Hatch: Preserve the Integrity of the Senate, Do Not Change the Filibuster

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Utah Senator Says “Rather than blowing up the Senate, I suggest that the majority actually try working with the minority. That’s something we haven’t seen under the current majority leader’s tenure.”

In a speech today on the Senate Floor, U.S. Senator Orrin Hatch (R-Utah) today argued that there is no need to change the Senate’s filibuster rules, and that any efforts to do so would threaten the integrity of the Senate. Senate Majority Leader Harry Reid (D-Nev.) and many other Democrat Senators have said in recent weeks that they will move to change the Senate rules to limit the minorities use of the filibuster when the 113th Congress is sworn in in January, 2013.

“Let’s use some common sense and stop misleading our fellow citizens about how this body operates,” Hatch said in his speech. “A filibuster is debate that cannot be stopped. And guess what? During this 112th Congress, a much smaller percentage of cloture votes have failed than in the past. That’s right — cloture votes today are more successful in preventing filibusters than in the past.”

Hatch added that “[t]here simply is no crisis, no unprecedented abuse, that requires some sort of fundamental chan

ge in the rules and traditions of this body. Rather than blowing up the Senate, I suggest that the majority actually try working with the minority. That’s something we haven’t seen under the current majority leader’s tenure.”
Full text of Hatch’s speech:

Mr. President, some things never change in the United States Senate. For more than 200 years, our practice of extended debate has been the single most defining characteristic of the Senate. And for more than 200 years, extended debate has annoyed the majority and empowered the minority.

What has changed, however, is that the majority today threatens not only to change Senate rules and practice in order to cripple this tradition and consolidate power, but to use unprecedented tactics to do it. I urge my colleagues, on both sides of the aisle, to come together and preserve the fundamental integrity of this body, even if we may disagree about some political issues.

I want to explain to my colleagues why neither the ends nor the means that the majority has been discussing are legitimate.
First, there is no debate crisis here on the Senate floor. None whatsoever.

In fact, it is easier to end debate today than during most of American history. For more than a century, since we had no cloture rule at all, ending debate required unanimous consent. A single Senator could filibuster merely by objecting. And, from 1917 to 1975, ending debate required a supermajority of two-thirds, higher than the three-fifths required today.

As I said a minute ago, extended debate has always annoyed the majority. Today is no different. And yet we hear the majority claiming that there have been hundreds of filibusters, that the rules are being abused, that obstruction is at an all-time high. Well, the American people likely do not know the particulars of our debate rules and practices, but Senators making such claims certainly should.

The majority pumps up the filibuster numbers by claiming that every cloture motion is evidence of a filibuster. They know that is not true. The Congressional Research Service says that “the Senate leadership has increasingly utilized cloture as a routine tool to manage the flow of business, even in the absence of any apparent filibuster….In many instances, cloture motions may be filed not to overcome filibusters in progress, but to preempt ones that are only anticipated.”

That is what is going on today. The majority leader often files a cloture motion as soon as a motion or a bill becomes pending. He does that to prevent debate from starting, not to end debate that is underway. In the last three Congresses under this majority, a much higher percentage of cloture motions get withdrawn without any cloture vote at all than under the last three Congresses under a Republican majority.
The majority leader appears to think that debate itself is simply dilatory. While extended debate has long been annoying to the majority, this majority leader apparently believes that any debate is annoying.

Neither filing a cloture motion, nor taking a cloture vote, is evidence of a filibuster. A filibuster occurs when an attempt to end debate, such as a cloture vote, fails. That is why some on the other side of the aisle want to address what they claim is a filibuster problem by changing the cloture rule.

Let’s use some common sense and stop misleading our fellow citizens about how this body operates. A filibuster is debate that cannot be stopped. And guess what? During this 112th Congress, a much smaller percentage of cloture votes have failed than in the past. That’s right — cloture votes today are more successful in preventing filibusters than in the past.

And the same is true about motions to proceed, which is the particular focus of those who are now threatening to weaken debate by forcing a rules change.

In the 112th Congress, 32 percent of cloture votes on motions to proceed have failed, compared to an average of 54 percent during the previous dozen Congresses. Put simply, the current Senate majority has used cloture to prevent filibusters on motions to proceed more effectively than in the past.

And by the way, during the last several Congresses when the Democrats were in the minority, the current majority leader and majority whip voted to filibuster motions to proceed dozens of times.

Like I said, extended debate has always annoyed the majority and empowered the minority.

And, like I said, it is easier to end debate today than during most of American history. Once again, the majority has done so more effectively in the current Congress than in the past — both in general and on motions to proceed.

There simply is no crisis, no unprecedented abuse, that requires some sort of fundamental change in the rules and traditions of this body.

Rather than blowing up the Senate, I suggest that the majority actually try working with the minority. That’s something we haven’t seen under the current majority leader’s tenure.

Since the Democrats took control of the Senate in 2007, the majority leader has not only routinely filed cloture motions to prevent debate, but he has severely limited the minority’s ability to offer amendments. Since the majority leader is at the front of the line in this body, he uses that preference to offer amendments so that the minority cannot.

The current majority leader has used this tactic more than 60 times, more than any previous majority leader of either party. In fact, he has done so more than all previous majority leaders combined.

It is one thing to require a majority to pass an amendment, but the effect — or rather the intent — of this tactic is to require Senators in the minority to obtain the majority leader’s permission to even offer amendments in the first place.

Now isn’t that ironic. The majority leader uses the rules to his legislative advantage, but wants to strip from the minority the ability to do the same.

The Senate is not supposed to work that way, and did not when Democrats were in the minority. Back in April 2005, when he was the minority whip, Senator Reid defended the minority’s ability to offer even non-germane amendments because doing so prompted Senate consideration of subjects that the majority may have ignored.

Well, as they say, that was then, this is now.

Today, it doesn’t require three-fifths to block an amendment.

The majority leader can and has done the same thing all by himself.

This kind silencing of minority views does not even happen in the House of Representatives, which operates by majority rule across the board. In the House, the majority party — either Republican or Democrat — often limits amendments, sometimes barring them entirely. But at all times, the minority is entitled before final passage to a motion to recommit — which means a chance to propose a different version of the bill.

This motion is not merely symbolic. Not infrequently, it carries.

In contrast, when the Senate majority leader fills the amendment tree, he precludes anything like the House’s motion to recommit.
When the minority’s rights are trampled like this, what is it to do?

Acquiesce?

Or respond in self-defense?

Frankly, it should be no surprise if a minority blocked from influencing legislation through amendments would demand extended debate by opposing cloture.

But look what happens.

The majority obstructs the minority’s right to participate in the development of legislation and then attacks the minority for opposing the passage of that legislation. Again, that is not the way the Senate is supposed to operate.

Mr. President, it is not just the minority who suffers from this strategy. More to the point, the American people suffer. They sent us here to be real Senators, individuals who represent them and their concerns. They expect us actually to legislate, which means to amend as well as to debate legislation — not simply to vote on whatever the majority puts in front of us. Our constituents want us to force attention to public issues even when the majority would prefer to avoid them.

This is the caliber of representation our constituents both demand and deserve, and the rules and practices of the Senate have been designed to facilitate just this kind of representation. It is these same rules that the majority now seeks to change because they find them inconvenient.

There is a conceit expressed in Washington that what happens in Congress is beyond the comprehension or interest of most Americans. But that is not so. When our voice is stifled, full representation for our constituents is denied. When we are gagged, the people are gagged. Nothing can be easier to grasp or provoke greater public indignation.

So my first point is that debate is not the problem. If there is a crisis, it is the majority’s gambit of preventing amendments and then filing hundreds of cloture motions to prevent debate.

My second point is that the unprecedented tactic threatened by the majority to limit debate even more will only further undermine the integrity of this body. Some of those pushing in that direction have never served in the minority, but all Senators should be alarmed by this prospect.

The majority has talked about changing Senate rules to eliminate the opportunity to filibuster motions to proceed. This opportunity has been available to Senators since at least 1949 and, as I mentioned, the majority leader himself repeatedly seized that opportunity when he was in the minority.

I do not believe the cloture rules need to be changed. I do believe, however, that if the Senate is to consider a change, it should follow the process laid out in our rules. That process exists for a reason. It is the process we have used to change rules in the past, and there is no reason — other than a raw power grab — to do it any other way.

Senate rules specify that ending debate on a rules change needs approval by two-thirds of Senators present and voting and there is a very good reason this is so. This cloture hurdle on rules changes exists to ensure that such amendments are not made without bipartisan cooperation.
If anything should require broad consensus, it should be the rules by which this institution itself operates. That is how, for example, we changed rules in 2007 concerning the content of conference reports and the use of earmarks, or how we established a way to provide for public disclosure of holds.

All these changes, some of which required amending the rules, occurred during the tenure of the present majority leader. None was muscled through by majority fiat or forced on an unwilling minority. Bipartisanship was possible because these changes were good for the Senate.
But now we learn that the majority may begin the next Congress by disregarding our rules and attempting to change those they find inconvenient by a simple partisan majority. They threaten, as they did before the start of the current Congress, to use the so-called nuclear option to force new rules by single-party will.

The substantive changes they propose would be degrading enough to the Senate. The method they propose to impose them would be catastrophic.

I urge my colleagues — from freshmen to the most senior members — to take some guidance from our predecessors. Senator Mike Mansfield had served in the minority and later became majority leader. In 1975, when Senators similarly proposed using this same nuclear option similarly to change the cloture rule by simple majority, he said that this tactic would “destroy the very uniqueness of this body…and…diminish the Senate as an institution of this Government.” It would, he said, “alter the concept of the Senate so drastically that I cannot under any circumstances find any justification for it.”

Senator Reid expressed a similar view in 2003, when he was minority whip, arguing that rules changes should be considered through regular order, through the process that our rules provide.

Senator Reid reaffirmed that view in 2005, when he was minority leader, saying that the so-called nuclear option would amount to breaking the rules to change the rules. Senator Reid further observed: “One of the good things about this institution we have found…is that the filibuster, which has been in existence since the beginning, from the days of George Washington – we have changed the rules as relates to it a little bit but never by breaking the rules.”

In other words, if the majority wants to grab even more power, if blocking amendments is not enough for them, if debate is too annoying for them, if they want to rig the rules to further sideline the minority, then they should use the process we have in place. They should make their case and present their arguments, and if they are compelling enough to attract a wide consensus, then the rules of this body can be changed. That is the way we have changed rules in the past.

Senator Reid expressed this view when he was in the minority. Former Senator Chris Dodd, a good friend to many of us still in this chamber and someone who I’d surmise would be sympathetic to the current majority’s views on policy, did so while in the majority. He stated in his farewell address his opposition to changing the Senate rules in the way the majority leader proposes.

My friend Senator Dodd had this to say: “I have heard some people suggest that the Senate as we know it simply can’t function in such a highly charged political environment, that we should change the Senate rules to make it more efficient, more responsive to the public mood, more like the House of Representatives…I appreciate the frustration many have with the slow pace of the legislative process…Thus, I can understand the temptation to change the rules that make the Senate so unique – and, simultaneously, so frustrating.”

But, Senator Dodd, continued: “whether such a temptation is motivated by a noble desire to speed up the legislative process, or by pure political expedience, I believe such changes would be unwise.”

In conclusion, Senator Dodd said: “We one hundred Senators are but temporary stewards of a unique American institution, founded upon universal principles. The Senate was designed to be different, not simply for the sake of variety, but because the framers believed the Senate could and should be the venue in which statesmen would lift America up to meet its unique challenges.”

Those who know both Senator Dodd and me know that we didn’t agree on much during our years together in the Senate. However, on this point, I have to say that Senator Dodd couldn’t have been more right. Rules changes like the ones proposed by the majority would alter the very nature of the Senate and undermine its unique purpose.

For more than two centuries, the procedural rights of individual Senators — both in the majority and in the minority — have been a hallmark of this body. Those rights, and the rules and practices developed to protect them, have earned us the reputation as the world’s greatest deliberative body. Among those rights are the minority’s right to offer amendments and to debate. The majority has already put the former under attack, and now the majority threatens to undermine the latter.

Quite simply, the majority would weaken this institution in a partisan quest for power.

Do these steps serve the Constitution? Do they maintain checks and balances? Do they foster bipartisanship? Do they benefit the American people? The answer to all these questions is resoundingly negative.

I urge my good friend, the Majority Leader, and my friends and colleagues on the other side, to exercise serious self-restraint over whether and how Senate rules changes proceed. Those who are unhappy with the rules are free to propose amendments. As we have done in the past, those proposals should be referred to the Rules Committee and considered in the regular course of business. If the proposals have merit, support for them will cross party lines.

Bipartisan solutions are urgently needed to resolve the nation’s problems. I speak as a Senator with a long record of working with Democrats to achieve bipartisan answers. But invoking the nuclear option will unnecessarily start a new Congress on a divisive and discordant note. It will generate a poisonous climate guaranteed to impair our capacity to cooperate. No majority can expect the minority to stand on the sidelines while its rights are destroyed and its place in this body is diminished. Any minority, of either party, would defend its place and defend the integrity of this body. We will do so now if the majority pursues this reckless and entirely unnecessary course.
Mr. President, I urge the majority to respect the traditions of the Senate and to follow our rules. I urge the majority to avoid rather than generate this crisis.

I yield the floor.

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