Posted on December 19, 2017
Says the Senate needs a change in behavior more than a change in rules
WASHINGTON, December 19 – United States Senator Lamar Alexander (R-Tenn.) today urged his colleagues to support a proposal by Senator James Lankford (R-Okla.) that would reinstate a bipartisan standing order adopted in 2013 to reduce the amount of post cloture debate on some nominations.
“This is what we are talking about today: Functioning as an institution—making the Senate work. We claim the Senate is unique but that is only true if it works. Sen. Lankford’s proposal is modest because it would reinstate a bipartisan Standing Order that we adopted for two years, 2013 and 2014,” Alexander said. “This is an opportunity to reinstate the practice of changing the rules of the Senate according to the rules. Continuing to ignore the rules will lead to ending the filibuster on legislation and destroy the uniqueness of the Senate.”
Alexander spoke today at the Senate Rules Committee hearing on a proposal by Senator Lankford that would reduce the post cloture debate time on most of the president’s executive branch and judicial nominees. The proposal would not change the post cloture debate time on nominees to the Supreme Court, circuit court and the president’s cabinet.
Lankford’s proposal would require 60 votes to pass the U.S. Senate.
Alexander’s full remarks are below:
After the 1980 elections, Democrat Sen. Robert C. Byrd suddenly became Minority Leader of the Senate and Republican Howard Baker became the Majority Leader.
Baker said to Byrd, “Bob, I’ll never know the rules as well as you do. Let’s make a deal. I won’t surprise you if you won’t surprise me.” Byrd said, “Let me think about it.”
The next day Byrd said yes and they managed the Senate for four more years. I have heard Sen. Leahy say that it was one of the best, if not the best, times the Senate functioned as an institution.
That is what we are talking about today: Functioning as an institution—making the Senate work.
We claim the Senate is unique but that is only true if it works.
Sen. Lankford’s proposal is modest because it would reinstate a bi-partisan Standing Order that we adopted for two years, 2013 and 2014.
His proposal is important because it would reinstate the practice of changing our rules according to the rules.
I hope that the committee will unanimously recommend Lankford’s proposal to the full Senate.
I want to say three things about the proposal:
First, it is the same proposal that we adopted in January 2013 by a bipartisan vote of 78 to 16.
It is true that then it took 60 votes to end debate on a nomination and later that year Democrats used the nuclear option to be able to invoke cloture on nominations with a majority vote.
But that was not really a change in practice because throughout the Senate’s history presidential nominees were almost always approved by majority vote.
Even when the rules permitted it, cloture was never once used to block the nomination of a Cabinet member or a federal district judge.
The only time it was used to block a Supreme Court Justice was in 1968 in a strange episode involving Abe Fortas. Cloture was never used to block a Circuit Judge until Democrats blocked nominees of George W. Bush in 2003.
The point is, the custom has always been that presidential nominations are decided by a majority vote. So, by custom and by rule, Sen. Lankford’s proposal is the same as the 2013 Standing Order.
Second, this is an opportunity to reinstate the practice of changing the rules of the Senate according to the rules. That is, by securing 67 votes if changing the Standing Rules and 60 votes if passing a new standing order.
Each party has demonstrated we know how to do it the wrong way. The problem with that, as Sen. Carl Levin has said, is that a Senate in which a majority can change the rules anytime it wants is a Senate without rules.
Continuing to ignore the rules will lead to ending the filibuster on legislation and destroy the uniqueness of the Senate.
In Sen. Byrd’s last speech, which was before this committee in 2010, he implored us “never ever, ever” to get rid of the filibuster. It is, he said, the guardian of minority rights and an essential engine for consensus.
Third, the Senate needs a change in behavior more than a change in rules.
We changed rules in 2012 and 2013 to make it easier for President Obama and his successors.
We eliminated secret holds, required 72 hours to review legislation, made 373 nominations privileged, eliminated confirmation of 163 major positions and eliminated the need to confirm 3163 noncontroversial positions.
We adopted several measures to speed up the motion to proceed and shortened post-cloture debate.
Still, since then the nuclear option has been used twice. Unnecessary obstruction is commonplace today. There is always one senator who can find a way to make the place not work well.
The change in behavior we need boils down to one word: restraint. Sens. Baker and Byrd were successful because senators did not insist on using every right and prerogative.
Motions to proceed and unanimous consent requests were routinely granted. Senators didn’t block other senators’ amendments; they simply voted against them. Presidential nominations were almost never blocked by requiring a cloture vote.
Last summer, a Supreme Court Justice was asked how justices are able to get along when they have such different philosophies and such controversial issues. The Justice’s reply was, “each of us tries to remember that the constitution and the institution are more important than our own opinion.”
Sen. Lankford’s proposal is an opportunity to demonstrate that United States Senators can remember that the institution is more important than our own opinions.
I hope we will unanimously recommend it to the full Senate.