founders intended.

Rule XXII is the most obvious example of the need for reform. Last amended in 1975, rule XXII demonstrates what happens when the Members of the current Senate have no ability to amend the rules adopted long ago--rules that get abused.

I have said this before, but it bears repeating. Of the 100 Members of the Senate, only two of us have had the opportunity to vote on the cloture requirement in rule XXII--Senators Inouye and Leahy.

So if 98 of us haven't voted on the rule, what is the effect? Well, the effect is that we are not held accountable when the rule gets abused, and with a requirement of 67 votes for any rules change that is a whole lot of power without restraint.

But we can change this. We can restore accountability to the Senate. Many of my colleagues, as well as constitutional scholars, agree with me that a simple majority of the Senate can end debate--that is the first step--and adopt its rules at the beginning of a new Congress.

Critics of my position argue that the rules can only be changed in accordance with the current rules, and that rule XXII requires two- thirds of Senators present and voting to agree to end debate on a change to the Senate rules.

Since this rule was first adopted in 1917, members of both parties have rejected this argument on many occasions.

In fact, advisory rulings by Vice Presidents Nixon, Humphrey, and Rockefeller, sitting as President of the Senate, have stated that a Senate, at the beginning of a Congress, is not bound by the cloture requirement imposed by a previous Senate. They went on to say that each new Senate may end debate on a proposal to adopt or amend the standing rules by a majority vote. That bears repeating--by a majority vote-- cloture and amendment, majority vote.

Even in today's more partisan environment I hope my colleagues will extend to us the same courtesy, and our constitutional rights will be protected as we continue to debate the various rules reform proposals at the beginning of this Congress.

In 2005, Senator Hatch--someone who understands constitutional issues perhaps better than any other Member of this Chamber--wrote the following:

The compelling conclusion is that, before the Senate

readopts Rule XXII by acquiescence, a simple majority can

invoke cloture and adopt a rules change. This is the basis

for Vice President Nixon's advisory opinion in 1957. As he

outlined, the Senate's right to determine its procedural

rules derives from the Constitution itself and, therefore,

``cannot be restricted or limited by rules adopted by a

majority of the Senate in a previous Congress.'' So it is

clear that the Senate, at the beginning of a new Congress,

can invoke cloture and amend its rules by a simple majority.

That was Senator Hatch's quote. As Senator Alexander and Senator Corker know, he was for many years chairman of the Judiciary Committee, and I think that is a very powerful quote.

This is the basis for introducing our resolution today, just as reformers have done at the beginning of Congresses in the 1950s, 1960s, and 1970s, and it is why I am here on the floor on the first day--to make clear I am not acquiescing to the rule XXII adopted by the Senate over 35 years ago. That Senate tried to tie the hands of all future Senates by leaving the requirement in rule XXII for two-thirds of the Senate to vote to end a filibuster on a rules change. But this is not what our Founders intended.

Article I, section 5 of the Constitution clearly states that ``each House may determine the Rules of its Proceedings.'' There is no requirement for a supermajority to adopt our rules, and the Constitution makes it very clear when a supermajority is required to act. Therefore, any rule that prevents a majority in future Senates from being able to change or amend rules adopted in the past is unconstitutional.

The fact that we are bound by a supermajority requirement that was first established 93 years ago also violates the common law principle that one legislature cannot bind its successors.

This principle goes back hundreds of years and has been upheld by the Supreme Court on numerous occasions. This is not a radical concept. The constitutional option has a history dating back to 1917, and it has been a catalyst for bipartisan rules reform several times since then. The constitutional option is our chance to fix rules that are being abused--rules that have encouraged obstruction like none ever seen before in this Chamber.

Amending our rules will not, as some have contended, make the Senate no different than the House. While many conservatives claim that the Democrats are trying to abolish the filibuster, our resolution maintains the rule but addresses its abuse. But, more importantly, the filibuster was never part of the original Senate. The Founders made this body distinct from the House in many ways, but the filibuster is not one of them.

So here we are today on the first day of a new Congress offering a resolution to reform the Senate's rules. We don't intend to force a vote today; in fact, we hope that we can return from the break and spend some time on the floor debating our resolution, considering amendments to make it better, and debating other resolutions. This should not be a partisan exercise. I think almost every one of us who have spoken today have said that. We know both sides have abused the rules, and now it is time for us to work together to fix them.

But we believe the Senate of the 112th Congress has two paths from which to choose. There is the first path: We do nothing and just hope the spirit of bipartisanship and deliberation returns--the truth is we have been

on this path for a while now, and I think the results are pretty clear--or we can take a second path: We can take a good, hard look at our rules, how they incentivize obstructionism, how they inhibit rather than promote debate, and how they prevent bipartisan cooperation, and then we should implement commonsense reforms to meet these challenges, reforms that will restore the uniquely deliberative nature of this body, while also allowing it to function more efficiently.

I contend that we not only should but have a duty to choose the second path. We owe it to the American people and to the future of this institution we all serve.

The reform resolution we introduce today is our attempt at the second path. It contains five reforms that should garner broad, bipartisan support--if we can act for the good of the country and not the good of our parties.

The first two provisions in our resolution address the debate on motions to proceed and secret holds. These are not new issues. Making the motion to proceed nondebatable or limiting debate on such a motion has had bipartisan support for decades and is often mentioned as a way to end the abuse of holds.

I was privileged to be here for Senator Byrd's final Rules Committee hearing, where he stated:

I have proposed a variety of improvements to Senate rules

to achieve a more sensible balance, allowing the majority to

function while still protecting minority rights. For example,

I have supported eliminating debate on the motion to proceed

to a matter . . . or limiting debate to a reasonable time on

such motions.

In January, 1979, Senator Byrd--then-majority leader--took to the Senate floor and said unlimited debate on a motion to proceed ``makes the majority leader and the majority party the subject of the minority, subject to the control and the will of the minority.''

Despite the moderate change that Senator Byrd proposed--limiting debate on a motion to proceed to 30 minutes--it did not have the necessary 67 votes to overcome a filibuster.

At the time, Senator Byrd argued that a new Senate should not be bound by that rule, stating:

The Constitution, in Article I, Section 5, says that each

House shall determine the rules of its proceedings. Now we

are at the beginning of Congress. This Congress is not

obliged to be bound by the dead hand of the past.

Madam President, I ask unanimous consent for another 2 minutes--also recognizing the Republican side has speakers-- to wrap up.

Madam President, efforts to reform the motion to proceed have continued since. In 1984, a bipartisan Study Group on Senate Practices and Procedures recommended placing a 2-hour limit on debate of a motion to proceed. That recommendation was ignored.

In 1993, Congress convened the Joint Committee on the Organization of Congress. That was a bipartisan, bicameral attempt to look at Congress and determine how it can be a better institution. My predecessor, Senator Domenici, was the co-vice chairman of that committee. He was a long-time Republican here, and he supported that.

The third provision in the resolution is included based on the comments of Republicans at last year's Rules Committee hearings. Each time Democrats complained about filibusters on motions to proceed, Republicans responded that it was their only recourse because the majority leader fills the amendment tree and prevents them from offering amendments. Our resolution provides a simple solution, guaranteeing the minority the right to offer amendments.

The fourth provision in the resolution, which Senator Merkley will cover extensively, is regarding the talking filibuster. We want to replace a silent filibuster with a talking filibuster.

Finally, our resolution reduces postcloture time on nominations from 30 hours to 1. Postcloture time is meant for debating and voting on amendments--something that is not possible on nominations.

Instead, the minority now requires the Senate use this time simply to prevent it from moving on to other business.

These reforms will not, as some have contended, make the Senate the same as the House. We understand, and respect, the Framers intent in structuring the Senate to be a uniquely deliberative body. Minority rights are a critical piece to its unique operations. Which is exactly why they remain protected in our reform resolution.

But the current rules have done away with any deliberation and we have instead become a uniquely dysfunctional body.

Our resolution will make actual debate a more common occurrence. It would bring our legislative process into the light, and hopefully, it would help restore the Senate's role as the ``world's greatest deliberative body.''

With that, I will sum up and say that reform is badly needed. We have a responsibility to the Constitution and to the American people to come together and fix the Senate. We were sent to Washington to tackle the Nation's problems. But we find that the biggest problem to tackle is Washington itself.

With that, I ask unanimous consent that an editorial on the filibuster that appeared in the Washington Post, and an op-ed piece in the New York Times by Walter Mondale be printed in the Record.

I know my colleague, Amy Klobuchar, is here. Senator Mondale was a distinguished former Vice President and leader in the Senate, and he wrote the very passionate piece in the New York Times that I have just had printed in the Record.

I yield the floor.

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

Mr. President, with the process we are in right now--and we have had questions back and forth on this whole issue of Senate rules reform--I want to respond to Senator Alexander because Senator Alexander raised some questions, and some of those questions were not answered on our side. So I want to put in a couple responses here.

Senator Alexander asked the question: What is a filibuster? He was asking our side. He was asking in this debate, what is a filibuster? Well, all of us know and we have heard in this debate what a true filibuster is. We saw a hero here on our side in terms of a true filibuster when it came to Bernie Sanders just a week or so ago, where he stood up for 8 hours to oppose a tax package on principle. He took the floor and he spoke and spoke passionately.

I say to Senator Harkin, another example of a true filibuster is from a movie the American public knows the best, a Jimmy Stewart movie, ``Mr. Smith Goes to Washington.'' Senator Merkley earlier had some charts on that, and he showed Mr. Smith on the floor, surrounded by other Senators, where he spoke until he collapsed.

Then you have the old-time tales of the Southern Democrats when civil rights legislation was being pushed in the 1950s and 1960s, when a number of what you would say were Northern Senators were pushing an anti-lynching law because lynching was going on in the South. So they were trying to say you cannot do that, and Southern Senators would stand up--I think sometimes the record was in the range of 20 hours or 25 hours where they were completely exhausted from speaking on the floor.

So that is what the American public thinks about a filibuster.

Well, we know that is not what is happening here. I have been here for 2 years, and the only real filibuster I saw was the Bernie Sanders filibuster. I asked one of the historians, I think: When was the last one? And they said: Well, you would go back to 1992 and Alfonse D'Amato, where he took 12 hours to talk about an issue in New York that he was passionate about.

So when Senator Alexander asked us, What is a filibuster, that is my description of what a filibuster is.

But what I think the real question is--and I would like Senator Alexander, when he returns, to answer this--is, What impact has the threat of a filibuster had? What impact has the threat of a filibuster had? So people are probably asking: What are we talking about when we say ``the threat of a filibuster''? Well, actually we have been talking about it all day.

First of all, it is the secret holds. As our Presiding Officer, who sits on the Judiciary Committee, knows, they work very hard in the Judiciary Committee. They produce a bipartisan result on these judicial nominations. These judicial nominations come out. They are put on the calendar. Then months and months and months later some of them get up for a vote.

I do not know about the exact number, but my understanding is that we had to send back to the President a number of judicial nominations that had received bipartisan support from the committee. We finished our business in December, and we sent those nominations back, only to have to have the President send them back down again because it is a new Congress. We are going to have to have hearings all over. This is the kind of situation we are in. So that is one specific case of the threat of a filibuster. And we have these all the time.

One of the ones that is the most remarkable to me--and I am not going to pick out the Senator or the exact committee--but a number of us, as Senators, saw a stack of bills, a stack of legislation that had come out, on a bipartisan basis, from one of our committees that was very thick, and it was legislation from 2 years--2 years--of that committee legislating in a bipartisan way, and those Democrats and Republicans working together and doing the hard work, and one Senator--one Senator--held up all of that legislation this last Congress, held it up completely.

That is the threat of a filibuster. You may say: Well, how did that happen? What happens is, the legislation comes out of committee, and a Senator--whom we do not even know; a lot of us suspect after various things that have happened over time, but the Senator comes down and says, in a secret way to his leader: Well, if you bring any of those bills to the floor, I am going to filibuster.

That is what the threat of a filibuster is. But that is an agreement that none of us knows about. So the threat of a filibuster has had an enormous impact on this institution.

Let me describe a couple of other things.

I talked about judicial nominations. As to executive nominations, I come from the era when my father was Secretary of the Interior. I was a kid. I remember when he went into office. In visiting with him about that later, I said: We can't get executive people in place. They don't have their team. He said: Tom, I had my whole team in place the first 2 weeks. So you are talking about the whole team for the Department of the Interior in the first 2 weeks.

I remember the Washington Post did an extensive study of the first year of the Obama administration. So imagine: President Obama takes office. He goes through a year, and he only had 55 percent of his executive nominations in place. So he only had 55 percent of his team.

Those of us who believe in government, believe that government does good things out there, find that appalling because we believe if you put people in place, they will be responsive to citizens on the particular issues of those departments. So that is very important, I believe, getting executive nominations in place. So that is what the threat of a filibuster ends up doing.

I see my colleague from Mississippi, and I do not know whether he is going to step in for Mr. Alexander and ask questions. We are in this questioning back and forth period. Senator Harkin may want to say something on the question issue here too. What impact has the threat of a filibuster had?

We can hear the argument--Senator Alexander has made this a number of times--look at all the great things you accomplished in the lameduck and look at all the great things you feel you accomplished in terms of health care, the stimulus package, and financial reform. But the reality is, in order to accomplish those in the constant filibuster we were in, we have basically destroyed our institution. As some of the more senior Senators here have told me, the Senate is kind of a shadow of itself.

What I do mean: ``We have destroyed the institution''? Well, it used to be that our big oversight function was to look over the money bills for the government, the appropriations bills. Guess what. Last year we did not do a single appropriations bill on the floor of the Senate. You do not have to go back very far when we used to bring all 12 of those bills to the floor, and we would have 2 or 3 days of lively debate. Every Senator could put in amendments.

Senator Harkin knows because he is one of the cardinals, he is the chairman of one of these committees. It is a very helpful process, one for the agency to know that all Senators are overlooking that agency, and for a person in Senator Harkin's position, as the chair of the committee, to know what the concern of the entire body is. But we have given that up. We do not do that anymore, and it is because of the constant filibuster and the threat of filibuster. So you have that situation.

I would think my friend from Mississippi, the Senator from Mississippi,

would be very concerned about this one: We did not do a budget last year. The one way we can impact--if you talk about fiscal responsibility, and you talk about keeping the government under control, and guiding it in the right direction, the one thing you want to do is a budget. You want to pass a budget and set some outlines there.

Well, we did not do a budget last year because we were in a constant filibuster, the threat of a filibuster. And the story goes on and on.

So I say to Senator Harkin, we are in the question phase right now. I am going to yield the floor. I am sure there is time still on the other side. But I think the question is not, as Senator Alexander raised it, What is a filibuster? The real question out there--for when Senator Alexander returns--is, What impact has the threat of a filibuster had on this institution we love of the Senate?

I yield the floor.

The Senator from Iowa makes an excellent point. I was here for his talk earlier, where the Senator led with the filibuster and laid it out and Senator Alexander came back and asked these questions. I think the key question is the one the Senator just asked, which is: What has a filibuster become? The Senator seemed to be defending the old-fashioned filibuster that no longer exists. That is the situation we have.

Some of our friends on the other side--I hear them talk about this-- are saying this is the filibuster of the past; it is a very pure thing and a wonderful thing. But it has been distorted, manipulated. The filibuster has been twisted in a way that it does exactly what the Senator is talking about--slowing everything down. It is an attempt, in a way, to defeat the majority from governing.

I think the Senator cited the Federalist Papers. One of the biggest dangers in a democracy is if you give the power to the minority to shut down the ability of the majority to govern. If you do that, you have rendered your democracy useless because then you get yourself into a situation, as the Senator from Iowa knows, where they can prevent the majority from doing anything and then run in a campaign and say: Well, they didn't do anything, which is kind of a hypocritical way to approach legislating.

One of the things that is remarkable to me--and I served over in the House of Representatives for 10 years and I know we don't have to take up every House bill the way it is written and we don't have to respond to every bill, but when you hear the fact that 400 House of Representatives bills in 2 years--the last session of Congress--were sent over here and we ended up--the younger Members of the Senate were interested in some of these bills. We looked into them. We found out that these were on veterans issues and many were good bills. We found out they had to do with small business, and they were good bills. We found out they had to do with building the economy and economic growth and those kinds of things and that they were good bills. But we didn't have the time to act upon them because the way the filibuster is being utilized is to defeat our ability to move forward.

The one other area I wish to mention--and I know this is something that concerns our friends on the other side--if you are talking about making government responsible, fiscally responsible, doing oversight over government--and they say they are going to do all this oversight in the House--one of the best ways to do oversight is in an authorization bill. As everybody knows, we have an authorization process, and we have an appropriations process. Well, apparently now, with the studies being done at the Center for American Research--and Senator Harkin would know this more than others because he serves on the Appropriations Committee--a major part of our appropriations are unauthorized now. I think the figure I saw was close to 40 percent. So that means if these are unauthorized appropriations, it means the side of our Senate and the side of our Congress that deals with authorization, that is an oversight. You go in there in the authorization process and look at an agency and you say: How is this program functioning? Is this program effective, a good program, something that is working?

If the answers come back and you have evidence it is not working, you write in the authorization we are getting rid of that. If you don't do any authorizations at all and the authorization doesn't come to the Senate floor and all Senators don't have an opportunity to participate, then you are giving up that kind of essential oversight. I would think they would be for that. Guess how many authorizations we did last year. How many? We did one. We did it at the very last minute as we went out of town, and that was the Defense Department authorization. That was held up with a filibuster because it had don't ask, don't tell in the bill.

So here we are at war--we have two wars going on. As Chairman Levin said, a lot of the things in that bill were to help the military do a better job and help the fighters on the ground in these two wars and we weren't able to get them done at the start of the fiscal year and move forward. So we were able to get it done before we left. I was happy about that. How about intelligence and the huge agencies that run the health care programs and all those? We have not done that oversight.

To the Senator's question what has the filibuster become, it has become something pretty horrible in the history of the Senate. If we don't fix this, we are going to be in a bad way. The way to fix it is the constitutional option. That is the wonderful thing about where we are today.

Today, we are in the first legislative day of the beginning of the 112th Congress. What everybody has told us on that first legislative day is that we can have all these rules proposals. The Senator from Iowa has one and Senator Merkley and myself have one and Senator Wyden. Guess what. If we round up 51 Senators--and they don't have to be only Democrats--who say, No. 1, here are rules changes we want to make with 51 Senators, we can cut off debate on those changes and 51 Senators--a majority--can vote those rules in, and we can fix the situation we have all been talking about here.

I think the Senator's question is the right one. The filibuster has become a procedural morass.

The Senator from Iowa and my good friend, the Senator from Oregon, want to speak. The Senator mentioned--and I want to put this quote in the Record--the Senator from Texas, Mr. Cornyn, who came to the floor and talked today. One of the reasons I have a real belief that we might have some common ground is he was a judge before he came to the Senate. I think he was on the supreme court in the State of Texas. On this issue of the constitutional option, he wrote a law review article in the Harvard Journal of Law and Public Policy. The name of the article was ``Our Broken Judicial Confirmation Process and the Need for Filibuster Reform.''

Listen to this. This is Senator John Cornyn of Texas:

Just as one Congress cannot enact a law that a subsequent

Congress could not amend by majority vote, one Senate cannot

enact a rule that a subsequent Senate could not amend by

majority vote. Such power, after all, would violate the

general common law principle that one parliament cannot bind

another.

He is basically driving home the point that we have the authority today, on the first day of the 112th Congress, the first legislative day, to pull together and take a hard look at the rules. The Senator from Iowa raised a very important issue on consensus. I am going to pass this off to Senator Merkley in this colloquy and let him answer that point. Maybe he may have another question.

I wish our friends on the other side of the aisle were here for this discussion. Senator Alexander was here earlier. We had Senator Wicker. But nobody is here to answer the questions we are putting that way, but we are answering the ones this way.

Mr. President, let me first say to our majority whip, Mr. Durbin of Illinois, that I very much appreciate his long-term effort in looking at rules. I know he signed on to several proposals today. I know he is on the one Senator Merkley and I are on, and he is also on the Harkin proposal.

The Senator was here back in those days, and he has seen how much the Senate has changed. So we really appreciate the Senator's contribution to this effort and the remarkable job he has done trying to lead us in these difficult times we are in. It must be tough for somebody like him, who came to a Senate and saw it change over time, and change in the wrong way and get hyperpartisan. I want to say that to the Senator.

I also want to say several of our speakers mentioned things, and I think it is very appropriate to put them in the Record because I think when people read the Congressional Record, and things are mentioned, it is important they be able to find them quickly.

So the first one is from George Packer, who is a writer with the New Yorker magazine. He wrote a piece called ``The Empty Chamber'' dated August 9, 2010. I commend to my colleagues that article. It was mentioned in the course of the debate and it is an excellent article. He is a very good writer.

Secondly, one of the big scholars on Congress--there are a couple of people out there who study Congress over and over and write books and articles and monitor what we are doing, and one of them is a gentleman by the name of Norm Ornstein. Norm wrote--this was also mentioned in the course of the debate by one of the Senators--and Norm wrote a piece in the New York Times called ``A Filibuster Fix.'' That was on August 27, 2010. I ask unanimous consent that article be printed in the Record.

Let me finally say to the Senator from Oregon, the Presiding Officer, that I very much appreciate his support both in working with me on the constitutional option and sorting out the details and making sure we have things right and also for his incredible work in terms of pulling together the talking filibuster part of this. I was here today when he showed his charts, and he took our five ideas and, in the most simple form so the American people could understand it, capsulized those in those five charts.

I have been telling my staff--and you need to do this by the end of the debate--we need to find a way to shrink those and put those in the Record also because here we are sitting on the floor and we have these charts and we need to somehow have those be a representation also.

So with that, I yield the floor.

Mr. President, I yield my hour of postcloture time to Senator Kerry.

Mr. President, I rise today to echo the call of the Senators and Presidents who have furthered the cause of peace. I rise to continue this body's longstanding work to reduce the threat that nuclear weapons still pose to our Nation and world.

Much has changed since the groundbreaking arms treaties of the 1990s. The cold war has ended, and with its end the balance of power changed greatly. But the threat of nuclear war has not entirely gone away.

Over the last decade, we have seen the U.S. attacked on 9-11. And we learned about al-Qaida's ambition to acquire a weapon of mass destruction.

One mishap or one intentional attack is all that is needed to throw our entire global society into a tailspin.

Thanks to the work done through Nunn-Lugar, the U.S. has been involved in efforts since the end of the cold war to prevent nuclear materials from falling into the wrong hands.

But today, with our resources spread thin due to two wars overseas and the threat from failed states and unstable regimes in possession of nuclear weapons the risk of nuclear proliferation has steadily increased.

That is why the goal articulated by President Kennedy, built upon by President Reagan, and further advanced by President Obama is more important than ever. Moving toward a world with zero nuclear weapons is a move toward a safer and more peaceful future.

Through committed negotiations on the New START treaty, the U.S. and Russia have renewed their commitments to this important goal. Passing New START would be another momentous step toward that more peaceful world.

But, as we have all seen in recent days, and over the course of the year since the U.S. and Russia reached this historic agreement, some in this Chamber are playing partisan politics with an issue that has the potential to impact every person in America and across the world.

This political posturing is short-sighted at best. And it is dangerous at worst. The threat of nuclear weapons is not a partisan issue. It is an American issue. And, more importantly, a human issue.

When START One was ratified in 1991, it was ratified not with just a simple majority but with 93 Members of the Senate voting in favor of the legislation.

Similarly, START Two, ratified in 1993, had the support of 87 Members of the Senate.

The New START treaty deserves similar support from this body. Obstruction of this treaty does not strengthen our country. It reduces our security. And arguments to the contrary go against decades of bipartisan work to reduce the threat of nuclear annihilation.

Those opposed to ratification say this treaty will diminish our national security. They argue that we cannot rely on a smaller nuclear arsenal to effectively deter an opponent.

These concerns have been overhyped and hyperpoliticized. And they fall flat in light of the scientific evidence provided by our scientists and engineers at the National Labs.

Along with Senator Bingaman, I helped lead a visit to New Mexico's National Labs while the Senate Foreign Relations Committee was debating ratification. The scientists and engineers at the Labs briefed the delegation, which also included Senators Kyl, Corker, Risch, and Thune, on issues pertinent to this debate.

After participating in these briefings, I am confident of two things. One, that the United States can assure our allies

that our nuclear arsenal remains an effective deterrent. And two, that our scientists and engineers will be able to verify that Russia is abiding by its end of the bargain.

New Mexico will be at the forefront of verification measures because the Los Alamos and Sandia National Labs have the requisite professional expertise to aid the monitoring of Russian forces.

I have been continually amazed by the work of our National Labs in New Mexico. The Los Alamos and Sandia National Labs, and the hardworking men and women who serve there, are truly a treasure of the Nation.

Unfortunately, some on the other side of the aisle have derided the labs as ``decrepit and dangerous.'' This poorly imagined and strikingly inaccurate description couldn't be further from the truth.

Los Alamos National Labs Director Michael Anastasio, Sandia National Labs Director Paul Hommert, and Lawrence Livermore Director George Miller, have been unequivocal in their testimony to the Senate Armed Services Committee and the Senate Foreign Relations Committee.

They all agree that our labs are prepared to maintain our nuclear stockpile, and they are ready to lend their scientific expertise to the overall mission of verification and reduction.

To quote Director Anastasio's Senate testimony:

I do not see New START fundamentally changing the role of

the Laboratory. What New START does do, however, is emphasize

the importance of the Laboratories' mission and the need for

a healthy and vibrant science, technology and engineering

base to be able to continue to assure the stockpile into the

future:

Sandia National Labs also plays a major role in stockpile stewardship, life extension, and stockpile surveillance.

Director Hommert's testimony makes clear that Sandia understands the challenges involved under New START but that it is ready to undertake those challenges. He said:

As a whole package, the documents describing the future of

U.S. nuclear policy represent a well founded, achievable path

forward.

I believe that it is no small coincidence that the progression toward a world without nuclear weapons will require the continued, diligent work of those who first created and then secured our arsenals.

The safety, security, and reliability of our available nuclear weapons will become increasingly important to our country as we reduce our stockpile.

For New Mexico, President Obama's strategy will mean an expanded role for our National Labs in managing our Nation's nuclear deterrent.

For our country, President Obama's strategy means that we are one step closer to closing the curtain of the cold war's legacy of nuclear arms races.

For the world, it means we will be taking a step forward toward greater cooperation and peace, and one step back from catastrophe.

Fewer weapons mean fewer opportunities for mistakes or losses of warheads. Fewer weapons also mean fewer opportunities for unstable regimes such as North Korea, Iran, or Myanmar, or individuals with malicious intentions to acquire or build a nuclear weapon.

The two nations with the largest stockpile of nuclear weapons have a duty to remain vigilant in protecting the rest of the world from the unthinkable. By ratifying this treaty, the Senate is upholding its duty to protect our Nation and to protect our shared planet.

President Kennedy said the following during his 1962 State of the Union Address:

World order will be secured only when the whole world has

laid down these weapons which seem to offer us present

security but threaten the future survival of the human race.

By ratifying this treaty, we move a step closer toward realizing this legacy and continuing a longstanding policy goal of our country--the goal of creating a more peaceful and secure world.

Let us continue our work together by ratifying this treaty and sending a message to the world that the United States of America will continue making significant steps towards peace.

Mr. President, in July I introduced S. Res. 581, a resolution honoring the educational and scientific significance of Dr. Jane Goodall on the 50th anniversary of the beginning of her work in what is today Gombe Stream National Park in Tanzania. I would like to urge my colleagues to support this resolution, which also has a companion bill that was passed with unanimous support in the House of Representatives on July 28 of this year; and I would like to have printed in the Record the article printed in the October 2010 edition of National Geographic. The article, entitled ``Fifty Years at Gombe,'' describes Dr. Goodall's lifetime of dedication and contribution to our understanding of chimpanzees and the natural world, as well as her unique and heroic personality. As described in the article, Dr. Goodall ``made three observations that rattled the comfortable wisdoms of physical anthropology: meat eating by chimps--that had been presumed vegetarian--tool use by chimps--in the form of plant stems probed into termite mounds--and toolmaking--stripping leaves from stems--supposedly a unique trait of human premeditation. Each of those discoveries further narrowed the perceived gap of intelligence and culture between Homo sapiens and Pan troglodytes.''

As a leading researcher, conservationist, and humanitarian, Dr. Goodall has made remarkable contributions to our understanding of the species with whom we live. She has led by example in efforts to ensure that these species continue to thrive and to ensure that surrounding communities are also able to thrive.

Mr. President, I ask unanimous consent to have printed in the Record the article to which I referred.

Madam President, I ask unanimous consent to speak for approximately 20 minutes.

Madam President, I ask unanimous consent that our whip, Senator Durbin, be given permission to speak after I finish.

Madam President, I wish to echo the comments of Senator Leahy on Ambassador Holbrooke. My sense was, Ambassador Holbrooke was a remarkable diplomat and public servant. I got to see him both when he was in his public position and a private position. He was always dedicated to peace in the world. I remember reading his book, ``To End a War,'' which was about the Balkans, and sharing it with my father and my father having discussions with him on the phone. He said: This diplomat, Richard Holbrooke, is a remarkable guy.

If you read that book, it is a classic about bringing peace to a very difficult situation. I express my heartfelt condolences to his wife Kati Marton and his two children, David and Anthony Holbrooke. I tell the family we will miss him very much on the international scene.

Madam President, I rise to discuss the Presidential review that is taking place on the war in Afghanistan.

We are approaching another signpost in the conflict that has kept our military men and women in harm's way longer than any other in our history--109 months and counting. That is longer than the wars in Vietnam or Iraq. It is even longer than the Soviet occupation of Afghanistan in the 1980s.

The signpost I wish to speak of is one President Obama posted when he ordered the troop increase in Afghanistan last December.

In his orders, he also called for a review of our war strategy to be conducted 1 year later. That review was to include:

The security situation and other conditions, including

improvement in Afghan governance, development of Afghan

National Security Forces, Pakistani actions and international

support.

That review is due this month.

I commend our President for his foresight in calling for this review. But in recent months, I have read troubling statements from administration and military leaders. These statements lead me to believe this review is seen as nothing more than a check in the box.

In a Washington Post article, an Under Secretary of Defense said as much when he stated that the review will not go into much more detail than what is already provided to the President during his monthly status updates.

General Petraeus was also quoted in the same article as saying: ``I would not want to overplay the significance of this review.''

I think this approach to this review would be another tragic mistake in what I fear is an ongoing series of them.

After 9 years and $455 billion, the unfortunate reality is, we are still not anywhere near where we want to be or should be in Afghanistan. Anything less than a thorough and unflinching review is unacceptable. It is unacceptable to me, and it is unacceptable to the American people.

A famed military author, Carl von Clausewitz, wrote a book titled ``On War,'' which is required reading for any military professional. In that book, he wrote:

The first, the supreme, the most far-reaching act of

judgment that the statesman and commander have to make is to

establish . . . the kind of war on which they are embarking;

neither mistaking it for, nor trying to turn it into,

something that is alien to its nature. This is the first of

all strategic questions and the most comprehensive.

Today, our struggles in Afghanistan necessitate that we again follow von Clausewitz's advice. We must answer the big questions about the kind of war we set out to fight and the kind of war we are fighting.

Everyone knows the big question when it comes to Afghanistan. That is why it is the big question: Is our prolonged involvement in Afghanistan worth the costs we as a nation are paying for it? Is it worth the human cost? Thousands of Americans have been maimed or killed in this war so far, and thousands more stand in harm's way as we speak. Is it worth the fiscal cost? Our wars in the last decade have left us with huge deficits. And for the last decade, wars in both Afghanistan and Iraq went unpaid for. Instead of rallying the Nation during a time of war, asking for sacrifices from everyone, Congress and two Presidents chose to pass this massive debt on to future generations--the first time we have done so in modern times.

The real issue is not what we are spending to protect our Nation but whether that spending is making us safer, which leads to the question: Is our continued involvement in Afghanistan worth the cost to our larger national security priorities? Our commitment in Afghanistan is pulling time, energy, and funds from other equally important national security priorities, priorities such as energy independence, counterproliferation, and countering terrorist activities in Yemen, Somalia, and many other places around the world.

That is why this review is so critical. We have to decide as a Nation if our prolonged involvement in Afghanistan is worth it, and we must decide on an exit strategy. We have a responsibility to answer that big question with a thoroughness and honesty that honors the sacrifices of our military men and women.

I believe we answer that question by using this signpost--by using this review--to address four key issues that will ultimately mean the difference between our success and our failure in Afghanistan. To me, those four issues are: our timeline for an exit strategy, an accelerated transition to an Afghan-led security operation, corruption in the Karzai government, and safe havens in Pakistan.

Let me take them one at a time. First, our timeline for an exit strategy. This review should provide an honest assessment of where we are in the timeline that President Obama laid out last year. In his speech at West Point last December, President Obama rightly dropped the open-ended guarantee of U.S. and NATO involvement. Here is what he said:

The absence of a time frame for transition would deny us

any sense of urgency in working with the Afghan government.

It must be clear that Afghans will have to take

responsibility for their security and that America has no

interest in fighting an endless war in Afghanistan.

His order last year for the military mission was clear and included a timeline based on a ``accelerated transition.'' In that order--quoting from the order--he focused on:

Increasing the size of the ANSF and leveraging the potential for local security forces so we can transition responsibly for security to the Afghan government on a time line that will permit us to begin to decrease our troop presence by July 2011.

July 2011. That is a little more than 6 months from now. The American people deserve to know if July 2011 is still a realistic timeframe to begin our exit from Afghanistan; and, if not, what has happened to cause a delay and how long will that delay be? What will be the additional costs, both human and budgetary?

The bottom line is this: Without an aggressive timeline for reducing U.S. military support in the region--a timeline that the Afghans believe is rock solid--there is no incentive for them to defend their villages and cities. With the U.S. and NATO as guarantors of security, the people of Afghanistan could rely on our forces to provide security indefinitely.

Chairman Levin, our Armed Services chairman here in the Senate, has given careful thought to the issue of a timeline. In a recent speech to the Council on Foreign Relations, he said:

Open-ended commitments encourage drift and permit inaction.

Firm time lines demand attention and force action.

Without an aggressive timeline, there is no exit strategy.

Issue No. 2, and directly related to No. 1, the accelerated transition to the Afghan people. This must be an Afghan-led security effort. This month's report should update the American people on our progress or lack thereof in turning over security duties to the Afghan National Army, the Afghan National Security Forces, and the Afghan National Police.

The famed British officer T. E. Lawrence, known to many as Lawrence of Arabia, once said, with regard to the Arab insurgency against the Ottoman Empire:

Do not try to do too much with your own hands. Better the

Arabs do it tolerably than they do it perfectly. It is their

war, and you are there to help them.

This quote is also mentioned in the Army Field Manual on counterinsurgency. In Afghanistan, I believe the same approach can be applied.

The Afghan security forces are not doing their job perfectly, nor should we expect the Afghan forces to match the might of the U.S. military. But to echo T. E. Lawrence, they are beginning to do it tolerably, and I believe it is better that the Afghans continue to build on their new success.

Combined, an aggressive timeline and an accelerated transition to the Afghans will help us achieve two equally important goals: first, the timely handover of security helps prove to the international community that the American people do not have imperial ambitions in Afghanistan. As President Obama said at West Point:

We have no interest in occupying your country.

And second, a timely handover allows the United States and its allies to bring our heroes home, and it allows us

to begin the important work of reducing our deficits, investing in our Nation and our people so we can remain strong and build a more prosperous Nation.

This brings me to issue No. 3: Corruption in the Karzai government. There is no doubt our Armed Forces have the ability to conduct the difficult counterinsurgency work of clearing and holding. The question is whether the Afghan Government has the ability to build their nation and to be ready for a timely transition. That is why in his order to the military President Obama was clear when he said:

Given the profound problems of legitimacy and effectiveness

with the Karzai government, we must focus on what is

realistic. Our plan for the way forward in dealing with the

Karzai government has four elements: Working with the Karzai

government when we can, working around him when we must;

enhancing sub-national governance; strengthening corruption

reduction efforts; and implementing a post-election compact.

There is no doubt that corruption is rampant throughout Afghanistan and, in particular, within the Karzai administration. For years, independent daily press reports from Afghanistan, as well as official U.S. Government reports, confirm corruption at all levels of Afghan society. A recent leak of diplomatic cables reveals the severity of the problem.

First, let me stress I do not condone these recent leaks. They have needlessly put our military and diplomatic corps at risk. But these documents pull back the curtain on the scale of the corruption in Afghanistan.

One example in particular illustrated the tremendous difficulty we face in our search for an honest, reliable partner. That was the account in the New York Times of former Afghanistan Vice President Ahmed Zia Massoud. Massoud was detained after he brought $52 million in unexplained cash into the United Arab Emirates. He was allowed to keep the $52 million.

Let me say that again: $52 million. That is a lot of money, especially when you consider that his government salary was a few hundred dollars a month.

Not only is corruption rampant in Afghanistan--with the reports of Karzai's own brother involved in double dealing and unscrupulous actions--but basic government functions are suffering because of Karzai's inability to manage his own government.

In Kandahar, our military has made this former Taliban stronghold a much more secure city. But despite that progress, the Washington Post has reported multiple vacancies in key government positions. As an unnamed U.S. official stated:

We are acting as donor and government. That is not

sustainable.

We cannot be expected to indefinitely shoulder the security or governmental burdens in Afghanistan. Having a firm timeline will put President Karzai on notice that he must step up his efforts to make this an Afghan-led effort. Our goal must be to transition responsibility and authority for the future of Afghanistan to the Afghan people, and this month's review should include a report to the American people on our progress and how he is making that happen.

This brings me to the fourth and final issue: safe havens in Pakistan. For years, safe havens have been permitted to exist in Pakistan for insurgent and terrorist forces, enabling them to operate freely. This has been one of the worst kept secrets in the region, which is why President Obama stated during his West Point speech:

We will act with the full recognition that our success in

Afghanistan is inextricably linked to our partnership with

Afghanistan. We are in Afghanistan to prevent a cancer from

once again spreading through that country. But this same

cancer has also taken root in the border region of Pakistan.

That is why we need a strategy that works on both sides of

the border.

Since 2001, the United States has sent more than $10.4 billion to Pakistan to support humanitarian and security operations. Despite these expenditures, radical militant groups such as the Quetta Shura Taliban and the Haqqani Network have continued to leverage their freedom of movement to kill, maim and disrupt our efforts and those of our NATO allies.

These insurgent activities are nearly textbook--something that the Army Field Manual on counterinsurgency describes in detail as having occurred throughout the history of insurgent warfare.

The issue of sanctuaries thus cannot be ignored during

planning. Effective COIN operations work to eliminate all

sanctuaries.

With such military advice in mind, I must ask: How do we expect to defeat an insurgency that is being supported by elements of the Pakistani military and intelligence service on the other side of the Khyber Pass?

After 9 years, why are we tolerating these safe havens? Mullah Omar, the leader of the Taliban insurgents, is in exile in Pakistan. His followers regroup and rest in Pakistan only to cross the border and fight our troops once again. Insurgent fighters have increased their attacks by 53 percent over the last quarter. And when both ISAF and U.S. forces are unable to infiltrate their base of operation, how can we expect to maintain an adequate level of security for the future?

President Obama's order specifically spelled out assessment criteria for Pakistan. The assessment was intended to include the following question:

Are there indicators we have begun to shift Pakistan's

strategic calculus and eventually end their active and

passive support for extremists?

Thus far, Pakistan's ``strategic calculus'' has been overly focused on India and toward turning a blind eye to radical groups in Waziristan and other regions near the Afghan border.

Furthermore, the current position of the Pakistani Government has only led to a host of crazed conspiracy theories about the United States and its involvement in the region, giving fuel to the recruitment efforts of our enemies.

Because of double-dealing by some in Pakistan and a Pakistani Government that has not fully supported our efforts, we are sending our men and women to fight in Afghanistan without a true partner. We are asking them to fight with one hand tied behind their back.

These challenges I discussed are not a secret. Each and every one of them has been debated, discussed, dissected, and yet the answers remain elusive. We invaded Afghanistan as a justifiable military response to the tragic attacks of September 11, 2001. This response was overwhelmingly supported by Congress--including myself, the public, and the international community. But I believe today, after 109 months of fighting, after more than 1,400 American military deaths in Operation Enduring Freedom, almost 10,000 American military men and women injured, after $455 billion and counting expended, a good, hard, realistic assessment of our mission is needed.

If our plan to succeed in Afghanistan is not yielding the results we seek, then we must also reevaluate our plan and mission. Make no mistake, I am proud of our brave men and women in uniform and what they are doing there. I am equally proud of our diplomatic workers, aid workers, and civilians who are working hard to improve the livelihoods of Afghan people.

I had an opportunity to meet many of them earlier this year on a CODEL led by my colleague Senator Carper of Delaware. These are some of the finest men and women our Nation has to offer to the Afghan people. But it is not their job that is in question--it is ours, the Congress, the President, his administration, the military leadership. It is up to us to find the answers, to ensure we have a clear, achievable mission for our soldiers to carry out.

Today I am not sure that is the case. I am looking forward to hearing the conclusions of the review the President called for 1 year ago. I also look forward to hearing the President reaffirm his July 2011 deadline for an accelerated transition to the Afghans.

We all must be prepared to ask the hard questions and demand honest answers, regardless of the political consequences. Our military men and women deserve no less.

I yield the floor.