insure the use of doherty is properly in accordance with the constitution.

the presiding officer: the

senator is recognized. mr. merkley: thank you, madam president. the reason i'm rising to talk about rules is that we are at the start of a new two-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 amending the rules was in 1975. the reason that there was a debate that particular year is that in 1973 and 1974 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 u.s. 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, all kinds of motions. the spread sheet tracking them fills pages. in the end what this body, the u.s. senate, decided to do was to change the rule that requires 67 senators to terminate debate and have a final vote on the bill and replace it with a decision to have 60 senators required to end debate and have a final vote on a bill. this is so-called cloture motion. now, we are in a period immediately preceded by the 2009-2010 congress. in 2009 and 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 two-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. and 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. and why is that important? because in the appropriations bills, we make decisions about what the most pressing problems in america are and how we're going to allocate resources to

address those pressing problems. but 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 the nominations that came before it. in fact, it left over 100 nominations pending. now, 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, and it is this chamber that weighs in on the president's recommendations to fill judicial positions to, assign judges. and if we never get to the

debate on the floor of the senate, then we haven't fulfilled our constitutional responsibility to advise and consent. in fact, we've damaged the judicial branch, and 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 the other branches of government. so we have failed in our responsibility. furthermore we left over 400 house bills lying on the floor, collecting dust, unprocessed, unconsidered. the saying in the house of representatives is the u.s. senate is where good house bills go to die. it is appropriate that as we start a new two-year period, we ask ourselves, how should we 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 u.s. senate. no appropriation bills. nominations unprocessed. hundreds of house bills untouched, a budget incompleted. the main culprit in this is the filibuster. a filibuster which is kind of street language, if you will, for an objection to the regular order of holding majority vote and triggering a battle week delay in the senate process and it triggers a super majority of 60. it's gotten to the point of this body the as a majority body, a body that would need 51 votes is functionally becoming a super majority body. the framers of the constitution were clear and they laid out a

super majority required for purposes, a supermajority required to approve treaties or a supermajority required to impeach, but not to pass legislation. that wasn't the vision. so today i rise to say we can do better in the u.s. senate and that we owe it, under our constitutional responsibilities to do better. and there are a series of proposals that have been filed. and one of my colleagues has arrived, senator udall, who's been a key leader, enormously instrumental in this effort to reform the senate. so in a few minutes i'm going to -- to ask for unanimous consent for one of these rule changes to be considered on the floor. i'll do that when my colleagues -- colleague from across the aisle has arrived. and i'll go further in discussing how we need to change the senate. but before i go any further, and

senator udall, i've already asked for a kol key, so i -- kol kee, so i -- colloquy, i thought i would stop and have you give general thoughts before we go to the unanimous consent that we have to have considered. mr. udall: madam president? the presiding officer: the senator in new mexico. mr. udall: thank you -- thank you, madam president. let me, first of all, at the beginning thank two of my colleagues that have worked incredibly hard with me on the issues of senate rules reform, senator merkley from oregon and senator tom harkin from iowa. and i think senator harkin will be joining us at some point here. and -- and -- and i also want to -- to thank the chair. one of the very early leaders on the constitutional option, on senate reform of the rules was senator jeanne shaheen from new

hampshire and she -- she's in the chair today and i -- i know she cares about this a lot and i know that -- that she wants to see this moved forward. and what we're trying to do today -- what we're trying to do today is follow what has been history in the senate. if ever -- and -- and at various points in the senate there's been respect for each other, the ability to get things on the floor, to get debate. and with the rules it's pretty extraordinary when you look at the history. when you look at the history of the senate rules, one of the things that's very clear in the movements in the 1950's, 1960's, 1970's to change rules reform, both leaders would allow proposals on to the floor, allow these proposals on to the floor to be voted upon. and we have the extraordinary situation today -- extraordinary

where our -- and we'll -- we'll see when our colleagues show up, our friends on the other side of the aisle are basically saying, we don't want your rules reforms on the floor today. we're not going to allow that to happen. as everybody knows in the senate you got -- you have to have unanimous consent to do this. and -- and we're not going to get consent today, but we want to lay out for people what it is that could happen if we were able to get something on the floor and -- and it's my belief, senator merkley that -- that the proposals that we make, the proposal that you and i are on and the presiding officer, senator shaheen, and 26 other senators are on a proposal senate res. 10 that we filed on jan the 10th. it's a reasonable proposal. it's a commonsense proposal, and the five proposals that are

contained in here have substantial bipartisan support in the past. and i -- i -- i'm going to be asking unanimous consent to put senate res. 10 on to the floor so that we can have a debate on it, so that we can move forward, and -- and the thing that -- as i said that's extraordinary is that we're not going to get that consent. as our research indicates, and i know senator merkley and his staff worked really hard, they had a chart that was three pages long and -- and in the 1950's, 1960's, 1970's, these proposals were on the floor and they were debated on the floor, sometimes there was a motion to table and sometimes there was an up or down vote, but we're having great difficulty getting this reasonable commonsense proposal on the floor. let me talk a little bit about senate res. 10 which -- which 26

other senators went on on the first day and it -- it's -- first of all, it deals with -- a serious problem. there are five parts to this. the first one is debates on motions to proceed. it may sound a little crazy to people out there, but when we try to get something on to the floor, it doesn't just happen automatically. actually what has to happen if both sides don't agree, the majority leader files what's called a motion to proceed. and we could end up on the motion to proceed going along for a week have to file cloture, which means to file cutting off debate on the motion to proceed and then with all the ripening time and everything it takes about a week to get through that so you can -- you can get at the end of the week, and if you don't get the 60 votes to cut

off debate on the motion to proceed, you're back to square one and you've wasted a week. and that is a -- is what we believe is a dilatory tactic. it doesn't let us get to the point which is the people's business. please, senator merkley. mr. merkley: if i could interrupt for a moment. i wanted to clarify what you just said is that a supermajority of the senate after a week of debate is required just to get to the point that you might be able to start debate on a bill and the senate wastes weeks and weeks and weeks debating whether to debate rather than doing the people's business, that's a problem. mr. udall: senator merkley, you hit it on the head. that is a problem. and we have had that consistently here in the two years that you and i have been here and my understanding it happened in many of the years before that. in fact, senator byrd -- senator byrd was -- was very, very upset

about the way the motion to proceed was being used. in 1979 came down to the floor, he was the majority leader, and he did everything he could to change the -- the motion to proceed and try to make sure that it was used more rationally and more reasonably. and what our proposal is, senator merkley, and the other senators that are on this knows, we're talk two hours of debate on the motion to proceed. so rather than wasting a week, if majority leader reid comes down and says we're going to proceed to a piece of legislation about jobs and he puts it on the floor, the side over there gets an hour and our side gets an hour and then we're on the piece of legislation ready to have amendments filed, ready for debate to take place. and so we've saved us what we believe would be a -- a week -- a week of time. the second proposal -- that's dealing with the first on the

motion to proceed. the second is -- is very, very simple, but it's going to move the senate along in -- in a dramatic way, and that is section 2, eliminating secret holds. and we take an approach here that i know that we have several senators who have worked for years and years and years on secret holds. when i talk about bipartisan on secret holds, senator grassley, senator wyden, from your great state of oregon, senator claire mccaskill from missouri, more recently, but they've all been working on the issue of secret holds. we do this in one little section, we say that no senator may object on behalf of another senator without disclosing the name of that senator. that gets right to the heart, senator merkley, of the secret holds. mr. merkley: you're telling me it's become a common practice here on the floor of the senate for any 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 -- being raised? i -- i can't imagine the american public can believe that senators don't have the courage or convictions to come here and say i'm going to hold up this piece of legislation because i disagree with it and i'm going to fight it in any way i can so that the public can weigh in on whether or not they agree with them or don't agree. we'll be transparent and accountable to the u.s. citizens. mr. udall: senator merkley, one of the things that happens, and we've seen a lot of this, is where we -- we know that some senator is objecting to, for example, a nomination, a high nomination in a department, an executive department, and, yet, this -- and does it secretly so we don't know here on the senate floor the press that covers this doesn't have an idea, the people don't know, and then the same

senator goes to the department and negotiates policy -- national policy about a particular issue that concerns the whole nation, all of our states and tries to get an agreement, a backroom deal and and an agreement. that isn't the way we should be doing business and that's why this very simple proposal, no senator may object on behalf of another senator without disclosing the name of the senator. you own the hold. senator merkley? mr. merkley: i wanted to note as you observed senator wyden and senator grassley and senator mccaskill have worked hard on a much more detailed version than we have in the senate resolution 10, but the basic notion is the same, if you're going to place a hold, you're going to do so in a public and accountable fashion, and that that would greatly improve the quality of ballot. i've been in the position of trying to get help for the

clamoth basin. it took me a lengthy period -- eventually did find out, but it took a long period before i found out who had the hold before i could ask them to release the holds so we'd have a chance to moving that assistance for this drought-impacted portion of my state. but with this change, senators holding up assistance to clamoth would have to come to the floor and make clear where they stand. mr. udall: and, senator merkley, what ends up happening is then it's transparent. then if you, as a senator from oregon, on the clammoth basin want to do that, can go to that senator and try to work that out. right now the problem that we have is that some senator is putting on a secret hold and we don't know who it is and we don't have the ability to -- to clear that away. and so this is a good, solid

proposal. mr. merkley: it's not only secret to the public, it's often secret to fellow senators greatly complicating our effort to dialogue with fellow senators and to explain why we're pushing something or pursuing something and get their partnership in it. mr. udall: that's right. that's right. now i'm going to move on to the third section of -- of senate res. 10, which is the right to offer amendments. and, as senator merkley knows very well, and our presiding officer, one of the big issues around here, and this is getting into -- a little bit into weeds, but one of the big issues and -- and -- that could help us function better is if we just agreed that -- that whether we're in the majority or in the minority, we -- we want both sides to have the opportunity to debate and to offer amendments. and so we are trying to protect that right. many of us are thinking in terms

of these rules, we're saying, we want them to be fair to both sides. and so the provision on right to offer amendments is -- is in the legislation. it talks them being majority and minority amendments. it doesn't talk about parties because we may well, you know, a lot of pundits are saying that we're going to be in the minority in two years. and i think it's only fair in the united states senate that we have that kind of relationship. senator merkley. mr. merkley: i'd like 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 a trillion dollars. i had an amendment that i wanted to present here that would have taken some of the money in that bill that was being spent in a fashion which created very few

jobs and spend it in a fashion that would create a lot of jobs, and i had another proposal to take money that wasn't being put to good use and proceed to fill in and support the solvency of social security and medicare. now, people can argue about whether these were good ideas or not, but if i had been able to offer one or both of those amendments, i think it would improve the debate and dialogue here and perhaps have resulted in a better piece of legislation. mr. udall: senator merkley, the fourth provision -- and i think you're very right on section 3, but the section 4 is the issue of extended debate, and i would like to -- to have you talk about that issue, because that's the issue that you've worked the most closely on. you -- you have raised the issue of what we have going right now is what we call silent debate,

it's a silent filibuster. we have people that -- that say they want to filibuster and object, but then they go home or they go on vacation or something like that. and so you have -- you have drafted a provision. you were the architect of this provision in s. res. 10. could you go through that and just talk about this section on extended debate, what it does and why it's important to -- to what we're dealing with here today? mr. merkley: you bet. 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 but nobody is here explaining their position to the american public, instead we would switch to a provision that says if 41 senators want to continue debate on a bill, we will get continued debate on a bill. we will have debate on a bill, not silent. currently, we have the hidden or the silent filibuster.

we would create the public or the talking filibuster. and to give you the sense of numbers on this, these blue bars represent filibusters during the last two-year period. during the first six months, 33. 34 in the second six months. 36 in the third six months. and then 33. i think that's 136 total filibusters in a two-year period. this is why we didn't have any appropriation bills. this is why we didn't have a budget. this is why we didn't deal with hundreds of house bills. this is why we didn't get nominations done and advise and consent on them. now, 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. this is average per year. in the 1900-1970 period, the

average was one filibuster per year, right here. in the 1970's, the average was 16 filibusters per year. in the 1980's, 21 filibusters per year average. 1990's, 36 filibusters per year. average. 2,000's, 2000-2010, 48 filibusters per year. and in 2009-2010, this last session, an average of 68, or 136 total. so you can see from this chart the growing dysfunction, because there was a social contract that existed in which you as an individual senator didn't exercise your power to object to a simple majority vote unless you thought it was an issue of huge consequence, and maybe you would do that once or twice in a career. not routinely week after week. but as social contract has been

eliminated, so the filibuster, which is really the honoring of every senator to be heard, that we weren't going to hold a vote until every senator had had their say so we can be fully informed, have a full dialogue. it is that reciprocal respect that is being routinely disrespected and abused on the floor of the u.s. senate. now, in our heads, many of us have an image of the filibuster that comes from "mr. smith goes to washington." and here is jimmy stewart playing the character of jefferson smith, and he comes to defend a corrupt action and stop it regarding a camp for children, and he talks through the night and there are many forces assaulting him, but jimmy stewart is going to stay object the senate floor and he is going to tell the american people what he is fighting for and why, and this is a talking filibuster. that 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 that you have voted for. so the talking filibuster is almost that simple. replaces a silent filibuster with a talking filibuster. the result is two critical things. first of all, transparency and accountability with the american public. the public can see what you're saying on the floor of the senate and can say you're a hero or you're a bum. they can agree with you, they can disagree, but it's visible, not hidden. the second thing is that each senator has to expend time and energy to carry on a filibuster, so this will strip away all of these frivolous filibusters that are done for no other reason but

to prevent the senate from being able to carry on its responsibilities. mr. udall: let me -- let me also say one thing about the talking filibuster that -- that hit me, and that's the -- the bipartisanship. as we know, both of us i think were here on the floor when senator arlen specter gave his farewell address. i believe the presiding officer was also here. and senator specter served in the minority for two years and then was in the majority for almost two years, and both times he came forward with a proposal he was calling the same thing, talking filibuster. whether he was on the minority side or majority side. so i -- i think once again i just want to demonstrate that each of these provisions in here

has bipartisan support, and i believe this debate -- we -- we don't think this debate is about partisanship. we don't think it's about power grabs. we don't think it's about those kinds of things. it's about, as you have i will use dated, it's -- alucidated, it's about making the senate work better. we're talking about making the senate work better for the american people. i think when we did the oversight of government when it comes to appropriations bills, a budget, getting a budget out on time, getting appropriations bills done on time, that does a lot to make sure the public's money is well spent. that's something i hear about a lot back home. but on -- with regard to a power grab, i -- i had a statement that i wanted to put in the record that -- that shows very dramatically why the

constitutional option is not a power grab, and i -- and i would ask unanimous consent to put that statement in the record at this point and also a republican policy committee paper that's titled "the constitutional option, the senate's power to make procedural rules by a majority vote." it's dated april 25, 2005. i would ask unanimous consent to put both of those in the record because i think they show that this isn't about a power grab, this is about us trying to work to -- to make sure that the senate is going to work better for the american people. the presiding officer: without objection. mr. udall: and i would also ask unanimous consent for my law clerk, tim woodbury, to have floor privileges for the duration of this debate. the presiding officer: without objection. mr. udall: now, the -- the fifth provision of senate res 10 -- and as senator merkley knows, ware down here today to try to

get senate res. 10 rules changes onto the floor. we're asking -- we're going to be asking unanimous consent, but the fifth provision is called postcloture debate on nominations, and what are we talking about there? well, when we have a nomination that comes onto the floor, a judicial nomination, an executive nomination, those kinds of nominations have in the rule 30 thundershowers of postcloture debate, so when you decide to cut off debate, when you get to the point and say we're going to cut off debate, that 30 hours is normally used for amendments, and to work through the amendment process. well, when you have a nomination, you're not amending a nomination. you're -- you're trying to either move forward, up-or-down vote on the nomination, the person is either voted up or down, and so it makes no sense to have 30 hours. so the other commonsense

proposal we have in here is -- is to shorten that cloture time to two hours, the postcloture time to two hours from 30 hours. because there is no -- no reason to amend in that phase. and i don't know, senator merkley, you're also familiar with this provision also, i think. mr. merkley: i think what you have set forward is we would save 28 hours on each nomination, and if the senate goes around the clock, that's a bit more than a day. if we're doing a day -- ten-hour days, then that's almost three days. you save three days of senate time that really is put to no purpose right now since at the time that you have 60-vote cloture, you have already got 60 members saying they're ready to vote, let's go forward. so letting people just wrap up over a couple of hours, restate their key points for other members, a couple hours makes sense, that's why they are there, but rather than two hours and three days.

mr. udall: that's -- that's correct. so -- so what we're doing here today -- and senator merkley, i know you have introduced a freestanding proposal on the talking filibuster. we have joined together and i have also signed onto that. we have senate res. 10 which was filed on january 5 that has these five solid provisions for reforming the rules. i think if you look at these in history, if you look at these in history, they have had broad bipartisan support. i would at this point recognize that our colleague in this rules debate, our partner and hard worker, more senior and experienced on these rules matters has joined us, senator tom harkin from iowa. we're in a colloquy situation. mr. harkin: would you yield for

an observation? mr. udall: you bet. the presiding officer: the senator from iowa. mr. harkin: i want to thank my friends, my colleagues, senator udall and senator merkley, for their great relationship on this issue. they have brought a breath of fresh air to the senate in exposing, i think, what has become a gridlock, which has made the senate almost dysfunctional. and so my friends, senator udall especially, in focusing on what the constitution really says and doesn't say and the fact that i believe -- i am only speaking for myself, i believe that we are not, madam president, living up to the oath that we stood down here by the well and took when we were sworn into the united states 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's written, in the verbiage that's used, and if we look to what the founders wanted in the constitution, i think it was very clear that but for -- but for a few instances which they clearly spelled out in the constitution requiring a supermajority of votes, like treaties, for example, and impeachments and expelling a member, but the constitution is quite clear that 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 two-thirds vote, 67 votes. well, that might be okay for one congress if they wanted to adopt that kind of a rule, but how can

one congress bind another? i think it's quite clear from parliaments of old and other legislative bodies and court rulings in this country that one legislative body cannot burden a subsequent legislative body. and yet here in the senate, because of a -- a change in the rules that happened some years ago, they say it binds every senate thereafter. i believe that's unconstitutional. and my friend, 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 united states senate of any congress, that we adopt rules. and we can adopt those rules by majority vote.

now, if the majority wants to adopt a rule that says that for this congress, we have to abide by a certain number, well, that's okay, but it cannot bind another congress. it cannot bind another congress. so senator udall has been quite, quite eloquent on this issue and he has been very forthright and has fought very hard for what is known as the constitutional option. that's 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's constantly reminding us of what that constitution says and doesn't say and that we have the right of every -- and because the constitution also says, as the senator has pointed out many times, the constitution says that each body shall adopt its rules. so the senate can adopt its rules. and since it does not say in the

constitution that each body can adopt its rules but it requires a two-thirds vote to change those rules, it doesn't say th that. it just says each body can adopt the rules. and it does not specify that we have to have a supermajority to do so. it only specifies a supermajority i think, if i'm not mistaken, in five cases. five cases. so obviously the framers of the constitution was quite clear, that each congress could adopt its rules and they 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've said many times, what if -- what if, what if the voters of this country decided

to elect 90 senators from the same party, say the republican party? well, could they come in and say, okay, we're going to adopt new rules and from henceforth, it's going to take 90 votes to change those rules, knowing that that may never happen again in the history of this country, that we would ever have 90 senators from one matter? could they do that? well, if you accept the logic of what we're working with right now, the answer is, yes, they 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. you say that wouldn't happen. well, what about 67 votes or 75 votes or 78 votes? what's so magic about 67? where's that magic number come from? it was plucked out of thin air. now, at least -- so that's why i

address myself to the -- to the issue that senator udall has worked so hard on and that is focusing on the constitutional issue. senator merkley, my friend from oregon, has focused on rule 22, which provides for -- it's called the filibuster rule. and basically under rule 22, we don't even have to filibuster. i mean, a filibuster, people think that 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's what people imagine a filibuster to be and that's what a filibuster used to be. but what a filibuster has beco become -- 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 -- we have now become the greatest nondeliberative body because we don't debate, because now a minority can decide what we take up and what we don't take up. think about it this way, mr. president. under the rule 22, as it's now being used, 41 senators -- 41 senators can decide what this body z. they have the veto rig right, the veto right over anything we bring up, that the majority wants to bring up. and again, when i say "majority," mr. president, i'm not say democrats and republicans, i'm saying any majority. that's 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 -- this is for the smooth functioning of this place. i predicted at that time in 19 1995, and the record is clear -- it's in the record -- i predicted that unless we do something, the number of filibusters would escalate, it would be an arms race. and that's exactly what's happened. 135 last year. 135. so the senator from oregon has that said if we're going to have a filibuster, at least people ought to come on the floor and talk. at least if you're going to filibuster, if you're so opposed to a bill and you've got a group that are opposed to it, at least stand out here and speak. we don't have to do that now. we can just put in quorum calls and walk off the floor and a minority, 41 senators, decide what we take up. can stop anything. think about it this way. for a bill to become law in this country, it requires it to pass the house and the senate in the

same form and the president has to sign it. right now, the way that we are constituted and the way we operate in the senate, 41, a minority -- 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 that 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 from coming to the senate floor. or an amendment.

and so we have a situation where the power resides with the minority. now, i heard the distinguished senator from kentucky, senator mcconnell, the other day got up and said this is a power grab by the democrats. a power grab. no. 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's the power grab. and 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. we don't have the authority. the minority has the authority, the right to veto things, but they don't have the responsibility. and that's why we have such a dysfunctional system. this is what the people of america are opposed to.

now, i'll have more to say about this tomorrow as i think we get into a longer debate on this, but 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's not the way it is. we used to have a system on the senate floor where if you offered an amendment and if you get 51 votes, you passed the amendment. you can't do that anymore. you cannot get an amendment offered on the senate floor unless you've got 60 votes. that's what's -- that's what's happened over the last four or five years. i know. i myself tried to get an amendment offered on the financial regulation bill. i thought i had over 51 votes for 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 didn't have 60. so now in the senate we require a supermajority to do anything because 41 senators, a minority, has the right to veto anything the majority wants to bring up. well, mr. president, as i said, i'll have more to say about this but it seems to me, this stands democracy on its head. and the idea of ma jar rule on -- majority rule on its head. i think the majority ought to have the right. i mean, elections ought to have consequences. if people vote for a certain party to be in power, that par party, regardless of what it is, ought to have the authority to act. now, 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's what the minority has in the united states senate today. so that's -- that's the issue that senator merkley has been going after and that is if

you're going to -- at least if you're going to have a filibuster, there ought to be some consequences to it. and the consequences are you have to be here and talk and not hide behind quorum calls, where we sit here for days on end doing nothing. doing nothing. because someone's objected to bringing up a bill but they don't have to be here to discuss it. and so, mr. president, i just want to thank my two colleagues for their great leadership on this. as i said, they've brought a breath of fresh air here. and to the average person out there watching, they probably think, well, bring it up for a vote. well, things aren't quite that simple in the united states senate, as we're about to find out, and so we're going to do whatever we can to bring this to the forefront. but i dare say the way the game is rigged right now, the way --

i wouldn't say -- maybe i strike those words. the game's not -- 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 united states senate to act. so again, i thank my colleague, senator merkley and senator udall, for their leadership on this. 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 and majority rule and respecting the rights and the wishes of the voters of this country. so again, i thank my -- my colleague from oregon for his leadership. i see he's standing there and i thank my colleague from utah, senator udall, for yielding to me. mr. president, i would yield the floor at this point. the presiding officer: the senator from oregon. mr. merkley: senator? senator harkin, i would certainly like to thank you for the many, many years that you have pursued reforming the rules

of the senate. initially from the perspective of being in the minority and then minimum takenning that same effort in the majority. and i think it's -- maintaining that same effort in the majority. i think and it's important to recognize that the issues we're presenting and bringing forward is to make the senate work better as a deliberative body for both the majority and the minority. now, if we were turning the clock back several decades, we wouldn't be here right now carrying on this colloquy. instead, there would have been unanimous consent to put a rule proposal on the floor of the senate and we would be debating that proposal. that's 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 and then eventually it was tabled. tabled by 51. well, that's what the rules said, 51 can table it, they can set it aside. he did not win his debate but he

got it on to the senator of the senate and it was debated. the samening 1957. in 1959 -- the same thing in 1957. 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. and everyone said let's get the rule out there, let's hold the 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, they held another debate on senator anderson's proposal and that debate then resulted in a -- it was tabled. the resolution was tabled so it didn't pass. to have the debate isn't a guarantee you're going to win the debate but it is to engage in the deliberation, the exchange of ideas that enable us to capture the challenges we see, the challenges with our country. and, in this case, the challenges with make the senate function and make things work better. and this goes on. in 1963, so here we had five

times in the course of 12 years a rule proposal was put on the floor, it was debated. it was defeated but it was put on the floor under the framework that 51 members could adoment rules under the constitution. the constitutional power that you've been speaking to so eloquently for congress to organize themselves, for the u.s. house of representatives to organize themselves and for the u.s. senate to organize itself. so 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. so the debate on the rules to fix the senate itself reflects the dysfunction of the senate. so i want to thank you for having engaged in so many years of efforts to bring this issue forward and the challenge of fixing the senate, it's been engaged by so many names that i

was familiar growing up with, folks like senator mcgovernor and senator mondale, senator church and senator pearson, and they all brought their effort to make that body work better and we did have a major reform in 1975 but as the chart i put up earlier shoarkd the congestion an the paralysis from the abuse of the privilege of hearing yourself purr, making yourself heard before your colleagues, has now compromised the ability for us to fill our constitutional responsibilities and we need to fight hard to try to fix the broken u.s. snavment. mr. harkin: mr. president, would the senator yield for a question on that point? mr. merkley: i would be delighted to do so. mr. harkin: the senator is a student of the constitution. we've all looked at it. we noa novello what it says. -- we know what it says. and i mentioned he willier about the fact that when we come in here, we take an oath of office to uphold and defend the

constitution against all enemies, foreign and domestic, to bear true faith and allegiance to the same. that's our oath of office, to bear true faith and allegiance to the constitution. is it the senator's view that perhaps the way the senate is constructed right now may in some way -- i just throw this out -- may in some way take away my constitutional right to adequately represent my constituents? i mean, if it takes a supermajority or if we can't even change the rules, as the senator has pointed out, does not this kind of -- does this not take away some of the constitutional rights and obligations -- obligations drve a united states senator, i ask my friend? mr. merkley: certain little a it will you that senator burr, who 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 fill our constitutional responsibilities would be inappropriate, and we would need to change it and the constitution empowers us to danger it with a simple majority. so when the point comes that the national is not functioning in the fashion that it was constitutionally intended to function in -- that is, a simple majority to pass legislation -- then we certainly have to wrestle with whether we're doing our responsibility if we don't 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. harkin: i thank the senator for his response on that. mr. udall: senator merkley, madam president -- mr. president -- the presiding officer: the senator from new mexico. mr. udall: and i know, mr. president, the presiding officer, he has also been a part of this rules reform effort, and

we very, very much appreciate that. it was mentioned here about senator byrd dndz and i think within of the most interesting stories about senator byrd, senator harass can i and senator health care reformly, in 1979 when he came to the floor, he was talking about shall -- and we've use this before -- the dead hantsdz of the past, not be ruled by the dead hand of the past. what was he real lee talking about? he was talking about the idea that one senate could establish in a set of rules and bind future senates and he gave a passionate speech, and we're in the situation that he talked about right now. he said, "now we are at the beginning of congress. this congress is not obliged to be bound by the dead hand of the past. take rule 32," which is -- it is a different-numbered rule today. but, for example, the second paragraph thereof which says that the rules of this senate

shall continue from congress to congress until changed in accordance with these rules. that rule was written in 1959 -- 1959 -- by the 86th congress. the 96th congress is not bound by the dead hand of the 86th congress. the first senate -- and now he talks a little bit about history here, which is very important -- "the first senate, which met in 1789, approved 19 rules by a majority vote." the first senate. "those rules have been changed from time to time and that portion of the senate rule 32 that i just quoted was instituted in 1959. 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. the senate of the 86th

congress could not pretend to believe that all future? thes would be bound by the rules that it had written. it would just -- it would be just as reasonable to say that one congress can pass a law providing that all future laws have to be passed by two-thirds vote. any member of this body knows that the next -- any member of this body in knows that the next congress would not heed that law and would proceed to change it and would vote to repeal it by a majority vote. just no doubt about it. i'm not going to argue the case any further today except to shay at that it is my belief, which has been supported by rulings of three vice presidents, of both parties, and by votes of the senate, in essence upholdinholde power and the right of a majority of the senate to change the rules of the senate at the beginning of a new congress." and that's really the essence of where we are right today is that we are able, if we have a

majority, to move forward with adopting our rules that are going to function for this session of congress. and that's why we're in such a battle here to try to get those proposals onto the floor. we want to get senate resolution 10, we want to get the talking filibuster proposal, we want to get those put onto the floor so we can have debate, we can have a vote, and our understanding is that there's going to be objection from the other side, and as senator harkin said earlier, we function here by unanimous consent. and they parntsly are not going to give us that consent. i know -- and they apparently are not going to give us that consent. i know that senator harkin -- changing the subject here a little bit here. but senator harkin and america pri mentioned earlier the whole issue of why we want the senate

to function better, that we have pressinpressing national probled chasms i think one of the senators that said it best made a comeants back in 1971. this is senator hart, senator phil hart of michigan. it resonates decades later. "the apparent inability of the senate to take action on our domestic ills when the needs are so painfully clear is the basic coughs unrest and -- basic cause of unrest. the change is obligatory if institutions like the senate are to have the capacity to respond to we will to the complex array of overlapping domestic and international issues. long ago thomas jefferson said, 'as new discoveries are made and new truths discovered, and manner and opinions change with the change of circumstances, institutions must advance also

and keep pace with the time. institutions must advance also and keep pace with the times'." senator merkley, that's why we're here. we have rules that were adopted long ago that aren't working today. and you and i have talked several times about how you wouldn't -- if you want your government to spend money wisely, you want it to be efficient, why do we not give them a budget until halfway through the fiscal year? it makes absolutely no sense. that's the situation we're in right now. we hold hearings. we bring the agency in. we think we're going to have an appropriations bill on the floor and by the way this year we didn't have a -- last year we didn't have a single appropriations bill on the floor. so think think they're going to get one budget. then last october 1, we start the fiscal year, we start into it, we've done a couple of

continuing resolutions and a continuing resolution just gives them month-by-month funding, and now the next continuing resolution doesn't expire until march, and so who would tell any agency -- nonprofit, government agency -- that we're going to give you a budget, but we're not going to quite tell you what it is and maybe go month to month and then about halfway through the year we're going to give you the rest of the budget? that's just not the way to take care of the people's money. it's not the way to be efficient. it's not the way to make sure that the people's money is very we will spent. so i -- i -- i think it's important that we do that work, the work of appropriations bills -- and as the senators that are on the floor right now, senator harkin is an appropriator. when you bring an appropriations bill to the floor and you have all 100 senators take a look at the appropriations bill, take a

look at the -- at what's working in that department and what isn't, and how we move down the road with that particular set of policy initiatives and programs, that is something that the agency pays tremendous attention to. those amendments that are put in the arguments that are made. and we're neglecting all of that now. last year we didn't do a single aproceedingses bill. my understanding, the house -- and i know we were very frustrated when i was over in the house -- we'd say, we will, why are we even passing the appropriations bills? the senate doesn't do them. and we're just going to end up at the end of the year doing one of these continuing resolutions or an omnibus bill. for the first time in almost i don't know how long, the house gave up doing appropriations bills. so here one of our core functions as a legislative body -- what we call the power of the

purse, tremendously important -- that power of the purse has been emas could you lated, it's been warped beyond recognition to the point where i think we're dysfunction acialg the agencies are dysfunctional and we've got to get it all back. look at -- and i know our chairman of the judiciary committee has outlined a number of times and i find it appalling that we do not have the judicial people in place to do the job for the country. and, you know, right now the federal courts are looking at fraud on wall street. they're looking at all sorts of major cases that have to do with financial reform and insider trading and awful those -- and all of those kinds of things. we will, guess what? if you don't have judges to hear

those cases, then all of that justice is going to be delayed. there's an old saying in the law, justice delayed is justice denied. and today we have 94 judicial vacancies, and the judicial conference of the united states has weighed in with the united states senate, the united states house and said, these are judicial emergencies. 94 vacancies, 44 of them they considered emergencies. they need somebody in their immediately and right still because of this constant filibuster we're in -- it is a filibuster without real debate but it wastes a lot of time -- it prevents our ability to put those judicial nominations on the floor and to get an up-or-down vote. the same thing is true, i think, of the executive branch. senator merkley, i know you sought article in "the

washington post" which was at the end of -- i know you saw the article in "the washington post," which was at the end of the obama president sivment he only had 5% of his people in place, of the top people to run the government. it isn't all our fault. i think they were slow in sending some things up. but it is a pretty appalling number when you think to yourself the job of a president is to put his people in place in the agencies so his policies can be carried out. and what has happened is that has been delayed and slowed down, and i harass ken bark -- and i hearken back. when i was a youngster in washington growing up, i was about 1 years old when my father became secretary of the interior. and here you have only half the people in place in the federal government. we will, my dad as secretary of

interior, i remember him telling me when i would travel home, he said, tom, i had my whole team in plashings virtually whole team in place in two weeks. so he had his top people, he was ready to carry out policy, ready to move forward with the president's policies at the department of interior. and i remember, we had holes, we had a variety of things going in the department of interior. we had a very talented woman from new mexico who was going to become the solicitor. she moved her family, young family, her husband. they came to washington. they had a three-month hold put on. nobody could ever figure out why, but she was finally allowed to become the solicitor at the interior department. all these things, from holds to the filibuster without any real debate have slowed down the government in a significant way and really prevented us from doing the important oversight job that we need to do. senator merkley, i know that you

have other comments that you might like to make, and so i yield to you at this point. mr. merkley: thank you, senator udall. it is quite a contrast that you're drawing between an era in which tpwhao-week period -- in a two-week period the bulk of the team was in place ready to do the work they were elected to do. the u.s. president had their secretaries and the secretaries had their teams in place and they were ready to go forward and to make sure they were working hard on the agenda that they had laid out during the election cycle. as my colleague from ohio said, senator harkin, elections have consequences. that is the vision of our republic. that is a vision in which we elect a president, and the president says here's my agenda,

and 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 to take -- and after the people have elected a president, try to damage and inflict pain and obstruction possible that president. that's essentially saying that you do not accept the judgment of the united states citizens about electing the president of the united states. well, this process has to change. we have to find a way that folks can come to this floor. is isn't that this chamber will approve every single nomination. it's that it will hold a debate and have a vote. and if there is no controversy surrounding someone, then that will probably be reduced to a unanimous consent, and some will

be waived through to not take up the time of the floor in this chamber. there's more than 1,000 executive branch positions that have to be confirmed under statutes. that too should be changed. there's far too many positions that are basically set up so they come to this chamber. so that is certainly a subject of conversation. but for those that are under the law, need to come for our add srao*eus and consent -- for our advice and consent, we need to exercise that responsibility in a manner consistent with advise and consent but not with attempting to damage of the president of the united states and his team. now, i was looking at a speech here by one of my colleagues from tennessee, lamar alexander, and he notes that he titles it the filibuster: democracy's finest show. the right to talk your head off.

that quote that he put at the top of his paper when he gave a speech before the heritage foundation is taken directly -- i'll just hold up the picture here. that quote 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 u.s. senate. that's what the talking filibuster is about. it is about the people of the united states being able to see their senators when they're saying there needs to be additional debate to actually debate. so i want to note that 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're going to place a hold on a piece of legislation to do it publicly and have accountability thr-fplt's tremendous -- there's tremendous support for the notion that when we proceed to vote that we want additional debate that we're actually going to debate so that we utilize the time of the senate to weigh the pros and cons, to hear all of our colleagues. not that folks say we want additional debate and go off to dinner. not that senators say we want additional debate and go off on vacation. if they ask for additional debate, then we should have additional debate on the floor, weighing out the pros and cons, arguing the merits, considering amendments. in short, a talking filibuster. so i have a unanimous consent request that i gave notice of half an hour ago. we are standing by right now waiting for one of our colleagues from the other side to come, extending a courtesy to

come and object to this unanimous consent request. so i'm saying this out loud and looking across the aisle and saying we've been waiting half an hour. i think it's time for one of our colleagues who wishes to object to get here on the floor and, just as we've been talking about, make their case visibly in front of the citizens of the united states of america, 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 amendment to have resolution number 10, and have it considered before this chamber. and so i think we've pretty well laid out the reasons why we think this debate is important. but we can't get to that debate without putting forward a unanimous consent and having it concurred in or to be blocked in that by an objection. so i'll see if my colleague from new mexico wishes to make any

more comments. and if not, i'll present my unanimous consent resolution and we'll wait our colleagues to come and either endorse it or object. mr. udall: mr. president? the presiding officer: the senator from new mexico. mr. udall: thank you, mr. president. i am also waiting. i think, senator merkley, you're waiting to put in your, asking unanimous consent to put in your talking filibuster proposal, which is one that is -- goes to the heart of the problem we have today. one of the things that i've learned the last two years in the senate is that when 41 senators vote for more debate, that's basically what is happening, is when senators vote for debate, more debate, 41 of them, then we don't get more

debate. a lot of times we're in quorum calls. a lot of times if we have a live quorum, we pull 51 senators over to the floor to try to get through that. there are a series of dilatory motions. and it's very, very difficult in a modern senate to keep 51 senators here surrounding the floor. in the old days they used to put out cots and stay through the night so that senators would be able to sleep someplace to keep that live quorum going. but in a modern senate with everything going on, it's a tremendously unfair advantage for one side to have one senator and the other side have to have 51 in order to try to conduct any business. and that's the situation we're in today. and that's what the talking filibuster goes to. it goes to deal with that situation. and how does it deal with it?

if you -- if 41 senators request more debate, if they say to the other 59 senators, we want more debate, we very simply say, just as senator alexander said -- and he was, i think, quoting jimmy stewart in the right to talk your head off from "mr. smith goes to washington," well, then come down and debate. we're going to have a debate period where nothing else is brought up but debate. and the job of the chair, as our presiding officer knows, will be in that period to ask the question: are any other senators, are any other senators on the floor that wish to debate? at that particular point the american people can look down and be able to make an

observation, well, is this debate educating the public? is it moving things forward? or is it just a filibuster to waste time? i would note there's a very interesting, a waste-time filibuster, one of the old-time senators out of california made the comment about the filibuster wasting time. he was asked -- this is former senate republican whip thomas keakle of california. he asked the question here on the floor of the senate. he said what is a filibuster? my definition would be -- this is senator keak le's definition. my definition is it is irrelevant speech making in the senate designed solely and simply to consume time and thus to prevent a vote from being taken on pending legislation. he's pretty condemning of that kind of filibuster. but that's a judgment. we don't want to take people's

right to debate away. we just want to make sure there is a fair and honest debate here on the floor. that's, senator merkley, what i would compliment you on is that you have drafted a proposal, worked long and hard on it. what it ends up doing is at the end of the debate, when the 41 senators call for debate, you go into that period of extended debate, they talk and they talk; at some point when the chair asks are any or senators on the floor that wish to debate, and there's silence, then you roll over into what's called postcloture and 30 hours. senator merkley. mr. merkley: if there is something critical to my state, the state of or0, that the talking filibuster enables me to find other senators who share my views. perhaps they have similar issues in their state. 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, rockfish. we have a river economy. it depends on the migration of those salmon upstream. we have a crab industry. we have a tourist industry, most spectacular coastline to be found 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. if there was a bill here on the floor that said we're going to drill for oil off the coast of oregon, and if i felt that was a mistake, a huge mistake, then i could organize with other senators and be here day and night to block that misguided legislation. and in that sense we're not changing the number. it still takes 60 members to

close debate. we protect the voice of the minority. we say that two members could continue a debate day and night. for that matter, one could. but eventually one's going to collapse on the floor like jimmy stewart did. i think it 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 doing regular bills from the house, being able to get authorization bills done, appropriations bill done and so on and so forth. there may be those out there 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 says when you block

legislation, you have to do it in front of the american people. you have to stand here on the floor and you have to make your case. mr. udall: mr. president, that's the essence of it. as you know, what we have now is senators leaving. we actually had the case where a senator wanted the cloture vote to take place but then left and went home. pretty disgraceful situation. i heard that our good friend, senator alexander, is going to join us here in a little bit. you, i know, were quoting from a speech. he recently gave a speech at the heritage foundation on january 4, 2011. one of the things that he said in there that i think all three of us have echoed -- senator harkin and senator merkley.

senator alexander said there is no doubt that the senate has been reduced to a shadow of itself as the world's greatest deliberative body, a place in which, as senator arlen specter said in his farewell address, has been distinctive because of the ability of any senator to offer any amendment at any time. senator harkin, i know you have spoken passionately about the idea of offering amendments, how our democracy has deteriorated here in the senate because it takes now 60 votes. every amendment. it didn't always used to be like that, did it. senator harkin, did it? you've been here a while, what was the senate 10, 15 years ago? could you get an amendment through with a majority vote? mr. harkin: if my friend would yield for a response, i would just say, yes. up until literally four or five years ago, you could offer an amendment on the floor and if you had 51 votes, you won.

and that happened for, well, i've been here, what, 25, 26 years, i guess now. and -- and that's the way it's always been. now, -- and sometimes there were tough amendments. sometimes they were tough amendments by a democrat, sometimes they were tu amendments by a -- were tough amendments by a republican. i don't think the people just elected us to have an easy time of it here. sometimes these are tough votes. but i think the senator from new mexico is right. i mean, we always operate under the fact that a senator could offer an amendment. usually you'd enter a time agreement. you'd say, how much time do you want? you'd have an hour or two, have a reasonable time agreement and you'd have a debate and you'd have a vote. sometimes there would be a tabling. people would move to table it. that was fine. but at least 51 votes decided that and now, as the senator

pointed out, you've got to have 60 votes for any amendment, supermajority for any single amendment that you want to bring up on the senate floor you now have to have 60 votes on. my friend, it wasn't always like that. mr. udall: senator harkin, one of the things that happened to us right at the end of the -- the congress was we had a vote on a piece of legislation called the dream act. and i believe the majority had 55 votes. mr. harkin: that's right. mr. udall: for the dream act. now, here's a piece of legislation where we're talking about immigrant children through no fault of their own, probably brought in as tiny babies and grew up in the united states and have reached the age of adult hood and they have a ceiling on them. they can't go to college. they can't -- they don't have social security numbs. and -- numbers. and so we were basically trying

to give them a team that they could go -- a dream that they could go out and be americans. they could join the military. after they did their military service, get in line for citizenship. they could go to college, do well, and get in line for citizenship. and in any other country, if you had the two legislative bodies, the house passed it by a majority, we passed it by a big majority, 55 votes, you'd have a law and the president would be signing it and it would be law today. and that's what happened to this filibuster rule. and -- and a lot of the steps we're taking don't necessarily get right to the heart of that. but i -- i think the people understand that the part of it. i -- when i've gone home people say, what happened? what's going on? 55 senators voted for the dream act and it didn't get to become law. senator harkin? mr. harkin: if the senator would yield, he's absolutely right.

i'll give the senator another example. as you know, the supreme court decided a case last year that -- that allows certain entities to contribute money to political campaigns and they don't have to disclose who they are or how much they give. a supreme court decision. well, the house passed a bill and the public opinion poll shows that 80% of the american people were in favor of what we call the disclose act. we didn't say they couldn't 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. came to the senate, i believe we had 57 votes, if i'm not mistaken for that. i could be corrected. but it was over 55 votes for that, but it didn't pass. now, the average american out there would say, wait a minute, i thought if you got 51 votes, you won. no, no, no. you had to have 60 votes to pass

the disclose act. the president would have signed it into law, the house passed it, 84% of the american people were for it. because there was this 60-vote threshold, we didn't get it passed. i see the senator from oregon. mr. merkley: senator harkin, i think that is a -- i believe we had 55 votes twice. one vote short of the 60 to get to the disclose act. and so we couldn't get on to the bill. so here is a bill -- or here is a supreme court decision that allows unlimited -- unlimited, secret, foreign donations. now, i'll 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 a -- a 41 senators who said they wanted

further debate and then they weren't willing to stand up on the floor and 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's why. now, under the talking filibuster folks couldn't 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're a hero or you're a bum. in this case i think that 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's the american tradition for americans to make their decisions about who they elect, not foreign corporations to secretly spend money on

american campaigns. mr. harkin: well, i thank the senator. you pointed out correctly. i thought it was 57. you said 59 votes. you would think normally that bill would pass, go to the president for signature, supported overwhelmingly by the american people. thwarted because we had the right -- as i said earlier, the minority hags the right to -- has the right to veto. they can veto whatever they want to bring up. what sense does that make in a democracy? i yield the floor. i thank the senator from new mexico. mr. udall: thank you, senator harkin. and we see our good friend, senator. mr. alexander: senator alex -- r arecollection ander from -- alexander from tennessee has arrived. senator merkley had a chart and had the history of what had happened as far as rules debate and, you know, there are a lot

of rules debate, 50, 60, 70's, and always, always the two leaders would allow a rules proposal to be on the floor -- be on the floor and be debated and be -- be disposed of. and we now have a situation today where we can't get our rules proposals on to the floor. senator merkley is here with a talking filibuster proposal. i believe he's been talking with you. you've been a very -- senator alexander, you've been very open with us in saying, let's have discussions and your theme has really been like you you say in your speech at the heritage, the senate needs to change its behavior, not change its rules. that's been your -- your function, but you're also working on rules changes with senator schumer and we very much appreciate that. but i know senator harkin has a proposal, senator merkley has a proposal. i have senate resolution 10, you were here on the first day of the senate on jan 5th --

january 5th when we put in here with my two friends senate resolution 10 and we're trying to get it to the floor and that's what i'm going to ask right now with my unanimous consent request. and we very much appreciate you being here. mr. president, i ask unanimous consent that the senate proceed to the immediate consideration of senate resolution 10, a resolution to improve the debate and consideration of legislative matters an nominations in the -- and nominations in the senate. that there be six hours of debate equally divided and controlled between the two leaders or designees with no amendments in order and that upon the use or yielding back of time the senate proceed to vote on adoption of the resolution. the presiding officer: is there objection? mr. alexander: mr. president? the presiding officer: the senator from tennessee. mr. alexander: mr. president, reserving the right to object. i want to congratulate the senate from new mexico. he has been persistent and diligent and enormously

well-intentioned in this effort throughout the rules committee hearings and throughout the floor debate in seeking to help the senate function better, and at the same time presenting the senate as a forum for deliberation and protection of minority rights. we have a difference of opinion about whether that's best done by allowing changes of rules by 51 votes or by 67, which is the way the senate rules currently prescribe. his pro processual can -- proposal can -- to change the rules certainly can be considered on the senate floor in the regular order and we'd be happy to work with him to do that as long as it was by 67 votes. so because of that difference of opinion, i object. the presiding officer: objection is heard. the senator from iowa. mr. harkin: likewise, the senator from tennessee, knows that i have been on this for a long time and i have a proposal

also. and, again, i ask unanimous consent that the senate proceed to the immediate consideration of s. res. 8, a resolution ea amending the p standing rules of the senate to require cloture to be invoked after a debate. that there be four hours for debate equally and divided and controlled between the two leaders or designees with no amendments in order, and upon the use or yielding back of time the senate vote on the adoption of the resolution. the presiding officer: is there objection? mr. alexander: reserving the right to object. the senate from iowa at least since the early 1990's has been forcefully arguing for his position. we have the same difference of opinion fundamentally that i mentioned in connection with senator udall's amendment. glad for these rules changes and amendments to come to the floor, but only if they're approved or rejected with the requirement of 67 votes. so for that reason, i object. the presiding officer: objection is heard.

a senator: mr. president? the presiding officer: the senator from oregon. mr. merkley: mr. president, it has been the tradition of this chamber with our rules proposals to put them on the floor for debate and to hold that debate and then if the body does not like that either to defeat them outright or to table them or to refer them to committee for further work. and, indeed, under the constitution, it is in order for us to have a debate now, as a simple majority, to amend our rules. now, the constitution calls for a supermajority for impeachments, a supermajority for treaties. but it calls for a simple majority to amend our rules an organize ourselves -- and organize ourselves. and so many members of this body often talk about the constitution and it is the constitution that we're talking about right now. what it calls for a simple majority to be able to organize.

so that is why in 1953 the senate debated senator anderson's resolution, eventually defeating it by tabling it. that is why in 1957 and in 1959 they proceeded to put on the floor, both sides agreeing that it was appropriate under the constitution to have the debate in this chamber and then to either approve or to vote down or to table or to refer to committee and then in 1961, anderson's rule proposal to make cloture three-fifths president and voting was referred to committee. it was defeated again. but it was debated and referred to committee. and then the committee returned it to the floor for further debate. no one objected to us holding a debate. in fact, here is the irony, we're talking about fixing the broken senate because debate is unable to take place and this very conversation we are having

right now with proposals to be put on the floor is being objected to by the other side because they're saying that it's not appropriate. but the constitution says it's appropriate. the tradition of the senate says it's appropriate. and so i too have a resolution to put on the floor a proposal for debate. it is the talking filibuster proposal. and it is important that senators not be able to object to regular order of 51 and then go home or go on vacation and hide from the american people. but if they believe there should be additional debate, that they come to this floor and debate. the people of america believe that that's what the filibuster's about, making your case before the american people, let's make it so. mr. president, i ask unanimous consent that the senate proceed to immediate consideration of senate resolution 21, a resolution to amend rule 19 and

rule 22 of the standing rules of the senate, to enact the talking filibuster, that there be six hours for debate equally divided and controlled between the two leaders or their designees with no amendments in order and that upon the use or yielding back of time, senate proceed to vote on adoption of the resolution. the presiding officer: is there objection? mr. alexander: mr. president, reserving the right to object. the senator from oregon is a former speaker of -- of -- of his house in oregon. he's been a long observer of the united states senate, having come here first working for senator hatfield and has been effective and passionate in his views. i was reviewing today some remarks made by largely democratic senators four or five years ago when some republicans got the idea it might be a good idea to -- to reduce the -- to make this a more majoritarian

body and senator schumer, senator reid, senator clinton, senator obama all said it would be a mistake. so while i greatly respect the senator from oregon, we have a difference of opinion about whether it's in the best interests of the senate and of the country to change the rules in this way, so i object. the presiding officer: okay is heard. mr. merkley: mr. president? the presiding officer: the senator from oregon. mr. merkley: i thank my colleague from tennessee for coming to the floor and applaud his long service. when i first came to the u.s. senate, senator hatfield asked me to bring greetings to his former colleagues, and hi a chance to sit down with senator alexander and convey those greetings and to work with him on some projects including the -- the advocacy for electric vehicles. good for the american economy, good for the strategic positioning of america in terms of its consumption of energy and certainly good for the environment.

and i just want to note that while we disagree on this, this is actually the way it should happen, that we should come to the floor and share our respective views, disagree with each other, make our points. i believe that at this moment we should be on a rule, we should be debating it. my colleague has expressed his difference of opinion in a very gracious and respectful manner, and that, too, should be a factor of senate dia been a gret to this body. now, madam president, every grade schooler in america knows that all three branches of the federal government in washington

are equal. but as every member of congress quickly learns, the president sets the agenda. and never is that more apparent than on the day of the state of the union address. this year the president will be speaking to a congress that looks very different from the one he spoke to last year. the voters sent a clear message in november that when it comes to jobs and the economy, the administration's policies have done far more damage than good. and one very positive thing that the president could do tonight is to acknowledge that they have a point. he's tried to do so indirectly in recent weeks by hiring new staff, by speaking in tones of moderation -- plodder radification, but it tikes -- plodderration but it takes more than a change in tone to reduce the debt. it takes more than a change in

tone to create the right conditions for private-sector job growth. it takes a change in policy. and the early signals suggest that the president isn't quite there yet. the president has talked recently about working together to improve a regulatory climate that stifles business innovation and job growth. yet, he hasn't acknowledged the extent to which his own policies have stifled growth. over the past two years, his administration has issued more than 13 130 economically significant new rules or 40% more than the annual rate under the last two presidents. what's worse, the new health care bill will alone create 159 new bureaucratic entities and is exempt from the president's proposed regulatory reforms. the health care bill, which will

create 159 new bureaucratic entities is exempt from the president's proposed regulatory reforms. and this is bad news for small business, who are already struggling to get by on a down economy and who are now grappling with how to afford all the new mandates in the new health care bill. the president has talked about streamlining and reducing the burden of government. yet, the health care bill he signed has increased the cost of care and forcing people out of their existing coverage. the debate over this bill continues and the president and democrats in congress continue to defend it. but with nearly two -- when nearly two-thirds of doctors surveyed predicted it would make health care worse, not better, americans are right to be concerned. it should tell us something that 19 doctors currently in congress, 18 of them support repeal of the health care bill. the president's talked about the need to cut spending and reduce the debt, yet, over the last two

years his policies have added more than $3 trillion to the national debt, much of it through a stimulus that promised to keep unemployment, now hovering just below double digits from rising above 8%. and now we hear that he plans to stick with the same failed approach of economic growth with more government spenting with a call for -- quote -- "investments." in education, infrastructure research and renewable energy. we've seen before what democrats in washington mean by investments. in promoting the failed stimulus, the president referred to that too as an investment in our nation's future. 14 times alone during his signing statement he referred to the stimulus bill's investments. we all know how that turned out. the first stimulus we were told would include critical so-called investment in education,

infrastructure, scientific research, and renewable energy. the same areas we're told he'll focus on tonight, only later did we learn that some of these critical investments included things like repairs on tennis courts, a study on the mating decisionings of cactus bugs, hundreds of thousands of dollars for a plant database, and a $535 million loan to a california solar panel maker which instead of hiring 1,000 new workers, as planned, just laid off 175 instead. this is what happens, madam president, when the government decides to pick winners and losers without considering what the marketplace really wants. competitors are left out in the cold, employees get a false sense of security, and taxpayers are left holding the bag. unfortunately the president

doesn't seem to have learned this lesson quite yet. but taxpayers now know that when democrats talk about investments, they should grab their wallets. so i'm all for the president changing his tune, but unless he has a time machine, he can't change his record. and if we're going to make any real progress in the areas of spending, debt, and reining in government, the president will have to acknowledge the policies of the last two years are not only largely to blame for the situation we find ourselves in, unless we do something to reverse their ill effects, the road to recovery and prosperity will be a bumpy one. the president spoke in tones of a moderate many times. he did so in his campaign. he's done so in countless speeches. he's got a knack for it. i have no doubt he'll do so again tonight. but speeches only last for as long as they're delivered.

americans are more interested in what follows the speech. and in the case of this administration, americans have a good reason to be skeptical. time and time again the president has spoken in a way that appeals to many, then governed in a way that doesn't. my hope is that he'll leave that method aside. a better path, in my view, is the one that republicans have been proposing for two years, one that respects both the wishes of the public and the two-the party system. -- the two-party system. last year prior to the president's state of the union, i proposed a number of areas where i thought the two parties could find common ground and work together to help the economy. the president ignored just about everything i proposed. so when the pundits ask whether there are areas where the two parties can come together, i would say yes. i've proposed several of them, but the democrats don't seem to be interested.

some have suggested that in this new post-election environment, i might find a more receptive audience. no the spirit of bipartisanship -- so in the spirit of bipartisanship, i'd like to propose a few areas where i believe the two parties can work together in the weeks and months ahead. i believe the parties can and should work together on energy initiatives that expand america's domestic energy supply and make us less reliant on foreign sources. on expanding exports and creating jobs through free trade agreements with panama, colombia and south korea and reforming corporate taxes so american businesses are more competitive in a increasingly more global marketplace. these are the things that we can do beyond the symbolic gestures and posturing to help the economy. beyond that, we must work to cut spending and to rein in the size and cost of government.

the voters have been crystal leer clear on this point. by proposing government spending tonight, the president is not only defying the well, but to learn the clear lesson of the failed stimulus. government may create debt, but it doesn't create jobs. so i think we have a lot of work to do in bringing the two parties together on a program ma will -- on a program that will actually address the problems that we face. but there are reasons for optimism. the president's change in tone is an acknowledgement that something has to change as was his willingness to work with republicans last month on keeping taxes from going up on anyone. in the coming weeks and months, americans will be looking for him to come around on spending and debt as well. and republicans will be working hard to persuade him to do so. . the presiding officer: the senator from arizona. mr. kyl: thank you, madam president. i'd like to call time out from this partisan discussion to speak for a moment about the

events in tucson of january 8. it's the first opportunity i've had to address my colleagues about the tragedy of that day. and the theme that i'd like to discuss is the goodness of people, because if anything has -- if i've gotten any lesson from this, after meeting and talking with all of the people who i could involved in this tragedy, the overwhelming notion of the goodness of people is what i am most left with. tomorrow senator mccain and i will offer a resolution in support of the victims of the shooting, offering condolences to those who were lost and their loved ones and our prayers for the recoveryy of those who were injured and to express appreciation for those who engaged in real acts of heroism. we'll have more formally to talk about when we do that tomorrow.

i just wanted to share some thoughts from my home based on my interaction with the people over the last two weeks after this event occurred. it begins with the proposition that tucson likes to call itself a town, not a city. it's over half a million people. but you're all familiar with communities which though large in numbers seem small because people work together, they play together, they have a sense of community and of helping and working with each other. and that is tucson, where my wife and i both attended the university of arizona. the safeway where this event occurred is only two blocks from my tucson office, and my -- the head of my tucson office and his staff were at the safeway saturday morning shopping. they left about seven or eight minutes before this occurred. judge john roll, who is a very close friend, attended mass virtually every morning, had just come from mass, and had

decideed to document safeway to express his appreciation to representative gabriel giffords. they were friends. among other things, he wanted to tell her that he appreciated her signing a letter along with representative grajova that supported the arizona federal district court in its desire to be named an emergency district by the commission that does that for the federal courts because of the overwhelming caseload in that court. judge roll, though he had significant administrative responsibilities, kept a full caseload himself because to do otherwise would have been to put part of the burden on to his colleagues. so he was really carrying two separate loads, administering a very, very busy court at the same time acting as a judge on all of his cases. part of the things that he and i had been working on -- in fact,

senator barrasso, senator lemieux and i had lunch with him to stalk about -- to talk about how we could strengthen the caseload. part of his work and that i was working with him on was to try to find ways to ameliorate the load of his court and potentially get additional magistrates, if not judges, to help handle the caseload. when they -- when representative giffords decided to hold this congress on your corner event, many of the people in her tucson staff went with her to the event. they're very devoted to her, and i don't know of anyone that enjoys meeting with constituents more than representative giffords. so she had several staff people there too. when the gunman came, he immediately headed for her. his intention was obviously to do her harm. but right after shooting representative giffords, he began to shoot the people on her staff and the others waeugtd in

line to -- waiting in line to talk to her. this is where some of the goodness of the people just comes out. i talk about the goodness of the people, judge roll who didn't have to say thank you to representative giffords but he went out of his way to do that. when ron pw-r -- barber, the head of her tucson staff was shot, judge roll, the cameras show, pushed him down under a table and put his body over ron barber's body and thus took the bullet that killed john roll's life. talk about the goodness of people. and everyone in tucson and in arizona who knew judge roll at his funeral spoke not just of his abilities as a jurist and his public service but his goodness. his love for his wife, their sons and grandchildren. three of his grandchildren spoke and it was moving when they talked about the love they had for their grandfather who took a lot of time to teach them how to

swim and so on. representative giffords' staff were there. they liked her and were very willing to be with her on a saturday morning when they could have been doing something else with their families. gabe zimmerman, 30 years old, he too lost his life. gabe is a democrat working for a democratic. my staff enjoyed him. my tucson staff is taking his loss very, very hard. there were others from his staff who were there, one of whom is an intern we're going to see this evening. he's going to be sitting in the president's box. his name is daniel hernandez. we saw him on the -- at the ceremony in tucson, at the university of arizona, on wednesday after shooting. he was one of the people who immediately went to representative giffords' aid and continued to staunch her

bleeding. the goodness of people. his unselfless act to help her. pam simon was another one of her staffers who the shot. i had a chance to visit with pam in the hospital and then after. there she is with wounds. the bullet went in and out of her arm and another in her leg and couldn't wait to get back to work. and she has done so now. the other people who were shot there: christina taylor green is the nine-year-old. the things that were said about her remind me of my youngest granddaughter. the hugest heart you can ever imagine. athletic, yet studious, interested in government, all the things you'd want in a young woman. president obama spoke eloquently about her in his remarks on that wednesday. she was taken to the event with a friend who just wanted to expose her to representative giffords and a little bit about our government. dorothy morris.

i didn't know dorothy, but i knew her husband george. they had communicated with me, and i visited with george a couple of times after this event. he's a retired marine. i tell you, he's having a hard time with this because he said that dot, his wife, would follow him -- his words -- she would follow me to hell. she's obviously in a different place, and he is going to be as well. but the fact that she didn't particularly want to go that morning, but he's a republican. he wanted to go talk to representative giffords because he thought he could talk to her just in a way that we do, about issues and have a good conversation with somebody he didn't totally agree with. and then saved his wife's life. dorwin stod tkard, he was killed. his recent life was devoted to his home.

his daughters were there. just the kindness of all of those people and the way they talked about the others involved as well as you could see the members of family and friends helping each other was, as i said, an impression that will stick with me forever. phyllis was a wufrpl -- was a wonderful grandmother. she lived in new jersey and spent winters in arizona. all of these human beings had family, friends, future. all of them taken from us is a real tragedy. whrabg we take from that -- what can we take from that? at this time i think i've gone almost ten minutes. i'll mention tomorrow some of the heroes. bill badger, retired army colonel, didn't want to talk about his heroism but he helped to subdue the assailant. anna wallace, who has two sons

both of whom are u.s. marines who have done repeated tours in afghanistan and iraq. she was in the safeway, came out and immediately began administering to ron barber. i went to visit ron in the hospital at the same time that anna had gotten there a few minutes before. ron was holding her hand the entire time saying this is the lady who saved my life. and just a tremendous act of selfless courage on her part and just showing again wonderful humanity of all of the people there. steve rail, doctor, former emergency room doctor, was there to help subdue the assailant. there were many others. we'll talk tomorrow more formally. i know all of our colleagues will want to joint us in supporting this resolution to let the folks of tucson know that we appreciate what they have endured here. we appreciate the heroism. our prayers are with the victims, and our hearts go out

to all of those who were injured in some way or other. but from this, among the lessons that we learned is that people have innate goodness. we all have a side of us that we wish we didn't have sometimes too, frequently expressed on the floor of this body. maybe for a little while we can acknowledge the fact that there is goodness in everyone, and i saw so much of that in all of these people drawn from all over the community, different walks of life, different political parties, different ages. and yet, when they came together, what was most obvious? it was their sacrifice and their goodness. and i think that that is something that should be a lesson to all of us. i will tomorrow speak more formally, as i said, about this resolution. but i am deeply grateful for the expressions of condolence and support that all of m