which was three days before copenhagen, i said, i think you are going to come up with an endangered finding. i said to do that, you have to depend on science. what science will you depend on? she said the ipcc, that is keeping in mind who got a second novel will allow a situation. the united nations came up with all those -- who got us all into this situation? the united nations came up with all this science. now that you have done these findings, you have pasted on the science which has been -- based it on the science which has been totally discredited it.

have you respond to that? >> that is the government panel on climate change? >> yes. i think it is a good idea if she has 61 votes. it does not really matter. there are 14 lawsuits already lined up ready to be filed, and i see the conservatives doing what liberals were doing when we have the house and the senate and the white house. they stalled everything like the clear skies act. i think that what jay rockefeller is attempting to do, that will be done anyway. >> you have called this the big lie. he was telling the allies? >> in reference to what? >> the global warming issue. >> clearly the itcc.

the hollywood elite, michael more, george soros, the alarmists, they are perpetrating this thing. what is their motivation? a lot of people, extremists on the left, extreme environmental groups, they are out there blowing up construction sites. many of them just do not want progress. they do not want buildings and this type of thing and they are making it more difficult to keep the machine going. there are also trying to do away with the energy we are using to drive america. if you take away all the bills, how do you describe this machine called america until this time that major renewable will work?

in the meantime, you have got to keep america ready. we are in a competition. look at china right now. >> some of your critics have said that the document that you put forward a reference in global warming has 400 experts listed and they say that some of these folks are paid for or associated with oil companies. how do you respond to the idea that people argue against global warming have something in it for themselves? >> their question. obviously the finger is over 700. go to my web site, and i hope some of the people will maybe by now look out -- look up the web site. about five years ago by listed 770 people that were scientists, ph.d.'s. you can go through them and find

five or six in every industry in america. ah, oil industry. you know? the oil industry is not bad. these people run america. as you might know, my state of oklahoma is one of the largest producers of natural gas. and i am all for them. >> you have made the economic and scientific argument against global warming. the science is bad. and the economic argument, shifting away from traditional fuels will be putting ourselves out of work. which is the stronger argument? the better one? if you had to go with one? >> you do not get much of this in the united states, but the u.k. telegraph, a large london publication, said that after examining what happened on climategate, it was the clear

the worst scientific scandal of the generation. people all over the world are saying that. "time magazine" was trying to make people think that the world was coming to an end in the 1970's because there was another ice age coming. what was that famous one last year? the last polar bear? now they're saying of the science was not good. i would probably say -- i would have to say equally the economic argument and the scientific argument. [laughter] >> you have been critical of the president, get your colleague, tom coburn, has a close relationship with a myriad what has left -- what has led to that? >> you would have to ask tom. >> thank you for being here, senator james

>> tonight, michelle easton, founder of the policy institute on her work to promote conservative women in leadership roles. >> not to a discussion on the senate's use of the filibuster, a parliamentary maneuver that blogs action on legislation unless 3/5, usually a vote of 60, vote to end it. democrats are considering another method known as reconciliation. the american enterprise institute is the host of this discussion. it is about an hour 20 minutes. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> good morning. i am the senior fellow here, and

i would like to welcome all you washington early birds and our live c-span audience to this session on the past, present, and future of the filibuster. pan audience of the past, presence and future of the filibuster. in 1982 when norm ornstein and i were barely teenagers we were introduced a series of sessions at aei called politics watch called election watch, excuse me. and that is now the longest running election program in washington. but this year we decided to supplement the election programs that will begin in june this year with another session called politics watch where we would look at the hot issues of the day. and, of course, the -- i can't think of an issue that's hotter than the filibuster is right now. i'd also like to recommend you another institutional announcement. if you aren't subscribers of our aei political report, you can give us our cards at the end of the session and we'll sign you

up for that. i'd like to turn the session over to my colleague, john fortier who will be monitoring the session. >> we have the world's most distinguished panel of people who know the filibuster but more importantly people who know the senate and congress because the filibuster is another way of saying that are there are deeply embedded rules and traditions in the senate that allow for unlimited debate in many what's we'll talk some about the filibuster, some about cloture, one of the procedures that we use to close off the filibuster. we'll also hopefully delve into some issues that are of very pertinent interest today with healthcare being potentially debated on the floor in the next few weeks where we might use procedures called reconciliation. a procedure that doesn't require a super majority as does breaking a filibuster by cloture. so we really have today not only

some thoughts about a deep question that people have raised for many, many years. certainly going back to famously woodrow wilson where the question of should a majority rule in the senate and how should a legislative body operate? whether it's a good thing or not. whether it's being used more today than it should be. or appropriately. but also some very particular policy questions of how our debate on healthcare may proceed in the next few weeks. let me just say a few things about how -- to oversimplify how one might think about the role of the filibuster. on the one hand we think the house is different than the senate it's a majoritarian debate. where the party leaders have very strong control over their members. now, the senate is a more individualistic place where individual senators can debate, shape the debate, stall debate

and often groups of senators, particular group of senators sometimes in the middle of the spectrum can come together in ways to craft solutions to political problems that are not necessarily the solutions of their particular leaders in the senate. i think that's one of the arguments that we may hear for the filibuster or for the rules of unlimited debate. that the senate is a different place, has a different kind of consensus and maybe this type of procedure in the senate is what we might need in a time with polarized parties and not much of a middle in the political debate in washington. on the other hand there certainly are long standing arguments against the filibuster or against the tradition of unlimited debate against the need for a super majority to proceed. that it's not democratic. that there's no majority rule. and also that it slows down the senate and prevents congress and the political process from not only getting to something

particular and of moment and consequence like healthcare but also the many things the senate and the political process have to do every year. getting through the budget. getting to authorize many bills that we don't think about in the very public political debate but that the senate is often slower at and the ability to limit debate causes some sclerosis as some people have described it. so these are the large issues we're going to discuss today. we have panelists who will talk for about 10 minutes today. i'm about to introduce them. we also want to have some debate amongst the panelists and then turn it over to you in the audience for some questions as well. i will start right here to my right with gary andres. gary is also -- had time in government especially in connection with the senate as the deputy liaison to the senate for legislative affairs for president george h.w. bush.

and also writes frequently around town about procedural and process matters and is a public-spirited lobbyists let's put it that way. sarah binder is part of the brookings institution. also a political scientist, a professional of political science at george washington university. the author of many books, several of them on this particular topic of particular note "majority rights, majority rule partisanship in the development of congress." that's in 1997 and then also "stalemate causes and consequences of legislative gridlock" coming out -- i'm missing another one, too. particularly on the filibuster. let me mention one more. another commercial here for an excellent book on the filibuster "principle filibustering in the united states" also with brookings in 1997. robert dove is the parliamentarian emeritus. he served as the senate

parliamentarian in the parliamentarian's office for 35 years in the united states senate since retiring in 2001, he has been a counsel and taught at george washington university and from his time inside the senate and talking about it outside probably knows more about senate procedure than certainly almost anyone in washington. but we're really happy to have him here today and talking about the -- not only the filibuster in general but i think we might be able to ask bob some questions which the current parliamentarian is being asked by members on both the republican and democratic sides about how the debate of healthcare will proceed. norm ornstein is a senior fellow at the american enterprise institute. the author of many books on congress. one in particular recent book "the broken branch" which is -- what is it now it's in tenth edition and the movie version is coming out next year. but a distinguished scholar of congress.

a columnist in roll call and one who has been involved in a number of efforts of reforming and improving the process, the legislative process in washington. so let me now turn it over. i'm going to -- actually i think i'll start with norm because i know norm may have to leave a little bit on the earlier side and we'll come down the panel this way. we'll have norm, bob, sarah and gary proceed. >> thanks. the movie version actually goes on and on and on. i've written a weekly column for roll call the newspaper of capitol hill for about 20 years. and i would write occasionally about the filibuster in the a couple years ago, i wrote a couple column's back to back, and on the second one i said, last week i wrote about the filibuster, and people cannot stop talking about it. that is the reality of our current and contemporary politics that this issue has

come up more recently, and it has, more recently in part because we have seen more change of the majority control of the senate, something we went with from 1954 on, and when the majority shift, we almost invariably get complaints from the new majority when it says it can no longer act as a majority. we now see the village is hypocrisy that always happens when parties -- see the delicious hypocrisy that always happen when parties bring the entire institution to a halt. this has increased a great deal over the past few years, which we saw with the frustration of republicans and discussion of the so-called nuclear option by bill frist when republicans were in the majority moving -- at

least considering moving to unilaterally change their roles in the game over judicial nominations, and now the frustration over health care, but not just health care, and i do not want to talk so much about health care, because that issue, which is an issue of great national significance, is one that -- since we have a rule, would have been considered in the rubric of issues were you could imagine a filibuster. rubric of issues where you could imagine a filibuster, civil rights questions, other great issues where you have intense feelings by a minority. the real reason that i focus more on the filibuster in the last few years has less to do with issues like healthcare and more to do with the dramatic changes in the way the senate has operated more generally. and the dramatic increase in the number of cloture motions and either filibuster attempts or

feints at the filibuster in modern times. you can find tables everywhere. i wrote a piece for the aei magazine, the american, back in 2008 with a table showing the number of cloture motions over time that just goes up dramatically in the last few years. and this, frankly, is less a problem of the rule and much more a problem of our larger political culture. filibusters in the past were available for use. they did occur on an infrequent basis. and when they did, of course, going back to the '40s and '50s, they fit at least in very rough terms the old mr. smith goes to washington pattern. not one person taking the floor but a number of people, the senate bringing in cots and going around-the-clock and getting at least some national focus on the issue until you either had the will of the

minority broken and something going through in part because there was a public backlash against the minority position or a majority finally unable to get that super majority which of most time two third senators present and voting backing off eventually to try and regroup for another day. in recent years has seen a particular and sharp increase in the last three or four years. we've had very different use of the filibuster. but let me also add that the political culture began to change towards a much greater sense of individualization in the senate going back at least 20 years. and that is the -- basically the threat to filibuster or to bring the senate to a halt over nominations or bills done by individuals, not by a group

representing a significant minority, you know, the 16 or so necessary to really formally call for a filibuster through the practice of the hold. the hold, an informal device not in the senate rules where an individual says that he or she will deny unanimous consent if a leader tries to bring something up. it has been around for a very, very long time. but its use escalated over nominations going back particularly, i think, to the clinton years, maybe a little bit beforehand. but where leaders just began to tolerate the ability of individuals to simply unilaterally block consideration of a nomination not just for a couple of weeks or a brief period of time but indefinitely. and that set the stage, i think, for what's happened in the last few years. but what's happened in the last few years is that we are seeing filibusters or threats to filibuster used on routine matters.

and now used simply as a tool of obstruction, not as a way to dramatize an issue of great national concern and have a great national debate over it. the best example to me this year was a bill to extend unemployment benefits that saw two filibusters and then eventually passed unanimously. when a bill passes unanimously and you have a filibuster on the motion to proceed and a filibuster on the bill itself and all of the time necessary that's in the rules to allow it to play out, two days after a cloture motion is filed, 30 hours of debate on each, you can tie up the senate in knots and basically just for the purpose of throwing gallons of molasses on the road or to make it look worse, that damages the fabric of government, it seems to me. and what we've seen is the

combination of multiple holds on nominations and the process of clogging up the senate has meant that the basic elements of governance doing authorization bills on agencies and programs, doing appropriations, letting people get into government so they can actually do their jobs is being significantly damaged in a way that most people don't see, but they are going to feel it in their day-to-day lives. another good example of that is the head of the general services administration. effectively, the chief operating officer of the united states had her nomination held up for about 10 months in the senate and eventually was confirmed by an overwhelming margin. one individual doing this basically for no particular reason other than to hold hostage. so what to do? of course there are people now

who feel their views represented by the majority who just want to scrap the whole rule. i'm not one who believes moving the senate towards simple majority action would be a particularly good idea. but there are ways of adjusting the rule to expedite the process and so that you can have a filibuster available for these issues of great national moment put some burden on the minority if they're going to do it to have to perhaps operate around-the-clock and actually be there. and move things along so that filibusters intended simply to obstruct matters but not over issues in which they have great disagreement can't block the process for long. one of the big problems we have now is that any change in the rules requires at least some broader consensus. and so making even modest changes that could preserve the fundamental issues but moving it

along will be very difficult to do without majority imposing its will on a minority and creating even more damage to the basic fabric of our political culture which is already so afraid. -- frayed. we can get into some of those specifics a little bit later. but it's simply important to reiterate that the problem here is less the specifics of the rule and more the nature of our political culture now, which is a very dysfunctional one in my judgment. >> i come here as a defender of the senate as it operates right now. for a number of reasons. first of all, it is my belief that the fault is not in the rules but in the senators, if the senate is not working well. the senate has worked, i

thought, exceedingly well in the past both under a rule that required two-thirds to end debate. that was the situation when lyndon johnson was the majority leader. and when it was changed to 60. that was the situation when robert byrd was the majority leader. and it worked well because both of those leaders knew how to play the game. and it is a game. it is a game in which the senate plays a very different role than the house of representatives. and anything that would try to transform the senate into the situation that you have in the house of representatives. i think would be a disaster. it is my view that the whole role of the senate is to be a

forum in which it is difficult to pass legislation. and i agree that the senate is an inefficient legislative body but i think that is its reason for being. in contrast to the house which is a very efficient legislative body where basically the speaker rules through the rules committee. the senate is not ruled by its majority leader. it's ruled by a consensus which has to be built by both the majority leader and the minority leader. but as i say, it can work. and it can work very well. i personally remember the situation when president carter sent the panama canal treaties

to the senate. robert byrd was the majority leader at the time. and those treaties were opposed by two-thirds of the american public in every poll that i saw. and senator byrd's job was to get two-thirds of the united states senate to vote to ratify them. he did it. he did it by reaching out to the minority leader, senator baker. he did it by basically traveling to panama and preclearing the amendments that would allow those treaties to be ratified with the panamanian government. hard-working majority leaders who know how to play the game can operate very successfully in the united states senate under its rules, whether they were the old rules before 1975 or the new rules after 1975.

i hear the comments on holds. i'd like to point out what a hold is. it's a letter. it's a letter directed to the leader of your party saying that you have a certain range of options with regard to something that may come up. those letters are very valuable to the leaders. they keep calendars in which all of those holds are marked so that they know what it is they will have to face when they want to go to something. it doesn't stop them from going to it. it gives them information. but those holds are a reflection of the enormous power of united states senators. and my view is that's the reason people leave the house of representatives where most members have very, very little power.

and want to come to the senate. where not only are they powerful but they have an incentive to work across the aisle. i can remember a senator who was a very conservative republican sitting in the chair and telling me that when he was a member of the house, he never talked to anybody in the minority party because they were irrelevant to his life. they couldn't do anything for him. in a sense he was talking sadly about the fact that he really had no relationship with any member of the minority party in the house, and he was just glorying in the fact that in the senate not only did he have a relationship with a liberal democrat. the only reason the senate operates is because of those kinds of relationships. they seek out some common ground

on some issue and then push forward on that issue. to me it is not that the senate doesn't work. it does work. but it works in a very different way from the house of representatives. i was told by the parliamentarian who hired me in 1966 that his view of the senate rules was that they were perfect and if they were all changed tomorrow, they would still be perfect. that actually is also my view of the senate rules. but i do not think the problem is in the rules. i think the problem in the senate is in the senators. i have to admit we both teach at gw, and we have students taking my class of the same time, and it is not unusual for me to start talking about the filibuster, and the hand goes

up. it is an honor to go after you, but i am sure you will come back to respectfully disagree. i want to take a minute to think about the senate's -- what strikes me as byzantine ways of doing business, the placing of holmes, the requirement for negotiating and so for the -- the placing of holds, the requirement of negotiating and so forth. i thought i would offer some recommendations, first about the nature and the policy of reform and then the predicament harry reid faces in the run-up to midterm elections. . faces in the run up to the elections. in the nature of the filibuster, about almost 15 years ago steve smith and i set out to write a

book about the filibuster when we realized that there really hadn't been any systemic empirical look at the origins of the filibuster, the use of it historically or the consequences of using the filibuster probably apart from the movie "mr. smith apart from the movie "mr. smith d treatments of the 1940s. when we got in the work of thinking and looking at all of this sort of history of the filibuster, you almost immediately encounter what we thought first as claims but then we sort of termed more as myths about the filibuster. and so i thought i would pick a couple of them out and we can come back to some of these later. first, this idea of the claim that the filibuster is part of the framers' intent for the senate. that it has some constitutional basis or at least some constitutional aura to it. when you go back to the constitutional convention as well as thinking about looking at what the framers were saying about the articles of confederation, it becomes very clear the framers the no love for super majority rules.

they had lived under them under the articles of confederation and they did not like the experiences that they had trying to legislate under them. and neither do we find much evidence in the original construction of the senate rules that there was any priority put on requiring super majorities. in fact, if anything we find the house and senate started out with identical rules that they cleaned up the rule book and got rid of the one rule that could have been used to cut off majority vote and that's the historical accident and we can come back to that later. the second claim we often hear particularly today is that filibusters were once reserved for the most important issues of the day. and that today it's become either newly politicized or just taken on this partisan aura. when you go back into the history of the filibuster, it turns out particularly in the late 19th century much of our views and our myths about the filibuster are just that. that there was plenty of parochial and partisan use of the filibuster and that it was not reserved for the most

important issues of the day, probably not until the civil rights era of the 1940s, '50s and early. -- '60s. there were appropriations bills, presidential appointments, the appointment of the senate printer and many of the coalitions that emerge on these votes. we didn't have cloture to study but if you look -- when you actually got to a vote they tended to be partisan. so this concept that we have that if we just went back to original uses of the filibuster, things would be better, i'm not so sure that the history supports that. the third claim about the filibuster is essentially that it does little harm and if anything it does good because it moderates legislation. this turns out, i think, to be the toughest one empirically to crack and i think our evidence is pretty mixed in the times the filibuster does good and the time it does harm and clearly we can point to civil rights history to show in which for decades the filibuster kept measures even from coming to a vote on the senate floor.

this issue of whether the filibuster moderates legislation -- it's very tough and the best we can do is to certainly find that there's no necessary connection between pleasing the 60th senator and getting his or her vote and making measures more moderate. and that's certainly the case on nominations where we can't divide up the nomination. you can't divide a nomination. either you get it or you don't and so we might think filibustering of nominations is different because there's no moderation involved there. on the question of whether, in fact, you do get changes by accommodating the 60th senator improves measures, we can find for and evidence against it. we think of the ben nelson the cornhusker deal what it took to get senator nelson's vote for healthcare reform. i don't think that medicare deal was moderating. and certainly if we live in a senate as many folks have talked about with liberal democrats sort of clustered on the left

and conservative republicans clustered on the right the 60th senator is not very close to the 51st. in fact, you might have to travel quite a distance to find a policy change that accommodates the 60th senator let alone the 70th or the 80th to build a bipartisan coalition so i think i come out of that claim -- a mixed set of evidence whether it, in fact, does good or does harm. finally we take a look at the claims that the rules are stable. rules 22 is impervious to reform because the majority prefers super majority rules. and the more you get into that it turns out that's pretty tough to test as well because quite often when motions and efforts to reform the filibuster have come up, all right, it's hard to get a majority on record because there's a filibuster getting to the vote on reform. so we can come back to some of these claims but by and large many of them have no basis in the history. many of them have more mixed evidence. on the second topic here of the politics of senate reform, when

steve and i first started our book, i was here in d.c. in '93 and i noticed a group was set up on k street when clinton came into office and we had a unified democratic control and the banner outside the office and the name of the group was action not gridlock and it was a group set up to push for reform of rule 22. and i clipped a couple of articles in '94 and then in '95 with the change in party control. i said let me find action and not gridlock and see what they're talking about. they had closed up shop. i could not find them anywhere. they could at least cut up the banner, gridlock not action but that wasn't really going to work. but it points, i think, to the situational ethics that pervades people's views about senate procedure. and that is where you stand depends on where you sit. senators like to cloak their procedural principles or positions in principle but it's almost always about politics. there are very few not to say there aren't any but among senators there are very few procedural purists in the senate.

and we certainly see that played out in views about reconciliation and whether it's appropriate to use in this instance or whether it's ever been used like this before. finally, on this issue of reform, i would just remind us that debates about rule 22 and debates about changing the way the senate works -- these are not new to 2010. these are debates that senators themselves have had for over a century. we had them in the 1990s, 1980s. we had them in the 1970s, 1960s. 1920s and 1910s before cloture reform. we had them in the 1890s and 1830s. these are not new debates. senate leaders actually have fought for filibuster reform for nearly 200 years but more often than not those efforts for filibuster reform have themselves been filibustered. okay. finally on reid's predicament here. i think senator bunning incident over unemployment benefits and the refusal to grant consent to

move to a vote was pretty instructive for folks who don't normally pay much attention to the floor process. in reminding us that it's easy to take the senate hostage if you're willing to stand the heat. and it varies a bit depending on the bills but one senator with a little bit of party support is willing to take the senate hostage you can imagine the predicament that the majority leader finds himself in. that he has relatively limited tools in order to move the senate to the basics of a vote. and, of course, the majority leader's job made harder by cohesive republican team play and not cohesive democratic team play on many issues. i would conclude by suggesting that we shouldn't feel too bad for senator reid. he's not the first leader to confront these issues and we've seen a whole host of issues of leaders since the '70s try to grapple and to innovate to try to come to terms with the difficulties of legislating.

there's one leader asked about a rule that would require or provide majority cloture, majority debate in the senate and that leader said, quote, that rule would be one of the greatest improvements of the age. henry clay? 1841. i'll stop right there. >> thank you. well, thanks for having me. i wanted to talk a little bit about the filibuster from my own experience of having worked in the white house. as john mentioned i worked for both president bush 41 and then did a brief stint doing confirmation with president bush 43. so a lot of my views on the filibuster is kind of shaped from kind of that perspective. i think where i come down on all this is i agree with bob that i wouldn't want to change the senate rules related to

legislative filibusters. and i'm going to get into a little bit why that is in a minute. i have some more mixed views about changing the rules or procedures related to judicial and executive branch nominations partially because of the battle scars that i have from trying to push some of those people, nominees through the process and some of the experiences that i had with that. let me talk a little bit about -- just a little bit about the dynamics filibuster reform discussion. part of it is really shaped by short-term events. i mean, we're having this event today and talking about filibuster reform. i think as sarah mentioned, it tends to come up a lot in the context of unified party government and that's when one party controls both the white house and the congress and they kind of want to push things

through and you hear a lot of discussion about filibuster reform. i will say this that when president bush 43 was re-elected in 2004 and he wanted to push social security reform through the senate in 2005 and was blocked, there wasn't a lot of discussion then that i recall at least from the democratic side about the need for filibuster reform. so i think, you know, to some of the points that some of the panelists have made kind of, you know, where you stand does matter depending on where you sit. i think in many ways, though, the proponents of filibuster reform really drive the -- their argument is driven by valuing one thing maybe more than anything else and that's legislative efficiency. my point from kind of having observed the senate, studied the

senate, you know, worked with the senate is that i'm not sure that legislative efficiency should be the primary goal that we're kind of after when we're talking about the senate. i think there's other values there. sarah talked a little bit about the historical context so i won't spend a lot of time on that. but i would -- i'll give a plug for her book -- or books. i learned a lot about some of the things that happened particularly in the 19th century when it related to filibuster reform. and there are a lot of myths about the filibuster. i mean, one of the things that they talk about in their book is that, you know, people tried to reform the filibuster often during the 19th century. and they did reform it successfully in the 20th century. i think the -- if you go kind of

down the list of the various changes that were made, you know, you had changes obviously in 1917 when rule 22 was first adopted and then you had further changes as sarah points out in her book 1949, 1959, 1975, 1979 and 1986. so there have been changes in the filibuster rule over the years. it's not like it's been this kind of stagnant progress that hasn't changed and that's something that's going to continue. the bottom line, i think, of all this is that reformers -- or people who want to reform the filibuster rules, i think, in many ways are trying to drive the senate to look more like the house. and i think that's a fundamental mistake. and while, again, one of the things i learned from sarah's book is that the -- you know, it

wasn't that the founders necessarily wanted the senate and the house to share identical procedural rules. it was never really much of an issue at the time. i think a lot of people would agree that they did want the two institutions to be different. that they wanted there to be some kind of institutional distinctiveness between the two bodies. and i think to the extent that we focus a lot on efficiency in trying to move things through the senate in a really quick manner, i think it tends to make those two dick armey used to say that the pain is inevitable but the suffering is optional. if the majority in the senate is going to do exactly what the majority in the house is going

to do, why go the suffering of the than waiting? that is something to keep in mind. filibusters' to have a cost for the majority in terms of transacting of partisan agenda quickly, but that is where we have to widen the lives -- lens. we have to look at what the senate is trying to accomplish, is a quick legislative change or quick policy change? does it create more programs are roles? does it just create legislative accomplishments? how the people in the senate have changed are the senators are more partisan now. political scientists talk about this concept of team production, that now when the congress --

now in the congress there is a lot of emphasis on team production, a more partisan and polarized senate. but, you know, so are the only overarching goals here to get things done quickly? i'm not sure it is. big issues like healthcare and healthcare having a hard time getting through the process now, kind of again drawing more focus on the issue of changing the rules, but, you know, what about some of the other values? what about building consensus in the senate? what about protecting minority rights? what about the notion of even policy stability. that was actually one of the things i think that the founders had in mind particularly james madison in terms of the design of the senate. they didn't want to have to just another institution that would change things real quickly. you know, there have been a lot of proposals out there about changing the filibuster. bob walker, who a former

republican congressman wrote a piece a couple months ago that i thought was kind of interesting where he was actually arguing to move in the other direction instead of maybe having a three-fifths vote for a filibuster. he was arguing to go back to the two-thirds. and his idea is that when the three-fifths rule was put in place, nobody really ever contemplated that one party would get to that point. well, they did after the 2008 election. his point was that if you went back to two-thirds people would realize going into the process that you needed to have a broader consensus and that might foster more consensus-building and bipartisanship. again, despite all the concerns about the impact of the filibuster on the senate, i'd also remind people that, you know, things are still getting done. you know, in recent times, you know, the congress and the senate passed no child left behind.

you know, the government hasn't had a shutdown since the 1990s. more recently, you know, the democrats have been able to move, you know, stimulus legislation, schip legislation through the process. so things are getting done. i even -- i went back and looked at some statistics on the number of laws that have passed -- or i'm sorry. the number of bills that have passed the senate over the last 20 years thinking that if filibusters were an increasing problem that the number of bills that the senate would pass would have also declined. and while there has been some reduction in the number of bills, the average over the last 20 years was about 551 bills passed per year and last year it was 478. so it was a little bit below the average but you have to actually go back all the way to 2001 to

find another year where the senate passed less bills than the average over the last 20 years. so anyway, just to conclude on the legislative side, i'd say that, you know, we don't want the senate to look more like the house, to become more like the house. i think there have been a number of changes in the senate rules already over the past two centuries that have moved it in that direction. and getting rid of the filibuster or changing it significantly so that the senate becomes a pure majority rule institution i think would be a mistake. just a couple last comments on the other piece where filibusters come in to play and that's in judicial and executive branch nominations. i think there may be a little bit more of an argument to make some changes there for this one reason.

once you get into a situation where senators are using procedural rules, procedural power to basically block the executive branch from installing people into place, it has an impact on more than just the senate or just the congress. it becomes very hard for the executive branch to do its basic functions. and the other point i'd make is that the problems with nominations and holding people up in the senate is really not just a partisan issue, too. we faced a number of problems in 2001 trying to get the bush administration people confirmed that were actually being held up for republican senators for one reason or another. and i could go into a few of the specific examples of that later if you'd like. but it wasn't just a partisan issue. it was people from the president's party that were holding people up.

and i think the same is going on today to some extent. so let me just conclude by saying i think it would be a mistake to try to make the senate more like the house. i think changing the filibuster rules is another step in that direction, although i have a little bit more sympathy for doing something on the nomination side. >> let me just have some discussion on the panel here. but i do want to throw one other issue on the table which i think is in many of your minds is the process of reconciliation. in fact, i'll let our panelists get a better definition than i will but say certainly a process that came out of the budget act which will allow some matters to be considered without unlimited debate and ultimately be decided by a majority vote. so when is it appropriate? i point to norm's column on the "new york times" a couple of weeks ago which had a chart of when it's been used and some of

the various circumstances for your reference. but when is it appropriate -- more particularly, what are the potential pitfalls that the process will hold for using reconciliation for making changes to what we think will be the passage of the senate bill through the house and then some additional changes made through this process. one of the pitfalls and in particular and i think i want to engage bob dove on this, could we imagine this being pushed -- pushed further where there's some talk that maybe within the reconciliation process there might be other methods of delay, in particular the proposing of endless amendments at the end of the day of reconciliation where maybe some new ground will be broken procedurally as to whether that should be allowed in this process which typically doesn't allow unlimited debate but maybe through the proposal of endless amendments we may come to a kind of loggerheads and have some significant rulings made. so i'll open it up to whoever. >> just a few comments that build on where i started.

it's great to have historical perspective. and i think most of us believe that we don't want the senate to look like the house. the real challenge today is how can you operate with these rules in a sharply partisan, ideologically polarized and hyperindividualized senate where you have 60 times as many cloture motions in a year as you had in the period before the reforms of the 1970s. where you have four times as many as you did when bill clinton became president. and whereas i said, they're done on routine matters and those that have overwhelming support only for the purpose of delay and there are ways of dealing with that while preserving the basic quality of the senate. the notion that you can have two bites at the apple on a given bill, a filibuster on a motion to proceed and then a filibuster on the bill itself. and each one takes days out of the senate's limited time to

actually do its business it seems to me is easy to change in concept although, of course, getting votes for anything will be difficult. having 30 hours of debate on each of these motions -- if you simply said it's divided between the majority and the minority so that you can only delay for 15 hours would be a nice little thing to do. i don't see any particular reason to have a two-day layover after a cloture motion is filed. you know, you can take six or seven days on any given cloture motion and what that does is even though you're getting bills passed authorizations aren't done anymore because it just takes too much time. that damages the fabric of governance. the hold is a nice thing if you have a notice. but we're now having dozens even hundreds of nominations held up not because people object to the nominees but as hostages for other things. it's wonderful for senators to have individual power. when you have the human cost of

people who are making the sacrifice to come to serve in a position in government and they're left twisting in the wind for months or even years, can't move their families, have already announced they're leaving their jobs, for no reason other than leverage for something else, there's something wrong there. and finding a way and there are ways, i think, to reserve filibusters for issues -- admittedly it wasn't used that way when any individual could take the floor and go on and on and on. it was individual leverage. but at least for significant issues where you have an intense minority feeling and then have a limited time and get to an action or a vote on nominations or bills that don't reach that point is theoretically doable, admittedly the chances of reform where you need two-thirds of the senators to go along are as george w. bush would say slim to none and slim just left the building. and just finally, broadly on the

reconciliation point, a majority under those circumstances is going to look for any tool and leverage that it can find. there are tools in the senate where you can bypass. they're crude and imperfect tools. they have been used regularly by both parties. what we have learned from the reconciliation is that it has been used for sweeping legislation affecting far more than one-sixth of the economy and tax cuts that cuts across area area of the economy being among them but these are not the tools you would hope to use to make basic policy. more and more we're going to have ways to make up the basic process unless you can find some fashion of moving back to at least some reasonable sense of comity. >> would you like to say something about reconciliation? >> let me talk about reconciliation because i was part of the group in 1974 that

wrote the budget act. and i remember as we discussed the reconciliation issue which we discussed maybe for 10 minutes because it seem almost like an ministerial function. i mean, the name "reconciliation" comes from the fact that what it was supposed to do was reconcile the difference between the appropriation bills, which had been passed in the summer and the second budget resolution, which doesn't even exist anymore, that was passed in the fall. and it was seen as a very minor thing. we came up with really a couple of ways of dealing with that issue. one was to hold back on sending those appropriation bills to the president in which case we would pass something called a reconciliation resolution to change those bills or if they had gone to the president and were now law that this bill would make those minor little changes.

it was never used for that purpose. but in 1975, just a year after it passed, a very canny senate committee chairman russell long of louisiana came into the parliamentarian office. and he had been having trouble with his tax bills because of the senate rules. people were offering amendments to them that he didn't like. they were debating them at length, and he didn't like that. and he saw in the budget act a way of getting around those pesky little problems. and he convinced the parliamentarian at the time, i was the assistant, that the very first use of reconciliation should be to protect his tax cut bill. and so in 1975 you had the very

first use of reconciliation. and i will say that a number of democratic senators were, one, surprised, and, two, appalled. at the fact that they no longer could offer any amendment that they wanted to his tax bill. that they were going to be limited in debate time to 20 hours. you know, in the end he didn't win because president gerald ford vetoed that first reconciliation bill. but to me that was the first indication that what was designed as a very minor little thing could be radically changed. and then in 1980 it was radically changed. in the spring of 1980 which under the budget act as it was written that time you should never have seen a

suddenly the majority leader of the senate, robert byrd, decided that to avert an economic crisis, inflation rate running at 13%, that the answer to that economic crisis was the balanced federal budget. and he basically took on the president of his own party, president carter, and passed a budget resolution which rejected president carter's view of what the budget should be. it was only $35 billion, but he wanted to reduce it to $0, and he did it with the process that no one had seen before. he was going to give instruction to hold a series of senate committees on how they would change their program to reduce the budget deficit to $0.

he was as disappointed as senator long because his bill was passed, and the country went into recession. in a recession, you do not balance the budget. the result was not a happy one for him. and i think it was particularly unhappy because having created that bill in the spring when the republicans took the white house in that november election and the senate, they said to themselves, a-ha, what was goose sauce for the goose will be sauce for the gander and we'll do a reconciliation bill in the spring, only it will be to implement the reagan economic program. and they proceeded to do just that. democrats still controlled the house. they thought they could thwart that. and, unfortunately, for the speaker, a group of democrats in

the house led by then-democrat phil gramm voted with republicans defeating the rule on the reconciliation bill, which is almost unheard of in the house. and basically we were off to the races on reconciliation. and for the next four or five years, reconciliation became a way of passing in my view just utterly outrageous things. i remember the senate commerce committee -- i think it was in 1983 decided they were having a lot of trouble with their legislative agenda. why not just send that entire agenda as part of their reconciliation language and have it included in the reconciliation bill. and there was no rule against that. and so in the mid-'80s the senate adopted what is now called the byrd rule, to keep that kind of thing from happening. but the result has not been happy.

if there were anything i could undo in my life, it was ever helping create the reconciliation process in the budget act. it is now a monster. and it is showing its monstrous qualities repeatedly as it's used by both parties. and the result, unfortunately, i think, is to eliminate what is to be the glory of the senate. is its ability to debate and amend. the amendment process is severely limited under reconciliation as is debate. and both parties have been guilty of using this cheap shortcut to stop debate on things that i think ought to be debated and ought to be amended. >> but it's perfect? >> as i have always said, the senate rules are perfect.

>> anyone else want to weigh? -- weigh in? one last point on the reconciliation process is going to -- would result in a finite debate but there is some talk about the question of republicans being able to offer dilatory amendments and whether that might cause the parliamentarian or the chair to rule, somehow that there is -- that those are out of order. without getting too in the process here, what's your thoughts on that? >> there's no such thing in the senate as dilatory amendments unless you are using the cloture rule and you're under cloture. for amendments to be ruled dilatory outside of cloture would be a total departure from senate practice. it has never happened. i hope it doesn't happen now. >> okay.

we're going to open it up to the audience for questions. and please, we have a microphone here coming around if you could identify yourself and -- >> i'm don richie the senate historian. we answer a lot of these questions so i'm really -- but the former eugene mccarthy used to say it wasn't worthwhile learning the rules of the senate because they were suspended all the time in regular order. they ask unanimous consent not to read the entire bill and go through all these processes. are some of the rules of the senate essentially vestigial organs of a bygone era that don't provide things to slow down. i think the reading of the bill that we came up in december on a couple of occasions. it seemed to have no other purpose other than to take up

time? i'm asking everybody but i think bob is probably the -- >> okay. it is true that the senate rules -- most of which were written in 1884 at the time the senate didn't have the post of majority leader or minority leader. ... interesting enough, i heard the comment that is outrageous that you have two debatable motions regarding the bill, one to

proceed and then the bill itself. actually, if you followed the senate rules, there is only one debatable motion, the debate to proceed in the morning and our. senator byrd knew that and regularly used that role. majority leaders have not used that other than senator byrd. i'm not sure exactly why. in the back of my mind, i have always thought one of the reasons they might not is that it is a nice test vote. you make a motion that is debatable and you file a cloture, and it cannot get cloture, if you have wasted absolutely no time on the bill because the motion can be withdrawn. if you don't have 60 votes, what is the point of proceeding?

proceeding? that's at least the supposition that i have about the fact that that rule is not just. but it is true that rule does exist and could allow the senate to get to any bill. by a non-debatable motion. >> i would add, too, that the house has a lot of rules as well, that may be considered vestiges of the past and are routinely way to do so. it's not just the senate that does that. >> let me break it on the house rules because i have been criticized so often by house staffers, that the senate only has two rules, unanimous consent and exhaustion. my view is the house doesn't have any rules at all. and has the house rules committee, which is just a wonderful way of changing the way they take up bills by bill

by bill. and the absolutely no attention to that very thick rulebook that is in the house. dane just to comment on don's point. i actually having been said the chance of changing the rules are slim to none, i would offer a caveat to that. i have had some conversations with at least a few republican senators, who are interested in cleaning up the rules a little bit. and we make it a test of this on the reconciliation issue, not just with a number of amendments offered but i can imagine someone tried to offer a 500 page amendment and insisting it be read as another way of stretching out the debate. and there may well be at the beginning of the next congress enough votes to streamline this process so that you at least begin to return to the use of a filibuster for something that people actually oppose and a significant number of them do,

that you got to move to a super majority. and not just one individual denying unanimous consent and having debates stretched out in the way that brings discomfort to everybody, but has nothing to do with an intense minority viewpoint except by one individual. >> i was just going to weigh in for a second. another way of thinking about these questions and to respond to bob's point. there are other non-debatable motions in the senate rulebook, and why don't leaders use them? right. i think if i had to step back and look from the '70s to the present, there is the sort of procedural arms race going on between oftentimes between the party. certainly the '70s across coalitions. when majority leader encounters a form of abstract and come and so he changes the practice to try to do with that abstraction. so today we have, the notice is sent out to get clearance for a bill. but they didn't always do

clearance, but when the majority leader institute's clearance, then it is an easy opportunity for the minority or others to register a complaint. and that, of course, then pushes the majority leader to try a new tactic. and then of course that begins other response. today's latest response of course is probably that astronomical number of cloture votes that north pointed to. that's not an isolated problem. that's response to the ways in which the senate has developed. the question is, if the majority leader were to take the birch gadget using the morning hour of going to the motion proceed, what other response would that provoke. and then the increasing cloture motions might be we don't talk about him or because there is some of the problem on on the floor. so the dilemma i think for majority leaders to try to figure out how are you going to solve this procedural arms race that shows no sign of stopping? >> if i could say one response, is the majority leaders filling

the amendment tree. that has been used, i think, repeatedly in conjunction with cloture votes to, in effect, put the minority party in the position of either voting for cloture, in which case they have lost their right to amend, or voting against it. and to me, one of the course of the senate is the right to amend. and that use of filling the amendment tree by a majority leader to restrict and basically eliminate the right of the minority to offer amendments, to me, is a part of this whole war that has escalated on the senate floor. >> could the majority leader used to link the amendment tree on the reconciliation bill to head off a filibuster by amendment? >> at some point those amendments get disposed of, and

at that point then you can offer endless amendments. so it would not eliminate amendments, but it could be used to recruit them for a considerable period of time. >> i will immediately confess to being a totally ignorant ram is when it comes to anything that happens on the hill, much less the senate rules. but norm, i would have to come as a victim of the whole under bush 41, i want to assure you the practice was alive and well before the clinton era. let my question really goes on the unanimous consent issue. and why is it that the senate permits itself to get put in the position of being held hostage

to needing unanimous consent? in the case of bunting on the jobs bill, couldn't the senate, with foresight, have put the bill in transit was not subject, so that unanimous consent would not be required? >> well, the use of unanimous consent agreements as a regular practice was perfected by the majority leader in the '50s, senator lyndon johnson. and he would preclude those unanimous consent agreements through his contacts that were referred to in the '50s as the club. and frankly, it worked very well. now, it is true that any single senator can object to a unanimous consent agreement. and that frustrates whoever is trying to get it.

but the use of unanimous consent agreement is simply a reflection of the i do not know how you were going to eliminate senator's rights when everyone asks unanimous consent to do anything and they can say i object. >> let's go back here. >> i'm here is the heritage foundation. when people accuse terms like outdated to describe the senate rules, i automatically cringe because it seems that history has proven the a lot of these things actually work, especially opposed to these modern paradigms' of efficiency. i was wondering if this is a

expansion of the jeffersonian debate and with the senate is supposed to be inefficient so that we don't quickly devolve into a country that becomes captive to the subject of ethics on capitol hill that you meant. efforts on capitol hill that you mention, ma'am. >> it's a very reasonable question. i think i would think about it this way, is i'm not sure the choice is between changing senate rules on one hand, and inefficiency. i'm not sure that the opposite filibuster is seeking efficiency. if you go back to jeffersonian views about the senate who he wrote sort of the guidelines for the senate and senate rulebook. they believe that the senate should come to a vote. there wasn't any evidence here that there were ruminations about minority rights and so forth. and individual rights. that there shouldn't be a vote in the senate.

the fact that filibuster prevent from getting an apple and downhill, that's sort of a matter of creating a real legislative body. i can't come up, another way to think about it, i can't come up with sort of a theoretical basis for supermajority threshold. what's the basis for it? how do we get to the magic number of 60? well, one answer is it's arbitrary. that's not very rewarding theoretically. the other answer is that's the outcome of political bargaining in 1975. that's not very rewarding philosophically or theoretically either. but we do have a history of majority rule, both classically, right? and i don't think you say that you think about the rules that were necessarily seeking efficiency, but there's some of the value there that is being sought by trying to find a way of amending rules that would leave as soon as a legislature to be able to cast up or down votes. >> you know, one point i want to add to that, and it kind of goes

back to the comments i was making, is that i do believe that the founders wanted the senate to be almost like intra- institutional check and balance. they wanted it to be a different type of institution in the way that it operated. one of the things that we have seen over the years is not only a chance, but actually successful attempts, to change the senate over and over again so that it operates more like the house. it isn't completely gotten there but it is moving that direction. one of the things that, in addition to the changes in the filibuster rules that i outlined, that have been done repeatedly during the 20th century, is even more recently than that, reconciliation is another example of how the senate rules will allow major pieces of legislation to move through, you know, with a

certain time requirements and things like that. but also, it's not in effect right now but we have done that over the years on trade agreements as well. as another example of where the senate rules have been changed to make it more efficient, i think. and i'm not sure that's always the highest value. >> i will turn back any minute but i want to follow up on something that sarah said. sarah mentioned that 1970s, we had more cross party coalition's for and against the filibuster, against the majority. and that was true of much of the 20 century that our parties were not as polarized as they are today. so does our situation today with the parties in most voting studies show that the parties really are well situated on the right and left of each other? is that putting more pressure on the senate, more likely that we will see these continuing, not only times when a party of 60 votes or just showed a 60 votes,

but just giving a party in the senate, pressure from the house, the house is often a place that stalled reforms as well because the fracture coalitions, is that putting more pressure on the senate and senate rules? >> i would offer one way of thinking about that. it's the issue that procedure has become a matter of -- it's become a party cause within the democratic caucus and republican conference. that's become the issue. so that we get not only sort of polarization on the policy issues, but they're sort partisan on top of it. that gets played out through voting on cloture, old pushing the majority leader cafaro cloture motions in the majority are always thinking has to file a cloture motion. so it's all about procedure all the time. and then it's very hard i think to unwind from that wants it all becomes about procedure. >> i think another thing that's happened as the members have become more polarized is that

both parties, republicans and democrats, whether they are in the majority or minority at a particular time, the minority party has kind of recognize that hanging together maximizes their power. and i think that's maybe something that didn't, you know, maybe didn't always exist that way. but that certainty seems to be something that operates very often right now. >> we are our here and then he here. >> the mike is coming right here. my name is james. i work on the hill in the senate, and my question in a popular and academic narratives about the filibuster, basically cloture is always use as a measurement of minority obstructionism. my question is, to what extent is it the measurement of majority obstructionism? ivan, seems to me that there is

several occasions where when a bill is brought to the floor for debate the majority leader in after procedure will file cloture on at the same day. that they will do it in an effort to head off potential amendments from minority members. if you look at a lot of the bills final passage, the breakdown partisan breakdown would be final vote is actually quite bipartisan. i think if they were given the opportunity to offer a few amendments, maybe wouldn't necessarily translate into this cloture battle. >> well, that was actually the point i was trying to make when i brought up the old issue of filling the amendment tree, which to me is another side of this coin. the tradition of the senate to freely debate and freely amend. and anything that attacks those two traditions, i think it's a problem. >> i would just say it's very hard for scientists like to take those numbers and disentangle the two alternatives that julia.

one is the possibility there is obstruction so majority leader he feels he needs to file cloture but the fact that the majority leader wants to have some sort and so he filed cloture. those are sort of observation it will because i just had a cloture vote. so you have to, there is a different view about in the majority side would give you counter evidence, well, no, we couldn't get consent agreement. we weren't willing to agree to those amendments. but the minority party will give you a different view, and it's tough to arbitrate between those, between those views. >> sometimes it's not just stopping the minority from offering amendments, because the majority leader wants to move the process along, oftentimes feel the amendment tree because you're afraid there's going to be politically embarrassing amendments that could be offered as well. it's not just trying to move the process along by trying to maybe protect your caucus, too, from politically embarrassing oaks.

-- folks. >> my name is mimi. i am an attorney with the center for justice. to me, what's most troubling about the filibuster, as it is playing out in the current senate, is that it leads to a lack of accountability. i mean, this is not, i heard a reference to a game. this is not a game. like these people are supposed to lead our country. and the combination of the stealth filibuster and anonymous holds, and in constant filibuster is that lead to constant obstruction. we have a situation where people are not actually making decisions where they're supposed to make decision. i would just love to hear your thoughts on that and understanding that there is some important reasons to keep the senate rules as they have historically been. you know, whether not we could reach a point where this is so troubling for our, you know,

little d. democracy. that something has to be done. >> since i'm the one who referred to the senate as a gain, it is a game in the sense that there are very intricate rules. and it's important to be able to use those rules to play it. and i will say sometimes i am reminded of what casey stengel said after coaching the mets in the 1960s, does anybody here know how to play this game? it can be played. it can be played very well. it has been played very well by a couple of leaders that i mentioned, lyndon johnson and robert byrd. so that i don't think the problem, frankly, is in the rules.

>> one thing i would just add, i'm not sure if it is directly to your question but i think it's important to keep in mind, builds on the point that sarah made that i agree with, is that the rules in the way they are applied, really is a constant kind of changing process to some extent. so i'm not sure, you know, just because there's some problems right now, that that's necessary always going to be the case. i mean, going back again using a house example, in the 19th century, the house had big problems towards the end of the 19th century with obstructionism and disappearing quorum's and things like that. there was an adaptation that was made to correct that. and i think as these things kind of play out over time, there's going to be adaptations in the rules or adaptations in the way the senators operate.

>> my name is adam foster. i had a quick question for the professor. in a world where the most conservative democratic senator is generally, you know, more liberal than the most liberal republican, what measures would you say the current majority leader or future majority leaders can employ kind of bridge that gap like you're talking about in the '70s? what avenues are available that they are not using? >> the same avenues that were used by senator baucus in the finance committee last summer. when he managed to get the vote of olympia snowe for his bill. those opportunities are out there right now, and being followed by, for example, senator lindsey graham of south carolina and the senator kerry on the issue of climate change. to me, those opportunities are not gone at all.

and it is the way the senate operates. you do need to form some sort of bipartisan consensus to pass important legislation. >> i want to take the opportunity to ask the last question here of the panel. i think all of us, we talk about reconciliation but maybe we could ask the panelists to give us a preview of what we might see in the next several weeks or month or so of procedure dealing with the health care bill. what are the things you like to highlight, what are the likely, what's the likely course of the health care bill and what are the likely obstacles and will we do, what's your top pick on something that we should watching for that we might not be? >> i can go first, and you say that i think that the real challenge is going to be actually passing the senate bill in the house. and so i think that's probably the main thing to look at.

i think the fixes that they may try to make in reconciliation in the senate may or may not happen. and, you know, there's the issue of what things could get knocked out on. on rules violation i saw today that senator mcconnell had a letter from all 41 republican senators saying that they would hang together on not voting to waive the rules on any byrd rule, anything that comes a. i think it could be a number of things that could get knocked out. and i think it's going to become it's going going to be difficult to figure out which changes can be made in the reconciliation process, and i think actually, bob knows better than anyone, i lo