Military Construction, The Department of Veterans Affairs, And Related Agencies Appropriations Act, 2016--Motion to Proceed

Floor Speech

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BIPARTISAN DIALOGUE IN THE SENATE

Mr. MERKLEY. Mr. President, I rise today with my friend and colleague, Tom Udall, the Senator from New Mexico, to talk about how to come together to fix our broken Senate and specifically to invite our colleagues from both sides of the aisle to engage in a dialogue together to address the dysfunction that we see so evident on the floor of the Senate day after day. What we have come to understand in the course of 2015 is that the frustration with a broken Senate is a bipartisan, equal opportunity frustration.

In 2013 and 2014, Democrats were in the majority and Republicans were in the minority. The majority was frustrated and couldn't get onto bills to start debate, and when we did get on the bills, we couldn't start the process of having amendments; the time on the floor was being wasted. Now here we are in 2015 and the roles are reversed. Republicans are in control, and Republicans are frustrated that we can't get to bills and have them on the floor and that the amendment process is broken. And on amendments, it affects the minority and the majority. So here we have Democrats and Republicans with something deeply in common: a common interest in fixing this broken Senate.

The perspective I bring to this goes back to when I first came to this Chamber in the summer of 1976. I was an intern for Senator Hatfield. I was assigned to work on a bill called the Tax Reform Act of 1976 that came up on the floor of the Senate. I was assigned to follow the debate because, of course, we didn't have television coverage at that point and we didn't have emails at that point. I would meet Senator Hatfield out at the elevators, just outside these beautiful double doors, and brief him on the amendment, and he would go in and vote. Then, an hour later, we would do it all over again. Debate was largely on amendments that were relevant to the main underlying bill. There was no delaying, no wasted time between amendments. There was no agreement that had to be negotiated between the Democratic and the Republican leaders; it was simply whoever got the attention of the Presiding Officer after the preceding amendment was completed. In a lot of ways, it represented how the Senate had operated since our founding.

But today we are in a very different place. Today we are in a place where multiple aspects of the Senate are broken. We all wrestle with getting bills to the floor. We wrestle with wasting time and not being able to bring our amendments forward. We wrestle with the responsibility of the Senate to execute advice and consent responsibility on nominations in a responsible fashion. So I wish to speak a little bit about these three areas, and, again, at the core of my message is an invitation to a bipartisan dialogue to try to address these issues.

Let's talk first about the motions to proceed to the floor. These motions used to be routine. This is a chart which shows when there was a necessity of doing a cloture motion--a motion to close debate on a motion to get to a bill. This chart goes back to about 1915. From 1915 through 1960, no one ever contested a vote on whether to bring a bill to the floor. It just was not done. It was a social contract. It was voted either up or down; let's go to the bill or not go to the bill.

Starting in 1962--and we see the accelerating number of red bars--it became more and more routine, through times when Democrats were in the majority and through times when Republicans were in the majority, to contest and obstruct the effort to even start debate on a bill. So this is an area we can work together to address.

Let's talk about the frustration of actually being able to debate amendments. I thought one way of contrasting this would be to look at the number of amendments the Senate has considered in different years. Back in the 1993 through 1995 session, 2000, roughly, or 1,961 amendments were debated and voted on here in the Senate. The following 2-year period, 1995 through 1997, 2,540 amendments were voted on. How does that contrast with the two previous Congresses? In 2011 through 2013, we were under 1,000--974; from 2013 to 2015, just over 500 amendments, or roughly one-fifth of the number that were considered 20 years earlier. So those are the numbers.

But what it really looks like here on the floor is we get onto a bill, and then nothing happens because the tree has been filled--filled by the Democratic leader when the Democrats have been in the majority, filled by the Republican leader when the Republicans have been in the majority--so no one can introduce an amendment unless they have unanimous consent, and there is always someone willing to object. Therefore, we are paralyzed. This is an area we can address.

Virtually every Senate legislature has worked out a system where they can come to the floor on a bill and immediately start considering amendments. There are many different ways we can solve this problem, but we won't solve it unless we come together as Democrats and Republicans and work together to figure it out--figure out a way that will work for both sides.

Let's turn to nominations. Here again we see that before 1960--this chart goes back to about 1915--we never had cloture votes on nominations. The nomination was proposed, debated, and then there was an up-or-down vote. That was the social contract. There could have been an objection to closing debate, but there wasn't. People understood that the time is short and if a nominee has majority support, then that nominee for a judicial position, for an executive position, should be in that position; that we shouldn't allow one branch of government--the legislative branch--to systematically undermine and attack the other branches of government.

Now, it is true that we haven't quite reversed roles at this point in time the way we did in terms of being here on the floor of the Senate simply because both last session and this session we still have the same President--we still have a Democratic President. But let's turn our minds to the next election in November of 2016, which is not that far away--a year and a month a way--and then January 2017, when that new President is going to take office. At this point, we have no idea whether that will be a Democratic President or a Republican President and we have no idea whether control of this Chamber will be in Democratic hands or Republican hands. But I do know that my Republican colleagues across the aisle--if there is a Republican President, they don't want this Chamber to systematically obstruct the ability of that Republican President to be able to put capable people into the necessary positions to operate the government. Our role is to screen out terrible nominees, not to systematically undermine the ability of an administration to function.

So as we look forward to 2017, not knowing who will be in charge, maybe this is a window of opportunity where we can come together and work out a plan to expedite nominations so that we can return to the traditions of the Senate and serve our role of advice and consent without conducting a war on the judicial branch or a war on the executive branch.

This concept of a supermajority was not the vision of the Founding Fathers. In fact, they worried about this. Madison spoke to it. So did Hamilton. Madison talked about the danger of a supermajority. He said:

It would be no longer the majority that would rule: The power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.

He continues to address supermajority rule and says: ``The fundamental principle of free government would be reversed.''

Let me translate that. What he is saying is that in a principled democracy, there is wisdom in the majority; that if the majority says this is the right decision, that is the decision we should make. But if we systematically go in the direction in which the minority says we should go, then we have chosen the less wise option. Those decisions build up over time and undermine the success of the Nation, and that would be a huge mistake.

Hamilton addressed this as well. He said--and this is Federalist Paper No. 22, and he was speaking from painful experience as a New York Representative in Congress that was created under the Articles of Confederation. He said that supermajority rule results in ``tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.''

I think a lot of Americans, when they think about the way Congress is operating now, would say: That is what we see. We see contemptible compromises of the common good. We don't see 100 Members of the Senate working together for the public. Instead, we see a lot of special interest deals, contemptible compromises, really abuse of minority role in blocking.

They have seen both the Democrats in the minority this year, Republicans in the minority before, so it is an equal opportunity critique, if you will, toward both parties. Of course, our national rating is very low.

Again, as we look toward the future and have no idea whether the next President will be a Democrat or Republican, and we don't know whether the next majority leader will be a Democrat or a Republican, we have a chance, an opportunity, an incentive to work together to establish new rules--rules that will make this place work again, rules that will restore the Senate.

Senator Udall and I have laid out ideas on how we might address these things, but those ideas--there is no one wisdom, no silver bullet. So let's come together in a dialogue.

There are ideas that I absolutely love. I love the idea of a talking filibuster. That is, let's get rid of the filibuster on motions to proceed. That is in sync with the way the Senate used to operate. Let's get rid of it on conference committees. That is the way the Senate used to operate. And on final passage, if 41 Senators want to continue debate, then let's insist that one of them be on the floor speaking. That makes it both a commitment of time and energy, which is not required now under the supermajority requirement, and it makes it visible and transparent to the American public. So I love that idea, but perhaps that is not an idea on which we can build a bipartisan bridge. I don't know, and I won't know unless we can come together in a bipartisan way to discuss it.

I love the idea of coming to the floor with a protocol for amendments, since we have been so paralyzed, so that immediately five amendments from the minority and five from the majority that are relevant to the bill and that are in order could be offered. That would be terrific. It would be a simple majority passage. I think if that was done, then the majority and minority Members would hear from their leaders and say: Let's do five more on each side. But we wouldn't come to the floor and play music on C-SPAN because we can't even start debate on an amendment. Let's use the valuable time we have on this floor to do the people's work, not to sit here in deep-freeze paralysis.

I love the idea of establishing a rule that creates a specific way to discuss and debate rule changes. We don't have that right now. When we start every 2-year Congress, we wrestle with how can we create a conversation over rules. There is no systematic way in our rules to do that. I love the idea of us working together to lay out a way to do that. I think it would serve this body well.

We need to work together to restore this body. It has often been referred to by the nickname ``the world's greatest deliberative body.'' That certainly is not an accurate description today, but together we can restore that. We have a responsibility to the citizens of the United States to restore that vision.

Let's make deliberation work and characterize this body, not deep freeze. Let's engage in respectful dialogue, not rigid partisanship. Let's take this moment, as we plan toward January 2017, and build a vision together, dialogue together, a vision of how to make the Senate work for Americans.

Thank you, Mr. President.

It is my privilege to introduce my colleague from New Mexico, who has wrestled with this issue even before he came to the Senate and has been engaged in it from day one and has brought so much insight and wisdom to bear on this challenge.

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Mr. MERKLEY. I think Senator Udall is absolutely accurate that this is the perfect moment to do it.

When we first engaged in this dialogue, we reached out to our Republican colleagues. We held one-on-one meetings. We sought to champion this. What we found was that the view of reform was polarized on whether you were in the majority or the minority.

We said that we were going to have this test for what we put forward: that what we put forward when we were in the majority is what we put forward when we are in the minority. If we don't think it would work for us in the minority, then it is not an honest or fair appraisal of making the Senate work.

So now we have come to that test because here we are now in the minority and we are proposing the same set of ideas. This Senator absolutely believes these ideas would make this place work better. It would enable more bills to be debated, which is--to have that value when you are in the minority, to actually put your amendments forward and have that debate, is a gift.

Certainly it says that if you really believe--the idea that we put forward, a talking filibuster--if you really believe you want to block something, you have to stand on this floor and debate it. I think that is a way to keep the theory of the filibuster and return it to the social contract of the past where people understood that it was a simple-majority body, as envisioned in the Constitution, as envisioned by Hamilton, as envisioned by Madison; that they had the experience of the supermajority and knew that caused deep damage, but that if you really believe in something so deeply, then you are willing to spend the time and energy.

So I think the things we crafted in the majority still hold up. But the bigger point is this: Now that we have had a reversal, many of our colleagues are experiencing firsthand the frustrations the minority can inflict on the majority. I think that opens a window of opportunity.

I have a list of 20 quotes. The Senator referred to people in the House--he is a former Member of the House--saying to their Senate Republican colleagues: Why don't you do something to fix the Senate? And now we are standing here saying: Join with us in a dialogue to fix the Senate.

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Mr. MERKLEY. Indeed, my experience in the Oregon State Legislature was dramatically different. In many ways, it was much more similar to the way I thought the Senate was operating when I was here in the 1970s and then working for Congress in the 1980s. Once we got to a bill on the floor of the Oregon House, where I served for 10 years and spent 2 years as speaker, every moment was utilized in debate. There was no paralysis. People only had limited time. We were there to hear each other and to make decisions and certainly in a more expeditious style than is the custom in the Senate. But what we had in common was floor time was well utilized in the Senate in the past and well utilized in Oregon.

As you were speaking about tradition and how the Senate worked, I was thinking about how all this began. When they had the first U.S. Senate, they had in their rule book a motion to force a vote. They had that rule, but they never used it. Why didn't they use it? Imagine if there are 13 States and just 26 Senators and they stand here occupying a quarter of the space we now occupy and they say: Well, we certainly can extend the courtesy of hearing each person's insight or opinion before we vote.

So after a couple of years, when they rewrote the rule book, they decided not to include the rule. They didn't need it because they had the courtesy of hearing each other. So suddenly there is a Senate with no rule on how to close debate and force a vote. And over time that courtesy eroded. It was after World War I that the first time occurred when the Senate said: Well, let's enable a majority--a supermajority of the Senate to close debate if there is too much abuse or paralysis.

The point is that the filibuster is not in the Constitution. Some of my colleagues have said this is the way the Founders designed the Senate--to be a supermajority body. That is wrong, wrong, wrong. It is not in the Constitution, it was not in the early Senate, and it was not a major feature of the Senate in terms of it being a common experience until these recent years.

So if we can recapture the spirit and the courtesy of hearing each other's opinion but enable us to get onto the bill, debate the bill, do amendments, and then if someone finds a moment of great principle, great heartfelt objection, and wants to spend the time and energy to extend debate, they do so in this visibile talking-filibuster fashion, I think that would be a huge improvement and well worth our time.

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Mr. MERKLEY. There are two former Members of the Senate right now who are working on a book that is coming out in January that will be addressing reform in the Senate, and that is Trent Lott and Tom Daschle. They have already issued a number of ideas about how to reform this.

The point I am making is that when people leave the Senate, they reflect back and say: You know, there is a bipartisan opportunity, a bipartisan responsibility to make this Chamber work.

What we are saying is that this can't be accomplished through folks who have left the Senate; that we must invite bipartisanship here and solve it ourselves; and that any rule changes that are envisioned, any agreements that are forged have to be done here on the floor, and we are extending that invitation, as you put it, to our 98 colleagues to be part of that dialogue.

We can draw on the ideas that our former Members have put forward as a starting point. We can draw on the ideas that you and I have put forward, but these ideas, there is no one way to address this. We are inviting others to brainstorm together in a dialogue to try to gather a vision that perhaps we can commit ourselves to, in a bipartisan fashion, to enact at the start of the next legislature, when we realize we may not be minority or majority, and that becomes a magical way to escape our current status as we are embattled and we are having deep emotional fights over foreign policy, social policy, and how to create jobs in America--but to get some distance on that and say how to make this Chamber work the way it was envisioned, because certainly I think 100 Members can agree the Senate is broken. Would it not be phenomenal if, in a bipartisan effort, we were able to restore the U.S. Senate to being a great deliberative body?

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