Prepared Floor Statement of Senator Chuck Grassley of Iowa
"The Abuse of Cloture Motions"

Wednesday, December 19, 2013

The Senate is poised to vote on a final National Defense Authorization Act after considering only two amendments.

The Senate has not been functioning like it should for some time and the way the National Defense Authorization Act has been handled is just one example.

I've served in the majority and the minority with Democratic Presidents and Republican Presidents so I've seen it operate from every perspective.

What's unique about the Senate is that the rules and traditions force senators to work together.

That leads senators to understand where the other side is coming from, resulting in mutual respect and comity.

I hear from a lot of Iowans who are upset at the tone they hear from Washington and the lack of bipartisanship.

I've often said that the Senate functions best when no party has more than about 55 seats.

If you have much more than that, there is less of a tendency to want to work in a bipartisan fashion.

That was true for most of my time in the Senate, but not now.

Despite a current margin of just 5 seats in the Senate, there has been very little bipartisan cooperation.

I suppose some Democratic senators really believe it when they say that this is all Republicans' fault.

I think anyone who remembers how the Senate used to operate and has paid attention to how the current majority leadership has been running things, knows better.

In fairness, quite a few members of the Senate don't remember how the Senate is supposed to operate because it has been dysfunctional ever since they were elected.

Some senators previously served in the House of Representatives, where the majority party controls everything that happens.

In the House of Representatives, the Rules Committee sets out the terms of debate for each bill.

If you want to offer an amendment in the House, you have to go hat in hand to the Rules Committee and say, "Mother may I?"

If the House leadership doesn't like your amendment, you're out of luck.

If that sounds familiar, that's because it is how the current Senate leadership has been running things lately.

We have seen an absolutely unprecedented use, or I would say abuse, of cloture motions paired with a tactic called "filling the tree" to block amendments being considered.

That not only affects the minority party, but Democratic senators as well.

I would say to my colleagues on the other side of the aisle, how many times have you had an amendment you wanted to offer that was important to your state, but you couldn't do it because amendments were blocked?

The Senate Majority Leader has effectively become a one man version of the House Rules Committee, dictating what amendments will be debated and which ones will never see the light of day.

This strips the ability of individual senators to effectively represent their state, regardless of party.

It also virtually guarantees that any legislation the Senate votes on will be more partisan in nature.

I would ask my colleagues across the aisle, isn't your first responsibility to the people of your state, not your party leadership?

Are you really content to cede to your party leader the trust and responsibility placed in you by the voters of your state?

How much longer can you go along with this?

The people of Iowa sent me to the United States Senate to represent them, not to simply vote up or down on a purely partisan agenda dictated by the Majority Leader.

Everyone complains about the lack of bipartisanship these days, but there is no opportunity for individual senators to work together across the aisle when legislation is drafted on a partisan basis and amendments are blocked.

Bipartisanship requires giving individual senators a voice, regardless of party.

When senators are only allowed to vote on items that are pre-approved by the Majority Leader, they lose the ability to effectively represent their state and become mere tools of their party leadership.

It's no wonder Americans are so cynical about government now.

In the last decade, when I was Chairman of the Finance Committee, and Republicans controlled the Senate, we wanted to actually get things done.

In order for that to happen, we knew we had to accommodate the minority.

We had to have patience, humility, and respect for the minority, attributes that don't exist on the other side anymore.

And we had some major bipartisan accomplishments, from the largest tax cut in history to a Medicare prescription drug program to numerous trade agreements.

Those kind of major bills don't happen anymore.

The Senate rules provide that any senator may offer an amendment regardless of party affiliation.

Each senator represents hundreds of thousands to millions of Americans and each has an individual right to offer amendments for consideration.

The principle here isn't about political parties having their say, but duly elected senators participating in the legislative process.

Again, as part of our duty to represent the citizens of our respective states, each senator has an individual right to offer amendments.

This right cannot be outsourced to party leaders.

The longstanding tradition of the Senate is that members of the minority party, as well as rank and file members of the majority party, have an opportunity to offer amendments for a vote by the Senate.

That has historically been the case with the annual National Defense Authorization Act, but not this year.

It typically takes a couple weeks to consider the National Defense Authorization Act.

This year, the majority party leadership chose to wait until a week before the scheduled Thanksgiving recess to bring it up, leaving little time for the customary open debate and amendment process.

Once the Defense Bill was brought up, rather than promptly starting to process amendments, the Majority Leader immediately blocked amendments so he could control what came up for a vote.

The Senate ground to a halt, wasting time we didn't have when we could have been considering amendments from both sides.

This process, as everyone here in the Senate knows, is called "filling the tree" where the majority leader offers blocker amendments that block any other senator from offering their own amendment unless he agrees to set his blocker amendments aside.

"Filling the tree" doesn't appear anywhere in the Senate rules.

It's based on combining two precedents- the precedent that the Majority Leader has first right of recognition by the presiding officer and the precedent that only one first degree and one second degree amendment can be pending at any one time.

Basically, the Majority Leader abuses his prerogative to cut in line and offer an amendment that does nothing more than, say, change the enacting date by one day for instance.

That then blocks any other senator from exercising their right to offer an amendment.

This so called filling the tree tactic used to be relatively rare, but it has become routine under the current leadership.

This way, the Democratic leadership can prevent other senators from offering amendments they don't want to have to vote on.

Then, with amendments blocked, the Majority Leader makes a motion to bring debate to a close, or "cloture".

When cloture is invoked, it sets up a limited time before a final vote must take place.

By keeping amendments blocked while running out that clock, the majority leader can force a final vote on a bill without having to consider any amendments other than what he approves.

It shouldn't be a surprise to anyone that members of the minority party who wish to offer amendments will vote against the motion to end debate until their amendments have been considered.

When Republicans vote against the Democratic leader's motion to end debate, we are accused of "launching a filibuster".

In other words, unless we give up our right to participate fully in the legislative process, they say we are filibustering.

Does that really count as a filibuster?

No.

The non-partisan Congressional Research Service has a helpful report on cloture motions and filibusters that makes this point clear.

The CRS Report, "Cloture Attempts on Nominations: Data and Historical Development" by Richard S. Beth contains an entire section titled, "Cloture Motions Do Not Correspond with Filibusters."

It starts out, "Although cloture affords the Senate a means for overcoming a filibuster, it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs. Filibusters may occur without cloture being sought, and cloture may be sought when no filibuster is taking place. The reason is that cloture is sought by supporters of a matter, whereas filibusters are conducted by its opponents."

It then goes on to explain various scenarios to illustrate this point.

Several members of the majority have made a point of trying to confuse cloture motions with filibusters.

We hear constantly that there have been an unprecedented number of Republican filibusters.

They often point to a chart that purports to tally the number of filibusters and say that it is evidence of abuse of the Senate rules.

That number they quote is the number of cloture motions, not filibusters.

It's true that there have been a record number of cloture motions, and I also agree that the number amounts to an egregious abuse of the Senate rules.

But, again, cloture motions do not correspond with filibusters.

Cloture motions are filed by the majority party leadership, not the minority party.

This abuse of cloture is a major cause of the Senate's current dysfunction.

Again, this abuse of cloture, often combined with the blocking of amendments, prevents all senators from doing what they were sent here to do, not just members of the minority party.

And, it's gotten even worse.

Even where the Majority Leader has decided he's going to be open to amendments, he has created, out of whole cloth, new restrictions to limit senators' rights.

First, he normally only opens up the amendment process if there's an agreement to limit amendments.

And, this is usually only a handful or so.

Then, he has magically determined that only "germane" or "relevant" amendments can be considered.

Of course, no where do the Senate rules require this, other than post cloture.

Senators elected in the last few years appear to be ignorant of this fact.

You'll hear some senators here argue against an amendment saying it's non-germane or non-relevant.

They've totally fallen for the Majority Leader's creative rulemaking, thus giving up one of their rights as a senator with which to represent their state.

I can't count how many non-germane or non-relevant amendments I had to allow voted on when I processed bills when Republicans were in charge.

They were usually tough, political votes, but we took them because we wanted to get things done.

You don't see that nowadays.

The current majority avoids tough votes at all costs.

And that's why they don't get much done.

The American people sent us here to represent them.

That means voting, not avoiding tough votes.

We sometimes hear that this is a question of majority rule versus minority obstruction.

Again, that ignores that each senator is elected to represent their state, not simply to be an agent of their party.

While a majority of senators may be from one party, they represent very different states and the agenda of the majority leader will not always be consistent with the interests of their states.

When one individual, the Senate Majority Leader, controls what comes up for a vote, that is not majority rule.

In fact, there are policies that have majority support in the Senate that have been denied a vote.

What happened during Senate debate on the budget resolution seems to prove that point.

The special rules for the Budget Resolution limit debate, so it can't be filibustered, but allow for unlimited amendments.

A Republican amendment in support of repealing the tax on life-saving medical devices in President Obama's health care law passed by an overwhelming 79 to 20, with more than half of Democrats voting with Republicans, rather than their party leader.

A Republican amendment in support of approval of the Keystone XL Pipeline to bring oil from Canada passed 62 to 37.

Votes like these that split the Democrats and hand a win to Republicans are exactly what the majority leader has been trying to avoid by blocking amendments.

That's why the Senate didn't take up a budget resolution for more than three years.

Still, the Budget Resolution isn't a law so unless legislation on these issues is allowed to come up for a vote, nothing will happen despite the support of a majority of the Senate.

A case in point is the National Defense Authorization Act we are considering now.

One of the amendments the Majority Leader blocked would have imposed sanctions on the Iranian regime.

Everyone knew that this amendment enjoys broad bipartisan support and would have passed easily had it been allowed a vote.

It had majority support, but the Senate was not allowed to work its will.

Why?

The Iran sanctions amendment was blocked because the President opposed it and it would have been a tough vote that divided Democrats.

Is that a valid reason for shutting down the traditional open amendment process for the Defense Bill?

I don't think so