News release: Remarks of Sen. Udall on introduction of rules reform resolution

WASHINGTON – U.S. Senator Tom Udall (D-NM) today delivered the following remarks on the floor of the U.S. Senate as he introduced a resolution to reform the body’s rules.

Udall’s remarks as prepared for delivery:

“I rise today to introduce a resolution on behalf of myself and my colleagues from Iowa and Oregon – Senators Harkin and Merkley – to reform the rules of this unique and prestigious body.

“I do so after coming to the floor last January 25, now almost one year ago, to issue a warning. A warning – because of partisan rancor and the Senate’s own incapacitating rules – that this body was failing to represent the best interests of the American people.

“The unprecedented abuse of the filibuster, of secret holds, and of other procedural tactics routinely prevents the Senate from getting its work done. It prevents us from doing the job the American people sent us here to do.

“Since that day in January, things haven’t gotten better. In fact, I would say they’ve gotten worse. Much worse.

“Here in the Senate, open, honest debate has been replaced with secret backroom deals and partisan gridlock. Up-or-down votes on important issues have been unreasonably delayed or blocked entirely at the whim of a single senator. Last year, for example, one committee had almost every piece of legislation held up by holds from one senator.

“The Senate is broken. In the Congress that just ended – because of rampant and growing obstruction – not a single appropriations bill was passed. There wasn’t a budget bill. Only one authorization bill was approved – and that was only at the very last minute. More than 400 bills on a variety of important issues were sent over from the House. Not a single one was acted upon. Key judicial nominations and executive appointments continue to languish.

“The American people are fed up with it. They are fed up with us. And I don’t blame them. We need to bring the workings of the Senate out of the shadows and restore its accountability. That begins with addressing our own dysfunction. Specifically, the source of that dysfunction – the Senate rules.

“Last year the Senate Rules Committee took a hard look at how our rules have become so abused, and how this chamber no longer functions as our Founders intended. I applaud Chairman Schumer and his staff for devoting so much time to this important issue – we had six hearings and heard from some of the most well respected experts in the field.

“But these hearings demonstrated that the rules are not broken for one party, or for only the majority. Today the Democrats lament the abuse of the filibuster and the Republicans complain that they are not allowed to offer amendments to legislation.

“Five years ago, those roles were reversed. Rather than continue on this destructive path, we should adopt rules that allow a majority to act, while protecting the minority’s right to be heard. Whichever party is in the majority – they must be able to do the people’s business.

“At a hearing in September, I testified before the Committee about my procedural plan for amending the Senate’s rules – the Constitutional Option. Unlike the specific changes to the rules proposed by other senators and experts, my proposal is to make the Senate of each Congress accountable for all of our rules. This is what the Constitution provides for, and it is what our Founders intended.

“Rule XXII is the most obvious example of the need for reform. Last amended in 1975, Rule XXII demonstrates what happens when the members of the current Senate have no ability to amend the rules adopted long ago – the rules get abused.

“I’ve said this before, but it bears repeating. Of the 100 members of the Senate, only two of us have had the opportunity to vote on the cloture requirement in Rule XXII – Senators Inouye and Leahy. So if 98 of us haven’t voted on the rule, what’s the effect? Well, the effect is that we’re not held accountable when the rule gets abused. And with a requirement of 67 votes for any rules change, that’s a whole lot of power without restraint.

“But we can change this. We can restore accountability to the Senate. Many of my colleagues, as well as constitutional scholars, agree with me that a simple majority of the Senate can end debate and adopt its rules at the beginning of a new Congress.

“Critics of my position argue that the rules can only be changed in accordance with the current rules, and that Rule XXII requires two-thirds of Senators present and voting to agree to end debate on a change to the Senate rules.

“Since this rule was first adopted in 1917, members of both parties have rejected this argument on many occasions. In fact, advisory rulings by Vice Presidents Nixon, Humphrey, and Rockefeller, sitting as the President of the Senate, have stated that a Senate at the beginning of a Congress is not bound by the cloture requirement imposed by a previous Senate. They went on to say that each new Senate may end debate on a proposal to adopt or amend the Standing Rules by a majority vote.

“These views have been shared by a bipartisan group of reform minded senators for decades, and the Senate has always protected the rights of reformers to offer resolutions and have them debated at the beginning of a Congress.

“Even in today’s more partisan environment, I hope that my colleagues will extend us the same courtesy and our constitutional rights will be protected as we continue to debate the various rules reform proposals at the beginning of this Congress.

“In 2005, Senator Hatch, someone who understands constitutional issues perhaps better than any other member of this chamber, wrote the following:

Quote: ‘The compelling conclusion is that, before the Senate readopts Rule XXII by acquiescence, a simple majority can invoke cloture and adopt a rules change. This is the basis for Vice President Nixon’s advisory opinion in 1957; as he outlined, the Senate’s right to determine its procedural rules derives from the Constitution itself and, therefore, ‘cannot be restricted or limited by rules adopted by a majority of the Senate in a previous Congress.’ … So it is clear that the Senate, at the beginning of a new Congress, can invoke cloture and amend its rules by simple majority.’ End quote.

“This is the basis for introducing our resolution today, just as reformers have done at the beginning of Congresses in the 1950s, 60s, and 70s. And it is why I am here on the floor on the first day, to make clear that I am not acquiescing to the Rule XXII adopted by the Senate over 35 years ago.

“That Senate tried to tie the hands of all future Senates by leaving the requirement in Rule XXII for two-thirds of the Senate to vote to end a filibuster on a rules change.

“But this is not what our founders intended. Article I, Section 5 of the Constitution clearly states that ‘each House may determine the Rules of its Proceedings.’ There is no requirement for a supermajority to adopt our rules, and the Constitution makes it very clear when a supermajority is required to act. Therefore, any rule that prevents a majority in future Senates from being able to change or amend rules adopted in the past is unconstitutional.

“The fact that we are bound by a supermajority requirement that was first established 93 years ago also violates the common law principle that one legislature cannot bind its successors. This principle dates back hundreds of years and has been upheld by the Supreme Court on numerous occasions.

“This is not a radical concept. The Constitutional Option has a history dating back to 1917 and has been the catalyst for bipartisan rules reform several times since then. The Constitutional Option is our chance to fix rules that are being abused – rules that have encouraged obstruction like none ever seen before in this chamber.

“And amending our rules will not, as some have contended, make the Senate no different than the House. While many conservatives claim that the Democrats are trying to abolish the filibuster, our resolution maintains the rule but addresses its abuse. But more importantly, the filibuster was never part of the original Senate – the Founders made this body distinct from the House in many ways, but the filibuster is not one of them.

“So here we are today, on the first day of a new Congress, offering a resolution to reform the Senate’s rules. We don’t intend to force a vote today – in fact, we hope that we can return from the break and spend some time on the floor debating our resolution and considering amendments to make it better. This should not be a partisan exercise – we know both sides have abused the rules, and now it is time for us to work together to fix them.

“But we believe the Senate of the 112th Congress has two paths to choose from.