WASHINGTON - Sen. Chuck Grassley of Iowa today introduced the Stop Cloture Abuse Resolution that would amend Senate rules.
Video of the speech can be found here.
Read the text of the Stop Cloture Abuse Resolution that would amend the Senate rules here.
The speech text follows here.
I have addressed the Senate several times in recent weeks about the need to restore the Senate as a deliberative body. I am very concerned that the Senate is no longer living up to its reputation as the World's Greatest Deliberative Body. I have outlined how the Senate ought to function by quoting at length the writings of the primary architect of the U.S. Constitution, James Madison. When trying to understand what the authors of the Constitution intended the role of the Senate to be, you can't do better than James Madison, the Father of the Constitution. The writings of James Madison, along with Alexander Hamilton and John Jay, in the Federalist Papers, comprise the most comprehensive and detailed explanation of what the Framers of the Constitution intended. This provides an important, nonpartisan frame of reference about the role the Senate is supposed to play in our system of government. By going back to our founding document and first principles, we can rise above petty partisan squabbling and start working on how to restore the Senate as a deliberative body.
I would like to start by recapping some of the lessons from the Federalist Papers about where the Senate has gone off course. Then I want to talk about solutions to restore the Senate as a deliberative body. In Federalist 62, this new creation of a Senate is being explained to the people of New York to convince them to ratify the Constitution. It tells of the lessons that Americans learned in the first years of independence under the Articles of Confederation, which had a unicameral legislature, as did most states at the time. Based on lessons learned from practical experience, James Madison lists four problems that a republic like ours can face if it doesn't have a properly functioning Senate.
The first problem Madison recounts is the tendency for a group to form in a legislative body that pushes its own agenda as opposed to that of the people who elected them. Madison explains that having a second chamber makes such "schemes of usurpation or perfidy" less likely because they would have to capture both chambers at the same time. The Senate, with longer, staggered terms, makes that even less likely.
The second lesson is that a single chamber legislature with lots of members tends to "yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions." If that sounds like the House of Representatives, that's because it's supposed to work that way. The House is supposed to reflect the immediate passions of the day, even if those passions take on a partisan tinge. However, when laws are made only by "factious leaders" you end up with "intemperate and pernicious resolutions." That's where the Senate comes in.
Madison's third lesson has to do with the need for a body with longer terms that is serious about doing the hard work of legislating, instead of pushing short term agendas. To quote Madison, "What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate?" In other words, it's better to take the time to get it right the first time than to have to constantly go back and fix ill-conceived laws. That's what the Senate's job is supposed to be.
In the fourth and final point, Madison explains that if a legislature is constantly churning out new laws, even if they are good ideas, it causes chaos because no one knows what the law says from day to day. Madison says "... a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success." Madison also points out a problem caused by overactive legislating that we tend to think is unique to modern times-that is special interest groups that hire lobbyists and lawyers. "Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people."
So, just to recap, the Senate was specifically written into our Constitution to solve certain problems, namely: to prevent an agenda that does not reflect that of the American people, to prevent legislation based on short term partisan passions, to pass fewer, but better thought-out laws.
Of course, starting in 2007, we had a House and Senate controlled by the same party, and intent on enacting the President's agenda, top of which was his health care law. The deliberative process was cut short, and the legislation was rammed through the Senate over the objections of senators representing forty percent of the states. The President's healthcare law is practically the poster child for an "intemperate and pernicious resolution" reflecting a partisan agenda that did not enjoy broad support among the American people when it was passed, and still doesn't.
The fact that Congress didn't take the time to think through every aspect of this legislation and work out a consensus that could attract broad support in the Senate has resulted in the need for a series of "repealing, explaining, and amending laws." Of course, the President has claimed for himself the authority to unilaterally suspend or amend parts of the law that aren't working rather than come back to Congress. That's not what the authors of the Constitution intended either. We wouldn't be in this predicament with a deeply flawed healthcare law if the Senate had been allowed to function as it was intended.
Now, with neither party having the 60 votes needed to steamroll members of the minority party, the Senate should go back to functioning as it was intended. Yet, that hasn't happened. Instead, we have seen an unprecedented abuse of Senate rules to block senators from participating in the deliberative process.
These abuses of Senate rules threaten to fundamentally transform the Senate from the greatest deliberative body on earth, into a purely partisan rubber stamp for the agenda of the majority leadership. If we allow that to happen, we will see even more of the problems that Madison warned about. The Senate was intended to be a deliberative body and only functions properly when deliberation is allowed. That means we must have debate and amendments.
I hear frequent complaints from Iowans about Congress passing huge bills without members of Congress having the opportunity to understand all the provisions, much less the people they are supposed to represent having a chance to understand them and weigh in. It is now routine for cloture to be filed immediately upon bringing a matter up for consideration. That's not a deliberative process.
Cloture was invented to allow the Senate to end consideration of a matter after the preponderance of senators had concluded it had received sufficient consideration. Even that was a compromise. Before cloture was invented, there was no way to end debate so long as at least one senator thought a matter needed further consideration.
Cloture was introduced to balance the desire to get things done with the principle that each senator, as a representative of his or her state, has the right to participate fully in the legislative process. The threshold was later adjusted down from two-thirds of senators voting to three-fifths of all senators. Each time this matter has been revisited, the balance has tilted more in favor of speeding up the process at the expense of allowing senators to fully represent the people of their states.
At the beginning of the current Congress, the Senate passed changes to the Senate rules to shorten the amount of debate time after cloture is invoked for certain nominees and to expedite consideration of legislation in some situations. These changes were agreed to in exchange for the promise that the so called "nuclear option" would not be used. Notwithstanding that commitment, just 10 months later, the nuclear option was used, setting a new precedent that debate on nominations can be cut off by a simple majority of senators, ignoring the plain text of the cloture rule still on the books.
So at the end of the day, members of this body agreed to extinguish certain rights in exchange for the promise not to use the nuclear option, only to have additional rights stripped away 10 months later by majority vote. Taken together, those two episodes represent a dramatic shift toward domination of the Senate by one faction, contrary to Madison's stated intent.
I say all that by way of background but that's history and the other side will have to learn to live with the ramifications of the changes to the nomination process they forced upon this body. I would like to turn the focus now to the legislative process and what can be done to restore the Senate to the role envisioned by the authors of the Constitution before it's too late.
When it comes to legislating, we've gotten off track from how the Senate was designed, but we have an opportunity to restore the Senate as a deliberative body. There was an understanding at the beginning of this Congress that there would be some return to regular order. In exchange for rules changes that expedite the legislative process, the majority leadership would return to the longstanding tradition of an open amendment process. In other words, there was an understanding that the Senate would take its time to consider legislation and senators from both sides of the aisle would be free to propose amendments and have them voted on. That understanding lasted just until Republicans submitted amendments that some on the other side were nervous to have to take a position on.
It's no secret that the majority leader has gone out of his way to keep members of his caucus from having to take votes that may hurt them with the people back home. The Senate rules provide that any senator may offer an amendment to a bill being considered. Therefore, in order to shield his members from having to take tough votes, the majority leader now routinely moves to shut down all consideration of a bill before any amendments are considered.
Cloture is supposed to be used after the Senate has considered a measure for a period of time and a preponderance of the Senate thinks it has deliberated enough. Cloture should not be used to prevent any meaningful deliberation from taking place.
The average number of cloture motions filed each session of Congress under this majority leadership is more than double what it was in prior sessions of Congress under majority leaders of both parties, going back to 1987. This alone is an indication that cloture is being overused, even abused by the majority.
The majority leader will tell you that he is forced to file cloture because of Republican filibusters. He might have a point IF it was true that, after extensive debate and plenty of opportunity to consider amendments, Republicans were dragging out debate purely for the sake of delay. However, you can hardly claim that the Senate's deliberation has dragged on too long when it hasn't even begun consideration of a matter. We are now at a point where the overwhelming number of motions to cut off debate are made before debate has even started, much less in response to a filibuster.
Let's look at a chart put together by the Congressional Research Service on cloture motions in relation to legislative business filed the same day a matter is brought before the Senate. I've color coded each Congress based on which party controlled the Senate. You'll notice that use of same-day cloture averages out to 29 times per Congress up until the 110th Congress, when this majority leadership takes over. Then there is a HUGE jump to 98 same-day cloture motions. That's more than 3 times the previous average!
You'll notice a trend toward slightly more use of same day cloture in the years leading up to 2007, and both parties are guilty of that. But, you can see an unprecedented use of same-day cloture starting when this majority leadership took over. The trend has continued at more than double the previous average in each Congress since this majority leadership took over.
There were 65 same day cloture motions in the 111th Congress and 67 in the 112th Congress, compared to 29 the last time Republicans controlled the Senate, which coincidentally is also the previous average. The last line shows the total as of January, when we were only half-way through the current Congress. At that time, we were already up to 30 same-day cloture motions. That is more than we saw for the entire Congress the last time Republicans were in the majority. This unprecedented use of cloture to end deliberation before deliberation has even begun is clearly abusive and cannot be justified.
Some people might argue that same-day cloture motions on the motion to proceed shouldn't be counted because the motion to proceed can't be amended. That is debatable, but I'll just point out that the last column shows same-day cloture filings excluding the motion to proceed and the trend is exactly the same.
So what do we do about this abuse of cloture to end consideration of a bill before it has even been considered? Today I am introducing the Stop Cloture Abuse Resolution. That appropriately spells SCAR, because cloture abuse threatens to scar the body of the Senate. The Stop Cloture Abuse Resolution will amend the Senate Rules to prohibit the filing of cloture until at least 24 hours after the Senate has proceeded to a matter. This reform will end once and for all the practice of attempting to shut down debate and amendments before debate has started.
It is important to keep in mind that when senators are blocked from participating in the legislative process, the people they represent are disenfranchised. By that, I don't just mean the citizens of the 45 states that elected Republicans. The citizens of states that elected Democrat senators also expect them to offer amendments and engage with their colleagues from different parties. Forcing a cloture vote before any deliberation prevents even members of the majority party from offering amendments that may be important to the people they represent.
Voters have a right to expect the people they elect to actually do the hard work of legislating, not just be a rubber stamp for their leadership's agenda. Senators who go along with tactics that disenfranchise their own constituents should explain to those who voted them into office why they aren't willing to be a full-fledged senator. They should explain why their loyalty is to their party leadership and not the people of their state.
A senator's job includes offering amendments. Being a senator also means that sometimes you have to take tough votes on other senators' amendments that reveal to your constituents where you stand on various issues. It is the job of senators to deliberate and to legislate.
The Stop Cloture Abuse Resolution will make it clear that deliberation is the rule, not disenfranchisement. It would establish that a deliberative process is expected and at least some deliberation must occur before any attempt to silence the voices of senators, and by extension the people of their states.
This is just one reform idea that I am proposing for the Senate to consider as we work to restore the Senate as a deliberative body. It would only address part of the problem. The Senate will also have to address the abuse of filling the tree to block amendments.
The ability to block senators from offering amendments is actually not found in the Senate Rules. Filling the tree is an abuse of Senate precedents. In some ways, that makes it the easier problem to address. Whereas cloture abuse is an abuse of the Senate cloture rule, the practice of filling the tree to block amendments can be eliminated simply by establishing a new precedent.
As everyone remembers from the nuclear option, establishing a new precedent is a simple process that only requires a majority vote. However, unlike the nuclear option, which established a precedent that the Senate would ignore the plain text of a rule still on the books, ending the ability of the majority leader to block amendments would simply involve replacing the old precedent with a new precedent.
For now, the Stop Cloture Abuse Resolution would be a good start. Adopting the Stop Cloture Abuse Resolution would send a strong message that the Senate will once again deliberate over issues rather than ramming them through without careful consideration. This reform will reduce the urge to force legislation though the Senate based on a short-term partisan agenda, and result in fewer, but better laws, just as James Madison and the other Framers of the Constitution intended.
Amending the Senate Rules should be a last resort, and this move should not be necessary. We've been told that the bipartisan Child Care Development Block Grant bill will be considered under an open amendment process. If that happens, and if it marks the beginning of a return to regular order where all senators are allowed to represent their states to the best of their ability once again, then perhaps this move will not be necessary. Given the record of the past three Congresses, I will not hold my breath. If a fully open amendment process is not permitted after all, or if this rare instance of bipartisanship proves to be an exception to the rule, it will prove that the Senate is fundamentally broken and only significant reforms like the Stop Cloture Abuse Resolution can restore the Senate as the world's greatest deliberative body.
