Wednesday, January 5, 2011

The Senate is broken. During the course of my first 2 years in this body, there have been only a couple serious debates in this chamber. The first one happened just a couple weeks ago, and that was an impeachment trial of a judge. The magic began because the cameras were turned off. Senators were not speaking to the camera; they were speaking to each other. Second, they were required to be on the floor, so they were required to listen to each other.

After all the evidence had been presented, Senators started to engage back and forth about their interpretations of the evidence, about the standards that would constitute grounds for conviction. One would not have been able to tell who was a Republican or who was a Democrat. We had a real debate, but it took 2 years to have that first debate. Then we had a debate over the START treaty. That was a pretty good debate too. That also happened just a couple weeks ago.

For the balance of 2 years, there has virtually never been a serious debate on this floor with Senators hearing each other out, listening to each other, considering the pros and cons, addressing each other’s amendments.

That is a tremendously different Senate from the Senate I first witnessed when I came here as a young man, as an intern for Senator Hatfield in 1976. I was up in the staff section. I would come down to meet Senator Hatfield on a particular tax reform bill that had a series of amendments. I would brief him on the amendment that was being debated. He would come in, talk it over with folks, and vote. An hour later, there would be another vote, and an hour later, another vote, with debate in between, back and forth, with enormous respect and courtesy among the members to the principle of the Senate being a body of deliberation — a body of debate. But today, that respect is gone. The most visible sign of the decrease in the mutual accord has been the abuse of the filibuster.

“Filibuster” is a common term we use for a decision to oppose the termination of debate and oppose voting with a straight majority as envisioned in the Constitution. That starts from a principle of mutual respect, that is, as long as any individual has an opinion that bears on the issue at hand, that Senator should be able to express that opinion and we as a body should be able to hear it. Out of that would come a better policymaking process. Unfortunately, over time, that mutual respect has been yielded more and more as an instrument of obstruction because each time a Senator objects to a simple majority vote, under the rules they create a 1-week delay and a supermajority hurdle. If one objects 50 times a year, they have wiped out every single week of the year.

This chart gives some indication of how grossly the principle of mutual respect and debate has been corrupted and abused.

From 1900 through 1970, there was an average of a single use of the filibuster each year — an average of 1 per year over that 70-year period. In the 1970s, that climbed to an average of 16 per year; in the 1980s, an average of 21 per year; in the 1990s, an average of 36 per year; between 2000 and 2010, this last decade, 48 per year; and in the last 2 years I have served in the Senate, 68 per year — an average of 68 per year or roughly 135, 136 in that 2-year period. If each one of these absorbs 1 week of the Senate’s time, one can see how this has been used to essentially run out the clock and obstruct the very dialog on which the Senate would like to pride itself.

There is a statement about the Senate: the world’s greatest deliberative body. But today in the modern Senate, that incredible tribute to this Chamber has been turned into an exclamation of despair. Where did that deliberative body go — not only not the greatest deliberative body but virtually devoid of deliberation due to this abuse. We went from mutual respect to essentially mutual legislative destruction using this filibuster.

In 2010, this last year past, not a single appropriations bill passed. We have a huge backlog of nominations. Our role of advice and consent has been turned into obstruct and delay in terms of nominations for the executive branch and the judiciary. We have a constitutional responsibility to express our opinion, but this body, by using the filibuster, has prevented Senators from advising and consenting, either approving or disapproving these nominations. It certainly is terrible to have our responsibilities as a legislature damaged, but not only have we done that, we have proceeded to damage the executive branch and the legislative branch — quite an intrusion on the balance of powers envisioned in our Constitution. Then we have the hundreds of House bills that are collecting dust on the floor because they cannot get to this chamber because of this abuse.

All of this needs to change. When I first came here in the 1970s, when there was a challenge in 1975, there was a huge debate, and it resulted in changing the level required to overcome the filibuster from 67 Senators to 60 Senators. Yet in 1973 and 1974, the 2 years that preceded, there was only an average of 22 filibusters a year, not 68. We have more than tripled the dysfunction that led to the last rules debate.

That is why we are here today — to find a path forward. There are so many who have been so instrumental in this debate. So many members of the class of 2006, 2008, and now members of 2010 are engaged in this effort. My hat goes off to Senator Schumer for leading the hearings in the Rules Committee and trying to find that balance between every Senator’s right to be heard and our collective responsibility for the majority to legislate.

Senator Udall has done this enormous investigation of the constitutional process for amending the rules and so many others.

The first key part in the package of reforms a number of us, 16, I believe, now have cosponsored this resolution — is the talking filibuster. The talking filibuster reform is essentially to make the filibuster what all Americans believe it is; that is, if you believe so strongly that this Chamber is headed in a direction that is misguided, you should be willing to come and take this floor and make your case to the American people.

Let’s take a look at our image of that. Here we are: Jimmy Stewart playing the role of Jefferson Smith, who comes to this chamber where I now stand and says: I will take this floor to oppose the abuses that otherwise might go forward, and he held that floor until he collapsed.

That is what the American people believe a filibuster is all about. You want to make your case before the American people. But today we don’t have a talking filibuster in the Senate. We have the silent filibuster.

Let’s take a look at what that looks like. This is the way it works: A Senator takes their phone — maybe an old or modern phone — they call the cloakroom, and they say: I object to a majority vote, and then they go off to dinner. They do not take the floor with principle and conviction to say to the American people: Here is why I am delaying the Senate. Here is why I am going to hold this floor. This is not a situation we can allow to go forward and I am going to stand here and make my case and, American citizens, please join me and help me convince the other Senators in this room. That is the talking filibuster. But now we have the silent filibuster.

My good colleague from Tennessee spoke earlier, and he said: I would like to have the talk-your-head-off proposal. I am glad to hear him back the talking filibuster –the Jimmy Stewart filibuster. That is what this reform does. It says, when folks object to concluding debate, it is because they have something to say, and so we are going to require they come to the floor and say it. It is that simple. When nobody has anything left to say, then we will proceed with a majority vote. We don’t change the number of Senators required one bit. It is still 60, which completely honors that principle established in 1975.

The second main proposal is the right to amend. A number of our colleagues on both sides of the aisle have been very concerned about the fact that issues come to this floor and you can only amend if you get unanimous consent to put an amendment forward, and that only works, largely, if there is a deal that has been worked out between the majority and the minority leaders. Some of my colleagues across the aisle say they are offended by their inability to amend.

I can assure my colleagues across the aisle that I am equally offended. I wanted desperately to be able to offer amendments to President Obama’s tax package that came through here because I think we could have improved it, and I think we should have seen amendments from the other side. This is an issue of concern from both sides. This proposal addresses that and says there will be a guaranteed set of amendments that the minority leader can pick from among the minority members and a guaranteed set of amendments the majority leader can pick from among the majority members, but we get the process of amendments going.

If they want to have unanimous consent to increase that number to a higher level, get more for the minority or the majority side, that would be terrific, but at least they can’t say no amendments. No leader can block the principle that each side has the opportunity to amend.

The third point is on nominations. Right now, we have this huge backlog. This resolution makes a modest change in nominations. It says the period following cloture will be reduced from 30 hours to 2 hours. We have already had the debate over the individual, let’s have the vote. That is what that says. This means Senators will be less tempted to use the filibuster on nominations as an instrument to delay and obstruct the Senate. It is not a completely pure reform but a step forward in the right direction.

Our fourth is the ban on secret holds. Senator Grassley has spoken to this, and Senator Wyden will speak to it. Senator McCaskill has joined with them and others, and I believe at one time point there were as many as 70 Senators expressing in a letter their support to get rid of the secret hold. Anyone who wants to hold up legislation should have to stand on this floor and present their objection to this chamber, to their colleagues, and to the American people.

 When folks have to take a position on this floor, whether it be through the talking filibuster or through publicly announced holds, then the American public can weigh in. Then you are taking the business out of the back rooms and onto the floor of this chamber and American citizens can say: You are a hero for your actions or you are a bum for what you are doing.

The fifth point is a clear path to debate. Right now, a lot of times we suffer through just getting to debate; that is, getting onto a bill to begin with or proceeding to a bill. There is probably no better example of the abuse of the filibuster –which was supposed to be mutual respect for debate–being used to prevent debate. So under this proposal, there would be 2 hours of debate over whether to proceed to a bill and then we would vote. We would either go to the bill or we would not. If Senators then want to filibuster on the bill, they can do it, but it would be a talking filibuster, where we are not in the back rooms, we are out here making our case.

These five concepts are not radical concepts. They are modest steps toward saying that in this incredibly partisan environment we now operate in, where so many press outlets are attacking on each side all the time and so on and so forth, we have to set ourselves on the path to taking ourselves out of that hyper-partisan atmosphere and start to restore the Senate as a place of dialog and debate.

Perhaps these are modest steps but modest steps in the right direction, and that is an extremely important way to go. So I call on my colleagues on both sides of the aisle — colleagues who have said there should be amendments, colleagues who have spoken in favor, on both sides of the aisle, of the Jimmy Stewart model of holding this floor and having talking filibusters — to approve this. Let’s use the start of this 2-year period to acknowledge that something is deeply wrong when, in a 2-year period, we have 135 or 138 filibusters eating up all the floor time and preventing modest bills from moving forward and keeping us on this path to gridlock. The Senate is broken. Let’s fix it.