Jeff Merkley

Mr. MERKLEY

Mr. MERKLEY. Mr. President, it is quite a contrast that the Senator is drawing between an era in which in a 2-week period the bulk of the team was in place, ready to do the work they were elected by the people to do--the executive branch, headed by the President, had his Secretaries, and the Secretaries had their teams in place, and they were ready to go forward to make sure they were working hard on the agenda they had laid out during the election cycle. As my colleague said, elections have consequences. The vision of our Republic is one in which we elect a President, and the President says: Here is my agenda. Then he puts together a team to get it done. It is not in the spirit of our Constitution, it is certainly not in the spirit of our democratic souls, after the people have elected a President, to try to damage and inflict pain and obstruction upon that President. That is essentially saying one does not accept the judgment of U.S. citizens about electing the President. This process has to change. We have to find a way that folks can be brought to the floor. It is not that this Chamber will approve every single nomination. It is that it will hold a debate and have a vote. If there is no controversy surrounding someone, then that will probably be reduced to a unanimous consent request. Some will be waived through to not take up the time on the floor of the Chamber. There is more than 1,000 executive branch positions that have to be confirmed under statute. That, too, should be changed. There is far too many positions that are basically set up so that they have to come to this Chamber. That is certainly a subject of conversation. But for those that under the law need to come for advice and consent, then we need to exercise that responsibility in a manner that is consistent with advise and consent but not with attempting to damage the President and his team. I was looking at a speech by one of my colleagues from Tennessee, Mr. Alexander. He titles it, ``The Filibuster, Democracy's Finest Show, the Right to Talk Your Head Off.'' That quote at the top of his paper is from a speech before the Heritage Foundation and is taken directly from the film ``Mr. Smith Goes to Washington.'' In other words, the premise that my colleague put in his paper is that there needs to be the right of the people elected by the citizens to have their voices heard on the floor of the Senate. That is what the talking filibuster is about. It is about the people being able to see their Senators, when they are saying there needs to be additional debate, to actually debate. There is a tremendous amount of bipartisan support for this notion that Senators should not hide from the American people, that they should not be engaging in secret holds, but instead, if they are going to place a hold on a piece of legislation, to do it publicly and have accountability. There is tremendous support for the notion that when we proceed to vote that we want additional debate, we are actually going to debate so we utilize the time of the Senate to weigh the pros and cons, to hear all colleagues. Not that folks say: We want additional debate and then go off to dinner. Not that Senators say: We want additional debate and then go off on vacation. If they ask for additional debate, then we should have additional debate, laying out the pros and cons, arguing the merits, considering amendments--in short, the talking filibuster. I have a unanimous consent request that I gave notice of half an hour ago. We are standing by waiting for one of our colleagues from the other side to come, extending the courtesy for them to come and object to this request. I am saying this out loud and looking across the aisle and saying we have been waiting half an hour. I think it is time for one of our colleagues who wishes to object to get here on the floor and, just as we have been talking about, make their case visibly in front of the citizens of the United States as to why they wish to object to having a full debate on the talking filibuster. I know my colleague is waiting to offer a unanimous consent request to have resolution No. 10 considered before this Chamber. I think we have pretty well laid out the reasons we think this debate is important. But we can't get to that debate without putting forward a unanimous consent request and having it concurred in or blocked by objection. I will see if my colleague from New Mexico wishes to make any more comments. If not, I will offer my unanimous consent request and await our colleagues to come and either endorse or object.

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

Mr. MERKLEY. Mr. President, for purposes of having the resolution go over, under the rule, I object.

Mr. MERKLEY. Madam President, the Senator from New Mexico is telling me it has become a common practice on the floor of the Senate for an individual Senator who wants to oppose something to not have the courage to stand here and tell the world their position but instead to secretly object to a particular issue being raised. I cannot imagine the American public can believe that Senators do not have the courage of their convictions to come here and say: I am going to hold up this legislation because I disagree with it, and I am going to fight it any way I can. So the public can weigh in if they agree with them or not. They will be accountable to the U.S. citizens.

Mr. MERKLEY. Well, certainly I will tell you that Senator Byrd stood on this floor and said the Senate cannot be bound by the dead hand of the past. You can imagine that any particularly bizarre rule that might have been passed by our predecessors that damaged our ability to fulfill our constitutional responsibilities would be inappropriate, and we would need to change it. The Constitution empowers us to change it with a simple majority. So when the point comes that the Senate is not functioning in the fashion it was constitutionally intended to function--that is, a simple majority to pass legislation--then we certainly have to wrestle with whether we are doing our responsibility if we do not fight to make the Senate work better. We have an obligation to this Chamber, and we have an obligation to our responsibilities under the Constitution.

Mr. MERKLEY. I believe, one vote short needed to close debate on the motion to proceed to get to the DISCLOSE Act. So we could not even get onto the bill. So here is a Supreme Court decision that allows unlimited-- unlimited--secret foreign donations. I will tell you, as a red-blooded American, the idea of foreign companies secretly influencing American elections is outrageous, and we should have had a debate on that bill. But, instead, we had 41 Senators who said they wanted further debate, and then they were not willing to stand up on the floor to make their case before the American people. And why did they want to hide from the American people? Because the American people do not support secret foreign donations influencing American elections. That is why. Under the talking filibuster, folks could not have filed an objection and left this Chamber and hid. They would have had to make their case, and the American people could have weighed in and said: You are a hero or you are a bum. In this case certainly most Americans, I believe, would have weighed in and said: Get to that bill. Get to a debate on it and get it done because it is the American tradition for Americans to make their decisions about who they elect, not foreign corporations to secretly spend money on American campaigns.

Mr. MERKLEY. Well, I say to Senator Harkin, I think that is a tremendous example. I believe we actually had 59 votes twice----

Mr. MERKLEY. So if I might explain, if there is something critical to my State, the talking filibuster enables me to find a couple of other Senators who share my views. Perhaps they have similar issues in their States. For example, the citizens of Oregon don't want oil companies drilling off our coast. We have a tremendous business in salmon, in ground fish, rock fish. We have a river economy that depends on the migration of salmon upstream. We have a crab industry. We have a tourist industry, the most spectacular coastline anywhere in the world, the coast of Oregon. The last thing we want is an accident that puts oil all over our beaches and destroys multiple aspects of our economy. So if there was a bill on the floor that said we are going to drill for oil off the coast of Oregon, and if I believed that was a huge mistake, then I could organize with other Senators and be here day and night to block that misguided legislation. In that sense we are not changing the number. It still takes 60 Members to close debate. We protect the voice of the minority. We say two Members could continue a debate day and night. For that matter, one could, but eventually one is going to collapse on the floor like Jimmy Stewart did. This is important to note because the talking filibuster is about taking away frivolous obstructions that paralyze the Senate and prevent it from doing its responsibilities on advise and consent and considering regular bills from the House and certainly to be able to get the appropriations bills done, to get the authorization bills done, and so on and so forth. There may be those who say we oppose the talking filibuster because it takes away the power of the minority to block legislation. Actually, the talking filibuster doesn't do anything of the kind. It just says that when you block legislation, you have to do it in front of the American people. You have to stand on the floor and make your case.

Mr. MERKLEY. I would certainly like to thank Senator Harkin for the many years he has pursued reforming the rules of the Senate, especially from the perspective of being in the minority and then maintaining that same effort in the majority. I believe it is important to recognize that the issues we are presenting and bringing to the floor are to make the Senate work better as a deliberative body for both the minority and majority. If we were to turn the clock back several decades, we would not be here right now carrying on this colloquy. Instead, there would have been a unanimous consent to put a rule proposal on the floor of the Senate, and we would be debating that proposal. That is the way the Senate worked for most of its first two centuries. In 1953, Senator Anderson put forward a resolution to adopt new rules at the start of Congress. There was a debate on it. Then, eventually, it was tabled. It was tabled by 51. That is what the rule said--51 could table, they could set it aside. He did not win his debate, but he got it on the floor of the Senate, and it was debated. The same thing in 1957, and in 1959, he again did this. In 1961, he did this again, and in that case it was debated on the floor of the Senate. Everyone said: Let's get the rule out there, let's hold a debate. Eventually, they referred it to the Rules Committee. Finally, near the end of the cycle, it was moved out of the Rules Committee, back to the floor, and they held another debate on Senator Anderson's proposal. The result of that debate was that it was tabled, the resolution was tabled. It did not pass. To have the debate is not going to guarantee you are going to win the debate but it is to engage in the deliberation, the exchange of ideas that enables us to capture the challenges we see, the challenges in our country and in this case the challenges with making the Senate function and making things work better. This goes on. Here we have five times in the course of 12 years that a rule proposal was put on the floor and was debated. It was defeated, but it was put on the floor under the framework that 51 Members could adopt rules under the Constitution, the constitutional power you have been speaking to so eloquently for Congress to organize itself--for the House of Representatives to organize itself and for the Senate to organize itself. I wanted to go over a little bit of that history to say the very fact that we are not at this moment debating a rule proposal is a reflection of the dysfunction of the Senate. A debate on the rule to fix the Senate itself reflects the dysfunction of the Senate. I want to thank you for having engaged in so many years of effort to bring these issues forward. The challenge of fixing the Senate has been engaged in by so many names that I was familiar with growing up, folks such as Senator McGovern, Senator Mondale, Senator Church, Senator Pearson. They all brought their effort to make this body work better. We did have a major reform in 1975. But as a chart I put up earlier showed, the congestion and the paralysis from the abuse of the privilege of having yourself heard, making yourself heard before your colleagues, has now compromised the ability for us to fulfill our constitutional responsibilities and we need to fight hard to try to fix the broken Senate.

Mr. MERKLEY. I think what the Senator from New Mexico has set forward is that we would save 28 hours on each nomination. If the Senate goes around the clock, that is a bit more than a day. If we are doing 10- hour days, that is almost 3 days. We save 3 days of Senate time that is put to no purpose right now since by the time you have a 60-vote cloture you already have 60 Members saying they are ready to vote and want to go forward. So letting people wrap up over a couple of hours, restating their key points for other Members, makes sense. That is why the 2 hours are there. But rather 2 hours than 3 days.

Mr. MERKLEY. Thank you, Madam President. The reason I am rising to talk about rules is because we are at the start of a new 2-year period for Congress. This is the appropriate time to be considering how well the Senate is working and whether we should amend the rules by which the Senate functions. The last major debate over many of the rules was in 1975. The reason there was a debate that particular year is that in 1973 and 1974, the Congress preceding, there were 44 filibusters, each eating up about a week of the Senate's time. There was a tremendous amount of frustration over the dysfunction of the Senate. So at the start of the Congress that began in 1975, there was an enormous amount of debate, debate that went on for weeks, with all kinds of motions. The spreadsheet tracking them fills pages. In the end, what this body, the Senate, decided to do was to change the rule that requires 67 Senators to terminate debate and have a final vote on a bill and replace it with the decision to have 60 Senators required to end debate and have a final vote on a bill. This is for the so-called cloture motion. Now we are in a period immediately preceded by the 2009-2010 Congress. In 2009 and in 2010, we didn't have 44 filibusters, we had 135 filibusters. In other words, the Senate has been three times as dysfunctional as it was preceding the last major debate in this Chamber over rules. Since each filibuster delays the work of the Senate for approximately a week under the rules, if you have 135 objections in a 2-year period, that would be 135 weeks of delay in a 104-week period. Obviously, many things are not going to get done with that type of obstruction. Indeed, during 2010 this Chamber was unable to pass a single appropriations bill of the 13 appropriations bills traditionally taken under consideration, debated on this floor, and sent forward. Why is that important? Because in the appropriations bills, we make decisions about what the most pressing problems in America are and how we are going to allocate resources to address those pressing problems. We didn't fail to do this in one or two areas; we failed to do it in all 13. Furthermore, this body did not pass a budget during the last year, 2010. This body did not proceed to advise and consent on all of the nominations that came before it. In fact, we left over 100 nominations pending. This merits a little bit further discussion because under the Constitution, it is the Senate, this esteemed Chamber, that weighs in on the President's nominations to fill key executive branch positions. It is this Chamber that weighs in on the President's recommendations to fill judicial positions, to assign judges. If we never get to the debate on the floor of the Senate, then we have not fulfilled our constitutional responsibility to advise and consent. In fact, we have wounded the executive branch, and we have damaged the judicial branch. Certainly, under our theory of balance of powers, it was never envisioned that the advise-and-consent function of the Senate would be used to damage other branches of government. We have failed in our responsibility. Furthermore, we have left over 400 House bills lying on the floor, collecting dust, unprocessed, unconsidered. The saying in the House of Representatives is the Senate is where good House bills go to die. It is appropriate that as we start a new 2-year period, we ask ourselves how we should address this dysfunction. There was a time in which the Senate was called the greatest deliberative body in the world. Unfortunately, today there is very little deliberation in the Senate. No appropriations bills, nominations unprocessed, hundreds of House bills untouched, an incomplete budget. The main culprit in this is the filibuster. A filibuster is kind of street language, if you will, for an objection to the regular order of holding a majority vote and triggering about a week's delay in the Senate's process, and it also triggers a supermajority of 60. It has gotten to the point that in this constitutional function as a majority body, a body in which we need 51 votes, it is functionally becoming a supermajority body. The Framers of the Constitution were very clear and they laid out a supermajority required for certain purposes. A supermajority is required to approve treaties or a supermajority is required to impeach but not to pass legislation. That was not the vision. Today, I rise to say we can do better in the Senate and that we owe it under our constitutional responsibilities to do better. There are a series of proposals that have been filed. One of my colleagues has arrived, Senator Udall, who has been a key leader, enormously instrumental in this effort to reform the Senate. In a few minutes, I am going to ask unanimous consent for one of these rule changes to be considered on the floor. I will do that when my colleagues across the aisle have arrived. I will go further in discussing how we need to change the Senate. Before I go further, Senator Udall already asked for a colloquy. I thought I would stop at this moment and see if he wants to jump in and share some general thoughts before we get into the specifics of the various resolutions which we might ask unanimous consent to have considered.

Mr. MERKLEY. If I may interrupt for a moment, I wish to clarify what the Senator from New Mexico just said, which is, a supermajority of the Senate, after 1 week of debate, is required just to get to the point where we might start debate on the bill, and the Senate wastes weeks and weeks debating whether to debate rather than doing the people's business. That is a problem.

Mr. MERKLEY. Certainly. This provision about a talking filibuster says rather than having a situation where a Senator objects to a majority vote and then we delay the work of the Senate for a week, though nobody is here explaining their position to the American public, instead we would switch to a provision that says if 41 Senators want continued debate on a bill, we will get continued debate on a bill. We will have debate on a bill, not silence. Currently, we have the hidden or the silent filibuster. With this, we would create the public or the talking filibuster. To give a sense of the numbers on this, these blue bars represent filibusters during the last 2-year period. During the first 6 months 33, 34 in the second 6 months, 36 in the third 6 months, and then 33. I think that is 136 total filibusters in a 2-year period. This is why we didn't have any appropriations bills. This is why we didn't have a budget. This is why we didn't deal with hundreds of House bills. And this is why we didn't get nominations done and advice and consent on them. Is this the way the Senate has always operated? Absolutely not. In the last few decades there has been a huge change in how the Senate has functioned. So let's take a look at the average per year. In the 1900-1970 period, the average was one filibuster per year. In the 1970s, the average was 16 filibusters per year. In the 1980s, 21 filibusters per year, average; in the 1990s, 36 filibusters per year, average; in the 2000s, 2000-2010, 48 filibusters per year; and from 2009 to 2010, this last session, an average of 68. There were 136 total. So you can see from this chart the growing dysfunction. There was always a social contract that existed in which an individual Senator didn't exercise his or her power to object to a simple majority vote unless they thought it was an issue of huge consequence. Maybe that would occur once or twice in a career, but not routinely week after week. But that social contract has been eliminated. The filibuster was honoring the right of every Senator to be heard; that we were not going to hold a vote until every Senator had his or her say so we could be fully informed and have a full dialogue. It is that reciprocal respect that is being routinely disregarded and abused on the floor of the Senate. Many of us have an image of the filibuster that comes from the movie, ``Mr. Smith Goes to Washington.'' Here is Jimmy Stewart playing the character of Jefferson Smith, and he comes to defend a corrupt action and to stop it regarding a camp for children. He talks through the night, and there are many forces assaulting him, but Jimmy Stewart is going to stay on the Senate floor and he is going to tell the American people what he is fighting for and why. This is the talking filibuster, where you don't object and go away and leave the Senate suspended. You don't vote for additional debate and then not have that debate. You come to this floor and you hold the floor and you join with other partners to hold the floor in order to explain why you are holding up the Senate and to carry on the debate, to have that additional debate you have voted for. So the talking filibuster is almost that simple--it replaces the silent filibuster with the talking filibuster. The result is two critical things: First of all, transparency and accountability with the American public. The public can see what you are saying on the floor of the Senate and can say you are a hero or you are a bum. They can agree with you or they can disagree, but it is visible, not hidden. The second thing is each Senator has to expend time and energy to carry out a filibuster, so this will strip away all these frivolous filibusters that are done for no other reason than to prevent the Senate from being able to carry on with its responsibilities.

Mr. MERKLEY. I want to note this is important to both the majority and the minority. For example, we recently had a bill on the floor of the Senate which was a major bill regarding the compromise struck by President Obama with our Republican colleagues to spend almost $1 trillion. I had an amendment I wanted to present that would have taken some of the money in that bill that was being spent in a fashion which created very few jobs and to spend it in a fashion which would create a lot of jobs. I had another proposal to take money that wasn't being put to good use and to proceed to fill in and support the solvency of Social Security and Medicare. Now, people can argue about whether these were good ideas, but if I had been able to offer one or both of those amendments, I think it would have improved the debate and dialogue and perhaps have resulted in a better piece of legislation.

Mr. MERKLEY. I would be delighted to do so.

Mr. MERKLEY. It is not only secret to the public, it is often secret to fellow Senators, greatly complicating our effort to dialog with fellow Senators as to why we are pursuing something and get their partnership in it.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I suggest the absence of a quorum.

Mr. MERKLEY. Mr. President, I submit S. Res. 24, on behalf of myself and Senator Tom Udall, proposing a standing order of the Senate, and I ask unanimous consent that the Senate proceed to the immediate consideration of the resolution.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER (Mr. Franken.) Without objection, it is so ordered.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I ask unanimous consent that Kayti Fan be granted the privilege of the floor for the remainder of today.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, continuing the conversation, my colleague from New Mexico pointed out the challenge with authorization bills. We should add to that, during 2010, the Senate did not manage to pass a single appropriations bill. It is dysfunction on top of dysfunction. That is why we are here today. I put back up the chart of Jimmy Stewart in the well because I think at the heart of this conversation is a notion that, yes, every Senator should be able to hold forth, to share their idea, to advocate that in which they believe, to persuade their colleagues, but not to simply lodge an objection and walk away and never present their case before the American people. Our good colleague from Tennessee said he wanted to see--how did he put it?--something to the effect of a ``talking your heads off'' form of filibuster, and he referred to Jimmy Stewart. There is a sense of commonality in our views that if one is going to vote to continue debate, then the debate should continue--it is that simple--so the citizens can see if you have a case to make that makes sense, and they can weigh in and help turn the tide in the direction of the Senator, or that you have no case to make and they want you to sit down and have the Senate get on with its business. That is simple. There are many ideas for much more radical steps--steps in which we would proceed to say, yes, we will do something different. We will eliminate the filibuster. But that is not the proposal I am speaking to today. It is not the proposal to which many of us are speaking. We are saying, yes, you can keep speaking, but you have to speak. You cannot go on vacation. You cannot hide from the American people. You cannot object and hide. That is not in the tradition of the Senate. There is a Wall Street Journal article that came out yesterday. I am not sure if it was an editorial or an op-ed, so I will not attribute it to anyone specifically. But it said there is no chance for filibuster reform to address the filibusters on legislation because the Democrats will not want to imperil their ability to obstruct the Republicans when the Republicans are in power someday. Here we are, we are Democrats, and we are saying we are talking about rules that we have placed against the test of whether we can support these rules, whether in the majority or in the minority. The proposal we signed onto today--the five reforms we have laid out--we have run through the test of saying: Will this meet a fairness standard? Would this be fair if we were in the minority? One of the proposals is to make sure the minority and the majority get to have amendments. That is a valuable protection for whichever party is in the minority. Another piece of it is to say, yes, the filibuster can still be used. But you have to invest time and energy and make your case before the American people. We have believed we can live with that in the minority. If we are going to obstruct the Senate, we are willing to take this floor. We are willing to make our case. But we are saying a Senator should not be able to obstruct and hide. They should not be able to engage in the silent, the secret filibuster but should have to have the talking filibuster. I applaud my colleague from Iowa, my colleague from New Mexico, and my colleagues who are about to speak--Senator Mark Udall from Colorado--and say we have a couple weeks now in America to have a debate on the dysfunction and brokenness of the Senate. We are asking the American public to engage, to call your Senators, to share your concerns about a Senate that cannot do authorizations, that has not done appropriations, that leaves hundreds of House bills on the floor, and that cannot fulfill its constitutional responsibility to advise and consent on nominations, thereby undermining our other two branches of government. This has to be addressed. That is why we are here.

Mr. MERKLEY. Madam President, 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 hyperpartisan 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. I thank the Chair.

Mr. MERKLEY

Mr. MERKLEY. Madam President, I ask unanimous consent that the bill be read three times and passed, the motion to reconsider be laid upon the table, with no intervening action or debate, and any statements related to the bill be printed in the Record.

Mr. MERKLEY

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

Mr. MERKLEY

Mr. MERKLEY. Madam President, I rise to discuss and ask unanimous consent for consideration of H.R. 6398. I will get to the unanimous consent language in a moment, but right now I want to describe what this is about. Then I wish to yield to my colleague from Georgia to add a little bit of the impact of this issue. The issue is this: In all 50 States in America, lawyers have to put clients' funds into trust accounts. Under the law, they are not allowed to earn interest on these accounts. Over time, an arrangement has been worked out whereby the banks pay interest, but it does not go to the clients; it goes to fund civil legal services for those who cannot afford those services. This arrangement is in great jeopardy if we do not pass this bill today. I will expand on that jeopardy in a moment, but at this point I simply am going to yield to my colleague from Georgia.