Amending Senate Rules

Floor Speech

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Mr. SCHUMER. Mr. President, I wish to talk a little about the issue we have been discussing, and first let me congratulate my colleagues who have been on the floor on this issue, particularly the Senator from New Mexico, Senator UDALL; the Senator from Oregon, Senator Merkley; the Senator from Colorado, also named Udall; and the Senator from Iowa, Senator Harkin; and many others who have participated in this debate. They have done a great job today.

The other thing I think I appreciated--and Senator Harkin helped do this--is there was not just debate, there was actual discussion, even when we didn't agree. I thought it was pretty interesting watching on the TV in my office when Senator Roberts came and stood by a desk here on the Democratic side, a desk away from Senator Harkin, and they didn't agree on the issues but they debated the issues. What a great first-step metaphor for the kind of debates we want to have here on the Senate floor. So this has been a very positive and hopefully prescient opening of the debate to change the rules because we all know that in the last Congress the Senate didn't function effectively and the time for change has come. I want to salute the leaders, as well as Senator Klobuchar, Senator Franken, Senator Lautenberg, and so many others, who have been so involved in our discussion and for the work they have done.

I also want to say to my colleagues this is not something that has just happened recently. This idea that all of a sudden this has popped up in the Senate is wrong. Last year, the Rules Committee--and I was urged by Senator Udall to do this among the first days of the session 2 years ago, and I think we did a pretty extensive and good job--held six hearings that examined the history of the filibuster, trends in the use of the filibuster, secret holds, stalled nominations, and proposals for change. In those hearings, we heard from Senators from both parties who have valuable ideas about the need to reform the filibuster. Senators HARKIN, LAUTENBERG, WYDEN, GRASSLEY, UDALL, UDALL, McCaskill, GREGG, and BENNET all testified at the hearings. We also brought former Senators of both parties, scholars, and former Senate staff of both parties to come and testify.

In the first half of the 20th century, filibusters and filibuster threats were relatively rare events. That has been documented already, and our hearings documented it extensively. But since that time, the number has continued to dramatically increase. When you face an average of two cloture motions per week--which is what has happened currently--then we know there is a problem, and it is no mystery that the Senate has been labeled as ``dysfunctional.''

Between 1917 and 1971, there was an average of one cloture motion filed per year. In the 110th and 111th, we had more than 70 cloture motions. These cloture motion counts are a response to the filibuster, and it is distorting the way the Senate does business.

For the legislative branch, hundreds of bills passed by the House in the 111th Congress were not considered, even though they had passed the House by voice vote or with a majority of House Republicans voting yes. The Senate is supposed to be a cooling saucer, not an ice box.

In the executive branch and the judiciary, dozens of judicial appointments were delayed or blocked from floor consideration for months and months in the last Congress. Many of these were approved unanimously by both Democrats and Republicans in committee, yet sat on the Executive Calendar for months because of secret holds. This is dangerous at a time when we need a Federal Government using all its resources to fight terrorism, protect our country, and address our economic needs.

I salute Senators WYDEN, McCaskill, and GRASSLEY for focusing our attention on this issue. It is important to end anonymous or secret holds and shine some light on the kinds of long-term delays that can hold up a nomination or a bill for weeks or months or even longer.

Also, during the fiscal year 2010, half of all nondefense spending--$290 billion--was appropriated without legal authority because Congress hadn't reauthorized the programs.

The unprecedented threat of a filibuster--not even the actual use of the filibuster--has prevented debate with such frequency that extended deliberation is a dying commodity. Make no mistake about it, the everyday threat of the filibuster does not ensure debate, it restricts it.

Reforming the rules in a thoughtful way would clear the way for more legislating, not less. Filibusters provide a minority of Senators a way to make their voices heard, but they should not provide a way for a minority of Senators or even a single Senator to grind the Senate to a halt regardless of whether they are Democrats, Republicans, or Independents.

Reform will engage the American people and reenergize this institution. This will not end the filibuster or cut off debate. On the contrary, it will pull back the curtain and show the American people what we actually believe and what our deliberations are really about.

There have been many ideas for reform presented by my colleagues that are worthy of discussion. The Senator from New Jersey, Mr. Lautenberg, testified before the Rules Committee about his plan, which he called the ``Mr. Smith Goes to Washington'' proposal. Senator Merkley, Senator Udall, and others have developed their own versions of this important concept, which I call the talking filibuster. This talking filibuster idea would require filibustering Senators to keep speaking on the floor after cloture fails, to show clearly their wish to continue debate and to allow them to talk for as long as they wish.

Currently, the only evidence that a Senator is facing a filibuster is the vote on cloture. The Senate floor has evolved into a place where the majority assumes that each bill will be opposed and that little actual debate will occur on legislation. The rules require a vote of three-fifths of the Senators chosen and sworn to end debate on a matter or measure. The very question that is posed to the Senate in a cloture vote is, Is it the sense of the Senate that debate should be brought to a close? Those are the words. If it turns out that enough Senators answer that question: No, we want more debate, then those Senators should actually be required to debate. It is difficult to explain to the American people that the Senators who voted for additional debate are silent when then given that opportunity. If they want to debate, well, then let's debate.

One way we can guarantee fair and meaningful debate after Senators vote on cloture to continue debate--and cloture fails--the Senate remains on that measure and Senators must actually debate the bill. Senators may be recognized one after the other, as long as debate is continuous. If no more Senators seek to debate the issue, then the majority leader can move to close debate.

Obviously, there are technical things that have to be worked out--and we are working hard to do that--to make sure this proposal works and is viable. In the past, attempts at debate have been frustrated by quorum calls or unnecessary motions, all aimed at avoiding actual debate. If we change the rules to encourage extended debate after cloture fails, then the priority during this period will be to either debate the matter or move forward and not play parliamentary games. The American people deserve better of their elected officials than what the Senate has been giving them. Governing is not a game of charades.

The majority will not choose to waste floor time on a matter the minority is committed to stop. But will the minority choose to filibuster every single piece of legislation if actual debate is required? I don't think so.

That would apply whether Republicans are in the majority or Democrats are in the majority.

In addition to the other worthy options proposed for reform, I think this proposal is strong because it allows the minority the same ability to debate and block legislation--so long as they actually debate. If there is no actual debate, there can be no filibuster, and the Senate can proceed to do its business for the American people.

I believe this modest proposal is one on which both Democrats and Republicans should agree. It could be a point of bipartisan agreement, and I will present it in the bipartisan negotiations happening over the next few weeks.

Of course there are other good-faith proposals that my colleagues have put forward. Many of them are thoughtful. Most all of them would represent meaningful change without altering in a too jarring way the rules of this institution. Nobody wants us to become the House of Representatives. Everyone understands that we should not rule simply by majority vote on every issue. However, we can pull the curtain back and make sure that when people say they want more debate, they debate.

In the next 2 weeks, we should look at these proposals--all of them. During the recess, we need to talk to each other, Democrats and Republicans, about genuine ways to reform this body, to restore the Senate to its traditional role as the world's greatest deliberative body, and to do so in a way that encourages full and open debate--both for the majority which proposes and for the minority which wishes to modify what the majority proposes.

I believe we owe it to the American people to reform the Senate so it functions in a way that best represents their interests.

I yield the floor.

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