February 9, 1979
Page 2381
SENATE RESOLUTION 61— PROPOSED AMENDMENT OF STANDING RULES OF THE SENATE
The PRESIDING OFFICER. The pending business before the Senate is Senate Resolution 61.
Mr. ROBERT C. BYRD. Mr. President, the Senate has before it now Senate Resolution 61, as amended. I had thought that the distinguished assistant Republican leader (Mr. STEVENS) would be ready to call up his substitute today. But I now find I was mistaken. He does not intend to call it up until Monday, after the Senate returns from its legislative holiday. It has been printed, however.
I do not think he would object if I should ask unanimous consent that it be printed in the RECORD. Mr. President, I understand that there will be no problem with that, so I ask unanimous consent that Mr. STEVENS' substitute to Senate Resolution 61 be printed in the RECORD in order that Senators may have an opportunity to study it during the holiday.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. STEVENS' proposed substitute is as follows :
AMENDMENT No. 57
Strike all after Resolved and insert in lieu thereof the following:
(a) The last paragraph of paragraph 2 of rule XXII of the Standing Rules of the Senate is amended by striking out the first sentence and inserting in lieu thereof the following:
"After cloture has been invoked, no Senator shall be entitled to use more than one hour on the measure, motion, or other matter pending before the Senate, the amendments thereto, and motions affecting the same, except as hereinafter provided.
"A Senator shall be charged with the use of all time consumed after he is recognized and until he yields the floor, except the time consumed in roll call votes and one quorum call immediately prior to a vote on final passage. A Senator may yield any of his remaining time to another Senator or may yield it back to the Presiding Officer, in which case the hours of consideration shall be reduced by the time so yielded back, and it shall be the duty of the Presiding Officer to keep the time of each Senator. No Senator may be yielded more than nine additional hours. If unanimous consent is requested to dispense with the remainder of a quorum call and an objection is heard to the request, the time consumed in the remainder of that quorum call is charged against the time of the objecting Member. If the objecting Senator does not have at least ten minutes remaining, he may not object to dispensing with further proceedings under the quorum call. If the time required to call a quorum exceeds the balance of the objecting Senator's time, such time shall not be charged against the one hundred hours.".
(b) The last paragraph of paragraph 2 of rule XXII of the Standing Rules of the Senate is amended by inserting the following sentence at the end thereof: "Whenever a Senator indicates an intention to appeal from a decision of the Presiding Officer, that Senator shall be given preferential recognition for that purpose. Any Member may make a point of order that any other Member's pending amendment is violative of the rule, and the Chair shall then rule upon that point of order. Where such point of order is sustained, the amendment or amendments in question shall not then be considered further. A Member moving an amendment or amendments against which a point of order is made and sustained by the Chair may take such appeal en bloc, or such Member may choose those specific amendments which such Member wishes to make subject of the appeal. Such Member shall have a right to one such appeal (including the quorum call on such appeal) without its being chargeable against such Member's time for debate.".
(c) After the last paragraph of paragraph 2 of rule XXII of the Standing Rules of the Senate, insert the following:
"After one hundred hours of consideration of the measure, motion, or other matter on which cloture has been invoked, which time is the aggregate of the one hours of time to which each Member is entitled, the Senate shall proceed without any further debate on any question, to vote on the final disposition thereof to the exclusion of all amendments not then actually pending before the Senate at that time and to the exclusion of all motions, except a motion to table, or to reconsider and one quorum call on demand to establish the presence of a quorum (and motions required to establish a quorum) immediately before a vote on an amendment or the final vote begins.
"New amendments in the second degree can be offered after cloture has been invoked if they are germane to the amendment in the first degree to which offered and have been printed and available at each Member's desk for at least twenty-four hours. Amendments which are otherwise in order may amend the measure or matter in more than one place, if they involve only one substantive issue.
"If, for any reason, a measure or matter is reprinted, amendments which were in order prior to the reprinting of the measure or matter will continue to be in order and may be technically conformed to the bill as it then reads when the amendments are called up, and reprinted at the request of any Member.
"After cloture is invoked, the reading of all amendments, including House amendments, shall be dispensed with when the proposed amendment has been identified and has been available in printed form at the desk of the Members for not less than twenty-four hours.".
(d) Paragraph 1 of rule III of the Standing Rules of the Senate is amended
(1) by inserting "(a)"before "The" in the first sentence;
(2) by striking "The"in the second sentence and inserting in lieu thereof: "Except as provided in subparagraph (b), the"; and
(3) by adding at the end thereof, the following new subparagraph:
"(b) Whenever the Senate is proceeding under paragraph 2, Rule XXII, the reading of the Journal shall be dispensed with.".
Mr. ROBERT C. BYRD. Mr. President. I will ask unanimous consent that Senate Resolution 61, as amended, be printed in the RECORD, but not at this point.
Mr. President, I would welcome the introduction of amendments to Senate Resolution 61 by any Senators today who wish to offer amendments.
In looking about the Senate floor 1 welcome any Senator present to offer an amendment to the resolution, to debate it, and possibly act on it today. I will be glad to yield the floor to any Senator who wishes to offer an amendment to the resolution at this time.
Does any Senator wish to offer an amendment to Senate Resolution 61 at this time?
Mr. MOYNIHAN. Mr. President, will the Senator yield?
Mr. ROBERT C. BYRD. Yes, I yield.
Mr. MOYNIHAN. I just wish to say that I am one of the many Members of this body who has followed with growing admiration and confidence the atmosphere of cooperation and careful consideration of this most important matter by both sides of the issue, and on both sides of the aisle.
Our majority leader needs no congratulations from as junior a Member of this body as myself. He knows of our affection and respect for him, but I hope he would know that it has even increased. For we have long known him as a master of the existing rules, and now we begin to see him as a person whose understanding of the importance of procedure goes well beyond mere mastery of its details to the fact that the life of this institution depends upon rules that make it possible for us to work our will in order to reach decisions.
President Kennedy, as the majority leader well knows, used that wonderful phrase, "To govern is to choose."
When times got difficult in the White House for the President, when people espoused widely varying points of view, and when his administration was divided or his own mind was divided, he would remind himself and those with him that "To govern is to choose."
That is the ultimate responsibility. In the case of the U.S. Senate you choose when you vote, and, as the majority leader reminds us, the central act of democracy is that of voting.
We could not be too much in his debt, and he could not be more modern in his concerns, owing to one point which I would like to introduce into this debate, which is perhaps not sufficiently attended to.
With the weight of modern government, and perhaps with some of the changes we have made that we need not have made, some of the functions we have assumed that we need not have assumed, in this Nation of more than 250 million people with worldwide responsibilities, government has become a full-time procedure in the United States.
It used not to be. As a matter of fact, I have often felt that one of the most regrettable decisions ever made by this Government was when Alexander Hamilton agreed to move the Capital from the city of New York to this malarial swamp on the banks of the Potomac, and Thomas Jefferson in turn agreed to have the Federal Government assume the debts incurred by the State of New York during the Revolutionary War.
He agreed to it, not to increase the influence of the Federal Government, which became the ultimate effect, but to get the seat of government down here in a swamp which turned malarial in April, so that all the Congressmen would leave the city and would not come back until November when the threat of malaria subsided.
Perhaps Senators will recall with differing degrees of reverence or affection Roosevelt's 100 days. Our distinguished Presiding Officer (Mr. LEVIN) is perhapsnot old enough to recall them, but he has heard the phrase.
Why has that period recalled by some as the most constructive and by others as the most destructive moment in our history become known as "the 100 days"? Because that is how long Congress was in session when Roosevelt was first here. They came in in March and went home in June. The whole structure of government was different when, in 100 days, we could enact the New Deal and go home in June. That Senate could leave the arrangements for extended debate to the most random kind of procedure. There was nobody, for practical purposes, in the history of the U.S. Senate who had ever run out of time.
I would like to repeat that: For practical purposes, in the 150 years up until that time, no Senator had ever run out of time. They always adjourned with another 2 or 3, or 4, 5, 6, or 7 months left in the calendar year, with their work done.
In such a setting, unrestricted debate was not only an honorable provision, but a practical one. If someone wanted to be heard longer on a subject that he cared about, as Senators should, he could say, "Let's not go home; it is June15, we can stay here until June 17, and you can finish hearing me."
But now we face so often the situation that it is December 15, and the calendar year ends and the work to be done has not been accomplished. At that point, unlimited debate changes its nature. It is not a means of making certain that full consideration is given to a subject; it becomes a weapon to prevent full consideration, which means that the Senate cannot work its will, and the Government does not choose. And thwarting thecapacity to choose thwarts the democratic purpose; that has never been the function of this body, and will not be as long as the Senator from West Virginia serves as its majority leader.
Having said that, let me also say, as a member of the committee appointed to negotiate with the minority, whose rights the majority holds in trust, that we could not have met with men who more shared our concern, or who did so more responsibly.
I am very much looking forward to the proposal of the minority whip, who is a man for whom we have genuine respect and, beyond that, great affection.
I do not wish to prolong this, because the majority leader is sometimes short of patience with people being pleasant to him. Bad news is the only kind of news he likes, and that is the only kind he usually gets; but I want him to know that he has won yet more respect from this body for this demonstration of his fundamental respect for the democratic process.
Mr. ROBERT C. BYRD. I thank the able Senator for his comments. They are timely and most helpful.
Whereas I had intended to have some comments with respect to the substitute by Mr. STEVENS, I will not make those comments in his absence, and certainly not while his substitute is not, pending.
I yield to the distinguished Senator from Maine.
Mr. MUSKIE. Mr. President, I thank the distinguished majority leader for yielding, and I rise not for an extended statement, but simply to indicate my support of what the distinguished majority leader is trying to do.
It was 20 years ago last month that I first came to the Senate, and the pending issue on the very first day was the question of modifying rule XXII to liberalize the possibilities of closing off debate.
The reform that was proposed by the then majority leader, Lyndon Johnson, was to change the two-thirds requirement from a constitutional two-thirds to two-thirds of those present and voting.
That was regarded as a revolutionary change by those who opposed it, as one that would destroy the Senate as an institution.
Well, we adopted the change. The whole focus of our attention at that time was to preserve the right to free debate in the Senate while still permitting the Senate to do its work.
For 20 years now I have watched us continuing our preoccupation with that dilemma and that challenge. Rule XXII was subsequently reformed again to the present requirement that 60 Senators can close off debate, to be followed by the same procedure that we adopted 20 years ago.
But what we have seen developing, Mr. President, is more opportunities for extended debate, without any way of limiting it — more than existed when I came here 20 years ago.
In other words, it is possible today, notwithstanding our efforts to put in place a cloture rule that would enable the Senate to do its work as well as preserve debate, to thwart the will of the Senate. We have taken steps backward rather than forward. It is now possible for a minority — and I am not picking on any particular minority; it may be a minority that does not exist, in terms of an issue, today — any minority could tie the Senate up absolutely into knots for indefinite periods after cloture has been invoked. That was never possible when I first came here, but it is possible today.
I heard this defended as a preservation of individual Senator's rights. The point I would like to make, Mr. President, is that no Senator has unlimited right. Any Senator who seeks to preserve unlimited rights for himself to that extent erodes the rights of 99 other Senators.
Although this is an institution of individual Senators, and we pride ourselves on the fact that it is, comity must prevail. If it cannot be done without being codified to some degree, then we must codify comity.
If each of us is to have rights, they ought to be equal rights.
The way the present situation works, as I see it and as I have experienced it for 20 years, is that the cloture rule in its development on the floor of the Senate has reached the point where any Senator who wants to be tough enough and ruthless enough, and, yes, with all respect, Mr. President, nasty enough, can use the threat of filibuster to absolutely deprive another Senator from having the Senate give consideration to a legislative proposal in which he believes deeply.
When any Senator in this body has a right which is that unlimited, then we are not a Senate of 100 Members with equal rights. We are a Senate subject to the possible tyranny of a single Member.
That is the way I have seen it proceed.
There are those who say, "It is too bad but that is what has developed. But if you modify it in any way, you change the shape of the institution." I have heard that argument before. We have changed its shape in a very unfortunate way.
I was delighted to be in the Chamber when Senator MOYNIHAN presented his observations. He drew another historical aspect upon this issue. He is quite right. There is just so much time in the calendar year. We have now reached the bottom of time. There is no more left. I have been here when the Senate was in session on New Year's Eve, on New Year's Eve with the work of the Senate uncompleted. The prospect of reaching the end of a calendar year with important work which cannot then be completed before the year is over is frightening.
There is another aspect to all of this which I find disturbing. When I first came here in 1959, debate on the Senate floor was meaningful. Almost every afternoon Senators would assemble in substantial numbers to debate legislation, to debate issues. They would often go into the evening hours — 7, 8, 9:30. There was real debate with a lot of Senators involved.
I have seen that decline over the years. I thihk the country is worse off for it, and I think the Senate is worse off for it.
But, Mr. President, to the extent that we permit the filibuster rule to operate in such a way that the time of the Senate is occupied or could be occupied for days on end, weeks on end, in frustrating, often harassing, emotion-generating haggling over procedures which are being used to prevent the Senate from voting, to that extent are we further robbing ourselves of time for meaningful debate on a host of issues that ought to be meaningfully debated.
I remember many of these occasions in the last 3 or 4 years when I would wander over, if I happened to have a free afternoon or a free couple of hours, in the midst of one of those so-called filibusters or threatened filibusters, or interminable debates, and I would sit for a little while and say to myself, "What am I going to learn from this? What is going on is simply killing time to prevent the Senate from coming to a vote."
Nobody used those occasions for meaningful debate, because nobody listened. They are interested in only one thing: Preventing decisions, not improving the quality of decisions. Just preventing decisions.
Mr. MOYNIHAN. Will the Senator yield?
Mr. MUSKIE. I will yield in a moment.
If we continue the present rule, we are going to see more of that and less time for meaningful debate, even less than we have had in recent years.
I yield.
Mr. MOYNIHAN. I would like to offer a statistic in support of the statement of the distinguished Senator from Maine. In the first half of the century of the cloture rule, 52 years, to be exact, cloture was voted 45 times. Since 1970 it has been voted 95 times.
In 1935, in the unreconstructed Senate, you might say, the one filibuster lasted 6 days. In the 1978 reform Senate, the reform filibusters lasted 62 days. Those are 62 days in a 12-month calendar.
I thank the Senator for having heard what I said. In the past,the Senate had unlimited debate, but never in history did it run out of time. That is what has changed in our present situation. I do not presume to comment, but that was a marvelous statement by the Senator from Maine.
Mr. MUSKIE. I thank the Senator from New York.
As the distinguished majority leader or my good friend from Louisiana would say, it is not the kind of exercise which has attracted my interest over the years. Sometimes when I am involved in a debate with my good friend from Louisiana, I wish I were an expert on the rules, because it is sort of a one-sided battle when I disagree with the involved use of the rules. I respect those who know them. I think the rules are terribly important.
Let me point out that another thing has happened in the last 20 years that to me is oddly directly in conflict with what I have just described. In other words, the opportunity for tying up the Senate with delay, my first point, has been enhanced by the reform of the cloture rule, not limited but enhanced. One can delay the Senate longer, more effectively, more frustratingly, with less contribution to enlightenment on the issue than when I came here. At least in the filibusters of those days our friends from the South came to the Senate floor with speeches, on a subject about which they felt deeply, the civil rights issue of that time, and although from time to time you heard nongermane speeches, you heard a lot of germane speeches, many of them pulled out of the files having been given years before.
Nevertheless, they were relevant and they did contribute to the dialog. Now, we just get this frustrating other business. But, accompanying this has been the growth in the use of the unanimous consent agreement. I do not know if Lyndon Johnson was the first to use the unanimous consent agreement in order to expedite the work of the Senate, but he certainly gave it impetus and developed it as a constant tool of the leadership to get the work done and to limit debate more drastically than any proposal to reform rule XXII than I had ever heard. The unanimous consent agreements that we agree to routinely limit Senators' rights to speak more
drastically than any reform of rule XXII I have ever heard.
Why do we use it? Why did it come into use? Because of the difficulty of closing off debate with rule XXII, no other reason. So we got around the rule by unanimous consent agreements.
The distinguished majority leader (Mr. ROBERT C. BYRD) has been a master at using it, getting parties to come together in comity, in a give-and-take spirit, to limit debate in that ad hoc kind of way. That has been fine. There is one shortcoming. That is when it comes to those really controversial issues. The majority leader becomes, then, the prisoner of the institution and of any Member of it who wants to block the legislation and thus blocks unanimous consent agreements and leaves us with an ineffective rule XXII to get to a decision. It is sort of ironic to me that, over this 20-year period, the constant efforts we have made to reform rule XXII in order to bring free debate under a rational kind of limitation has not worked. As a matter of fact, the result has been the contrary and, out of frustration, we have adopted another technique that works up to a point, but not when it is needed the most.
So, I think the time has come, Mr. President, and I know that the majority leader must have, these last few days and weeks, felt rather lonely in his fight to do what I suspect most Senators feel needs to be done. We are disagreeing about means and we are suspicious of particular language, and we are worried that there may be something in Senator BYRD's language that is a sleeper, that will deprive us of some rights in the future that we do not want to be deprived of. On the other side, Senator STEVENS may have some language that we suspect is a sleeper that we do not perceive, so we are having difficulty in reaching accommodation on what exactly ought to be done.
But I suspect a substantial majority in the Senate would like something to be done to make this a more rational and orderly kind of institution so we can make the decisions that need to be made; that nobody will be cut off from the right to speak; that we can even have prolonged debate provided there is credibility in the assurance of the rules that eventually we will have the right to make a decision.
It is easy to make those points in generalities. It is much more difficult to codify. But I just wanted to say to my good friend, BOB BYRD, that I am not indifferent to what he has been trying to do. I am not one of the experts to whom we should turn to try to write whatever new rules we have, but I am certainly going to try to learn in these next few days and weeks. He will find me in full support of his objective and I shall devote as much time as I can with my other responsibilities to do so and to say so. I thought this might be a good day to add my 2 cents worth.