Wednesday, September 29, 2010

We are only a few weeks away now from the November elections. Therefore, this is a time for reflection. For me, it is a time to recognize I am nearly through my first 2 years as a Senator. I must say it is an incredible privilege to come and be part of this debate among these 100 colleagues, representing our 50 States.

It is also time to ponder whether that debate works as well as it might. The Senate is famed as the greatest deliberative body in the world, but I have seen too little deliberation and too much dysfunction. At this time, as we prepare to return back home to our citizens, to talk to our folks back home about the upcoming elections and the ideas they have, it is also time to think about when we come back, after these elections, after a new Congress comes in next January: how can we make this Senate work better as a deliberative body?

My perspective is affected not just by the time I spent here since January 2009 but by the perspective of first coming here in 1976 as an intern for Senator Hatfield. So I thought I would compare the use of what is commonly termed the ‘filibuster’ between the 1975-76 session and our last complete session, the 2007-2008 session. We had in that 2007-2008 session the use of the filibuster on amendments 30 times. But if I turn the clock back to 1975-1976, 35 years ago, the number was zero. There were zero filibusters. On motions to proceed, there were 3 in 1975-1976; there were 49 in 2007-2008.

You get the picture. Not only is there a huge increase in the use of the filibuster to block final votes but also a huge increase to stop votes on amendments and a phenomenal increase to stop getting to a bill at all. Again, it was only used 3 times 35 years ago but 49 times in the 110th Congress.

We cannot have a democracy that works if we can’t debate and vote on bills. I have been pondering this. I have been pondering how first we need to understand how these rules work. I used the term ‘filibuster’ and indeed with that term everyone pictures ‘Mr. Smith Goes to Washington.’ He stops a vote by continuing to speak, hour after hour. But that is not actually how the rules work in the Senate. The responsibility to block a vote, if you will, is not by those who object to the regular order, who object to a vote of 51. But it is on the majority to summon a supermajority.

So take that notion of a filibuster and continuous speaking and set that aside because that is not the way it works in this body. The way it works is if a single Senator objects to the regular order of 51, then the majority must obtain a supermajority of 60 to proceed. That is why you do not see folks holding the floor day and night to block a vote, because they do not have to. It is because the burden is on the majority to get 60 votes to proceed.

This does a lot of damage. It does a lot of damage in terms of delay because when that single Senator says, “I object to the regular order of 51,” and demands 60, not only under the rules do they trigger a 60-vote requirement but they also trigger a 1-week delay.

So you can imagine on a single bill, such an objection on a motion to proceed, an objection on one or two amendments, objection on final passage, and you now have a month wasted in this body without a final vote, with no really terrific intervening debate because those who are objecting do not need to stay on the floor and make their case. Not only does this do a tremendous amount of damage to our responsibility as a Congress, as a legislative body, but it does a lot of damage to the other branches of government because it means we cannot process the nominations for the judicial branch, so many judgeships are sitting empty as a result.

It means we cannot proceed to the nominations of folks for the executive branch. So a President probably gets the Secretaries in place, but often the second and third tier positions that develop the policy and execute the work – implement the plans – those positions are often vacant. There is nothing in our constitution that says the right to advise and consent and, indeed, the responsibility to advise and consent gives this body the right to do damage to the other two branches of government. Indeed, it is an abuse of our responsibility to do so.

There are a number of things we should think about. I would like to applaud my colleagues who are putting forward so many ideas: Chuck Schumer, the chair of the Rules Committee is holding hearings; Tom Udall, who is carrying our red rule book and studying it and thinking about the ways we can change this body; Amy Klobuchar, who has recognized for a long time that dysfunction is different than deliberation; Michael Bennet from Colorado, and many others–my colleague, Al Franken, who is presiding. So many in the freshman and sophomore classes recognize this body needs to change so we can do the work we are expected to do by the American people.

So what are some of those ideas? One is to greatly reduce the use of the supermajority, which I will call it, because it is a much more accurate description than the filibuster. Reduce the use of the filibuster on nominations. Perhaps it should not be used on any nominations except perhaps to the Supreme Court. But find a line and a method to expedite nominations.

Second, reduce the use of the filibusters on motions other than final consideration of a bill. There should not be a question about whether we get to the point of debating a bill or whether we get to vote on amendments because at each of those points, everyone would obtain or retain the final power to oppose or trigger a supermajority on the final vote.

Then, in regard to the ability to proceed to trigger a supermajority on the final vote, put the responsibility squarely on the minority. It should not be the majority’s responsibility to get a supermajority. At least those who are objecting should have to maintain a large number of Senators continuously on this floor day and night. If they believe so much that it is so wrong to proceed to a final vote, they should have the courage and dedication to be here in a substantial number, day and night, to make their point to the American people.

Let the American people respond to that demonstration of saying, “yes, we are with you,” or “no, we are not,” and let that final vote happen. We have an issue about participation of the minority, and this is an extremely important point. I have heard many of my colleagues across the aisle say: We are not guaranteed the opportunity to have amendments. Well, that is a fair point. What if we were to have in this body a fallback rule so that if the majority leader and the minority leader could not reach agreement on the number of amendments and the content of those amendments to be considered, that there would be a fallback position that both parties would get 5 amendments, or both parties would get 10 amendments, so that we could proceed back and forth–a Republican amendment, a Democratic amendment, a Republican amendment, a Democratic amendment, a debate for an hour and a vote, debate for another hour and another vote, therefore, having to respond and take positions on the issues of the day rather than seeing this chamber, without action, paralyzed.

These are the types of ideas that we need to wrestle with. We who are privileged to be here as delegates from our states have a responsibility to our citizens not just in our state, but all the citizens of this nation to make this chamber the deliberative body that was envisioned by the framers of our Constitution.

That is why next January, when we come in to start the next session, the 112th Congress, we need to have a major debate over our rules. We need to recognize that under the constitution it only takes 51 members of this body to adopt new rules. But in that context we have to do honor to the ability of the minority party, whichever party that is, to fully participate in the process.

This situation in which the House passes 300 bills that never see the light of day, never see consideration in the Senate because we cannot get anything done on the floor of the Senate, must end. We have a responsibility to restore this body to being the greatest deliberative body on the planet.