Tom Harkin

Mr. HARKIN

Mr. HARKIN. Madam President, I wish to thank my colleagues, Senator Udall of New Mexico and Senator Merkley of Oregon, because they are great leaders on this issue. I think they have brought a breath of fresh air to the Senate in exposing what has become gridlock that has made the Senate almost dysfunctional. I say to my friend, Senator Udall, especially in focusing on what the Constitution says and doesn't say, I believe--and I am only speaking for myself--that we are not living up to the oath we took as we stood by the well when we were sworn into the Senate. We took an oath that we would uphold and defend the Constitution and that we would bear true faith and allegiance to the same. Well, quite frankly, the Constitution, I believe, is quite clear in the way it is written, in the verbiage that is used. If you look to what the Founders wanted in the Constitution, they were very clear that but for a few instances, which they clearly spelled out in the Constitution requiring a supermajority of votes--such as treaties, for example, and impeachments, or expelling a Member--everything else is a majority vote. But the Senate has adopted rules in the past that I believe are, quite frankly, bordering on unconstitutional by requiring that in order to change the rules, it requires a two-thirds vote--67 votes. Well, that might be OK for one Congress, if they wanted to adopt that kind of rule, but how can one Congress bind another? I think it is quite clear from Parliaments of old and other legislative bodies, court rulings in this country, that one legislative body cannot burden a subsequent legislative body. Yet in the Senate, because of a change in the rules that happened some years ago, they say it binds every Senate thereafter. I believe that is unconstitutional. My friend from New Mexico, Senator Udall, has pointed this out time and time again, that really we have not only a constitutional right but a constitutional obligation that, on the first convening day of the Senate of any Congress, we adopt rules, and we can adopt those rules by majority vote. If the majority wants to adopt a rule that says that for this Congress we have to abide by a certain number, that is OK, but it cannot bind another Congress. Senator Udall has been quite eloquent on this issue. He has been very forthright and has fought very hard for what is known as the constitutional option. That is just a fancy word for saying ``live up to the Constitution.'' We took an oath to bear true faith and allegiance to the same--the Constitution. Senator Udall is constantly reminding us of what that Constitution says and does not say. As the Senator has pointed out many times, the Constitution says each body shall adopt its rules. So the Senate can adopt its rules. It does not say in the Constitution that each body shall adopt its rules but it requires a two-thirds vote to change those rules. It doesn't say that. It says each body shall adopt the rules, and it does not specify that we have to have a supermajority to do so. I think it only specifies a supermajority, if I am not mistaken, in five cases. Obviously, the Framers of the Constitution were quite clear that each Congress could adopt its rules and it could adopt them by a majority vote. Now we have a situation in the Senate whereby we are throttled by rules that do not permit us to change those rules except by a two-thirds vote. As I said many times, what if the voters of this country decided to elect 90 Senators from the same party, say, the Republican Party. Could they come in and say: We are going to adopt new rules, and from henceforth it is going to take 90 votes to change those rules, knowing that may never happen again in the history of this country that we would ever have 90 Senators from one party. Could they do that? If you accept the logic of what we are working with right now, the answer is yes, we could do that and bind every Senate from then on in perpetuity that the only way they could change the rules would be with 90 votes. We say that wouldn't happen. Well, what about 67 votes or 75 votes or 78 votes? What is so magic about 67? Where does that magic number come from? It was plucked out of thin air. That is why I address myself to the issue Senator Udall has worked so hard on; that is, focusing on the constitutional issue. Senator Merkley, from Oregon, has focused on rule XXII--it is called the filibuster rule--which provides basically that we do not even have to filibuster. In a filibuster, people think they come on the Senate floor, like ``Mr. Smith Goes to Washington,'' and they speak and they hold the floor and they can hold the floor until they drop or, if somebody else wants to speak, they can speak. That is what people imagine a filibuster to be, and that is what a filibuster used to be. What a filibuster has become is a means whereby the minority can stop us from debating anything. So what has happened to the Senate, supposedly the greatest deliberative body in the world, is we have now become the greatest nondeliberative body because we do not debate because now a minority can decide what we take up and what we do not take up. Think about it this way. Under rule XXII, as it is now being used, 41 Senators can decide what this body does. They have the veto right--the veto right over anything we bring up, that the majority wants to bring up. Again, when I say ``majority,'' I am not saying Democrats or Republicans; I am saying any majority. That is why I first brought up my proposal in 1995, when we were in the minority, because I wanted to make it clear that this was not a means whereby we were trying to grab power or anything. I said, no, this is for the smooth functioning of this place. I predicted at that time, in 1995, and the record is clear--it is in the Record--I predicted that unless we do something, the number of filibusters would escalate, it would be an arms race, and that is exactly what has happened--135 last year. So the Senator from Oregon has said that if we are going to have a filibuster, at least people ought to come on the floor and talk. At least, if you are going to filibuster, if you are so opposed to a bill and you have a group who is opposed to it, at least stand out here and speak. They don't have to do that now. They put in quorum calls and walk off the floor, and a minority--41 Senators--decides what we take up. They can stop anything. Think about it this way. For a bill to become law in this country, it requires that it pass the House and the Senate in the same form, and the President has to sign it. Right now, the way we are constituted and the way we operate in the Senate, 41, a minority in the Senate-- regardless of what the House wants to do, regardless of what the President wants to do, and regardless of what the voters may want--can stop it. That turns the whole concept of democracy on its head. I thought the majority rules, with rights to protect the minority. So the minority can offer amendments. I don't even mind if the minority wants to slow things down. That should be their right, to be able to do that as a minority. They should have the right to offer amendments, to change a bill as they see fit. But I do not believe a minority ought to have the right to absolutely stop and veto a bill or an amendment from coming to the Senate floor. We have a situation where the power resides with the minority. I heard the distinguished Senator from Kentucky, Mr. McConnell, said the other day that this is a power grab by the Democrats. No, no; the power grab is by the minority, whatever minority. The power grab is by the minority to insist that they have the right to veto anything here. That is the power grab. So now the power lies with the minority, but the responsibility lies with the majority. So the majority in the Senate has the responsibility to act, but we do not have the authority. The minority has the authority, the right to veto things, but they don't have the responsibility. That is why we have such a dysfunctional system. This is what the people of America are opposed to. I will have more to say about this tomorrow as I think we will get into a longer debate on this issue. I think the people have the right to understand that if a majority of the House and a majority of the Senate pass something and the President agrees, it ought to become law. That is not the way it is. We used to have a system on the Senate floor where, if you offered an amendment and you got 51 votes, you agreed to the amendment. You can't do that anymore. You cannot get an amendment offered on the Senate floor unless you have 60 votes. That is what happened over the last 4 or 5 years. I know I myself tried to get an amendment offered on the financial regulation bill. I thought I had over 51 votes on it. I don't know if I did or not, but I was not able to offer it because there was a 60-vote threshold. I might have had 52 or 53 or 54 or 55, but I did not have 60. Now in the Senate we require a supermajority to do anything because 41 Senators--a minority--have the right to veto anything the majority wants to bring up. As I said, I will have more to say about this, but it seems to me this stands democracy on its head and the idea of majority rule on its head. I think the majority ought to have the right. Elections ought to have consequences. If people vote for a certain party to be in power, that party, regardless of what it is, ought to have the authority to act. There ought to be rights for the minority to amend, discuss, debate, slow things down--fine. But the minority should not have the absolute power of a veto, and that is what the minority has in the Senate today. That is the issue Senator Merkley has been going after. At least if you are going to have a filibuster, there ought to be some consequences to it, and the consequences are that you ought to have to be here and talk and not hide behind quorum calls where we sit here for days on end doing nothing because someone has objected to bringing up a bill but they do not have to be here to discuss it. I thank my two colleagues for their great leadership on this issue. As I said, they brought a breath of fresh air here. The average person out there watching probably thinks: Bring it up for a vote. Things are not quite that simple in the Senate, as we are about to find out. So we are going to do whatever we can to bring this to the forefront, but I daresay that the way the rules are set up right now--requiring a supermajority to change those rules--makes it nearly impossible for a majority of the Senate to act. Again, I thank my colleagues, Senators Merkley and Udall, for their leadership. I look forward to being in league with them to do whatever we can to make this place function a little bit better and a little bit more in accordance with the principles of democracy, of majority rule, and respecting the rights and wishes of the voters of this country. I thank my colleague from Oregon for his leadership--I see he is standing there--and I thank my colleague, Senator Udall, for yielding to me. I yield the floor.

Mr. HARKIN. Well, if my friend will yield for a response.

Mr. HARKIN. Yes, literally up until 4 or 5 years ago you could offer an amendment on the floor, and if you got 51 votes, you won. That happened for--well, I have been here, what, 25, 26 years I guess now, and that is the way it has always been. Sometimes there were tough amendments. Sometimes there were tough amendments by Democrats; sometimes there were tough amendments by Republicans. It did not make any difference who was in the majority or the minority. I do not think people elected us just to have an easy time of it here and not to ever cast tough votes. Sometimes these are tough votes. But I think the Senator from New Mexico is right. We always operated under the fact that a Senator could offer an amendment. Usually you would enter a time agreement. You would say: How much time do you want? Well, you would have an hour or an hour and a half or 2 hours, something like that. You would have a reasonable time agreement, and you would have debate and then a vote. Sometimes people would move to table it, and that was fine, but at least 51 votes decided that. Now, as the Senator pointed out, you have to have 60 votes for any amendment, a supermajority. For any single amendment you want to bring up on the Senate floor, you now have to have 60 votes. I say to my friend, it was not always like that.

Mr. HARKIN. That is right.

Mr. HARKIN. If the Senator will yield, the Senator is absolutely right. I will give another example. As the Senator knows, the Supreme Court decided a case last year that allows certain entities to contribute money to political campaigns, and they do not even have to disclose who they are or how much they give. It is a Supreme Court decision. Well, the House passed a bill, and public opinion polls show that 80 percent of the American people were in favor of what we called the DISCLOSE Act. We did not say they could not give the money. We just said they ought to file: Who are you, and how much money are you giving, and where are you getting that money from? It passed the House. It came to the Senate. I believe we had 57 votes for that, if I am not mistaken. I could be corrected, but I think it was over 55 votes for that. But it did not pass. The average American out there would say: Wait a minute. I thought if you got 51 votes, you won. No, no, no. Again, we had to have 60 votes in order to pass the DISCLOSE Act. The President would have signed it into law. The House passed it. Eighty percent of the American people were for it. But because there was this 60-vote threshold, we did not get it passed. I see the Senator from Oregon.

Mr. HARKIN. I stand corrected.

Mr. HARKIN. I thank the Senator. The Senator pointed out correctly--I was mistaken; I thought it was 57--it was 59 votes. You would think normally that bill would pass and it would go to the President for his signature. It was supported overwhelmingly by the American people, yet thwarted because we have the right--as I said earlier, the minority in the Senate has a right of veto. They can veto whatever they want to bring up. What sense does that make in a democracy? I thank the Senator and yield the floor.

Mr. HARKIN

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

Mr. HARKIN. Mr. President, parliamentary inquiry: Under the unanimous consent agreement, there was a period of 30 minutes for tributes to Senator Mikulski. Is there any of that time remaining?

Mr. HARKIN. If I am not mistaken, under the unanimous consent agreement, I was deemed to have 45 minutes.

Mr. HARKIN. Mr. President, I wish to make some remarks regarding my dear friend and seatmate on the Appropriations Committee and a member of my Health, Education, Labor, and Pensions Committee. I join with the entire Senate family in saluting my good friend, the distinguished senior Senator from Maryland, on becoming the longest serving woman in the history of the Senate. This is truly a remarkable milestone. I note that Cal Ripken, the former star of Senator Mikulski's hometown Baltimore Orioles, became known as the ``Iron Man'' for going 16 consecutive years without missing a game. Now perhaps Senator Mikulski has earned the title of ``Iron Woman'' for going 24 consecutive years in this body without ever deviating from her role as a fierce advocate for Marylanders and for working people across our country. I hasten to add that the measure of a Senator is not how many years he or she serves in the body but what he or she accomplishes during those years. That is where Senator Mikulski has truly distinguished herself over the last quarter of a century. I especially salute her activism and leadership on the Committee on Health, Education, Labor and Pensions, formerly chaired, of course, by Senator Kennedy and which I am now privileged to chair. She has been a leading champion of Pell grants and for expanding access to higher education for students of modest means. Of course, as has been stated, she has been the Senate's leading voice on women's health issues, fighting to ensure women are included in clinical trials and medical research at the National Institutes of Health, and securing access to breast and cervical cancer screenings for women without health insurance. Senator Mikulski took the lead in writing the sections of the new health reform law that focus on improving the quality of care. At every turn in the drafting of that historic legislation, she fought to ensure that the unique health needs of women were fully recognized and accommodated. As chair of the Subcommittee on Retirement and Aging, Senator Mikulski has been an outspoken advocate for seniors, focusing especially on combating elder abuse and neglect. I know she is especially proud of authoring the Spousal Anti-Impoverishment Act, which keeps seniors from going bankrupt while paying for a spouse's nursing home care. I might also add, no one has been a more fierce supporter and defender of the right for people to have an attorney through the legal aid system in America. She has fought very hard to make sure we strengthened the National Legal Services Corporation and to make sure it receives adequate funding so people who have no money aren't barred from the courthouse door. We admire the work of Barbara Mikulski not as a female Senator per se but as one of 100 Senators. On this day we also recognize that she was the first woman elected to the Senate whose husband or father did not serve in high office. We salute her as the proud dean among Senate women who has gone to extraordinary lengths for so many years to mentor and guide newly elected women Senators of both parties. I join my colleagues in congratulating Senator Mikulski as our longest serving female Senator and wishing her many more years of accomplishment and service in the Senate. I yield the floor.

Mr. HARKIN

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

Mr. HARKIN

Mr. HARKIN. Mr. President, I have a resolution for myself, Senator Durbin, Senator Mikulski, and Senator Shaheen, which I send to the desk and ask for its immediate consideration.

Mr. HARKIN. Mr. President, I am sorry my good friend from Tennessee had to object, but I understand. We are going to engage for some time now on the Senate floor in a discussion on the filibuster, something that has been around a long time but which, in the last several years, few years--I would not say ``several''--in the last 20, 30 years, has gotten to the point where it has paralyzed the Senate and has paralyzed the country. I intend to make some remarks for a while. I appreciate my friend from Tennessee and also my friend from Kansas who is here. I hope we can engage in a nice colloquy and a discussion about this in a back- and-forth way. I look forward to doing that. I do wish to take some time to at least lay out my case, as I did 15 years ago--I am sorry, 16 years ago. On January 4, 1995, I submitted this same resolution. I was a member of the minority party in the Senate for the first time in 8 years. When I first came to the Senate, the Republicans were in charge and then the Democrats got in charge and then the Republicans got in charge and then the Democrats got in charge and then the Republicans got in charge and then the Democrats got in charge. Since I have been here, since 1985, five times the Senate has changed hands. I note that at the beginning of that Congress in 1995, the Republicans outnumbered Democrats 53 to 47, the same majority-minority ratio that exists today, just on the other side. Even though I was opposed to the then-majority party's agenda, I submitted the same basic resolution to change the Senate rules regarding the filibuster. My plan would have ensured ample debate and deliberation. The stated purpose of a filibuster is to have debate and deliberation. But it would also have allowed a bill or nominee to receive a ``yes'' or ``no'' vote. Unfortunately, my proposal did not pass. It received 19 votes. My cosponsors were Senator Lieberman, Senator Pell, and Senator Robb of Virginia. I submitted my bill--and if you care to go back and read that debate, it is the January 4, 1995, Congressional Record in the Senate. I saw an escalating arms race, where each side ratcheted up the use of the filibuster. That is what I called it then. Sadly, in the intervening years, my prediction has been fulfilled. The sad reality is that today, because of the indiscriminate use of the filibuster, the ability of our government to legislate and to address problems is severely jeopardized. Sixteen years after I first submitted my proposal, it is even more apparent that for our government to properly function, we must reform and curb the use of the filibuster. The filibuster was once an extraordinary tool used in the rarest of circumstances. When many people think of the filibuster, many times it brings to mind the classic film of ``Mr. Smith Goes to Washington.'' It is ironic that in 1939, the year Frank Capra filmed ``Mr. Smith,'' there were zero filibusters in the Senate. From 1917 across the entire 19th century--for 100 years--there were 23 filibusters in 100 years. Indeed, through 1879, there were only four. From 1917, when the Senate first adopted rules to end the filibuster, until 1969, there were fewer than 50--less than 1 filibuster a year. Unfortunately, since then, the number has skyrocketed. The current concerns I raise are not new. The problem has become far more serious. In 1982, my good friend and colleague, Senator Dale Bumpers of Arkansas, said this about the filibuster: ``Unless we recognize that things are out of control and procedures have to be changed, we'll never be an effective legislative body again.'' That was 1982. During the 2 years of that Congress, there were 31 filibusters as measured by the number of cloture motions filed. In 1985, former Senator Thomas Eagleton of Missouri remarked: The Senate is now in the state of incipient anarchy. The filibuster, once used, by and large, as an occasional exercise in civil rights matters, has now become a routine frolic in almost all matters. Whereas our rules were devised to guarantee full and free debate, they now guarantee unbridled chaos. That was 1985, my first year here. But during that Congress there were 40 filibusters. Again, I wish to refer to the number of filibusters as a visual aid to see what has happened. As we go back to 88th, 89th, 90th, and on up, we can see the number of filibusters escalating from less than 10 a year--4 or 5--up to almost 140, 139. In 1994, former Republican Senator Charles Mathias of Maryland said: Today, filibusters are far less visible but far more frequent. The filibuster has become an epidemic,-- An epidemic. That is former Republican Senator Charles Mathias-- used whenever a coalition can find 41 votes to oppose legislation. The distinction between voting against legislation and blocking a vote between opposing and obstructing has nearly disappeared. That was Senator Mathias of Maryland. During that Congress, again right before I first submitted legislation to modify the filibuster, there were 80 filibusters that year. If I may quote myself, 1 year after Senator Mathias made his statement about the filibuster, this is what I said in 1995: It is used, Mr. President, as blackmail, for one Senator to get his or her way on something they could not rightfully win through the normal process. I am not accusing any one party of this. It happens on both sides of the aisle. I said that in 1995. Quoting myself from the Record: Mr. President, I believe each Senator needs to give up a little of our pride, a little of our prerogatives, and a little of our power for the good of this Senate and the good of this country. I think the voters of this country were turned off by the constant bickering, the arguing back and forth that goes on in this Senate Chamber, the gridlock that ensued here, the pointing of fingers of blame. Sometimes in the fog of debate, like the fog of war, it is hard to determine who is responsible for slowing something down. It is like shifting sand. People hide behind the filibuster. I think it is time to let the voters know that we have heard their message in the last election. I said this in 1995. They did not send us here to bicker and to argue and to point fingers. They want us to get things done to address the concerns facing this country. They want us to reform this place. They want this place to operate a little better, a little more openly, and a little more decisively. I said that when the Republicans were in charge. With all those filibusters, it was not until the 110th and 111th Congress that the true scope of the filibuster abuse would truly be realized. In the 110th Congress, there were an astonishing 139 motions to end filibusters. In the 111th, there were 136--275 filibusters in just 4 years. The fact is, in successive Congresses, Democrats and Republicans have made the filibuster an everyday weapon of obstruction, not as a way to ensure debate and deliberation but as a way of obstruction. I say both sides have done it. I said that in 1995. I predicted an escalating arms race. I said: If we do not do something about it, it is going to get worse--and, unfortunately, it has. On almost a daily basis, one Senator is able to use just the threat of a filibuster to stop bills from coming to the floor for debate and amendment. In the past Congress, we started seeing the minority filibuster bills they did not even object to solely in order to slow down unrelated measures they did oppose. The result is a legislative process that is simply overwhelmed, squeezing out the ability to do important, relatively noncontroversial legislation. It is no accident that Norm Ornstein, the esteemed congressional scholar, wrote an article, titled ``Our Broken Senate,'' in which he wrote that ``the expanded use of formal rules on Capitol Hill is unprecedented and is bringing the government to its knees.'' Just the other day, I received a petition signed by nearly 300 top historians, legal scholars, and political scientists urging Senators ``to restore majority rule to the United States Senate.'' I ask unanimous consent to have this petition printed in the Record.

Mr. HARKIN. Mr. President, last month, our former colleagues, Gary Hart, a Democrat, and Chuck Hagel, a Republican, published an essay in Time magazine calling on us to ``restore democracy to the U.S. Senate'' by reforming the filibuster. In their words, the abuse of the filibuster ``is no way to govern a great democracy.'' I ask unanimous consent to have that essay printed in the Record.

Mr. HARKIN. Mr. President, editorialists from across the country have recognized the filibuster must end. The Concord Monitor of New Hampshire called on the Senate to ``Remove the Senate filibuster roadblock,'' noting, ``The filibuster rule has rendered the Senate dysfunctional and harmed the nation's ability to deal with pressing issues.'' The Los Angeles Times said `` . . . both parties should be willing to eliminate such anti-democratic practices as the filibuster. . . .'' Editorials throughout the country have called for reform of the filibuster. I ask unanimous consent to have printed in the Record these editorials.

Mr. HARKIN. Madam President, I thank my friend from Kansas. I think he makes some good points. I would say to my friend, I think we ought to go through processes in our committees to have hearings on nominees to flush out things such as that. So to that extent, the Senator from Kansas is right. We should not have, especially if there is any controversy at all--I suppose some of them are noncontroversial--but if there is some controversy out there, yes, I think the committees ought to have the responsibility to bring them forward. Let the committees question them. We did that in our HELP Committee, I say to my friend from Kansas. I am trying to remember the person we had--oh, a lot of controversy about Craig Becker, I think, who was going to the NLRB.

Mr. HARKIN. If it was out of our committee, obviously it was a better bill than coming out of the Finance Committee. But I say to my friend, again, that----

Mr. HARKIN. I thank my friend from Texas. Again, he and I have worked together on some legislation in the past too. He is a thoughtful Senator and a good legislator. I ask my friend from Texas this: In listening to him, I almost have the feeling that my friend from Texas is saying we ought to have a supermajority to pass anything, that we should have 60 votes in order to pass anything. I ask my friend, is that what my friend really means or implies, that everything should have 60 votes before it can go through here? Is that what my friend is suggesting?

Mr. HARKIN. Mr. President, 275 filibusters in 4 years is not just a cold statistic; it represents the minority blocking measures that sometimes--not all the time but sometimes--enjoy broad support among the American people. Just in the last Congress, the filibuster was used to kill many bills that enjoyed majority and often bipartisan support. Need I mention the DREAM Act? It had broad bipartisan support and big support among the American people. There was the DISCLOSE Act, which polls showed that over 80 percent of the American people supported. We had a majority vote here for it, but we didn't have a supermajority. So it is no surprise that Americans are fed up and angry with their Federal Government. In too many critical areas, people see a legislature that is simply unable to respond effectively to the most urgent challenges of our time. Make no mistake, the problem goes beyond the sheer number of filibusters. This once-rare tactic is now used or threatened to be used on virtually every measure and nominee, even those who may enjoy near universal support. In the past Congress, for nearly 8 months, the minority filibustered confirmation of Martha Johnson as Administrator of the General Services Administration--certainly a relatively noncontroversial position. She was ultimately confirmed 96 to 0. So what was that filibuster all about? And for nearly 5 months, the minority filibustered confirmation of Barbara Keenan to the Fourth Circuit Court of Appeals. She was ultimately confirmed 99 to 0. What was that filibuster all about? Again, to quote Norm Ornstein: The Senate has taken the term ``deliberative'' to a new level, slowing not just contentious legislation but also bills that have overwhelming support. Secondly, the filibuster has increasingly been used to prevent consideration of bills and nominees. Rather than to serve to ensure the representation of minority views and to foster debate and deliberation, by filibustering motions to proceed, the minority has been allowed to prevent debate and prevent deliberation. The filibuster has been used to defeat bills and nominees without their ever receiving a discussion here on the floor of the Senate. In other words, the Senate, which was formerly renowned as the world's greatest deliberative body, has now become the world's greatest nondeliberative body. We can't even debate important national issues. That is why I fully support the commonsense proposals to reform the filibuster and restore the Senate to a body in which issues can be fully debated and deliberated. I support eliminating the filibuster on the motion to proceed, and I believe those who are filibustering a bill or a nominee should be required to come to the floor, hold the floor, and make their case to their colleagues and the American people. Senators should not be able to hide behind a curtain of secret holds. The reality is, however, because of the filibuster, the minority has unchecked veto power in this body. Now, I want to make it clear, when I say ``the minority,'' I am not talking about the Republicans; I am talking about the minority. It may be the Democrats or it may be the Republicans. As I said, five times it has changed since I have been--since 1985. When I say ``the minority,'' I mean the minority; I don't mean a political party. This is what James Madison noted when rejecting a supermajority requirement to pass legislation: . . . it would no longer be the majority that would rule, the power would be transferred to the minority. Unfortunately, Madison's prediction has come true. We are the only Democratic body that I know of in the world where the minority, not the majority, controls. In today's Senate, American democracy is turned on its head. The minority rules; the majority is blocked. The majority has responsibility and accountability but lacks the power to govern. The minority has power but lacks accountability and responsibility. This means the minority can block bills that would improve the economy, create jobs, and turn around and blame the majority for not fixing the economy. The minority can block popular legislation and then accuse the majority of being ineffective. I repeat, when I say ``the minority,'' I am not saying Republicans or Democrats; I am saying the minority, whoever it may happen to be. Both parties have abused the filibuster in the past, and both will, absent real reform, abuse the filibuster in the future. Although Republicans are currently in the minority, there is no question that control of this body will change, as it periodically does. The fact is, reform is urgently needed. That is why I am reintroducing my proposal which would permit a decreasing majority of Senators over a period of days to invoke cloture on a given matter. Under my proposal, a determined minority could slow down any bill. Senators would have ample time to make their arguments and attempt to persuade the public and a majority of their colleagues. This protects the rights of the minority to full and vigorous debate and deliberation, maintaining the hallmark of the Senate. But at the end of ample debate, the majority should be allowed to act. There should be an up-or-down vote on legislation or a nominee. As former Senator Henry Cabot Lodge, a Republican, stated many years ago, ``To vote without debating is perilous, but to debate and never vote is imbecile.'' My plan has another advantage. The fact is that right now, the minority has no incentive to compromise. Not only do they know they have the power to block legislation, but they can go out and campaign on the message that the majority can't get anything done. In contrast, if the minority knows that at the end of a period of time a bill or nominee will be subject to majority vote, they will be more willing to come to the table and negotiate seriously. Likewise, the majority would want to compromise because they want to save time. There is nothing more valuable to the majority party in the Senate than time. So under my proposal, on the first cloture vote, you would need 60 votes. If you don't get 60 votes, you would have another vote in 3 days and you would need 57 votes; in 3 more days, 54 votes; 3 more days, 51 votes. So the majority would finally act, but you would chew up almost 2 weeks of time. So on the first vote, let's say 53 Senators voted for cloture. Well, the minority would know that in several days or maybe in a couple weeks' time, 53 Senators will get cloture. The minority then would go to the majority and say: Look, we can drag this out for a couple of weeks, chew up all your time, but we have some things we would like to have considered. The majority--and I say there is nothing more important to the majority than time here--not wanting to spend a couple weeks on a bill, on a cloture or a filibuster, would say: OK, maybe we can make an agreement. We will collapse the timeframe, the minority gets some of the things they want, and the majority is able then to have a vote. So I see my proposal as a means of encouraging compromise. Right now, there is no reason to compromise for the minority. Again, I am not talking about Republicans or Democrats; I say ``the minority'' because they know they can absolutely block it. I have changed my resolution since I introduced it in 1995, and I have changed it because Republicans have said and I heard the minority leader say earlier that they have done this because Democrats in the majority--the majority this time--have employed procedural matters to deprive the Republicans of the right to offer amendments. Well, I am very sympathetic to this argument. That is why I included in this resolution a guaranteed right to offer germane amendments to the minority, filed in advance of the cloture vote so everyone would know what was coming. Again, the minority should have the right to offer some amendments that are germane to the bill. No matter who the majority is, both parties are concerned about amendments from the minority. Perhaps you have a bill dealing with housing and someone wants to offer an amendment dealing with abortion. Well, there may be a time and place for that but not on that bill. So that is why I say it should be germane to the bill. If the minority has ideas to improve the bill, strike something from the bill, that would be germane to that bill. I have heard it said--and I heard it on the radio this morning driving in--that this is something like a power grab by a Democratic Senator reacting to recent elections in which my party lost numerous seats. Well, I want to make clear that the reforms I advocate are not about one party or one agenda gaining an unfair advantage; it is about the Senate as an institution operating more fairly, effectively, and democratically. Again, I wish to point out that I first offered this in 1995 when I was in the minority. So to use the legal term, I come here with clean hands. The truth is, with Republicans controlling the House, any final legislation will need to be bipartisan with or without the filibuster. So I don't see reform of the filibuster as a Democratic or Republican issue. Indeed, it was former Republican majority leader Senator Frist who, when he nearly shut this body down over the use of filibusters on a handful of judges, said: This filibuster is nothing less than a formula for tyranny by the minority. That was in 2004, Senator Frist, the Republican majority leader at that time. Well, as I said, one of the problems here was this was done in the middle of a term. See, I think the Senate ought to be able to set its rules at the beginning, on the first legislative day, which we are in now and which will extend for some time. The Senate ought to be able to set its rules at the beginning of a Congress. You can't go changing the rules every month, but you should be able to set the rules at the beginning of a Congress so that you know for 2 years what the rules are that you are operating under. So it is time for the arms race to end. That is what this is--it is an arms race. I daresay that if we don't do anything about this, if the Republicans take control of the Senate, as they think they will in 2 years, well, Democrats are going to do the same thing to them. Guarantee it. Guarantee it. The Republicans did--what did I say?--136 filibusters--139? Bet your bottom dollar, if we don't change the rules, Democrats will match them. You wait and see. Well, a lot of people sometimes say: Well, Harkin, what you are advocating is the Senate would become like the House. I ask my friends and any Senator on either side of the aisle, since when did the Senate become defined by rule XXII, which is the filibuster? Why does that define the Senate? I thought the Senate was defined by the fact that you get two Senators from every State--two Senators from North Dakota, two Senators from California, two Senators from New York, two Senators from Iowa. I thought the Senate was defined by the fact that we have unlimited debate. When a Senator gets the floor, you can't take it away from him. We operate under unanimous consent. The power of one single Senator would remain. But in the Senate, what do we do? We do treaties, we do nominations, we sit in judgment on impeachments. The Senate is not like the House. And just because we don't have the filibuster as we have known it for the last 94 years does not mean the Senate becomes like the House. Eliminating the filibuster will not change the basic nature of the Senate. So I say to those who say the Senate would be like the House if we did away with this filibuster, would they also suggest that the Senate of Henry Clay or Daniel Webster or Lyndon Johnson or Everett Dirksen was the same as the House of Representatives? I don't think so. The fact is, what was never intended was that a supermajority of 60 votes would be needed to enact virtually any piece of legislation or for any nominee. In fact, the Framers of the Constitution were very clear about where a supermajority is required. There were only five in the original Constitution: ratification of a treaty, override of a veto, votes of impeachment, passage of a constitutional amendment, and expulsion of a Member. If they wanted to have supermajorities, they would have said so. But it is not in the Constitution. The filibuster is not in the Constitution. The first Senate expressly included a rule permitting the majority to end debate and bring a measure to a vote by moving the previous question. I repeat: The first Senate--the first Senate--had a rule that permitted the majority to end debate. Alexander Hamilton explained that a supermajority requirement would mean a small minority could ``destroy the energy of government.'' Hamilton said that the government would be subject to the ``caprice or artifices of an insignificant, turbulent or corrupt junta.'' Those are Hamilton's words. Moreover, reform of filibuster rules stands squarely within the tradition of updating Senate rules as needed to foster an effective government that can respond to the challenges of the day. The Senate has adopted rules that forbid the filibuster in certain cases, such as the War Powers Act and the budget. Imagine that. What should be more debatable than the budget? But our rules do not permit a filibuster of the budget. So we passed rules here limiting the filibuster. Since 1917, we have passed four significant reforms concerning the filibuster. The fact is, as Senator Tom Udall has powerfully made clear, article I, section 5, clause 2 of the Constitution specifies that ``each House may determine the rules of its proceedings.'' As Senator Robert Byrd, who was opposed to filibuster reform--he and I had a great debate back in 1995 on this--as he emphasized, and he said this--Senator Byrd: ``At any time that 51 Senators are determined to change the rule . . . that rule can be changed.'' I am reading here from what Senator Byrd said. He said at that time: 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. ``The dead hand.'' I listened to the minority leader when he said we have--the majority has never changed rules except by following those rules. The rules set down by a Congress a long time ago, by a Senate a long time ago, said that in order to change the rules, you need a two-thirds vote of the Senate. I submit that is unconstitutional. I submit that this Congress, this Senate, on this first legislative day, does not have to abide by that. What if, in some Senate, one party got 90 Senators one time, and they adopted a rule that said that from here on out, you have to have 90 votes in order to change the rules, here are the rules, and they set up rules that pretty much made it impossible for the minority to ever become the majority? Would that be constitutional? I don't think so. Senator Byrd said we are not obliged to be bound by the dead hand of the past. The first Senate, Senator Byrd said, which met in 1789, approved 19 rules by majority vote. Those rules have been changed from time to time. So 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. Here is the essence of what Senator Byrd said: It is my belief--which has been supported by rulings of Vice Presidents of both parties and by votes of the Senate-- in essence upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress. I would say Senator Byrd has not been alone in his views or tactics. The constitutional option has been endorsed by three Vice Presidents and three times by the Senate itself. Why was it not used? Because Senators then reached a compromise, and therefore we never had the constitutional option. But that does not mean we cannot use that. The Constitution is very clear. I think three votes of the Senate and three former Vice Presidents have made clear in their rulings that at the beginning of a Congress, we can set the rules. Chief Justice John Marshall once said: Any enduring Constitution must be able to respond to the various crises of human affairs. I said many times that I don't believe we can be a 21st-century superpower bound by archaic rules of the 19th century. We have to have a responsive government, responding to the challenges of our time. I am not afraid. I say to my friends on the Republican side, I am not afraid. What the minority leader said--he said that at some time the Republicans might be in charge, and they might want to undo what the Democrats did, and the Democrats better be careful. That was in his op- ed piece in the Post this morning. I am not afraid of democracy. I am not afraid of the votes of the people. If the people vote to put certain conservatives in power, then they ought to have the right to govern. They ought to have the right to respond to the people of this country. The minority--I would be in the minority at that time--I think the minority ought to have the right to be heard, we ought to have the right to debate, we ought to have the right to amend, but we should not have the right to totally obstruct. I am not afraid. People say that the tea party in the House--they are going to do all this stuff. I am sorry, I am not afraid. The people voted. There ought to be things that happen because people vote a certain way. No wonder so many people are frustrated. They vote, they think things are going to happen, they don't happen, and they say: A pox on both your Houses. So, yes, I don't know why we should be so afraid of each other. Why should I be afraid that the Republicans are going to institute legislation I don't like? They have in the past, and our country has endured. I would say there are times when the Democrats have passed legislation Republicans did not like and our country has endured. So I just do not like this fear, that we have to be afraid that somehow the majority is going to do things. What we want to make sure of is that the rights of the minority are guaranteed--the right to be heard, the right of the minority to offer amendments. But I don't think it ought to be the right of the minority to obstruct, and I don't think it ought to be the right of the minority to demand that their views be implemented. That is the right of the majority. I close where I began, and I thank my friends for this indulgence. I believe the bedrock of the principle of our Constitution, our Founders, was majority rule with respect for minority rights. But I say this, and I have said it many times. It is kind of the dirty little secret of the Senate. And here is the dirty little secret: The power of an individual Senator comes not by what he can do but by what he can stop. That is the dirty little secret of the Senate. One Senator can stop something, can block it. I say that each Senator--each of us needs to give up a little of our privilege, give up a little of our power, give up a little of our prerogatives for the greater good of this country. I yield the floor.

Mr. HARKIN. I will respond to my friend from Tennessee who makes cogent arguments, as he always does. He is a good friend of mine, and we have worked together on a lot of things. I hope this is the beginning of some colloquies we can have here. I do want to indulge and let other Senators have their say because they were so kind to let me have my say too. But I intend to be here as long as anybody wants to say anything or to engage in some colloquies here on the Senate floor. I say to my friend from Tennessee, that as I listened to him, and I did very carefully, there are a couple of things I want to point out in terms of this idea of a filibuster and being able to amend things. My friend referred many times to the health care bill. I do not know if my friend said this, but I have heard it said that we wrote it behind closed doors and all of that kind of stuff. Let me point out that when it came to our committee, the HELP Committee, we had 13 days of markup, 54 hours. We allowed any amendment to be offered. The Senator is a member of that committee. We allowed any Senator on our committee to offer any amendment. We adopted 161 Republican amendments, either through some votes, which they won, or through just adopting the amendments. Then after that, after all of that, all Republicans voted no. That is fine. There are a lot of times I know in the past when I have had an amendment on a bill which I thought improved it, but overall I did not like the bill, and I voted against it. I think that is the right of the minority. But then to obstruct it and to try to obstruct it to keep it from even being enacted I do not think is right. So I would say to my friend that I do not think the health care bill is a good example. I say to my friend, he quoted someone, I think maybe it may have been Senator Reid, saying, do people think they are wiser than our Founding Fathers. Please show me where our Founding Fathers ever set up a system where the Senate could have unlimited debate? They never did that. It is not in the Constitution. As I pointed out, the first Senate actually had the motion, the previous question, to cut off debate. And they did not set up a majoritarian House. Article I section 5, I say to my friend from Tennessee, article I, section 5 is very clear. Each House sets up its rules. If the new majority in the House wanted to, they could set up rules to be like the Senate. They could do that. They could set up rules however they wanted, as long as they were constitutional. I suppose someone could take it to court to see if it was constitutional. But they do not have to operate under those rules. We do not have to operate under these rules. The Constitution gives us the right to change those rules. Our Founding Fathers never set up this system, by the way, never. There is no mention of it anywhere in the Constitution. They did not set up a majoritarian House, they set up article I, section 5, which said each House can set up its own rules. But then in the Constitution, they outlined certain prerogatives. The Senate has certain prerogatives, the House has certain prerogatives, such as, for example, all bills of revenue have to originate in the House, not in the Senate. Treaties are done by the Senate, not by the House. But they never set up any kind of majoritarian type of thing. I say to my friend, on the filibuster, I think there is a reason for a filibuster. I think there ought to be filibusters. I think there ought to be times when the minority can slow down things in order to get their views heard, or in order for them to be able to offer amendments, to make the bill better, in their views. That is the right of the minority. I do not think it is the right of any minority--I say minority. When I say that, I am not talking about Republicans. I am saying any minority here. I do not think it is the right of any minority here to say, if I do not get my way, I am going stop everything. That is kind of what I see happening around here. If I do not get my way, one Senator can stop things. I point out one other bill, I say to my friend from Tennessee, that I thought was a great bipartisan bill. We worked hard on it in our committee. The Senator from Tennessee was instrumental. That was the food safety bill. We reported it out of our committee a year ago in November, unanimous vote. Everyone voted for it, Republicans and Democrats on our committee. We got it out. But there were some things in the bill that Senators not on our committee, and maybe one Senator on our committee, did not like. So we had to work through the ensuing months to get everybody onboard and to work it out, which is fine. I have no problems with that. That is the legislative process. I have patience. As my friend from Kansas knows, I have a lot of patience working on farm bills. They take time. But we worked it all out. And yet one Senator, one Senator who really disagreed with it, was able to hold it up from coming on the floor. We finally got it on the floor, but it took almost a year. One Senator was able to do that. So I say, one Senator should be able to have the right to offer amendments, to be heard, but not to stop everything. I guess that is what I come down to, I say to my friend from Tennessee, that there ought to be a--I think there is a reason and a good reason for the Senate to be that saucer that cools things down, the story about Jefferson and Washington. But it should be at some point in time where the majority has not only the authority but the power to act after a due consideration and a due period of time. I believe, I say to my friend in all sincerity, that will promote more compromise than the present system. You may disagree, but I feel that would. I am not trying to take away compromise. I believe in compromise. I believe in working things out. As chairman of the Agriculture Committee for two farm bills, we worked things out. I am sure there were things in the farm bill that the Senator from Kansas did not like, and there were things in there that I did not like, even though I was chairman. But you work these things out. You compromise and you get things done. So I believe in that spirit of compromise. But I think what we have here now--and that escalating arms race--is doing away with that spirit of compromise and working things out and moving things. That is why I think we have to change the rules. I do not know if I adequately responded to my friend from Tennessee, but these were my thoughts at the end. I am looking forward to other comments from other Senators and engaging in our colloquies. I promise I will not take so long.

Mr. HARKIN. I thought there were some things we should talk about. I say to my friend, in listening to my friend from Kansas say this, it occurred to me that certain of his amendments were allowed. The Senator was allowed to debate them and offer them, but they were not adopted. It seems to me, as I have said before, the right of the minority ought to be to offer amendments, to have them considered, to have them voted on, but it does not mean it is the right of the minority to win every time on those amendments. I say to my friend, on that financial services bill, I had an amendment too and I could not get it in. I was on the majority side, and they would not let me offer one either. So both sides have some legitimate points. I also say to my friend from Kansas, and others, we can get into this tit for tat, who started it. I think we have to kind of quit that. I could come back and say: Well, yes, in the last 2 years, the tree was filled 44 times. In this last session, 44 times the tree was filled, but there were 136 filibusters. Why wouldn't there be 44 filibusters? Why were there 136? We can get into that tit for tat, who did what to whom. I wish to forget about all that. We could go back, probably, to the 18th century--tit for tat, who did what to whom at some point in time. I ask my friend from Kansas, who has been here a long time--we served together in the House; my friend was chairman of the Agriculture Committee in the House. We have done a lot of legislation together-- does my friend from Kansas feel the Senate is operating today in the best possible way? Does my friend from Kansas believe there could be some things done to make the Senate operate a little bit more openly and fairly with rights for the minority to be protected but without letting the minority--and I do not mean Republicans when I say ``minority,'' I mean whoever happens to be in the minority--to keep the minority from obstructing things? Does my friend feel there could be some changes made?

Mr. HARKIN. Madam President, will the Senator yield for a question?

Mr. HARKIN

Mr. HARKIN. Mr. President, I hope the Senator from New Mexico will stay on the floor. I wish to engage in a colloquy with the Senator from New Mexico on the topic on which he just spoke. I say to my friend from New Mexico, the Senator from Tennessee, as I understand, had propounded the question, what is a filibuster? The Senator from New Mexico has been very eloquent in responding to that, talking about the filibuster. But I think the better question is, what has a filibuster become, because as the Senator pointed out and as Senator Merkley pointed out, this whole image of someone standing on the floor and speaking until they drop such as Senator D'Amato or Senator Thurman back in the old days on the civil rights bills or even Senator Sanders a few weeks ago, that is not really a filibuster any longer. So what has a filibuster become? Let me go back again a little bit in history. In the 19th century, in the 1800s, the filibuster was used, if I am not mistaken, about 20 times during that whole 100 years. But it was used under a different set of circumstances. In the 1800s, a Senator or a Congressman was elected in November, but the session of Congress lasted until March. The Senators or Congressmen elected in November actually did not take their seats here until a year and a month later, in December of the following year. So sometimes, in this ``lameduck'' session that ended in March, people in the majority party--especially if they had lost the election--would try to ram through a lot of stuff. The minority party would speak until the session ended in March so that nothing would get done, and then they would pick it up in December when the new Senate and House would meet. So it was a means of stopping onerous legislation for a short period of time. That was in the 19th century. We have a different situation now. So the filibuster is not used to speak now and to slow up one piece of legislation or to stop one piece of legislation; it is used to slow down everything. One case in point: We had before my committee last year a nominee by the name of Patricia Smith to be Solicitor General of the Department of Labor. We had our hearings, I say to my friend from Kansas who is not here right now. We had our hearings in committee. She answered questions, answered written questions. We reported her out of committee. We came here to the floor. We had to file cloture on Patricia Smith to be Solicitor of Labor, so we filed cloture. We got the 60 votes. But as we know, under postcloture you get 30 hours. Well, the minority forced us to use the 30 hours. Senator Enzi, our ranking member, came and spoke for 15 minutes and left, and I sat here for 30 hours and no one spoke. So for 29 hours and 45 minutes we sat here doing nothing, unable to do anything, on a nominee who had over 60 votes. At that time, the record will show, I kept asking: Why are we here? Why are we using 30 hours of the Senate's time, when nobody is even speaking and we already have the 60 votes for Patricia Smith? That is an example of what the filibuster has become. It has become a tool in order to slow everything down. For example, nominees. We had nominees who got through here on a 99- to-0 vote after being held up for 6 months. Well, what if, I ask, we have to file cloture on every nominee and then every nominee has a vote on cloture and then you have 30 more hours. If you did that on every nominee, I believe the majority leader said we would be here from January through August doing nothing every day of the week except nominations. How would we ever get anything else done? The question is, What has the filibuster become? It has become a means whereby a few--this, I guess, would be the question I might propound to my friend from New Mexico or at least suggest that he might respond. Has not the filibuster or the threat of a filibuster become a tool by which one or two or three or four Senators can absolutely slow down or stop things from coming to the Senate? Has not the filibuster become a tool by which one Senator who publicly announces that his goal is total gridlock of the Senate--total gridlock--has not the filibuster then become the tool by which one Senator can impose gridlock on the Senate? Is that not what the filibuster has become?

Mr. HARKIN. I thank my friend from New Mexico. I also thank him for his great leadership on the constitutional option. I am a cosponsor of his resolution, which he sent to the desk earlier today. He is right on target. The dead hand of the past cannot bind us. Every Congress, on the first legislative day--as Senator Byrd said himself in the past-- has the authority, with 51 Senators, to set our rules--not two-thirds, just 51. We are on that first legislative day today. I understand the leader will put us into recess so we will stay in the first legislative day when we come back. So we will be on this issue when we come back on January 25. I wonder if I might explore a little bit with my friends who are here--and the Senator from Oregon has been a great leader in this effort. As a former speaker of the legislature in Oregon, he has lent a great deal of expertise to our thinking and in evolving how we modify our rules to make this place function a little better. I thank Senator Merkley for his leadership. A lot of what was in the measure that Senator Udall sent to the desk earlier today is what Senator Merkley has devised. These are things we need to do. I ask again to bring this up here for maybe a brief discussion, if I might. This is something Senator Cornyn and I got into a little bit earlier. He went on at length about building consensus; that we want to build consensus and have bills over here with a consensus. Well, I agree with that. You try to get as much consensus as possible. Obviously, if you can get 100 Senators, that is nice--or 80 or 70. It is always nice to get as many as possible. I ask my friends, isn't it sometimes true that legislation comes up that can be contentious, and you can open it--I think it ought to be opened in the committee process for amendments. I pointed to the health care bill that we had in our HELP Committee, and the occupant of the chair was so vitally involved with that. We had 54 hours and 13 days of open markup and open session. No Senator was denied the opportunity to offer any amendment on that bill--Republicans or Democrats. Senator Dodd was chairing at the time. We adopted 161 Republican amendments. Imagine that, over 13 days, 161 Republican amendments. As I said, nobody was cut off. Yet at end of that, when we finally brought it up for a vote, not one Republican voted for it, even though they had a big hand in shaping it. So whenever I hear comments that ``we didn't have a hand in shaping the health care bill,'' I don't understand that. I know in the Finance Committee Senator Baucus bent over backward to make sure Senators on both sides could offer amendments and be a part of the process. I say, if they don't want to vote for it in the end, fine; that is their right and privilege. People can vote their conscience and on behalf of their constituents. But we weren't able to get a consensus on it. So if you have a bill on which you can't get a consensus, does that mean we should stop? As I asked the Senator from Texas, does that mean every bill has to have 60 votes? Is that what we have become--no bill will pass here unless it has 60 votes or more? The Senator from Texas pointed out, correctly, that some bills pass here by unanimous consent. Fine. That is 100 votes. So do they mean we have to have a minimum of 60 to 100 votes in order for anything to pass? What happened to majority rules? What happened to the idea that you only need 51 percent? Isn't that sort of the basis of a democratic government? Again, I ask my friends about this idea of consensus. Yes, we all want to get that. We all want as many Senators as possible on legislation, and we try hard to do that. But if that is not possible, does that mean that 53 or 54 or 55 or 56 Senators cannot then vote to pass a piece of legislation or an amendment? I ask my friends, what about this idea of consensus? Have we come to where we have to have a supermajority? Is that the situation we are in now?