Levin Statement on Bipartisan Senate Rules Agreement

Thursday, January 24, 2013

Mr. President, I strongly support the bipartisan leadership proposal to reform Senate procedures. The proposed rule changes and standing orders strike a balance between the need for the Senate to function more productively while protecting the rights of the minority. 

The bipartisan leadership proposal before us is based upon the bipartisan proposal that I was pleased to help develop with Senators McCain, Schumer, Kyl, Cardin, Alexander, Pryor and Barrasso, and that we recommended to the leadership.  I ask unanimous consent that the proposal be included in the record following my remarks.  That proposal was born out of the sincere belief that, even in today’s hyper-partisan environment, it is still possible for Senators from both parties to work together to restore the deliberative traditions for which the Senate was once known.  It took many days of discussions over two months among our group to reach an agreement we could present to our Leaders.  We looked past our frustrations with the recent practices of the Senate and acted together for the sake of this vital institution.  I would also like to thank our former and current Parliamentarians, Alan Frumin and Elizabeth MacDonough, who answered our questions and provided their expert advice throughout our discussions.  

Perhaps the most significant reform in the bipartisan leadership proposal, as in our bipartisan proposal to the leadership, is a reform designed to end the abuse of the threat of a filibuster on the motion to proceed to a bill – that is, the abuse of the Senate’s minority protections to obstruct the Senate from even taking up and debating legislation. Reform in this area is vital, because abuse of the rules on the motion to proceed has prevented the Senate from engaging in what our rules are supposed to promote: debate of the important issues our nation must face. Over the previous two Congresses, we have had to hold 59 cloture votes on motions to proceed, and the very threat of the filibuster on the motion to proceed has on countless occasions derailed the Senate’s legislative process. Reforming the procedures regarding the motion to proceed will allow this body to deliberate as it is intended to do.

The proposal before us will give the Majority Leader two alternatives to the method in the existing rules for proceeding to a bill. The first alternative, in the form of a Standing Order effective for the 113th Congress, would limit debate on the motion to proceed to four hours. When used by the Majority Leader, this alternative would guarantee consideration of some minority amendments.  Specifically, two amendments each for both the majority and the minority would be the first amendments in order at the beginning of consideration of a measure.   The order of those amendments would be the first minority amendment, the first majority amendment, the second minority amendment, and the second majority amendment.  Each amendment would need to be disposed of prior to the offering of the next amendment in order.  These amendments would not be subject to amendment or division, and if adopted, the amendments would be considered original text for purpose of further amendment.  They could be tabled or filibustered. If an amendment is not offered in its designated order, the right to offer that amendment would be forfeited.  Filing deadlines would occur on these amendments if a cloture motion is filed.  If cloture is invoked, any of these amendments not offered prior to the expiration of post-cloture time could be offered and would be guaranteed up to 1 hour of debate. 

The second alternative would allow the Senate to move quickly when both the Majority and Minority Leaders agree we should proceed to a matter.  Specifically, where 8 Senators from each side, including the two Leaders, sign a cloture petition on the motion to proceed to a measure, then the cloture vote would occur the day following the filing of the motion with no post-cloture debate if cloture is invoked. 

The bipartisan proposal before us would also reform the process of going to conference by collapsing the three motions currently required by the Rules to be adopted in order to go to conference into a single motion and shrinking the cloture process on that conference motion from 30 to 2 hours.  This change would be in the form of an amendment to the Standing Rules, and was part of our bipartisan group’s recommendations to the leaders.

In addition, the proposal before us would reform the consideration of nominations. First, for district court nominations, it would reduce post-cloture time from 30 to 2 hours, as recommended by our bipartisan group of eight.  Second, it would shrink the cloture process on subcabinet nominations by reducing post-cloture time from 30 to 8 hours. This change would be in the form of a Standing Order and would be effective for the 113th Congress. 

When a few Senators threaten to filibuster or object to proposed unanimous consent agreements, those Senators should have to come to the floor to speak or object. So, our bipartisan group’s reform proposal urged the leaders to give notice that the existing rules of the Senate will be used more vigorously to force filibusterers to show up on the Senate floor to speak, and their colloquy on this matter reflects the leaders’ intention to do so.

This proposal includes reasonable protections for the minority, and it reforms our procedures in ways that can end the gridlock that bedevils us. And as it accomplishes those important reforms, this proposal allows the Senate to avoid a process that would break the rules of the Senate and do untold damage to this institution. Amending our procedures in this way, without use of the nuclear option, avoids having the Senate go from gridlock to meltdown. I want to spend some time discussing this process because the issue is extremely important and not fully understood.

The greatest difference between the Senate and the House of Representatives is the approach to minority rights.  Senate rules protect the rights of the minority and the House rules do not. With those rights, a minority or even a single Senator can influence the legislative process.  Without those rights, a simple majority can render a minority irrelevant and powerless to influence the legislative process.  

The current Standing Rules of the Senate spell out clearly the process by which the rules of the Senate may be amended.  Rule 5 states that the rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.  Rule 22 states that an affirmative vote by two-thirds of the Senators present and voting is required to end debate on a proposal to amend the rules. 

Some Senators have argued that the Constitution empowers a simple majority of senators to force a change in the rules at the beginning of a Congress, although the change would occur in violation of Rule 5 and Rule 22.  Supporters of this position refer to this procedure as the “constitutional option.”  Others, including many of us who have served here for longer periods of time in both the majority and in the minority, refer to it as the “nuclear option” because we can see the damage this procedure would do to the Senate. Indeed, many of us who are deeply concerned about its use vehemently opposed Republican threats to use this procedure in 2005.

How worried were we in 2005? Senator Kennedy was worried enough to tell his colleagues: “By the time all pretense of comity, all sense of mutual respect and fairness, all of the normal courtesies that allow the Senate to proceed expeditiously on any business at all will have been destroyed by the preemptive Republican nuclear strike on the Senate floor…They will have broken the Senate compact of comity, and will have launched a preemptive nuclear war.”

And here’s what Senator Biden said on this floor: “I say to my friends on the Republican side:  You may own the field right now, but you won’t own it forever.  I pray God when the Democrats take back control, we don’t make the kind of naked power grab you are doing.”

Why were our esteemed former colleagues so concerned about walking this path? Here are some of the dangers inherent in the “constitutional” or “nuclear” option, and some explanation of why and how the Senate has consistently rejected this approach in the past.

Supporters of the nuclear option claim a simple majority of Senators can force a rules change at the beginning of a Congress, but do not argue that they can do so at other times.  There is no basis for the argument that the beginning of a Congress enjoys a special status for rules adoption or amendment that the remainder of a term of Congress does not.  If the Constitution grants a simple majority of Senators the right to amend the rules of the Senate at the beginning of a Congress, when and how does that majority lose that right?   This temporal distinction cannot be found anywhere in the Constitution.  Article I, Section 5 of the Constitution says that each House may determine the rules of its proceedings.  It makes no distinction as to when. 

That provision of the Constitution, which governs the Senate, also governs the House.  The House adopts its rules at the opening of every Congress, but it can and does amend its rules in the middle of a Congress.  If the Constitution grants a simple majority of Senators the power to adopt rules, what would stop that simple majority from amending those rules in the middle of a Congress, just as our House colleagues do? And if that is the case, the Senate would no longer be able to fulfill its historic distinction of protecting the rights of the minority.

Some supporters of the constitutional or nuclear option claim that Rule 22’s supermajority threshold to end debate on a proposed rules change is unconstitutional because it inhibits the Senate from exercising its constitutional power to determine its rules under Article I, Section 5.

But the power to set its own rules is just one of the many powers granted the Senate by the Constitution.  For instance, the Senate is empowered to provide advice and consent on nominations and to consider legislation to collect taxes, to pay the nation’s debts, to provide for the common defense and general welfare of the United States.  Yet, filibusters have delayed or prevented the Senate from acting on those important measures and nominations that fall within the Senate’s constitutional duties.

In testimony before the Senate Rules Committee, CRS expert Stanley Bach argued:

“Adopting and amending its own rules is not the only thing, and arguably not the most important thing, that the Constitution empowers and expects the Senate to do.  If filibusters are unconstitutional because they impede the Senate in its efforts to exercise its authority under section 5 of Article I to adopt or amend its rules, then why are filibusters constitutional when they impede the Senate’s efforts to exercise its equally or more important authority under Article I, especially section 8, to legislate on matters committed to it and the House of Representatives?”

In other words, if the filibuster of a rules change is unconstitutional, as nuclear option advocates contend, then a filibuster on any matter would also be unconstitutional because it would delay or prevent the Senate from discharging its constitutional duties.  So by declaring the filibuster unconstitutional on a rules change, advocates of the nuclear option are thereby swinging the door wide open to eliminate the filibuster altogether from the Senate.

Some supporters of the nuclear option say that the Founders never intended for the Senate to have filibusters.  They claim that the original Senate’s rules included a motion for the previous question, which they further claim was used to end debate and bring a matter to an immediate vote.  So, they argue, the early Senate supported the ability to close debate and bring a matter to immediate vote by simple majority vote.

The problem is that they have their history wrong.  The early form of the motion for the previous question is unlike its modern day version.  In the first Congress, both chambers had a motion for the previous question in their rules (the Senate dropped the motion from its rules in 1806).  But the early version of the motion was not used to bring a question to an immediate vote.  The motion, which was phrased “shall the question be now put,” was used to suppress or postpone a question.  It was moved by Senators who would then vote against the motion in order to suppress or postpone the pending question. 

The modern day version of the motion for the previous question in the House serves as a simple majority cloture device.  However, in the early House, just as in the Senate, if the motion for the previous question was decided in the negative, then the question was suppressed and the House moved on to other business; if the motion was decided in the affirmative, then the House would continue debate on the pending question, not immediately proceed to a vote.  That practice continued until 1811, when a new precedent was set that the motion, when agreed to, would immediately end debate and bring a vote on the question.  That was the origin of simple majority cloture in the House.

The early history of the motion for the previous question is set forth in the House of Representatives official guide to procedure, House Practice: A Guide to the Rules, Precedents and Procedures of the House:

“In early Congresses, the previous question was used in the House for an entirely different purpose than it is today, having been modeled on the English parliamentary practice.  As early as 1604, the previous question had been used in the Parliament to suppress a question that the majority deemed undesirable for further discussion or action.  The Continental Congress adopted this device in 1778, but there was no intention of using it as a means of closing debate in order to bring the pending question to a vote.  Early interpretations of the rule in the House were consistent with its usage in the Continental Congress.” (House Practice, page 690)

Just as in the House, the early Senate rules had a motion for the previous question, which, just as in the House, was used only to end debate and move to another matter, not put a question to an immediate vote.  This motion was eventually dropped from the Senate rules.  In his speech to the Senate on March 2, 1805, Vice President Aaron Burr recommended changes to the rules of the Senate.  Among those, he suggested that the Senate drop the motion for the previous question on the basis that it was duplicative to the motion for indefinite postponement.  The diary of John Quincy Adams contains the following account of Burr’s speech:

“He [Burr] mentioned one or two of the rules which appeared to him to need a revisal, and recommended the abolition of that respecting the previous question, which he said had in the four years been only once taken, and that upon an amendment.  That was proof that it could not be necessary, and all its purposes were certainly much better answered by the question of indefinite postponement.”  (Memoirs of John Quincy Adams, edited by Charles Francis Adams, vol. I, p. 365)

Supporters of the nuclear option often reference advisory opinions and rulings by Vice Presidents Nixon, Humphrey, and Rockefeller that the Senate may adopt its rules by simple majority vote at the opening of Congress.  These advisory rulings and opinions were rendered during actual attempts to change the rules, but the proposed changes were rejected, for good reason.

For example, Vice President Nixon believed the constitution granted a simple majority of Senators the power to force a rules change in violation of Senate rules.  In 1957, when an attempt to change the rules was made at the beginning of a new Congress, Nixon made reference to his belief, but his advisory opinion recognized no special status for the beginning of a Congress.  Nixon believed a simple majority of Senators could amend the rules at any point during a Congress.  In his advisory opinion, Nixon said, “The Constitution also provides that ‘each House may determine the rules of its proceedings.’  This constitutional right is lodged in the membership of the Senate and it may be exercised by a majority of the Senate at any time.”  Vice President Nixon also acknowledged that his opinion was merely advisory, and not binding upon the Senate. 

Vice President Humphrey advised the Senate in 1969 that if a simple majority of Senators, but fewer than the two-thirds required by the rules, voted to invoke cloture on a proposed rules change, then he would rule that cloture had been invoked.  On January 16, 1969, the Senate voted 51-47 in favor of a motion to invoke cloture.  Vice President Humphrey ruled that cloture had been invoked by the majority.  Humphrey’s decision was appealed and the Senate reversed Humphrey’s decision by a vote of 53-45.  In doing so, the Senate established a clear precedent rejecting Vice President Humphrey’s ruling that a simple majority could end debate.

Supporters of the constitutional argument point to statements by Vice Presidents Humphrey and Rockefeller in 1967 and 1975, respectively.  In both these instances, the Vice Presidents advised the Senate that tabling a point of order against a motion to end debate by simple majority would validate the motion to end debate and cause it to self-execute. It is my understanding that both former and current Senate Parliamentarians disagree with the advisory opinions of Humphrey and Rockefeller. Tabling a point of order lodged against a motion to end debate by simple majority does not validate that motion or cause it to self-execute.  In tabling the point of order, the question simply recurs on the underlying motion, and that question is debatable.  At the end of my remarks I intend to propound several parliamentary inquiries that, I believe, will address the errors of the Humphrey and Rockefeller rulings.

Let’s examine more closely these two advisory rulings. 

In 1967, it was Senator McGovern who offered a motion to end debate by a simple majority on the question of proceeding to a rules change.   Senator Dirksen raised a point of order that the motion was out of order because it violated the rules of the Senate.  Vice President Humphrey advised the Senate that if the Senate tabled the Dirksen point of order, that act would serve to validate the constitutionality of the McGovern motion. But in any event, the Senate rejected the motion to table the Dirksen point of order by a vote of 37-61.  Then the Senate sustained Dirksen’s point of order by a vote of 59-37.  This is yet another example of the Senate establishing a clear precedent rejecting simple majority cloture of debate on a rules change.

Then, again, in 1975, the Senate faced a very similar question.  Senator Mondale offered a motion that would end debate with a simple majority.  Majority Leader Mansfield raised a point of order against the motion.  Vice President Rockefeller advised that if the Senate tabled the Mansfield point of order, he would interpret that act as an expression of the Senate that the motion was proper – again, as I will show in a moment, a dubious position.  After considerable intervening action and debate, the Senate ultimately sustained the Mansfield point of order by a vote of 53-43.  Once again, the Senate established a clear precedent of its rejection of simple majority cloture of debate on a rules change. 

The danger of the advisory rulings by Humphrey and Rockefeller in 1967 and 1975 is made clear in a grave warning issued by our former colleague, Senator Robert C. Byrd of West Virginia, the longest serving Senator in the history of the Senate and the author of its definitive history.  During the debate in 1975 on the question of whether a simple majority could end debate on a proposed rules change, Senator Byrd gave the following remarks that I believe we should heed carefully today. 

“May I say to those of us on our side that the day may come—although I hope it will not be in my time—when we will be in the minority, and it will take only 51 Senators from the other side of the aisle to stop debate immediately, without one word, on some matter which we may consider vital to our States or to the Nation.  Let me show the Senate how this would work.  …

Suppose it were the Bay of Tonkin resolution, which involved a declaration of war by the Congress of the United States. Any Senator could contrive his own – and I do not use that word disrespectfully – any Senator could write a similarly phrased divisible motion, a multiple motion, sent it to the Chair and all someone would have to do is raise a point of order, another Senator would move to table the point of order; if the point of order were tabled, the matter, without debate, would immediately be put to a vote. If a majority were to sustain that vote, debate would be closed on the basic motion to move to consideration of the matter, or if the matter were already before the Senate, to proceed to vote immediately on the matter without further debate.”

Senator Byrd that same day said:

“I must say that I have to disagree respectfully with the Chair.  We are today operating by the rules of the Senate, which rules and precedents provide that a motion before the Senate, against which a point of order has been made and tabled, remains before the Senate and is debatable.  I cannot for the life of me understand how, in this instance, the motion, if the point of order is tabled, will not still be before the Senate and will not be debatable.  I cannot understand that.  I cannot understand how the Chair can logically state that the Senate, by this motion, and by virtue of its tabling a point of order, which is a separate matter, ipso facto shuts off debate on the motion.

Now, if we go down this road, I can guarantee that every Senator in this body will rue this day…Senators, do we want to do it this way?  If this is done today, it can be done any day.  If it can be done on this constitutional question, it can be done on any other constitutional question.  It can be done on any other point of order the Chair wishes to refer to the Senate for decision. … I believe that there is a danger here that, if Senators will reflect upon it for but a little while, they can foresee a time when we would say that we went the wrong way to achieve an otherwise very notable purpose…Put this power in the hands of a tyrannical leadership, and a tyrannical majority of 51 Senators, and we are going to be sorry on both sides of the aisle.”  (121 Congressional Record 3842-3844)

So in 1975, the Senate did what it has always done when confronted with the question of simple majority cloture on debate of a motion to amend the rules.  It rejected it.

The reason that the constitutional approach to rules changes has never been implemented is that every time it has been attempted, the Senate has not gone along.

When Vice President Humphrey explicitly ruled that the Senate could end debate by a simple majority, the Senate voted to overturn that ruling. In those instances when a Vice President has advised that tabling a point of order against a motion to limit debate on a rules change by a simple majority amounted to Senate approval of that motion, the Senate has either voted to reject that interpretation outright or voted against tabling the point of order.

The very basis for minority rights in the Senate is the absence of simple majority cloture, which would allow a majority of Senators to end debate.  The absence of simple majority cloture is the only ground on which a minority, and sometimes a single Senator, can stand to demand they be heard on any given issue.

I believe by the letter and spirit of our rules, and the history and practice of this body, the bipartisan leadership proposal before us merits support. But I also recognize that these arguments alone may not suffice for the millions of Americans who understandably do not know or care much about the procedures and rules of the Senate, and who have watched for the last four years with mounting frustration as abuse of those rules has obstructed progress and mired the Senate in seemingly endless delay.

The foundation of democratic governance is rule by majority consent. Indeed, democracy arose as a response to centuries of rule by a privileged and self-interested minority imposing its will on the majority. And the need for a system that protects minority rights is counter-intuitive to many Americans, who find it hard to understand why the majority’s will does not always carry the day in the Senate.

But while the foundation of our democratic system is rule by the will of the people, our founding fathers were careful to enshrine protections against what they warned was a dangerous threat to true political liberty. They called it “majority faction,” the possibility that a majority of the public would, in pursuit of its own interests, infringe upon the rights of their fellow citizens.

They crafted our system with a series of checks and balances to protect against the dangers of majority faction. And since the founding, many of the most important steps forward for our country have involved protecting minorities from the harms of majority faction.

The giants of the Senate have recognized the vital importance of protecting minority rights. Senator Daniel Inouye was rightly eulogized recently in this chamber as a wise and experienced presence in the Senate. He demonstrated that wisdom from the very beginning of his career here. In his maiden speech on this floor, he implored the Senate to preserve its protections for minority views, even when those protections allowed a misguided minority to obstruct our nation’s progress. This is what he said:

“The philosophy of the Constitution and the Bill of Rights is not simply to grant the majority the power to rule, but is also to set out limitation after limitation upon that power. Freedom of speech, freedom of the press, freedom of religion: What are these but the recognition that at times when the majority of men would willingly destroy him, a dissenting man may have no friend but the law? This power given to the minority is the most sophisticated and the most vital power bestowed by our Constitution.”

Understand what was taking place here. Senator Inouye spoke as the Senate was debating whether to weaken the rights of the Senate minority, so that the Senate majority could end grave injustice by enacting civil rights legislation. Senator Inouye, a man who had himself felt the pain of racial discrimination, even during and after his remarkable service to this nation during World War II, used his first speech on this floor to warn against the attempts “to destroy the power of the minority … in the name of another minority.”

I want to make clear to my colleagues  my belief that defense of the minority’s rights in the Senate is not defense of the current use, and abuse, of those rights. It is not a defense of a few who threaten routinely to prevent consideration of judicial nominees unanimously approved in committee, or to prevent debate on legislation. We need to act so that the Senate can function again.

But we can’t save the Senate by destroying its very nature and role. In the past, Senators strongly committed to reforming the Senate rules have been equally committed to preserving its institutional strengths. Listen to the words of Senator Mansfield, who, in 1967, worked to reform the cloture rule so the Senate would function more normally – but, importantly, urged his colleagues not to pursue those reforms by the destructive means of establishing simple majority cloture to end debate on a rules change. While arguing strongly for reform, Senator Mansfield said, “[The] urgency or even wisdom of adopting the three-fifths resolution does not justify a path of destruction to the Senate as an institution and its vital importance to our scheme of government. And this, in my opinion, is what the present motion to invoke cloture by simple majority would do.” Senator Mansfield added: “I simply feel the protection of the minority transcends any rule change, however desirable. … The issue of limiting debate in this body is one of such monumental importance that it reaches, in my opinion, to the very essence of the Senate as an institution. I believe it compels a decision by more than a majority.”

In 1975, Senator Byrd argued in favor of the rule change reducing the number of votes needed to end debate from 67 to 60. But he strongly opposed using simple-majority cloture of the debate on that rules change. “I feel that a three-fifths cloture vote would protect the minority, protect the uniqueness of this institution, and preserve a fair and equitable way to close debate. But I am not for destroying the Senate as a unique institution in an effort to reach that end.”

In 2010, in testimony before the Rules Committee on this subject, Senator Byrd said:

“During this 111th Congress, in particular, the minority has threatened to filibuster almost every matter proposed for Senate consideration. I find this tactic contrary to every Senator’s duty to act in good faith. I share the profound frustration of my constituents and colleagues as we confront this situation. The challenges before our nation are too grave, too numerous, for the Senate to be rendered impotent to address them, and yet be derided for inaction by those  causing the delays. … Does the difficulty reside in the construction of our rules, or does it reside in the ease of circumventing them? A true filibuster is a fight, not a threat, not a bluff. … Now, unbelievably, just the whisper of opposition brings the ‘world’s greatest deliberative body’ to a grinding halt. … Forceful confrontation to a threat to filibuster is undoubtedly the antidote to the malady.”

There have without question been times when a self-interested or hide-bound minority in the Senate has frustrated American progress. But there have also been times when a Senate majority has attempted to impose its will in ways that would have been harmful. Those instances resonate far less loudly when one is a supporter of a frustrated majority. But those of us who have served in the minority in this body, as I have for nearly half my time in the Senate, remember them well.

In the recent past, Senate Democrats in the minority used the protections afforded the minority to block a series of bills that would have unwisely restricted the reproductive rights of American women. We beat back special-interest efforts to limit Americans’ ability to seek justice in our courts when harmed by corporate wrongdoing. We used those protections to seek an extension of unemployment benefits for millions of Americans. We used them to oppose the nomination of nominees to the federal courts who we thought would do great harm to the law. Progressives distressed that the recent fiscal cliff agreement raised the estate tax exemption to more than $5 million should recall that without the protections afforded the Senate minority, a total repeal of the estate tax would have passed the Senate in 2006. Forty-one Senators prevented that from happening.

Over the history of this body, giants of the Senate have repeatedly warned us against the danger of damaging, even with the best of intentions, the Senate’s protections for minority rights and extended debate. Time and again, the Senate has heeded those warnings. While it is necessary to reasonably preserve those minority rights, it also is urgent that we restore the Senate’s ability to function. Unless we do that, the Senate’s character and function within our system of government will remain threatened by constant gridlock. The bipartisan proposal before us holds the promise of restoring the Senate’s deliberative and legislative process, without going down a “nuclear” path that might severely damage the Senate in an attempt to save it. This proposal holds the promise of demonstrating to a nation hungering for bipartisan cooperation that we are capable of providing it. I urge my colleagues to embrace a bipartisan approach that will allow us to end the gridlock of which we have seen too much, and to do so with the bipartisan spirit of which our people have seen too little.