think that in pakistan, the view now is very clear and ambiguous. not because we do not want to hurt al qaeda but because the drone strikes seem to be diminishing. also, [unintelligible] i do not want to get into the specifics of what collateral damage might happen. what they do now is add to the troops that we are fighting against. >> we'll leave this program at this point. see it in its entirety at c-span.org. now general john allen briefs

reporters back in washington. war's claims lives of more than 2 million american soldiers and a number of incidents where afghan security forces turned weapons on their trainers. >> we are happy to welcome him back via satellite to update us on the progress made on the afghan campaign. a reminder there are sometimes slight audio delays. general allen makes opening comments, and then we'll take your questions. with that, general allen, turning it over to you in kabul. >> george, thanks very much. good to hear your voice. i can't see anybody this morning, but good to be with you, ladies and gentlemen, and good to be with you again to answer your questions. now, before i take questions, i want to make brief opening remarks. it's been a busy summer for us, and in ways not readily evident

to most outside afghanistan. it's been a highly successful summer. coalition and afghan sources maintained unrelenting pressure on the insurgents, denied, and disrupted their operations and pushed them out of the centers, limited freedom of movement, and interjected logistics. we've taken scores of their leaders and fighters off the battlefield and separated insurgents from more and more of the afghan population. insurgent attacks, while still indiscriminate and deadly, are increasingly localized affecting an ever-shrinking proportion of the afghan population. the insurgency we face today still dangerous and capable of inflicting harm is trying hard to project strength as its position continues to slowly erode.

we've acheesed success -- achieved success moving forces into the lead, and partnered operations have increasingly been led by afghan forces, and the insurgency is, today, confronted by a rapidly transforming and increasingly capable nasf bearing a larger share of the burden and larger share of the sacrifice. as we continue to mourn our own precious and honored dead, we recognize that our afghan partners are now suffering the per pond rains of the friendly casualties. the international community to stand by afghanistan well after 2014 has set a powerful and a disheartening signal to the up -- insurgents. they will have to keep up their increasingly costly fight for at

least another decade. to be sure, we have a significant amount of work yesterday to do, and some of that work will be deadly. with 28 months left in the isaf mission, we are forging ahead with the process of transition. ultimately, our goal will not only be achieved by that which will be secured by isaf forces, but primarily the goal will be achieved by afghan forces, and as the afghan assume full responsibility for the security of their country, our support will continue. this campaign is a con continuu. through the end of 2014 and beyond, we are creating conditions that ultimately leave afghanistan a sovereign state secured by a capable afghan military and afford them the time and space to develop its institutions of governance. we aim to leave behind a stable

afghanistan, a contributor to the stability and prosperity of the region and never again a safe haven for the terrorists. that remains our objective, and we're on track to achieve it. i know you'll have questions about insider attacks. we are working that issue very hard with our afghan partners, and it is a top priority for me. in this space and in this time, we are conducting a complex campaign, but we're also dealing with these so-called green on blue attacks. we will continue to achieve success in this campaign, but we will deal with these threats as well. the campaign is far from over and the solution to the problem of green on blue will be found by the growing strength every day of the green and the blue, and with that, i'd be pleased to take your questions.

good morning. >> we can see you, but we couldn't hear some of the top of the statement. any key points you want to address from the top, feel free to make those. if not, we'll go straight to questions. >> let's just go to questions, george. >> general allen, question for you on the insider attacks that you referred to. yesterday, president karzai's office said after studying the problem, they came to the conclusion it's contributed mainly to foreign intelligence services essentially brainwashing afghan recruits. i'm wondering, do you buy that? >> well, the reason for the

attacks are very complex, and we're going to look at all of the reasons, but i'll tell you that i -- i'm looking forward to afghanistan providing us with the intelligence that permits them to come to that conclusion so that we can understand how they have drawn that conclusion and we could add that into our analysis, but we'll wait for me to make a definitive statement on that issue until we've seen their intelligence in that regard. >> general tom baldwin with npr. we've been told most of the insider attacks are due to personal grievances and disagreements with u.s. forces and 10% of taliban infiltration. do you believe there's a small percentage of taliban infiltration, and if it's personal disputes and

disagreements, how do you account for ten of them in the past few weeks? >> good question, tom. it's a really important question. we don't have enough data from those who participated in the attacks to be able to make any kind of a definitive conclusion. we think the reasons for these attacks are complex. some of them we do believe are about infiltration, impersonation, coercion, but come of them, and we think that's 25% or so, but some of them are about disagreements and amosty which may have grown between the individual shooter and our forces in general or a particular grievance. we look at each one separately. we're trying to understand what

may have caused in each case, but also in the aggregate why these attacks have occurred and why that have increased in number in the last several weeks. it may have something to do with ramadan. it's a tough time for the forces, and it fell in the middle of the fighting season, during some of the harshest time for the climate in much of the region in which we fight. the daily pressures that are on some of the troops compounded by the sacrifice associated with fasting, the nature of our operational tempo, remembers that afghan troops have gone to the field, and they have stayed in the field, and they've been in combat now for years.

we believe that the combination of many of these particular factors may have come together during the last several weeks to generate the larger numbers that you point to. >> if i could just quickly follow up. clearly, you're seeing an increase in taliban infiltration in the most recent attacks? >> no, i didn't say that. what i said is that we believe there is taliban infiltration. you know, the truth is that we have between those who have escaped and those that we've killed, the number's relatively small that we have -- that have been captured and then can be interrogated. some are infiltrators, some motivated because of radicalization or having become

susceptible to extremists' ideology, but you're right. there is a taliban influence here, and it, as i said, takes several forms. it might be an impersonator, someone who gets in uniform to get within close proximity of the forces, and i might remind everyone that in many cases these impersonators or infiltrators have, indeed, killed afghans as well as killing coalition forces. indeed, the afghan casualties higher than ours in this regard, and so, yes, there are infiltrators involved, but i don't believe, at this particular junction given the analysis we've done, that that infiltration has increased and generated this higher number. >> general, given the spike

during ramadan, was it a mistake not to pull back more partnerships, partnering during ramadan, and do you recommend next year in ramadan next year, that that advising effort gets reduced during that -- during that festival, during that fasting time? the larger question -- does this spike in insider attacks threaten the strategy here, the move towards more intensive advising and assisting? >> at this particular moment, i don't believe that we need contemplate reducing our contact with the afghans. you know, up deed, --

indeed, what we have learned is the closer the relationship with them, indeed, that the more we can foster a relationship of brotherhood, the more securer that we are. we were very careful, actually, during ramadan this year to undertake operations during those times that would not place great physical strain on the troops, their troops as well as ours given the partnership requirements. we'll watch the outcome of ramadan, look back hard upon our operational tempo, the relationship of the security force assistance teams with the afghans, and see if there's any conclusions that we can learn. i don't think, at this juncture, that we need to pull back at that particular moment. we, in fact, as i said, have learned that the closer the relationship, the more secure,

ultimately, our troops will be. now, what we have to do is ensure that we, we together, the afghans and the coalition forces, undertake the kinds of protective measures, which we've been undertaking for some time, but we are putting greater emphasis on it now. we have to emphasize that probably more during ramadan, be more careful about our force protection, be more watchful of the emergence of a threat, be able to respond more quickly to the threat, rather than to pull back away from our afghan partners. it's important to understand that while every one of these is a tragedy, every one is a tragedy, every single day in this battle space, there are tens of thousands of interactions of our general purpose forces, our special operations forces, and our

advisory forces with the afghans. in a vast, vast majority of those instances and cases, the result of that interaction is a growing friendship and a deeper relationship, and that is playing out in greater success in the battle space, more partnered operations, more afghan-led operations, but that doesn't diminish the importance of this threat. it doesn't diminish our ambition to understand it and to take the measures necessary on our side and with our afghan friends. who are seized with this threat. it's a threat to them as well as it is to us, and they see it as a threat to us, and they are gripping it as well so we're going to look at how this fighting season has evolved. we'll look at how operations unfolded during ramadan and make an evaluation after that, but at this juncture, my initial belief

is that we should not pull back in our contact with the afghans. we, perhaps, need to be more watchful, afghans and coalition, for the emergence of the threat and be able to react quickly to that. i think that gets to the second part of the question if we believe this threatens the overall ethicacy of the strategy orientation, and as of now from the analysis, i don't believe it does. >> i don't understand the point about the impact of ramadan. we have not seen the spike in green on blue attacks as we've seen over the last several weeks, and we've heard from you, from your predecessors, from your colleagues throughout the past couple years about how the off tempo increased significantly. could you explain a little bit more about what the impact of

ramadan might be on the green on blue spike? >> well, again, i want to be careful not to lay the blame for green on blue solely on ramadan, but i think that the holy month of ramadan demands great sacrifice of the muslims who observe it, and the idea that they will fast during the day places great strain on them. as you know, ramadan moves across the calendar each year, and for this year, it was square in the middle of the fighting season. this year, the ansf was a larger force than it's ever been before. we were conducting very aggressive operations this calendar year, and with reduced tempo in ramadan doing it in the coolness of the morning or evening, did it closer to the period of time when the troops may have had access to water or to food, it was still during a

very hot part of the season so we take that as a potential reason, not the reason for an upswing, and there's many different and complex reasons why we think this has been increased. we don't think ramadan was the principle reason though. >> general, andrew tillman with military times. one of the times i've heard expressed about these is the sense that over the transition over the next 28 months, the fore structure changes such that you have more u.s. and nato troops embedded in smaller numbers and in closer proximity, and i wonder in terms of a forestructure issue, is that a fair characterization or increase the risk for these attacks moving forward?

>> app drew -- andrew, thank you. that's an important question. what you heard me say minutes ago is what we learned is the closer we are to the afghan formations, the closer the relationships, the deeper the friendships. now, to its great credit, the army and marine corp. organized the forces that are coming here in purpose built security force assistance brigades, the army in particular. these brigades are organized together, trained together in their predeployment training cycle. when they arrive in theater, they prepare together. when the time comes, their security force assistance teams deploy from a central location tied into the brigade headquarters with communications so there is constant coherence

within that security force assistance brigade, and the teams originated back in the united states built together out of this brigade, and the brigade provides command, control, fires, and other support as necessary. there's a real coherence to the employment of security force assistance brigades which are deploying into the region now. we've actually been at this in terms of security force assistance teams since earlier this year. now, as time goes on, and as our numbers come down, we will seek to continue to deploy those kinds of brigades again because they form together. they are a coherent brigade, they'll deploy together, have centralized command and control for support of the teams during the period of time that they are here. the teams will be employed with

afghan units in areas where they will understand those afghan units and the operate operational environment before they get there, and they redeploy at the same time. this, i think, is an important approach, and as our numbers come down, and as our general purpose forces continue to diminish, we will see that our reliance on security force assistance brigades which can still provide force protection, still provide command and control and fire can still, in fact, partner with afghans as well as advise afghans. we think that's an improvement in prior advisory approaches over the years, and we think it's exactly the approach we need to take now as time goes on out through 2013 as the question implied and ultimately 2014. the question for us, as time

goes on, is at what level we both partner and advise and eventually ats numbers continue to come down -- as the numbers continue to come down, we will see our advisory effort move upward in terms of the afghan hierarchy. some afghan level formations will be advised for a long period of time because those will be in those areas which will require close attention probably because of the enemy threat, the difficulty of the terrain, importance of the mission, and so on, but we may see as our numbers come down, there will be larger numbers of battalion and bring side sized -- brigade sized formations when the security teams depart an advisory mission. it will just be the physics of our forestructure, but we'll watch the entire battle space closely and allocate forces based on where we see progress

and where we see the need to maintain pressure on the enemy in close partnership with the ansf as they continue to grow, continue to be fielded, and continue to improve. it's worth reminding, reminding the team in the pentagon, and, of course, the public in general, that we're still in the recruiting phase of the ansf. there's a 352. our goal is by 1 october. we are very close now, and then during 13, we'll still be training and forming, equipping, and fielding elements of the ansf so that the full ansf is not fully in the field, not fully equipped until the end of ' 13. we have work to do and contour it based on the operational conditions of ' 13 and the time

of the ansf as time goes on. >> jordan with al jazeera english. a larger question. the so-called surge of the coalition forces, is that draw down now complete, and looking ahead over the next 28 to 36 months, you referenced rating space so that civilian government and non-governmental organizations could have the space to develop. what does afghanistan look like on january 1st,2015? >> on the first of january, 2015, we will see that the ansf will have achieved its full strength of 3 # 52,000, will

have been deployed across afghanistan having completed the process of transition where it will be fully in the lead for the security of the entire afghan population, and it will be deployed in a manner and in a way to continue to deal with the violence we'll find on the 1st of january 2015. we will see that as security continued to improve across the country, that it's given the central government below the national level. it's given opportunity, provided opportunity for improved governance at the sub prevention level, improved governance at the district level, which is increasingly key for the afghans today. in some areas of afghanistan where we have seen dramatic improvements and security, this

is now the moment for the karzai administration to begin the process of concentrating on subprovenn issue and district governments on the rule of law. we'll see on the first of january as governance or as security continues to improve, that there will be increasing opportunities to improve the sub-national governance necessary, primarily at the district level to give the afghan people to make a choice and commit themselves ultimately to the government. on the 1st of january, we'll see a new administration. the election will have occurred in the spring of 2014, and that election will usher into office the first democratically elected government since the fall of the taliban.

it'll be on the karzai administration. we'll see a transition in 2014 to a new administration and a new government with a new president, and that president will have seen the period of time in the last 28 months and the last several years of the ee mother -- emergence of the afghan security force which is professional and willing to sacrifice mightily on behalf of the afghan people to give security and the new president and the ministries and the judiciary the opportunity to truly become a part of and a factor in the lives of the afghan people, and they'll also see on the 1st of january, and sorry to go on so long -- it's an important question -- that the international community is still with them, that the promises that were made by the heads of state of the isaf

coalition in chicago, to continue to support and sustain the ansf, sustain it with the right amount of resources and to support it with some form of a international force in afghanistan to provide for the continued professionalization and development of the ansf so the afghans will see the international community in afghanistan continuing to grip and to improve and to partner with the ansf. the afghans will see the interest of the international community in the context of that which was promised in tokyo and in bond 2. bond 2 talked about the decade of transformation, the decade that would follow the period of transition and the decade of transformation will be where the international community in close

partnership with the newly administration having been elected in 2014 will move forward to take advantage of the sacrifices made by the troops of isaf and the coalition and increasingly sacrifices made every single day by the ansf. they'll move forward together in the decade of transformation starting on the first day of january 2015 in what i believe is a period of hope. lots of challenge still, challenge in the installation of governance, challenge in the embracing of the rule of law, challenge in rooting out corruption, but i believe the afghan people understand and we will prove that the international community will not abandon afghanistan. the next 28 months, we'll continue to reenforce that so as we transition from the december 3 # 1st of 2014 # to january 1st of 2015, the afghan people have

reason to be proud of what's been accomplished by their ansf and what will be accomplished of the ansf as they buy the time and the space for the improved governance, economic development, and the embrace of the rule of law by the new administration. >> one more question. craig? >> at the beginning of the fighting season, it looked like violence numbers were going down. now that we're about through it, the attack numbers are the same as 2011, u.s. casualty numbers about the same for the fighting season. i'm curious what that tells us and whether that's a concern to you that we're continuing to see robust attacks even as we draw down. >> i'd qualify your question just a bit. the -- as we measure them,

initiated attacks, those numbers are down a bit. they may not be significant, down about 3%. it is less about the numbers this fighting season than about location. in so many of the places, the enemy initiated attacks are first and foremost a reaction by the enemy to us. we have pushed hard on the insurgency to push them out of the population centers much of which was cleared last year, and we've continued to push them into a series and increasingly smaller series of areas, districts where we have, in many respects con taped them. they are on the defense. there's about 10% -- excuse me, 10 of the 405 districts in afghanistan that constitute 50%

of the violence across the country, and about 20%, careful about statistics because they change from time to time and george little can provide you numbers. we'll get them to him, but 80% of the population in afghanistan experiences about 20% of the enemy initiated activities. this year, there was a number of enemy niche -- initiated attacks that statistically lookedded similar to the numbers last year, but our operational tempo against the enemy was very high, and much of those enemy initiated attacks were in response to us so i think in in regard it's continued on track. it -- the campaign has continued in the manner that we envisioned that it would. our casualties are not the same as last year. our casualties, and, again,

george can get you the numbers, are about 25% lower this time than they were last year, but the difference is that the afghan casualties are higher this year. they are higher because the afghan force is a larger force. they are higher because they are leading and partnering in far more of the operations than last year, and higher, frankly, because the afghans are in the attack, and so in that regard, there is a significant change from this year, this year from last year. >> all right, jim. >> jim with afpf. as you do batter field circulation, what are the soldiers and marines saying you about insider attacks, and, i guess, really what the question would be, are the attacks hurting the morale on the people

at the edge or the tip of the speer? >> i spent a lot of time. i try to get out at least twice a week. i spend a lot of time with the troops. i think one of the signal reaction, while there is concern, one of the signal reactions is a very stallwart commitment to the mission. we're blessed in the u.s. military, truly blessed, magnificent small unit leaders, and this is a tough mission. it's a tough mission for a whole variety of reasons, not the least of which is the operational environment in which these troops have to fight and partner, and so the non-commissioned officer, junior officer level, these troops are very well-led, and where we have

seen incidents of insider threats play out in terms of green on blue attack, where those young notary public-commissioned officers and officers very quickly covered down on their afghan partners, and where they led their troops through the crisis of the moment and the grief of the loss of the troops, where they led them personally gave them context on the importance of the mission, and closed the gap between the afghans and the isaf forces. we've seen that unit recover. we've seen that unit continue its mission with the afghans. back several months ago during one of the crisis, there was a shooting in one of our camps. i got on a helicopter quickly with their chief of defense, and we flew to the camp to talk to the troops. i talked to american troops, the u.s. troops, and the afghan

troops, and the general did the same, and it was a very important moment. it was one of the earlier of the attacks, and it set, i think, both the standard and the condition that in the aftermath of one of these events, it's going to be leadership that gets us through it. leadership that shows the troops the way, that is not about vengeance or retribution, but gripping the mission, and understanding while an afghan pulled the trigger, the vast majority of the afghans they know every day, in fact, are their brothers in the campaign and their brothers in this mission. there's been other places where, in the aftermath, that one of these crisis, one of our battalion commanders publicly and openly hugged his battalion -- his afghan battalion counterpart, and that solved the problem on the spot, and that reduced the potential

distance that might have emerged between our two forces. you're right to ask the question about morale, and when it happens to a unit, it creates a moment of crisis, but that crisis can be overcome, and it is usually overcome by the application of the great leadership that is the hallmark of our forces today, the magnificent young ncos and junior officers at the point of impact every single day in this campaign, and i'm very proud of them. >> general, there's controversy over your attempt to increase the local police units and give them increased arms. yoif talked about in 2015 the afghan people have to make a choice. one of the choices that they could make is to go back to the war lord days when each of those local police forces becomes an

independent actor. what's your concern about that? >> well, as you know, we've worked very hard on this program called "village stability and the afghan local police". let this helicopter go by. the alp, and we've recently passed 16600 in this number, the alp is one of the most hated aspects of the ansf by the taliban. there's a whole variety of reasons for that. it's a village stability operation program, if it works, and it does, it is a

mobilization of afghans at the ground level, at the grass roots level, to take the business of their local security and their future into their own hands, helders, the local sheriff agree ultimately to raising an afghan local police force out of the sons of the village or that community, and in most cases, not most, but all cases, when an alp unit stands up, it's advised by u.s. special operators, and they provide for the training and the professionalization. they provide for the mentoring. all of the alp units are tied into the ministry of interior, and they are tied into the local district chief of police. now, as time goes on, and as our numbers come down we'll see the role of the police will be more important in maintaining the

connectivity of the ministry of the interior to the afghan local police. we're working very hard, i assure you, we're working very hard to ensure the professionalization of the alp, recognizing that, again, this is a grass roots movement, and so often the literacy rates are very low. there will be tribal affinities. there will be local loyalties. the challenge for us, and where i think we've been successful, but there's much more work to be done, is ensuring that the ministry of interior from the minister all the way down through the district chief of police and his police force are tied in closely to the alp. now, i believe if we continue on the route we're on that seeks to strengthen the bonds between the alp and the district, if we continue on that trajectory, on

1 january 2015, we will find that the alp is, in fact, part of the force of the min industry of interior for local security and local policing, and there's not a potential reservoir of foot soldiers for the local strong men. now, your question is an important one, and it is something about which we pay a lot of attention, and we are very cautious about there, and there have been alp sites where our concerns about whether that site will be viable, whether that site will be coherent, have been such that we've elected not to form it, or we've disbanded it. we are very careful about that, and we're extraordinarily careful, and in particularly over the next 28 months, that we build those strong relationships between the alp leaders, the

village elders, with the district chief of police and the ministry of interior. that is the secret. that is the means by which we anticipate the alp being part of the long term security solution and not ultimately, potentially part of a security problem after the beginning of 2015. very important question. thank you. >> i'm told i have a very quick question, clarification from bob burns, and then we'll wrap things up. again, thank you for your time. bob? >> general, thank you for your time, also. when you were initially describing the insider attack issue, you said that you believe roughly 25% could be attributed to taliban activity or connections. just a few days ago, we were told your folks looked at this and come up with a number around 10%. how can you explain the difference, is there a difference there, or what is it?

>> our view is it's about 25%. we think it's about 25%, bob. this is still -- this still requires a lot of analysis, and so if it's just pure taliban infiltration, that is one number. if you add to that impersonation, the potential that someone pulls the trigger because the taliban have coerced the family members, that's a different number. it's less about the precision of 25 versus 10 than it is acknowledging the taliban are seeking ultimately to have some impact in the formation and, bob, i know you are aware that the taliban try to take credit for every one of the attacks

whether it's a personal grievance or successful infiltration. the number 10 or 25 is a number we'll continue to hone, to get a better feel for this so that we really do have a sense of the size and the magnitude of the enemy threat in the ranks of the afghan national security forces versus what could be issues associated with potential grievance, social difficulties, and that kind of thing. that's really important for us to understand that. >> general allen, thank you very much for taking time out of your busy day to join us, and i want to thank all of those in the briefing room here in washington. have a good day. >> thank you, george, and to all of you, i wish you my very best. thank you very much. god bless you all.

.. >> he'll address the national lgbt bar association's annual lavendar law conference and career fair. that's live tonight at 7:30 eastern. >> i think our job is not to ask gotcha questions. >> juliana goldman first covered

candidate barack obama in 2007 and became bloomberg's white house correspondent in 2009. >> but it is trying to get fair answers out of him, and that's how i approach my job. i'm not looking, um, to catch, you know, when jay carney did the press beefing, i'm not -- briefing, i'm not looking to necessarily catch him in an, well, that's not what you said the other day, it's just trying to get information to inform people with. >> more with juliana goldman sunday at 8 on c-span's "q&a." >> what do we see when we look at the dead an antitunnel? they responded to this in kind of two dominant ways, one by describing those bodies in great detail, and then often stopping in the middle of that very detailed description and then saying it's too horrible. i cannot actually put this in

words. words cannot convey this. >> this weekend on american history tv, ante tam's dead. kate nelson discusses the impact of dead soldiers on the american public during the civil war. saturday at 10 p.m. eastern. also this weekend -- >> america will stand up for the ideals that we believe in when we're operating at our best and who want to see this country perhaps above all else return to the path of peace. >> more from the contenders, our series that looks at key political figures who ran for president and lost but changed political history. this week 1972 democratic nominee and anti-vietnam war candidate george mcgovern, sunday at 7:30. american history tv this weekend on c-span3. >> attorney emmett bondurant thinks the senate filly wasser -- filibuster is

unconstitutional, and along with the group common sense, he's suing to have it abolished in the supreme court. the american constitution society hosted him this month to talk about the history of the filly buster and its increasing use in recent history. this is about an hour, 20 minutes. >> hello, everyone. hi name is matt weiss, and i'm the vice president of the georgia lawyers' chapter of the american constitution society for law and policy. along with the georgia state university college of law student chapter, i would like to welcome you to this afternoon's program seeking cloture, is the senate filibuster constitutional? the american constitution society for law and policy or acs was founded in 2001 and is one of the nation's leading progressive legal organizations consisting of more than 200 lawyer and law student chapters in 47 states and the district of columbia. acs is a rapidly-growing network

of lawyers, law students, scholars, judges, policymakers and other concerned individuals who work for positive be change by be shaping the public debate on important legal and constitutional issues. by bringing together powerful, relevant ideas and passionate, talented people, acs makes a difference in the constitutional, legal and public policy debates that shape our democracy. for more information about our organization, please, visit www.acslaw.org, or feel free after the program to see east -- either me or one of the co-presidents of the georgia student chapter, tiffany or mary. turning to this afternoon's program, our feature presenter -- emmett bondurant -- will outline his premise that the use of the filibuster in the united states senate is unconstitutional.

mr. bondurant is a nationally-recognized trial lawyer with more than 50 years of experience representing plaintiffs and defendants. he's widely known as one of the top attorneys in the united states in antitrust law and was named one of the top ten trial lawyers in the united states by the national law journal. mr. bondurant attended the university of georgia where he graduated from college cum laude and phi beta kappa and from law school where he also graduated magna cum laude. mr. bondurant received his lom from harvard law school, and he clerked for the honorable clement haynesworth jr. for the united states court of appeals for the fourth circuit. he currently serves -- including a strong commitment to community service and pro bono litigation including death penalty, habeas corpus, reapportionment and

other civil rights and constitutional cases. he has served as president and director of the atlanta legal aid society, chairman and a member of the national board of common cause and chairman of the georgia public defenders' standards council from 2003 until 2007. mr. bondurant is the author of various articles on constitutional law and local governmental issues and has spoken at seminars sponsored by the american bar association, the state bar of georgia, the atlanta bar association and the university of georgia cles on topics including antitrust law, appellate practice, banking law, evidence, criminal antitrust problems, ethics, federal practice and procedure, georgia civil procedure and the uniform commercial code. mr. bondurant is no stranger to constitutional litigation. in 1963 at the anal of 26 -- age of 26, he argued in front of the supreme court and prevailed in the case of west bury v. sanders

where the supreme court held that congressional districts -- like state legislative districts -- must be apportioned within a state based on population. overruling the previous case of colgrove v. green where the supreme court had held that the apportion. of congressional direction -- districts was beyond the jurisdiction of federal courts. on the topic of the constitutionality of the senate filibuster, mr. bondurant published an article in the summer 2010 edition titled the senate filibuster, the politics of obstruction. copies of that article are available outside for your reference after the program. further, as mr. bondurant will discuss today, on may 14, 2012, he filed a complaint commencing the lawsuit common cause v. biden in the united states district court for the district of columbia. in that case mr. bondurant has challenged the constitutionality of the filibuster in the united

states senate. after mr. bondurant discusses this important be constitutional topic, we will shift to a dialogue discussion on the issues brought up in mr. bondurant's presentation. that discussion will feature mr. bondurant as well as professor eric segall. professor segall graduated from emory university fay beta kappa and summa cum laude and received his jd from vanderbilt law school where he was a member of the order of the coif. professor segall then clerked for the honorable charles moya, chief judge for the united states district court for the northern district of georgia and the honorable albert j. henderson of the 11th circuit court of appeals. following his clerkships, professor segall worked in the united states department of justice before joining the faculty at the georgia state university college of law in 1991.

professor segall teaches federal courts and constitutional law, and his articles on constitutional law have appeared in the stanford, northwestern, ucla and pennsylvania law reviews among others, and he has been a frequent contributor to constitutional commentary. professor segall has served on the executive committee of the aalf section on federal courts and has given numerous speeches on constitutional law questions and the supreme court. mr. segall's also the author of the new book, "supreme myths: why the supreme court is not a court and it justices are not judges." following mr. bondurant and mr. segall's dialogue, we will take questions from the audience. or during the conversation as well. i want to thank both mr. bondurant and professor segall for appearing with us this afternoon for what is sure to be a fascinating examines of a substantial issue of constitutional law. i'd like to remind everyone at this point to turn off your cell

phones and, also, when you're asking questions to the panelists, please, allow a minute for the microphones to move over in your direction so we can get your, get your question. with that, i now turn the floor over to mr. bondurant. thank you very much. [applause] >> thank you, matt. let me start with a proposition. when moses came down from the mountain, one of the ten commandments was not be that there shall be a right of unlimited debate in the senate. [laughter] when the bush burned in the sinai desert, a voice did not speak that there shall be filibuster rule in the senate. it is not a part of the constitution. it did not exist at the time the constitution was adopted. it was prohibited in english parliamentary practice since

1604. it was prohibited by the rules of the second continental congress, and guess what? it was prohibited under the first rules of the united states senate, adopted in april of 178 1789, a senate which had many framers of the constitution as senators. and simultaneously, the house did the same thing. they both adopted the previous question motion from english parliamentary practice as a part of their rules which allow the majority at any time to call the question and end debate in in the senate and in the house. where we are today is a historical accident which i will trace for you. first, let's talk about the problem. the first billy busters did not -- filibusters did not occur until 1841, 50 years after the constitution was adopted.

during the 19th century, the average was about one every three years. during the early part of the 20th century, the average was about one per year. that cometted until about 19 -- continued until about 1970. the average between 1917 and 1970 was about one filibuster a year. filibusters in that period were largely directed at civil rights bills, antilynching bills, fair employment bills, voting rights bills and so forth and were primarily led by southern senators. you will see that it changes beginning in about 1970, and you will see particular spikes in 1992, '93, '94 when clinton was elected and the democrats controlled the house and the senate. and you'll see it drop off in 1995 with the republican

revolution so that the filibusters, the house was no longer -- or senate was no longer controlled by the democrats, nor was the house and, therefore, there was less filibuster as far as the republicans were concerned. you will see the spike again increase beginning in 2006 with the 2006 election when the democrats took control of the senate and the house. all of a sudden, you see the number of filibusters spike, and you see the drop in the spike with the 2010 elections in which the republicans have taken control of the house and, therefore, there are fewer bills coming over from the house to the senate. to be filibustered. nevertheless, the filibuster is the predominant rule of procedure in the senate that dominates everything the senate does and, therefore, dominates everything congress does, and in many respects paralyzes many of the functions of government.

this, again, is a chart that shows you the number of filibusters and the increase. when i say filibuster, it's a misnomer. the filibuster rule is not a rule of debate. it's a rule of silence. it's a rule of censorship. it is a rule which allows under senate rules the objection of a single senator to a bill or to a nomination, or in your terms, a hold, to force the senate to go through a process that requires a motion to proceed. the senate cannot begin debate on anything without unanimous consent if a single senator objects. once a single senator objects, if the majority leader decides that the matter is important enough that he wants to take it on, he will file a motion to proceed which is asking the permission of the senate to

begin debate on a bill or a nomination. a motion to proceed is a debatable motion. and guess what? it can be filibustered. but not in the mr. smith goes to washington sense. only in the sense that in order to proceed, there must be 60 senators present and voting to vote cloture on that motion. the objectors, the person who put the hold on the bill, can shrink away like a thief in the night to never explain himself or herself, and the senate cannot proceed unless you can get 60 votes. so then you begin debate. well, you can't end debate without another vote for closure which can require another 60 votes and go through the cloture process. and even after cloture's voted, the senate cannot actually close

debate and take the vote without the expiration of 30 more hours of senate floor time during which the pending bill is the manner before the senate, and nothing else can be discussed. so the senate, essentially, plays didly winks, whatever, until that 30 hours expires. the congressional research service has published reports in which they say this whole process can require 12-14 days of senate floor times. well, the senate only meets about 170 days a year, so as you can see, it is the equivalent of trying to run out the clock even if you don't oppose things. the problem begins with rule 22. rule 22 was adopted in 1917 not for the purpose of enabling senators to hold the floor in debate as strom thurmond did this 1957 for 27 hours to oppose

a civil rights bill or mr. jimmy stewart did in "mr. smith goes to washington. "it requires now as a result of an amendment in 1975 an affirmative vote of three-fifths of the entire senate to close debate. well, what that means is that the burden falls entirely on the proponents to get 60 senators present and voting. the opponents don't have to do anything. absence is the same thing as a no vote. abstention is the same thing as a no vote. so the burden falls entirely on the proponents, and the opponents don't have to speak, they don't have to debate, they don't have to explain themselves. but it gets even more complicated because the senate cannot heal itself. unlike the house which can amend its rules by majority vote, the

senate has a rule which is a part of this rule 22 that says it takes 60 votes to close debate on everything but one thing; a proposal to amend the sacred senate rules. that requires 67 votes. and as a practical heart, it is impossible -- matter, it is impossible particularly in the polarized days of the senate, but be it has essentially been impossible since the first filibuster occurred in 1841 for the senate to return to majority rule and allow the majority to close debate when it has heard enough and it would like to vote. henry clay, in 1841 when confronted with the first filibuster, immediately removed to restore the previous question motion as part of the senate rules. what happened? his motion was filibustered. [laughter] and it is only one of 100 or more attempts that have been

made since then to reform the senate rules, most recently at the beginning of the last congress in january of 2011. the problem is caused by rule five. that's the result of a deal made by or an amendment negotiated by lyndon johnson when he was floor leader of the senate in 1959 to overrule an advisory opinion from richard nixon in 1957 to the effect that the senate could amend its rules in the beginning of each new congress by a majority vote. at that time the senate rules did not say that they continued from one senate, one congress to the next. so in 1959 as a part of a compromise in which the reformers lost and the realso trant part of the -- recalcitrant part of the senate won, they added a contingent that the rules can only be amended as provided by these

rules, and that takes you to rule 22 which says two-thirds vote. the rule is not a rule of debate. it is a rule -- it is not a rule of deliberation. while the defenders of the rule says this protects the rights of the minority to be heard, this gives us the opportunity to deliberate fully and fairly and think carefully and head off hasty action. in fact, it lets one senator deny the majority of the ability to debate, to deliberate, to think through and explain their positions. it gives the minority a total power to prevent the majority from debating bills or the qualification of nominees. if you don't get 60 votes, it doesn't come to the floor of the senate, and the senate is powerless to act. it does not protect the right of the minority to debate, it gives

the minority the power to prevent the majority from debating. it does not foster liberation, it gives the minority the ability to prevent deliberation. it does not promote compromise, it promotes gridlock and gives the minority both the incentive and the power not to compromise. if you are, if you want to make obama a one-term president, as mitch o connell has announced his objective at the beginning of the obama administration, how do you do that? you filibuster every major administration proposal. and then you argue, as is currently being argued in the campaign, the president is not a leader, he is not effective, he can't solve our problems, he can't get anything done. it does not promote accountability, it prevents accountability.

a senator can put a secret hold on a nomination, or when unanimous consent is sought to begin debate if that is sought, all the senator has to do is object. he does not have to explain himself, he does not have to debate, he does not have to state a reason. he can go dial for dollars, he can go fishing in alaska, he can go hunting with the former vice president -- [laughter] his absence is all the opposition he needs. the filibuster does, however, promote obstruction as we have seen particularly since 2006. during the first half of the congress elected in 2006, there were an average of two filibusters a week. whereas in the 19th century there were one every three

years, and the first three-quarters of the 20th century there were, essentially, an average of slightly over one per year. it promotes hypocrisy. it gives the minority party in the senate the ability to run against the majority party by saying they can't get anything done, elect us. well, why can't they get anything done? because the minority party filibustered the proposal and would not let it get debated, much less voted on on the floor of the senate. it prevents the president from filling judicial vacancies. there are over 100 vacancies on the federal courts. 40 or 50 of them are declared to be judicial emergencies. they can't be filled, and they won't be filled this year. there are numerous vacancies in the executive branch. they have been slowed down for months. president obama couldn't get his

commerce secretary firmed. during the -- confirmed. during the financial crisis, geithner had no assistance because all of his assistants were being held up in the senate confirmation process. this is the most serious and perhaps recent development in the whole filibuster saga. it gives the minority the power to nullify existing laws. what do i mean by that? classic example, nomination of richard cordray to head the financial consumer credit regulatory bureau. his nomination was filibustered and held up for more than nine months for the stated purpose of preventing the agency from implementing a statute already passed. not because his qualifications were opposed, but because they wanted to prevent the implementation of the statute and force its amendment or repeal. he took the position only with a

recess appointment because theye were not the required 60 votes. another example, three nominations to the nlrb have been held up, the national labor relations board doesn't have a quorum. it cannot function without a quorum. and so even though you couldn't repeal the taft-hartley act or the wagner act, you can gut it by preventing the nomination. the nomination of peter diamond, nobel prize-winning laureate at mit to the federal reserve board was filibustered. why? because there are those in the senate, including david vitter, who want to abolish the federal reserve board. and if you don't want the federal reserve board to function competently, the best way to try to get it abolished is to prevent the appointment of competent people to the board and try to prevent the board from functioning. and it encourages hostage taking. what do we mean by hostage

taking? i'll give you a whole bunch of examples. richard shelby in january of 2011 put holds on every pending presidential nomination. why? because he was trying to blackmail the senate into fast tracking a government contract to a government contractor in mobile, alabama, who was a major political contributor. larry craig held up the promotions of every general in the department of defense. why? because he wanted the air force to station four c-130s to an air base in idaho. and there are many other examples where one senator uses these rules to try to exact something that he could not get by majority vote. i was interviewed recently by

someone with a television station who said, well, ron wyden said it's a really good rule because he had held up a defense appropriation bill to get money for energy-saving wind turbines off the oregon coast. my answer to that is, that's not the way democracy is supposed to work. it's not supposed to work by blackmail and hostage taking. the problem is the one i have stated previously, consideration of bills and nominations requires unanimous consent. the senate prides itself on being this meeting of gentlemen philosophers that operates by unanimous consent. but rules that were made for a kinder and gentler senate by people who are gentlemen philosophers do not work in a

senate governed by trench warfare principles of partisan politics. if there is an objection to a request for motion to proceed for unanimous concept, then there has to be a motion perceived which is a debatable motion which can be filibustered. that gives the minority the power to do precisely that which the framers of the constitution did not intend they be able to do. in the federalists, hamilton talks in two places about supermajority voting. he says, we rejected it because why? it would give the minority the power to embarrass the administration and destroy the enemy -- the energy be of government. but since mitch mcconnell says his most important objective is

for president obama to be a one-term president, judicial nominations -- 91 vacancies, 32 of which are judicial emergencies -- that cannot be be filled, many have not been filled for several years, and they none of them will be filled between now and the election and the inauguration of a new president. eighteen district court nominees currently pending, 15 had unanimous republican support. they can't get confirmed. nominees have had seven times -- obama nominees had seven times as many no votes as bush nominees had in eight full years. hundreds of executive branch nominations have been filibustered. peter diamond, i have mentioned. richard cordray, i have mentioned. and the new nullification,

holding up nominations to try to prevent the implementation of existing legislation or force its repeal. let's look at the, just look at all the instances. republicans blocked debate on the buffett rule. gop blocks debate on financial oversight bill. republicans block u.s. health aid for 9/11 workers. senate republicans, again, block pay equity bill. republicans in senate block bill on student loan rates. none of those bills were deliberated, none were voted on on the floor of the senate. while the senate claims to be the greatest deliberative body in the world, it has a rule that denies the majority the ability to deliberate. here are examples. paycheck fairness act had

majority vote, never got debated. cybersecurity act, majority vote of 52, never debated. disclose act, 59 votes, 57 votes and 53 votes, three different times, never reached the floor for debate. dream act, 55 votes. public safety employees' cooperation act, 55 votes. bring jobs home act, 56 votes. buffett rule, 51 votes. nomination of goodwin liu to the ninth circuit, 52 votes. nomination recently of judge back rat to the tenth circuit who had the support of both republican senators, but because of the so-called strom thurmond rule which says after may you don't confirm anybody because the opposite party may win an election and get to fill those vacancies, the same people who

returned blue slips abstained. they didn't vote against him, but an abstention is the same as a no vote on cloture. so his nomination never is debated, he is never confirmed, never reaches the floor. here's an article reporting that as of october of 2010 there were over 400 bills that had passed the house that were pending in the senate, and they would die before the end of that congress. and as i mentioned before, changes in filibuster are summit to being fill -- subject to being filibustered. so the result is gridlock. the result is the senate cannot heal itself even if it were to try. the filibuster rule which is not a filibuster rule at all in terms of speaking puts the entire burden on the majority and allows the obstructionists

to evade accountability. the filibuster is a historical accident, as i mentioned. moses did not put it on the tablets. there was no right of unlimited debate in any parliamentary body at the time the constitution was adopted. filibusters had been outlawed under the rules of the english parliament since 1604. filibusters were not allowed in the second continental congress because there was a previous question in motion, and they were prohibited by the first rules of the senate. they're also inconsistent with the principle of majority rule which is the bedrock of the constitution. one of the things that led to the adoption of the constitution was the fact that the articles of confederation required supermajorities of 9 of 13 states both for a quorum and to pass anything. so five states could do what

they call secede which means just don't go, boycott a session. and you could not meet. or if they met, if five states opposed the building of a warship, it didn't happen. if five states opposed the levying of a tax, it could not happen. and that's why or was a principle reason which led to the convening of the constitutional convention. the framers of the constitution debated supermajority voting both for quorum and for the passage of legislation. and they rejected it. a quorum in the constitution; the constitution states a quorum is a majority of either house. in the senate a quorum is not a majority of the house other than the most technical sense because if a single senator objects, the senate can't do any business.

it can't debate, it can't vote, it can do nothing. article i, section 7 is clear in saying that the passage of bills is by majority vote. why do i say that? ordinary rules of contract construction. the constitution says when a bill is first passed the senate and the house, passes the house, it goes to the senate, must pass, and it goes to the president. it doesn't say majority vote, it says pass. pass at the time in the ordinary dictionary definition meant by majority vote. but then look at the further passages. if the president be vetoes a bill and comes back, it must pass the house and the senate, exactly the same word, by a two-thirds vote. the addition of two-thirds the second time around tells you, obviously, that passed means by something other than a two-thirds vote or a

supermajority vote the first time around. and what is the historical practice? since day one the house and the senate have interpreted "pass" to mean by majority vote. but the rule, rule 22, shortcuts that process. it short circuits it by allowing a single senator or the absence of 60 affirmative votes to prevent a matter from ever being submitted to a final vote for passage. the same thing is true of confirmation of judges and appointments. they're to be by majority vote. there is also the provision which you know from contract law as well as from constitutional interpretation providing a list of things that you want done or not done excludes other things being added to the list. and guess what? we have none other than chief justice roberts in the recent affordable health care opinion

recognizing that rule in which he cites, says the enumeration of powers isal a limitation of powers -- is also a limitation of powers. the constitution's express conferral of some powers makes it clear that it does not express other powers. i mentioned the federalist papers. madison and hamilton defended the decisions of the framers in the federalist papers against various attacks including those coming from george mason who, from virginia, who was one of the participants in the federal convention, one of the people who proposed supermajority voting as a condition of the enactment of navigation laws, and that was one of the reasons that he opposed adoption of the constitution. in federalist 22 hamilton says supermajority voting either r a quorum or for passage of legislation would give the minority a negative on the majority. the greater number would be

subjected to the lesser number. but in its real operation, its effect is to embarrass the administration, destroy the energy of government and, and the majority must conform to the minority, and the smaller number will overrule the greater. that could have been written in 2006, 2007, 2008, 2009, 2010 or even today, and you'd think he was talking about the contemporary senate. madison in '58 conceded that there would have been advantages of requiring supermajority voting. it would have provided additional protection for the majority, for the minority. but then he said these considerations are outweighed. the fundamental principle of free government, which is, guess what, majority rule, would be reversed. the power would be transferred to the minority. and this is particularly appropriate in light of the

hostage taking. the minority would take advantage of the supermajority vote requirement to screen themselves from equitable sacrifices or extort unreasonable indulgences. i don't think richard shelby or craig or a number of other senators have ever read the federalist papers. but if you recall in the health care debate, there was the cornhusker compromise to get ben nelson's 60th vote on cloture, they exempted nebraska from the additional health care taxes that would have to be paid. there was the louisiana purchase in which to get mary landrieu's vote they provided $300 million of extra funds for louisiana. to extort unreasonable indulgences or to exempt themselves from unreasonable sacrifices. hamilton returns to it again in the 75th edition of the

federalist papers. he again says all provisions that require a majority have a direct tendency to embarrass the operations of government and to subject the sense of the majority for that of the minority. and then he says, and this could be talking about the amendment to the filibuster rule, he also warned that if two-thirds were required, it would amount in practice to a necessity of unanimity. in the history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder. would you say that today's senate is imto tempt? impotent? would you say it is perplexed? and would you say it is a body of disorder? here is the article on shelby's putting the hold on the nominees in february of 2010. the fist -- first rules of the

senate adopted immediately after the constitution provided no right to filibuster. it had the previous question motion as a part of it rules. this is the accident of history. as the great aaron burr was leaving office as vice president, he gave a farewell address to the senate. and in that farewell address he said the senate rules have become very complex and need to be shortened. and one of the rules you gentlemen might eliminate is the previous question motion. because during my four years as vice president, it had only been invoked once. and the senate did. what does that prove? it doesn't prove the rule was unnecessary. it proves that during the period he was vice president senators conductedded themselves as

yes -- conducted themselves as gentlemen philosophers who were willing to hear each other out to debate. and when they had heard the debate, they were willing to vote. and only on one occasion did the senate feel he's to invoke the rule -- necessary to invoke the rule to end the debate before somebody had thought he'd had his says. but that did not result in a flood of filibusters. the first filibuster doesn't occur until 1841, so that tradition of gentlemen philosophers who were willing to hear each other out, give each other a fair hearing and then decide things by majority vote continued for the first 50 years after the constitution was adopted. so between 1806 and 1917, there was no rule, but filibusters occurred only at a rate of about one every three years. in 1917 the senate adopted what is the predecessor of rule 22. not for the purpose be -- not

for the purpose of guaranteeing senators like the late jesse helms or strom thurmond or huey long the right to hold the floor of the senate and prevent the senate from debating, but for providing a mechanism where none existed previously to allow the senate somehow to end debate and bring matters to a vote. wilson said in 1917, and it is true today, that the united states senate is the only legislative body in the world that cannot act when it majority is ready for action. he said then and it is true now that a little group of willful men representing no opinion of their own have rendered the great government of the united states helpless and contemptible. i've given you the history, one per year in the first 30 years after the cloture. the current senate rule allows

the silent filibuster. that is the result of the 1977 amendment which shifted from two-thirds of the senate present and voting which means you had to be present and vote. if you ab sented yourself and there were 51 senators present, 26 senators could change the rule. when you went to 60 votes, then you had to have both a quorum, but you had to have 60 affirmative votes, and that's what led to this silent filibuster. , it conflicts with, you know, why do we contend it's unconstitutional? it conflicts with fundamental will principle of majority rule in which they are passed by the house, passed by the senate, they go to the president. if he vetoes them, then they must pass a second time by a two-thirds vote. it upsets the checks and balances between the three

branches in various ways. it allows the minority to prevent the majority from exercising its powers to give advice and to consent to nominations to the federal courts. in combination with rule five, it prevents the senate from amending it own rules by majority vote, a power granted to it by article i, section five of the constitution which says each house can make it own rules. and it gives the minority a veto power over all senate business. and it gives the minority the power to nullify votes cast by members of the house. members of the house abide by the constitutional process. they vote for the disclose act. it passes. it reaches the senate. it has 59 votes as evidenced by the votes on cloture. it dies because it never reaches the floor for debate. i mentioned previously it

conflicts with the quorum clause. the quorum clause says a majority is sufficient to do business. the 60-vote rule says, oh, no, takes 60 votes if one senator objects. it conflicts with the presentment clause which says you pass legislation by majority vote. that process has been short circuited by the rule in the senate. it is an attempt by the senate to add to the exclusive list of situations in which the framers did carve out exceptions to the majority rule. and required a two-thirds vote. why? because some actions were deemed by them to be too important, too controversial to be decided by a bare majority. it takes away from the vice president one of his only two powers; that is to vote in case of a tie. he can preside over the senate,

but under this rule if you've got 60 votes -- there would never be a tie vote. to confirm nominees and give advice and consent, and it upsets the structure of the great compromise. before i get to the structure of the great compromise, here are the examples of where the two-thirds voter required. impeachments, expelling members, overriding a presidential veto of a bill, overriding a presidential veto of an order or resolution, ratification of treaties and amendments to the constitution. let's talk about the great compromise. the great compromise was one of the most hotly-debated issues in the constitutional convention. you know how it was resolved. the house seats are apportioned based on population, the senate

seats are a i signed -- assigned two per state which means that wyoming has 77 times the representation in the senate as a citizen of california. but that's in the constitution. but even under the great compromise a majority of senators elected from a majority of the states had the power to pass any bill or confirm any nominee over the objections of the majority. of the minority. the 60-vote requirement essentially reverses that. it gives a minority of senators 41 representing a minority of 21 of the 50 states which may have as little as 11% of the population the power to veto bills and nominees even though

they have the support of 59 senators representing 89% of the country. that is not what the framers intended. it also -- the inability to amend the rules by a majority vote violates article i, section 5 which gives the senate the power to amend it to adopt rules. that power is by majority vote as are other things in the constitution. and it also violates the rule that you know from blackstone which is that one legislative body cannot bind the hands of another. it gives a decision made by senators long dead in 1917 the power to prevent the current senate from amending its rules in any respect. these rules are not learned from

judicial review. the supreme court has held that while the constitution empowers each house to adopt it own rule, quote: it may not by its rules ignore constitutional restraints. and her recent -- more recently, justice brandeis writing for a unanimous court: the construction given to its rules by the senate when it effects persons other than members of the senate, quote, the question is necessarily ajess tear bl one. and in the united states against yellin, the court said it has long been settled that the rules of congress are judicially cognizable. the court's overturned many things that instructed the -- the line item veto, the delegation of executive branch powers to a legislative branch official and bowsher v. synar,

the one house veto and many other cases. people who are challenging it are common cause, four members of the house including two of our representatives, john lewis and hank johnson, as well as keith ellison and representative mike mccard and three dream act beneficiaries. these are students brought to the united states by their parents from other countries illegally when they were minors. all three have graduated from high school with honors, graduated from college with honors. one of the three has graduated from law school with honors, and all are subject to deportation from the united states and have been denied a path to citizenship even though the dream act had 59 votes in the senate. and was held up solely because

of the 60-vote rule. so we are confident that courts can and more accurately should hold the rule unconstitutional. and what would the result be? exactly the result that roberts did in the affordable health care act case. you would sever the supermajority vote provisions from rule 22 leaving the rest intact which would mean that the senate would have the power for the first time since 1806 to call the question whether to begin debate or to end debate by majority vote. and if the senate didn't like that rule, guess what the senate could do? it could by a simple majority vote amend its rules and come up with a new rule of parliamentary procedure.

but as things currently stand, the senate cannot heal itself, and no one outside the senate -- not the house of representatives whose 400 bills died without being voted on, not the president whose proposals, whose agenda is being vetoed in the senate, not the federal judiciary that cannot fill the vacancies that exist so it can do its job -- the only agency in government that can step in is the federal courts. thank you very much, and professor segall will now take over. [applause] >> thank you very much, mr. bond rapt. we'll now move into the discussion portion of our program with mr. bond rapt and professor sea gal -- bondurant

and professor segall. >> thanks for coming out today. that was great, emmett. let's give him a round of applause, i thought that was really good. [applause] i just want to make about three minutes of brief comments, ask one question and then probably turn it over to you for questions if you have any. i think emmett's presentation raises three questions, and it's very important to keep them separate. one question is, is the filibuster a good idea? to me, the answer is obviously a terrible idea. and i've yet to meet almost anybody who defends the filibuster, and in a sane world the senate would change its -- [inaudible] so is it a good idea? someone could defend it if they want to, but i think it's clear it's a really dumb idea. second, is it unconstitutional in the sense of citizens as senators, do we think this particular procedure violates the constitution? i think the answer to that's

probably yes, though i'm less dogmatic about it than emmett is. i think the answer's probably yes. but there's a third question, and it is the very hard question, and it is the question raised by the lawsuit which is, should a federal court declare the senate's filibuster and cloture rules unconstitutional? that is much more difficult. and in my advocate's hat, i want to say, yes. in my, um, scholarship hat, i'm not quite as sure. so i'm going to ask emmett a couple questions that i think he's going to get from judges on that issue, and then we'll open it up to everybody else. we're going to leave, i'm going to leave aside for the moment issues of standing and the political question doctrine. but on the merits, i think the hardest question you're going to get from your judge is the following: article i, section 5 gives the senate the right to conduct it own internal procedures. now, a bill -- even if you're

right that to become a law passed means majority vote, and i think you are right about that, it doesn't tell us when the senate has to vote on a bill. article i, section 7 doesn't say anything about that. article i, section 5 gives the senate the right to conduct it own procedures. so where do we draw the line, where should judges, unelected, life-tenure judges draw the line between those procedures that get in the way of majority rule such as all of the various committee rules we have in the senate that are really silly but probably not unconstitutional and the -- but they do get in the way of majority rule -- and the filibuster rule which maybe is the most silly and the most anti-majority rule. but this has to be a line somewhere between, certainly, the senate is allowed to govern itself. how do you draw that line? >> the issue is --

[inaudible] by the supreme court. in 1892 the supreme court held while each house of congress has the power to proscribe its own rules, it cannot adopt rules that violate fundamental rights. in the united states v. smith case, that was a case in which the senate confirmed a hoover appointee to the federal power commission. but the senate rules provided that the senate could reconsider a confirmation in three days. the confirmation occurred just before christmas, the senate recessed for christmas, came back after christmas and interpreting its own rules said that meant three legislative days, and we don't like mr. smith after all, and we rescind his appointment. justice brandeis had no difficulty in saying when the rules of the senate effect persons outside the senate, the question is a justiciable one.

the question is solely a question of law, he held, and while we the court give great deference to the senate's interpretation of their own rules, we are not included by and they, in fact, rejected it and held that smith could not -- his appointment could not be rescinded even though the senate rules said that it could. and there are subsequent cases in which the court has done it. and just some simple hypotheticals. could the senate adopt a rule that said during the impeachment of andrew johnson or bill clinton it's too hard to get a two-thirds vote to convict. so let's require only 60 votes. would that be constitutional? obviously not. what if they said it's too hard to get 67 votes to confirm a treaty, let's have 60 votes. would that be constitutional? no. and there are other examples.

take congressional districts, which i do know something about litigating. the argument in the congressional district case was that the constitution commits in the first instance to the states the power to draw congressional districts and then reserves to congress the power to make or alter those regulations. that was argued by the defendants to indicate a textural commitment exclusively to the political branches, not to the judicial branch to interfere. the supreme court be rejected that argument. so the argument that -- to accept the argument that article i, section 5 when you give the power to each house to make rules makes them sacrosanct, puts them above judicial review would have you believe that a rule adopted by one house probably over the objection of

the other, certainly not concurred in by the president has greater immunity from judicial review than a bill that has been passed by both elected branches of congress, signed by the elected president. if it conflicts with the constitution, what does marbury v. madison tell you the result is? it's a question of law for the be courts, and if bills and statutes adopted by popularly-elected officials and is signed by a popularly-elected president can be declared unconstitutional by the courts, then, obviously, a rule adopted by only one house without the consent of the other can so be held. >> i think if be that answer were given to a judge, you might get the following response. um, i'll concede for the moment that this case is justiciable and that a rule that violated another part of the constitution that was passed under article i,

section five is unconstitutional. for example, if the senate said any bills that affected african-americans would have to get two-thirds votes, that would violate the -- [inaudible] clause. and even if that was done with a grant of authority in article i, section five, we'd strike that down. that isn't the question. the question is, the senate has adopted a lot of rules pursuant to article i, section 5 that get in the way of majority rule. i would -- i, as a judge, would have jurisdiction to decide if they're unconstitutional or not. my question is because a lot of what the senate does gets in the way of majority rule, why is the filibuster the one example you're pointing out to me that i should declare unconstitutional when, in fact, the powers given to committee chairmen in the senate get in the way of majority rule quite a bit? is. >> the, i think the simple and absolutely correct answer to that is unlike the house of representatives that also has rules of that type, the house

rules can be amended or suspended at any time by a simple majority vote of the house. there is no comparable ability in the senate which prohibits the senate from amending its rules by a two-thirds vote. so if while it is undoubtedly correct that there are bad chairmen in the senate, there are bad procedures in the senate and so forth that may get in the way, if the senate had the ability to say they're in the way, the majority wants to change 'em, they could change 'em. rule 5 and rule 22 deprive the senate of that ability. so the self-correcting recognition for majority vote simply doesn't exist in the senate. it is fatally wounded by a decision to follow the advice of aaron burr. it wasn't enough that he shot alexander hamilton, and it wasn't enough that he tried to

organize louisiana into an independent jurisdiction -- [laughter] and avoided conviction by john marshall in the trial of aaron burr, his most lasting and negative contribution to the unite of america -- united states of america is the advice which he gave the senate in 1805 to drop the previous question motion from it rules. >> so here's my last question before with i throw it out to the audience, and i hope you don't shoot me. um, it seems a little bit difficult to argue that majority rule is a bedrock constitutional principle in a country with the following undisputed facts. first, the words "majority rule" don't appear in the constitution. second, the senate is maybe the least ma yore tear yang body in the world given that the people of wyoming have the same amount of influence as the people of california. third, we don't vote for the president via majority rule. of course; we have the silly lek

tore allege -- electoral college. and, fourth, there is no mechanism in the united states constitution for a national referendum. unlike colorado and georgia where 51% of the people can get together and do something, in fact, it turns out that the version of history you presented -- and, again,. [inaudible] to some degree, the version of history you presented is one side of the story. a second side of the story is the founding fathers to the extent we care -- i personally don't -- but to the extent we care, they were very, very afraid of majority rule which is why they did not put in any kind of referendum procedure, and they were very, very concerned about the government being able to act effectively and quickly. and so i don't know if james madison were here today, i think his response might be i'm really glad the senate can't do anything because the only time the government should act is when there is virtually unanimous -- absent the war issue -- the only time the

senate could act is when there's virtually unanimous approval that the federal government should do something, and that's why we gave the senate the power in article i, section 5 to have its own internal rules to decide from time to time how important it was that a majority carry the day. >> well, let me say, first, the devil is well represented. [laughter] second, the answer to all of the historical examples you gave are just like the two-thirds vote requirements in six places in the constitution and in two other amendments to the constitution. they are exceptions to majority rule. the great compromise which gave, resulted in unequal representation in the senate was not a matter of principle, it was a matter of political sacrifice. either took it or left it. and without it there would not have been a united states of america. the electoral college is the illegitimate stepchild of that deal because the president is elected by electors from the

states who are signed, guess what, based on senators and representatives. and so the distortion in the senate is the distortion in the electoral college. those were exceptions. there were exceptions that were grudgingly made, and there were exceptions that are in the constitution and with which we have to live. but there are no comparable exceptions to article i, section 7 which talk about passing legislation by majority vote. there are no exceptions that says every federal judge has to be confirmed by 60 votes. there are no exceptions which say the appointment of peter diamond in the united states to the federal reserve board can be vetoed by one senator from louisiana who doesn't like federal reserve. that is not the way the system is supposed to work. nor is it supposed to work in system in which ron wyden can say i want money for wind turbines off the oregon cost and, therefore, i'm going to hold up some must-pass bill

until the senate gives in to blackmail and i get it. that's not the way democracy is supposed to work, that's not the way the constitution was set up. and we do have pretty good authority with two guys named hamilton and madison who wrote directly to this issue, defended the decision not to require a supermajority for quorums, not to require a supermajority for passage of legislation. for reasons which they stated in 1787 and be '8 which are as true today as they were then. >> i lied. two quick responses, then we'll take questions. um, it is possible that what they thought was there are some things that are so important that we're going to require two-thirds vote, but that doesn't exhaust the universe of things that might require two-thirds votes or more than a majority vote from time to time. but i don't know, i think you made it better with the historical argument -- >> with -- well, powell v.

mccormack answers that question. that was the debate when the house of representatives refused to seat adam clayton powell for reasons not stated in the qualifications clause for running for the house because of disreputable conduct. that was, in fact, debated at the constitution. when you stated three qualifications, that was going to be too limited. and james dixon from pennsylvania who is a better lawyer than many recited blackstone's rules and warned the senate if you put an exclusive list of -- if you put a list of qualifications in the constitution, you're tying the hands of the house or senate and excluding other qualifications. and that's precisely what the supreme court held. in marbury v. madison, it's based on that principle. >> i would caution emmett that when he argues this in court -- and i'll be there rooting him on -- that his opponent may suggest to him that history is not often the method of

constitutional interpretation that people in emmett's position have used in the past. but one final, one final -- and i'm sure, i am sure you didn't argue history in many of the cases you've won. but the last thing i want to say is i think federal judges, and rightly so, will be a little concerned about entering not as a matter of jurisdiction, but as a matter of the merits. if you start second guessing senate procedural rules, you have to have a stopping point. and i think the filibuster probably is unconstitutional, but i think that's going to be your hardest argument. let's assume there's a rule that says a senate shared doesn't have to let a bill get out of committee for any reason. and i think that might even be a rule, that the chair of the committee simply can just kill it by himself in committee. well, that is very anti-majority rule. i think there are distinctions, but i think judges are going to

be shy about getting into that. with that, any questions, you guys? >> professor, why and can you explain during the last administration the republicans talked about something called the constitutional option to change the filibuster rule. can you explain that to us and why it is that the current senate can't utilize that procedure to change the rules in. >> you mean the nuclear option? >> yes. >> you want the take that, 'em melt? >> let me take it. it's sort of funny, it is a theory without a foundation. let me tell you why. the theory was that the senate was not a continuing body and, therefore, its rules adopted in a prior congress did not carry over. that is the rule of the house. richard nixon issued an advisory

opinion to that effect in 1957 when the senate rules did not have a provision that declared in a self-serving declaration that we are a continuing body, and our rules continue from one senate to the next. that was the effect of the 1959 amendment that put in rule 5 that says the senate is a continuing body, and its rules continue from one senate to the next. then you have the question, can the senate amend its rules while that rule is in effect? and the answer is, i think under controlling supreme court cases including united states against smith and yellin and another group of cases is that no house of congress and no committee of congress can violate its own rules. that's a procedural due process problem. so there you are. as long as rule 5 or rule 22

that says you can't amend it by two-thirds vote stays in effect, they can't amend the rule. the constitutional option theory is based on the theory that, well, somebody will ask for a ruling of the chair which is how nickson's advisory -- nixon's advisory opinion came about. and the presiding office of the senate will say the senate is not a continuing body, though our rules say it is because that rule is unconstitutional. that can then be appealed to the floor of the senate on a point of order and decided by a majority vote. what does marbury v. madison tell you about anything if nothing else? you don't decide federal constitutional questions by a show of hands, by a majority vote within the elected branches of government. that is a legal question for the court. and i believe the senate rule is

unconstitutional. but the senate can't declare its own rule unconstitution constitutional. it is not institutionally capable of doing it. and the whole nuclear option theory a dog that won't hunt. it was tried. in january of 2011, tom harkin, tom udall, jeff merkley all proposed amendments to the senate filibuster rule on the first day of congress. on the theory that congress could do it. the senate could do it. lamar alexander of tennessee got up and said, madam chairman, i object because under rule 4 the senate cannot vote on something on the same day as introduced without unanimous concept and, therefore, i withhold unanimous concept. consent. the first legislative day was, lasted over two weeks because they adjourned, they recessed instead of adjourned. when they came back, the day ended, and the next day the

chair ruled you gotta do it by a two-thirds vote. the senate doesn't have the power to declare its own rules unconstitutional. and that whole theory is, you know, a dog that won't hunt or the dog that barked but had no teeth or whatever the right metaphor is. [laughter] it won't work. >> let me, let me suggest, though, that emmett is overstating a little bit what marbury v. madison said. there are actions by the government that courts will never review under any circumstances. for example, whether the president should recognize a foreign country which i think happens by recognizing an ambassador. the president has unlimited, complete and total discretion to decide whether to recognize a foreign country, and the supreme court will never hear a case where somebody challenges that discretion. in fact, marbury said that there are cases of discretion where the courts won't interfere.

.. >> yeah, but then a senator will challenge reaction as being -- as challenging the action on the basis that the senate had no

power to declare its own rule unconstitutional. they had to amend it in the ordinary process. >> and you win that case. >> well, look, if i had enough confidence in the senate to think there were enough senators with enough courage and backbone to declare one of their own rules untigessal -- unconstitutional, i would sell you a bridge. [laughter] >> i agree with that. >> there's no possibility that the senate is going to declare one of its own rules which is prides as being part of what differentiates us from the house of representatives making us the greatest deliberative body in the world unconstitutional. it's not going to happen. we're not going to merge with russia, and the senate is not going to declare its own rule unconstitutional. >> when this case hits the newspapers and you start hearing about it, when motioned are filed, we're not going to talk about the merits until the court finds it has jurisdiction and it's not a political question.

let me just say i agree with emmet100% and helping him in the endeavor. it's a lawsuit that should be heard by the federal courts. i think it's an issue that should be resolved by the federal courts. how it should be resolved i'm less augustmatic, but i hope we get a judicial determination one way or the other. >> any other questions? yeah. yes? >> yeah, i wanted to raise the issue of standing. in this case, we have the dream act non-citizen litigants. what arguments are being made to the effect that they have standings? >> let me handle this because i taught federal court for 23 years. i think they have standing. my prediction is the supreme court finds they don't.

that would be a wrong decision. the best analogy i can give you is affirmative action. if -- this is a real case -- a contractor in jacksonville didn't get a city contract and sued under the 14th amendment. the city of jacksonville says you don't have standing because you can't prove you would have got the contract anyway. we may have given it to a different firm or you may not have been qualified. typical things you can imagine. the supreme court say that firm had standing even though they couldn't prove they would have gotten the contract because they have a constitutional right to a fair procedure, and the courts entered the 14th amendment, and that was an issue in the case. here, the dream act plaintiff who are clearly injured by the dream act not passing have a right to have the dream act considered pursuant to a constitutional proceed --

procedure. the injury is it passing or not or are they eligible, but the injury is this law given a constitutional procedure under the view of the case? it was not. that's all they have to show. >> the trust of the crust was because they're notary public-citizens can they evoke the constitution? chata was an indian citizen born in england, moved around the world through -- subject to being deported, held to have standing, and the supreme court held it unconstitutional, the one house legislative veto. if you want other cases, take the voting cases. a citizen denied the opportunity to vote does not have to prove who he would have voted for. he doesn't have to prove the candidate he would have voted

for would have won. he doesn't have to approve the outcome of the election would have been affected. it's the denial of the opportunity to participate in the process under the rules of the process that is the constitutional violation. he is injured when he's denied that opportunity to vote, and he does not have to show that his vote would have mattered to which is the outcome of the election, and there's other similar examples. there's the yelling case which we cite is a case in which the house un-american activities committee had a rule that said witnesses could ask to be examined in camera to avoid public embarrassment, and they made that a request, and they ignored him, subpoenaed him to testify, he refused to testify, was held in contempt. it went to the supreme court, and the supreme court held while

it's undoubtedly true he had no reason to testify in secret, while it's undoubtedly true that the committee probably would have said "hell no," nevertheless, he had a right under the senate rules to have a decision fairly considered and made by the committee, and when they did not, he preserved the right in the only way he could which is by refusing to testify and reversed the conviction for contempt. the animal sigh here is that the -- analogy here is that the before the dream act was passed by the house, they had nothing. when the house passed the dream act, they identified that group of people as deserving of benefits of that legislation. it went to the senate. there was a motion for closure. it got 59 votes. it never got debated on the floor of the senate.

the process set forth by the constitution simply was not provided. that injured both the dream act plaintiffs and the members of the house who voted for the bill because they have a right, i think, out of the constitution, to procedural due process, that is the process that the framers of the constitution said should be followed in the senate in deciding whether to pass or not pass something. if the senate voted it down, that's the way the democratic process works. if it was defeated through legitimate processes, that is what democracy is all about. sometimes you win. sometimes you lose. sometimes you get rained out. you do have a right to have congress work the way the framers intended. those people are injured. they are injured in a way that differentiates them from all of you in this room who, i presume, are not the children of illegal

immigrants, who were brought to the united states and denied a path to citizenship. >> right. the proof of the pudding is if the senate passed app interim rule that said any law dealing with blacks need 75 votes. blacks have a right to challenge that. i think we have to call it a day. >> please join me in thanking our panelists. [applause]

>> and we are introducing our new website today. it's being unvailed. jeremy of c-span will introduce it for us. what do you have to show us? >> since 1984, c-span covered every convention minute to minute, gavel to gavel. this year's no different. on the hub, viewers can really engage with c-span content and with other viewers during the con venges so if you go to the home page, and the url is

c-span.org/campaign2012. there's all sorts of things. at the top of the page, live video and featured video. this is not a new thing for c-span. we have live video every day and it's archived in the c-span video library. scroll down. there's new things. there's user generated clips. every video in the library from the convention and every video before that, you can clip just segments of the video. rather than sharing and entire five hour session, you can share just 30 seconds or 2 minutes, however long you see fit and share that on various social media networks, your blog, or website. below that, there's two twitter streams. they come from two sources. one, viewers. nip using hash tags c-span rnc for the republican convention in tampa or dnc for the democratic

convention is on the left. there's a list of delegates tweeting from each convention. on the republican site which is live now, you'll see all the tweets from delegates at the republican convention we've already targeted. next week when democrats start, the week after next, we'll have their tweets as well from their delegates. >> so, jeremy, everything is available at c-span.org? people can watch cop -- conventions live, watch speakers who already spoke online, and they'll see the tweets from the delegates, tweets from fellow viewers, prelim -- political tweets. what about facebook? >> well, facebook, all of this is shareable on facebook. one of the things we feature towards the bottom of the page is information graffings -- graphics with facts and figures. it's new here at c-span. it has quotes, links, numbers of

the speech. we'll do that day by day of the con venges, and they are shareable on facebook and easy to share on facebook and other networks as well. >> people want to go to the website. where do they go? >> c-span.org/campaign2012 where there's every single speaker from governor romney, president obama, down to mayors, members of congress, and anyone else that's speaking at the convention as well as google plus hangouts. >> now, democracy is a difficult subject to measure, but there's ways to do it. there's measures of competition and participation. the most obvious measure of participation is voter turn out. as it turns out, voters are far less likely to show up at the polls in the united states than in any other wealthy countries. we had a far lower performance than the rest of the competition. voter turn out low is an indication of many things. maybe voters don't trust the

system works well for them. it may be there's higher barriers to showing up to vote than other countries. it may be other issues about the process itself. let's take that as a symptom as an issue in democracy. we have data points here. the other couple data points to talk about are from the world bank. the world bank has a series of measurements of democracy, and in each one, there's consistency. countries like australia come out on top. the united states consistently comes out somewhere in the middle, not the best, not the worst, of our comparison group. there's measures from freedom house, and once again, countries like australia and canada near the top, and the united states is in the middle, not doing as strong as we expected. this is very interesting because just like in health where we used to be a leading country, if we think back to democracy, we created the declaration of up

dependence -- independence, our constitution was a leading document at the time. we were a leader in representative democracies. if you think about it, we have not made a tremendous amount of change to the structure, the way we elect people has not really evolved much over time. in the other countries, they have used what i call more modern voter technology. >> see howard friedman talk about how the u.s. measures up on a number of topics like education, health care, and criminal justice. watch the whole event tonight at 8 p.m. eastern on c-span2.

>> charles johnson talked about changes in congress and the impact on how both change -- chambers works. he takes questions from the historical society follow remarks. this is just over a hour. [applause] >> thank you, tom. i did a brown bag, reminded by the curator being the next speaker, i did a brown bag presentation 10-15 years ago, and bud brown was the head of the historical society, and i think both people there really enjoyed it. [laughter] this is good. i'm honored to be able to do

this. as don said, my co-author and i just submitted an updated version in paperback which will be animal a quarter of the cost which seems to inhibited some of my so-called friends from purchasing. [laughter] i know crs got more than they need, but in it, i -- in it i -- we have a revised preface. they allowed us liberties to talk about changes since the 2009 version which have been considerable, and what i want to do is start off by reading the last paragraph of my portion of the new preface to give you a sense of the trends and processes put in place in both houses over the last three years, but it's definitely a

follow on from what we write about through our coexpensive 40-year periods. bill was clerk of the house of commons, sir william, the same time i was parliamentarian. for the same 40 years, we servedded in those respective offices and had a lot of exchanges. brian lamb from c-span, after i retired hosted us on "q&a," and it got coverage, surprised viewers. my most amusing moment in that was brian, in the middle of the interview, held up the book, which i gave him, and he said, charlie, tell the viewers how much the book costs. [laughter] i said, brine, why are you asking me that? i gave you that book. i had to admit, it was pricey. that was the publishers' choice.

let me read you a paragraph, and we'll go from there. i really would be much prefer responses to questions. this is -- this is what i say -- the institutional trends in congress, since those described at pages 547 of the earlier book, suggest a retreat further away from the collegiality, spontaneity, openness, and compromise that characterize earlier congss. remains among mbe to enable re o tractices and norm increasedpaisanship a stativ by wi every mentaliof h mand implemented by reapportionments, campaign

financing, and messages, negative personal attacks to which i add the demise of second residences at the seat of government and the consequence is lack of social interaction across the center aisle as the house meets many fewer weeks. constant, constant editorialized press coverage and instant publication of polling responses taking from televised press accounts suggesting to some members they respond immediately before they think of what to say. manipulation of standing rules to restrict minority options all contributed to the condition in the house. in the senate, some of those factors combined with constant use of the threat of filibusters to even begin consideration of

measures requiring three-fifths vote to limit enhanced leverage beyond any imagine in the not too distant past. that's the way i wrap up my portion of the new preface as my colleagues describe as "melanc "melancholy." he doesn't say "cynical," and i would agree with that. what i'll say is not new information. i mean, writers and others have commented in the press and in the books about these trends. i have not seen yet a good suggestion about remedies, but maybe we can talk about that towards the end, but since i finished up in that reading talking about the senate, let me

embark briefly because i don't like to dwell on the senate. every time i was working in the house and i was frustrated or confused, i said to myself you're better off being in the house than in the senate. [laughter] for a lot of reasons that's true. in 1957, this is an interesting antedote, but it speaks to the problem in the senate, a problem. richard nixon was in the chair on january 4 #, and some of you may know this. it doesn't get publicized by the senate parliamentarians, and humphrey and others were preparing filibusters for the civil rights act, and there was a parliamentary inquiry of the president of the senate who happened to be richard m. nixon presiding in the senate dlitly

because he wanted to respond to the inquiry knowing it was coming. it was not a point of order, and the senate parliamentarians said for that reason it's not precedent, but it's speaking, and nixon, the point of order, the parliamentary order was the organization of a new senate, not ruled by majority vote under the constitution, and that, of course, is an ongoing debate. last year, tom udall and others led an unsuccessful fight with successions at the end, but nixon gives a long explanation on why absolutely he feels very strongly that a body with one-third turnover ignoring two-thirds requirement for shutting off debates which is on rules changes which is still true for on rules changes, can, by majority vote adopt new

rules, and that was kind of hidden. so much else happened since then in the senate that the senate would never admit senators and robert byrd would have never admitted that is a precedent in the senate, and then i was talking to marty gold later on about that, and he said, oh, yeah, nixon was trying to become friendly with the pro-civil rights movement in 1957, which he felt politically motivated nixon to make that comment from the chair, but it speaks loud, and january 4th, 195 # 7, you can find that. in our book and elsewhere, and there's a young lady here who has spoken just recently at a conversation called "wither

conferences," conferences between the house and senate, and i've tried -- first, in doing the book, i had to try to familiarize myself with senate process because it was always 95% of the time when the house wanted to know what the senate might do or might not do, it was impossible to get information. unlike the house, the senate doesn't have a rules committee that can give the leadership an advanced head's up if something's not to their liking to get a waiver support of order. everything in the senate now virtually requires a three-fifths vote to waive any point of order be it budget acts, scope, what have you, and so the demise of conference, i can't blame on either party. i say "blame" because i feel, as i think most of the people at that conference felt, that they should be res legislated.

it's regular order in a traditional sense certainly. it brings more clarity. it brings minority involvement, at least potentially to the issues. it brings a legislative record in the form of a joint statement of managers. all of those aspects of conference procedures are gone when the house plays and senate plays ping-pong or views symmetry to go back and forth combined with what i think think my former colleague would agree is somewhat an abuse of the so-called amendment process where the senate majority leader, being entitled to prior recognition, fills the tree with however many numbered amendments or degrees of amendments are required in order to shut off all of the other amendments from any other senator, and then he'll try to invoke -- still

needs a cloture vote, except on reconciliations, but he needs a three-fifths vote. just one, he doesn't need four or more to go to conference. as the senate would if they proceeded to disagreeing with the house, agreeing to go to conference, naming confer reis, and then with a motion to instruct conferees. those are potential filibuster moments in the senate. that's been avoided and more often than not since speaker pelosi and speaker boehner to some extent and the most recent example is on the highway conference that never made it to a conference report, but thrown in as amendments between the houses, but that is -- that is the reality, and in the house, the house is going along with it because the house can avoid

minority motions to construct and recommit. those can be problematic, especially after 20 days with the conferees not having agreed. any member of the house can offer motions to instruct conferees as long as it's instruction within the real scope of differences. that was the reason for the house leadership to avoid conference and motions to recommit a conference report afterwards, but more important was the ability of the rules committee then to come along and say we're not going to give the minority even a motion to recommit on any of these. we don't have to under the rules of the house. the only guarantee for the motion to recommit for the minority in the house is initial passage, but if it comes to disposition of amendments between the houses, there need not be a motion to recommit

offer offered to any minority member. that's an example of how minority procedural rights which are in the standing rules, have diminished through recent customs and tradition. now, the term "regular order" is thrown around a lot. what is regular order these days? nobody can say. regular order is what happens today and tomorrow in the house, but it almost is equating to gridlock. regular order is gridlock and has been for at least since the senate and house were divided majorities, and certainly since the senate minority had an inorder gnat amount of ability to stop procedures so i wanted to talk about some of these irregular orders that we've had.

despite thomas jefferson's admonition from 1800 writing "jefferson's manual" that the most important thing for the house, writing a manual as vice president of the senate, but the senate never adopted it. he was saying it's not important what the rule is, but that there be a rule, a consistent rule. the members know what it is. well, parliament's all over the world, clerks, members, commons say why don't you adhere to what jefferson suggested? namely, the standing rules which as some of you know guarantee minority participation on virtually every bill initially in the house through the five minute rule and committee as a hole, and a number of other guarantees that are short circuited, not to speak of waivers which are constant in -- through the rules committee, and, by the way, that's another

reason that at conference, the procedure on conferences changed because the rules committee always gives a blanket waiver of any rule coming to the floor of the house, be it a scope violation, legislation on an appropriation bill, the house rules committee will give the necessary waiver which can be adopted overnight by a majority vote. that majority vote emanating from a committee with a 9-4 ratio, although someone told me the other day it's 8-4. in fact, right now, republicans to democrats, but that 2-to-1 ratio is a tradition in the house. it's one tradition they have adhered to regardless of the composition of the whole house, and it means -- and those nine are hand selected by the speaker. the majority conference and caucus rules do not require those names to be ratified by the conference or caucus.

those rules committee members are the speakers leadership people expected to do the business of the leadership, propose its agenda, and it even gets down into the weeds when if you all stayed up until three in the morning, used to be more three in the morningings, david dreier made meeting times more regular, but very often to watch the amendment process develop in the rules committee, what amendments to make in order because when i started, every bill had an open rule. any and all amendments, second degree amendments, substitutes, not at all anymore. it's one amendment, only a first degree amendment in a prescribed order as determined by the rules committee usually on separate party line votes, and if, i saw this happen at three and four in the morning on a number of occasions, if sight unseen, a

majority whip and the members are not there, got wind of the fact that an amendment was in the works to be offered by minority member, and they were not sure what it was, but would cause problems with voting records, embarrassing, uncertain, no one knew what was in order or not, let's not make it an order. that attitude going into some rules committee meetings was, at least when i was there, a deliberate and motivator. the fact it was not that -- you could describe it as leadership from the top down, but in those cases, it was the whip's staff telling the minority staff telling the speaker staff telling the rules committee that they are concerned about an amendment whether they've seen it or not. that's wrong. i mean, the minority -- it's the win at all costs attitude, win every vote attitude that drives so much, and, of course, you can trace that to polarization of

the whole country, but in my first 30 years, there was never a real fear, and democrats are substantial majorities, but the speaker didn't feel losing from time to time on the floor of the house. they figured they could resurrect whatever position they wanted to with the senate or in conference or wherever, but now losing one vote, and both parties in the majority have been characterized by this. they don't want to allow anything to happen that appears not only to jeopardize final passage, but that will convince their members that they can put together a bipartisan coalition that may win. that attitude, i don't think, and i'm speaking from a distance now, although as don said, i'm a consultant, i have app office in the capitol, and i talk to my former colleagues all the time. i still get a sense that's what

drives the rules committee threw the nine members, but i mentioned in the paragraph i read, no institutional memory. greater turnover in the house, a lot of new members not only don't understand the traditions that so long ago were the norm, but they don't want to hear about them, and they campaigned against them in a number of campaigns this last vote in 2010. members would say we're not going to vote for regular order. we're not going to vote for openness. we're going to vote for our ideological agenda, and the leaderships, both leaderships, have not been particularly willing to allow the new members to be oriented on process in a bipartisan way. i mean, our office always used to do orientations for the remembers, and now it's sometimes happens, but some

leaders especially don't want their members to know what it used to be like, and, for example, the motion to recommit, this is a bone i've picked with c-span. the motion to recommit, i feel i can do this. brine lamb is retired. he won't come after me. [laughter] maybe he will. in the caption when a motion to recommit is pending in the house, there's a caption in the upper left saying procedural vote on the motion to recommit. well, the motion to recommit is anything but proceed churl. it's a substantive amendment. to describe it as procedural, that enhances the new members willingness to follow that tradition that party loyalty demands straight line vote on anything proceed churl. no matter demonstrated than with the motion on a previous question of a rule.

those who followed debates on rules often see the minority go off on a half hour on its agenda or unfairness in the rules committee, and that is -- all of that is described as procedural, but when the actual text is in front of the house, and i've seen two or three times, in 1985, major crime bill rewritten on a republican notion to recommit where the testaments disappeared, seven or eight titles, no jeer may nows title or rule to apply. if you catch don longrin in the hall, have him tell you about the motion to recommit on the bill and how it was so much by surprise and immediate, but that's not what the both minority leaderships or majority leaderships want to tolerate anymore.

now i say gridlock is regular order. when you look at the recent packaging of measures, i mean, omnibus appropriation bills are the most consistent recent examples where either or both houses don't finish the regular appropriation bills on time. they are left to use them continuing and then perhaps then to do an only any because appropriation bill consistenting of all of the bills k maybe with one or two exceptions that may have passedded -- passed the house, have not become law separately, pack them in one bill, and always near the end of a term of a recess or beginning recess or adjournment. i have in the original version of the book, i describe the inverse ratio axium which always proves to be true.

it has again this year, although this new so-called agreement on a continuing, which will be put in legislative form in september, may be a departure from that, but my theory is the more complex, the more costly, the more urgent a bill is, and the closer you come to adjournment period and to give people something to vote for, the less time members understand what's in the bill. i mean, that's, i mean, evidently i didn't hear or say this, but pelosi's comment after or during the final debate on the health care bill was we need your vote, have to have your vote. read about what's in it tomorrow or later. [laughter] i mean, that's just -- that's -- the republicans have come along and extensively tried to recapture openness on appropriation bills. they had the marathon on an

appropriation bill early in 2011, like 200 amendments, four or five days and nights if only to show members that openness was unworkable. they had a few others, but then that last year and again this year, the appropriations process stalled when the more problematic bills would have trouble in the house and might probably won't even get called in the senate. the senate is totally enviewed with the notion that all we have to do is an omnibus at the end of the session. they don't want to bring -- they don't want to bring individual appropriation bills to the floor for the filibuster possibilities that accrue to the minority, but the worst other than the appropriations process is the budget control act, and that may come up again. i can't get a clear read on

whether the debt limit needs to be extended again in the lame duck session, and part of the agreement in the budget control act is there's a couple extensions through election day of this year so the president doesn't have to advocate another debt limit increase in return obviously for the major cuts in sending, and as it emergedded from sequestering when the joint select committee, which was doomed from the outset it seemed, did not report. the sequestering is in place and potentially takes effect in january. the leveraging of full faith and credit and the impact throughout the world with spending cuttings and other savings however

reached made an impact beyond the thread of the shut down of government. i was here for the shut down of the government in 1995 and 1996. it was problematic, but eventually the, some of the departments -- not all the departments affected were opened, but the impact on full faith and credit, to my way of thinking, should never be the leverage for spending, but i listened to many debates, and it got harder and harder over time for congress to pass a separate debt limit extangs. it got very hard. this time it appeared impossible to the leadership, and probably was, but there was never a clear vote taken in the house on a debt limit extension not linked to spending cuts, and so that packaging, whether regular order because it's happened once in a

very dramatic way, whether that will -- something in that area continues geep in the lame duck session, and in the lame duck session, there's a variety of issues, tax cuts, sequestering being the two most prom innocent, and the notion of the lame duck session and not knowing who the members are going to be next congress. i mean, so many lame duck sessions relied upon these days, to me, it's most unfortunate, but let me mention three other areas of change, and ethics, personalization of ethical charges against members has become a real pat tern for

minority leaderships particularly. when newt gingrich ascended to prominence, it was in part because of what he said and provoked about rights relatively insignificant royalty discrepancies, and jim wright resigned before there was a full report from the ethics committee, but that set the pattern, and in newt's minds and others, the demonization of members was a -- was really the way of the future, and that's been proven, clearly, since then, with members who are successful in negative messaging in defeating incumbent opponents, seated in the house, and dealing with friends. of the former members, it's not an invitation to collegiality, clearly. when nancy pelosi very strongly lobbied that the house -- that

the democrat -- that the republican leadership after 12 years had become as corrupt as the republicans said the democrats had become in 40 years, those were -- i won't say that's a quote, but that was her theme in 2006 before the election, and examples that accrued during that period of chairman and certainly tom delay and others, and then she woof it in as the house being mismanaged, but the leadership as unethical. she was taking a page from newt gingrich's book i believe in that respect. so far this year, i don't see that becoming an issue with the democrats. at least, i don't think any particular republicans'

ethics -- i mean, several resigned under pressure from leadership to avoid these becomiampa ises b pelosiot o sd ths ethical problem, but being open in the process, being fair to the minority when we're in the majority. then they wratched the rules up further than the republicans had to shut off the minority in many amendment situations which certainly did not endear her to the republican leadership. she appeared to have made political headway on it, but she was not particularly being truthful to her earlier captain pain pledge of -- campaign pledge of openness. i mentioned in my account the press coverage of congress and how there's so many competing networks, many networks and cable stations editorializing,

and members feel the need to immediately respond and then they get polls on their response, all of that, the media's definitely impacting on the way members deliberate among themselves. maybe a water shed moment was back in 1984. one of the most difficult days we had when newt gingrich was a back bencher, and in 1984, tip o'kneel was the speaker, and some of you heard it, the cameras didn't pan the chamber, just focused on the member, and newt used rhetorical gestures and comments to yield and defend the contra prohibition, and eddy was 500 miles away, but gingrich was seen gesturing saying that the gentleman do you doesn't wao

participate in the debate. clearly, tip was upset and panned the chamber. he asked joes top a but soono b, to be in the chair. he said i remember hearing it. joe, i may be out of order, but protect me as he stepped down into the well to give this speech and pointing at gingrich saying the reason i ordered the cameras to pan the chamber because what you did was the lowest thing i've ever seen in 35 years, the lowest thing. that, in our mind, bill brown and i were both up there, was a personality against another member. you can't set a precedent and have members accuse each other in debate of the lowest thing. he said i'm not going to rule that way. it'll be a precedent. you can't have a double standard for the speakers. i'm knot going to rule that way because it's true. [laughter] he wanted truth to be a defense

against anything sitting on the floor. the person in the chair taut it was true, and appointment of order is overruled. that launched beginning griffin and that got a lot of press at the time, and that really get him started through his group of members who even though the cameras panned the chamber, they still use those speeches, and obviously reapportionment plays an important role on how primaries are held, how moderates do or do not show up, how i think still many states reapportion with their members, for the members in congress, assuming the state legislator may have an eye on the house seat and want to endear themselves to the president incumbent of the seat. reapportionment and to littization of it, and the mid decade use of it in texas is

clearly part of what's led to polarization in congress. i'll just stop talking about money for a minute because, to me, that's the key. i mean, the citizens' united case, i feel, was unfortunate, but what i want, and i cannot predict yet is for people to understand the impact of super pack messaging on congressional races. i read and talked to some people that members already since the decision are already catering to messaging emerging from super packs and in order to endear themselves to that last minute injection of spending unlimited amounts. i'm sure someone traces that sooner or later, but that, to me, so many money in the system. i thought before the scandal,

there would be some real reform in the lobbying area, but just other loopholes seem to be appearing, and what is really concerning is the member-to-member contributions which don't get as much criticism, but combine those with term limits. term limits on chairman, and then, you know, a chairman can start to develop an expertise, and this happened on both sides, and then in six years, the democrats put in term limits in their second term as majority, and their lame ducks, and, you know, people vying for the slots, and it's the steering committees on both sides that are going to decide that, and the major test and a number of cases has been who ups the ante on the amount of money from the leadership pack. to me, that's corrupting and it used to be cash under the table

in the old days. [laughter] which obviously is prohibited, but that member-to-member and leadership pack influence on members is disstressing. there's kind of an overview. don mentioned i was under consultation. the final budget will be out by the end of the year. it's long and difficult and we've had a lot of help from folks in the room, but at the end of it is a narrative, colted appendix which i'm doing, almost finished it, basically a 50-year overview of proceed churl changes in the house primarily during that period since the last publication the brown's precedent. being able to write that

narrative with which to help our editors on dates and give them a road map know what to include when the precedents are republished has been, i think, important to the history of the house, and it's being reviewed by a number of people, but that should be out there at the end of this year, and so, of course, i will pay attention to that. to to open up for as many questions as you may have. yeah? >> [inaudible] the theme is that the problem solvers are not here, the o'neills, whitens, and they speak broadly about republicans, but back to the comments about gingrich and jim wright business. comment on that as a trend over the period you served. >> well, i think that's true.

how can a leader be elected leader if he's perceived as being conciliatory. john boehner goes through that every day. i'm not saying, but he is committed to bringing back more openness in the house, but whether deals can be done in conference, whether members have the time and the inclination to talk at the committee levels, but even committees where there is an open process. i mean, the committees follow the 5-minute rule. they can't just impose a gag order on amendments unless there's a drastic motion for the previous question, but no, i would say it's definitely harder for members to have that stature and get legislated. now, that's not to say those who

are elected can't do it, but they are obviously responsible to the caucuses, but clearly folks have different traditions. boehner remembers when he started, there was still a sense of openness, a modified closed rules didn't really begin until the late 1980s, and only selectively, and the republicans certainly perfected the art form, and the democrats did one up on them when they took the majority, and so i would -- i mean, it is a leadership issue. that's the key. can a person be elected who has that sense if not that history, and if so, can he exercise it on a reck basis and still be the leader? to me, that's just from a non-partisan point of view. >> the demise last year is an

example? >> the so-called -- i assume you're talking about the simpson-bowles arrangement? >> [inaudible] >> oh, well -- >> [inaudible] >> which flowed from the failure of the simpson-bowles proposal. what distressed me the other day was steve's resignation. i don't want to repeat his punch line at the end which was devra devastating and poignant, but he offered the simpson-bowles budget resolution. it went down in flames. the ability of moderates to i -- influence policy -- the mern -- american people have to be aware of it, and i don't know how that happens, but it has to happen over time. yes? >> so what was your specific

recommendations for procedural form b? are there signs that folks are interested in the house side on moving -- >> the house side? >> moving towards that. >> it depends on the composition of the next house i think but i'm not privy today -- day-to-day discussions, and if the had his brothers he, perhaps would have been able to advocate more openness. there has been, as i said, there's been a return to some openness, but as long as the rules committee can bring overnight a rules change that changes standing rules but can't deny the motion to recommit, and in every other respect,

parliamentarians all over the world are incredulous when i say that because all parliaments follow a standing order agenda. the house does. the senate, of course, is driven by the filibuster where i'm hearing the possibility of restricting three-fifths votes on motions to proceed so that the leadership's agenda, the majority leader's agenda can at least get started before a fill filibustering can kick in. i don't know the chances of that. i don't know whether it's negotiated, but in the house, in the house has a history of superimposing new budget constraints on itself; right, bill? then as the need arises, waiving them. i'll never forget the alternative minimum tax a few years ago when, for the first

time, the pay-for restriction in the rules when democrats were in control, that the blue dogs championed, they had an offset on the minimum tax, which was to tax hedge fund managers at ordinary rates of income. made sense for the most part, but some in the senate republicans and democrats struck that, and it came back to the house on christmas eve. it was an up or down vote because the tax forms had to be finalized on what were the minimum taxes would be, and the house was going to waive the pay-go requirement for the hedge fund tax increase revenue outset the minimum tax, and a good friend of mine, john