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Senate Rules: Common Sense Reform

December 6, 2012
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    In 2009, I took my seat in "the world's greatest deliberative body" as the 17th U.S. Senator for New Mexico. The respect that I hold for the institution of the U.S. Senate is immeasurable, as is the pride with which I serve.

    But in the past several years I have witnessed an assembly that seems more dysfunctional than deliberative - where partisan rancor and the Senate's own incapacitating rules often prevent us from conducting our business. Many of my colleagues and I were elected to the sound of a call for change. The American people sent us to Washington to put partisanship aside and take the country in a new direction. Unfortunately, self-imposed rules - like the filibuster - that govern the Senate have stood in the way and made the institution become a graveyard for good ideas.

    That's why for more than two years, I have been working to shine light on a solution to help end the dysfunction that is paralyzing the U.S. Senate and preventing us from doing the work the American people demand: The Constitutional Option.

    The Constitutional Option 

    Article 1, section 5 of our Constitution states that, "Each House may determine the rules of its proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member." As you can see, when the Framers required a supermajority, they explicitly stated so, as they did for expelling a member. On all other matters, such as determining the Senate's rules, a majority requirement is clearly implied. At the start of the new congress, a simple majority of senators have the power to revisit the rules of the chamber and help restore the Senate to the deliberative body our Founding Fathers intended.

    In my first floor speech in 2010, and in testimony during the Senate Rules Committee hearings on this issue, my colleagues and I have explored the Senate's long history of using the Constitutional Option to reform its rules.

    In 2011, because of our efforts, we took the first vote on amending the Senate filibuster rule in more than 35 years. Though we were not successful in our attempts to reform the filibuster, our efforts sparked a spirited debate that has reached a tipping point today.

    Ending Filibuster Abuse

    As the 112th Congress comes to a close, it will be remembered as a 21st century "do nothing Congress." The Senate has passed the fewest number of bills in a generation. Non-controversial government nominees have been senselessly delayed and countless judicial posts remain vacant. And there have been more filibusters since 2006 than the total between 1920 and 1980.

    As Majority Leader Reid noted on the Senate floor this past summer, "If there were anything that ever needed changing in this body, it's the filibuster rule, because it's been abused, abused, and abused."

    Under the "filibuster rule" (Rule XXII), it is not possible to limit debate, or end a filibuster, without three-fifths, or 60, of all Senators voting to do so. In the past several years, the use - and abuse - of filibusters by both parties to obstruct the Senate from functioning has become the norm. But it hasn't always been this way. Cloture motions - a motion for the Senate to vote to end debate - used to occur perhaps seven or eight times during a congressional session. But since Senator Reid became the Majority Leader in 2006, he has faced almost 400 - most occasioned simply by the threat of a filibuster. The use of the filibuster today dominates the Senate's business at an irresponsible level, threatening our ability to operate.

    Dysfunction in the U.S. Senate affects every issue facing the American people. The economic prosperity of our country is on the line, as is the trust and faith the American people have put into us as elected officials. We cannot go on like this. The time for reform is now. Fortunately, the U.S. Constitution provides that solution.

    The Constitutional Option has been supported by conservative scholars, legal experts and by Republicans and Democrats alike. It was used with bipartisan support to compel the Senate to amend the filibuster rule at the beginning of the congress in 1917, 1959 and 1975.

    Common sense reforms are what we seek today.

    Restoring Real Debate

    At the heart of restoring debate in the Senate is filibuster reform. Senators Jeff Merkley, Tom Harkin and I want to reduce the constant abuse of filibuster threats by instituting what we call the Talking Filibuster. Today, all it takes is a phone call threatening to filibuster to tie the Senate into procedural knots. By mandating that members must hold the Senate floor and explain to the American people and their colleagues why they are against a bill or nominee, we can reduce its use.

    Opponents will say this is a partisan power grab that destroys minority rights. Nothing could be further from the truth. We seek to preserve the filibuster and restore it. As I have said before, my party is currently in the majority, and one day it will be in the minority again, but my position on this issue will not change. The rights of the minority must always be protected, but we cannot allow the minority to completely obstruct a majority from getting things done.

    Now is the time for the Senate to have a thorough and candid debate about our rules, identify solutions that will allow the body to function as our founders intended, and amend its rules with an up or down majority vote.

    During the next several weeks, I will continue making this case to my colleagues in the Senate and to the American people.

    In the meantime, below is some additional background on my previous rules reform statements and resources that have helped guide my positions.

    Additional Resources on the Constitutional Option: 

    Senator Udall on Rules Reform:

    Recent Press Coverage:

    The New York Times Editorial: A New Chance for the Senate:

    "In January, at the beginning of the next session of the United States Senate, Democrats can vastly improve the efficiency of Congress and reduce filibuster abuse with a simple-majority vote. This time they need to seize the moment."

    Santa Fe New Mexican Editorial: A delegation gets to work:

    "We know Udall will continue working to reform Senate operations, pushing for the good of the nation over partisanship. The filibuster rule must be changed so that the business of the country cannot be stalled too easily by the minority, and Udall is a leader in that cause."

    Denver Post Editorial: Senate Must Scale Back the Power of the Filibuster:

    "With an important legislative agenda looming, it's time for the Senate to change its filibuster rules to reduce - but not eliminate - the minority's power to stop the chamber's work....A majority shouldn't have to round up a 60-vote supermajority to conduct business."

    The Daily Astorian Editorial: Senate must reclaim majority rule:

    "The drive to change the filibuster rule is one of the most significant changes that might flow from the recent election....It is time for Majority Leader Harry Reid to recognize this golden opportunity."

    San Antonio Express-News Editorial Board: 

    "The abuse of the filibuster is a major source of gridlock. The desire of many Democrats - and some Republicans - for reform is understandable and proper...One sensible reform would bring an end to most lazy filibusters. If a senator or group of senators feels strongly enough to block a piece of legislation, they should have the commitment to stand up and speak publicly against it - to actually engage in a filibuster."

    Ezra Klein, Washington Post: 

    "Today, the filibuster isn't used to defend minority rights or ensure debate. Rather, the filibuster is simply a rule that the minority party uses to require a 60-vote supermajority to get anything done in the Senate. That's not how it was meant to be. And it's not how it has to be."

    Katrina vanden Heuvel, Washington Post / The Nation:

    "...the proposed changes could restore a level of honesty and transparency to Senate debate, allowing people to hear the very minority views the filibuster is supposed to protect. Reinstating what is called the talking filibuster might also help eliminate the backroom maneuvering that is the hallmark of congressional obstruction."

    David Weigel, Slate: 

    "These aren't particularly new or scary ideas. Americans, raised on Mr. Smith Goes to Washington, would hardly be horrified by a filibuster that actually forced a senator to speak....Nor does it seem ridiculous to ban filibusters on procedural votes."

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