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Debating Rules of Debate: Is Senate in a ‘Constant Filibuster’?

January 4, 2011 at 4:43 PM EDT
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As the Senate prepares to reconvene, Jim Lehrer leads a debate between Sens. Tom Udall, D-N.M., and Lamar Alexander, R-Tenn., over a Democratic proposal to adjust the filibuster rules in the Senate.
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JIM LEHRER: And to a debate over the rules of debate in the United States Senate. At issue is the filibuster and the fact that most legislative action now needs the approval of a supermajority of 60 senators.

In the last Congress, there were no fewer than 91 votes to cut off debate. Many Democrats are now eager to change the filibuster rules after the Senate convenes tomorrow.

One of the pushers of that effort is Senator Tom Udall, Democrat of New Mexico. One of those opposed is Senator Lamar Alexander of Tennessee, a member of the Senate Republican leadership.

Senator Udall, what is wrong with filibusters now that needs to be fixed?

REP. TOM UDALL (D-N.M.): Well, Jim, I think the first place to start is, what’s wrong with the Senate?

And what worries me the most is, last year, we didn’t do a budget. We didn’t do a single appropriations bill. We did only one authorization, so we’re not doing the oversight of the agencies themselves. Four hundred bills were sent over from the House of Representatives on many important subjects. We didn’t deal with them at all.

And all of that was the result, I believe, of kind of a constant filibuster.

JIM LEHRER: Do you agree with that?

SEN. LAMAR ALEXANDER (R-Tenn.): No, I don’t agree with that, Jim.

Here’s what happens. If Senator Reid, the majority leader, brings up the health care law, I go down and say, I would like to amend it. More than the last six majority leaders put together, he says, no, Lamar, you can’t. I object. He calls that a filibuster.

I call that keeping me from doing what I was elected to do, which is to amend and debate and to try to achieve a consensus on important issues facing our country. So, the party of no are the Democrats who are saying no to amendments, no to debate, and keeping the Senate from functioning as it ought to.

JIM LEHRER: But the process that you use is the filibuster, correct?

SEN. LAMAR ALEXANDER: Well, the process is — say, I’m invited to go on the Grand Ole Opry. I’m expected to sing, right?

JIM LEHRER: Right.

SEN. LAMAR ALEXANDER: If I’m elected to the Senate, I’m expected to be able to go over and offer almost any amendment on almost any bill on any debate. That’s what the people of Tennessee want me to do. And Senator Reid and the Democrats are saying, we’re going to cut you off a record number of times.

And what we’re saying is, we simply want the Senate to be back to where it was when Senator Byrd, Senator Baker ran it, and bills came to the floor with bipartisan cooperation, and senators were able to offer their amendments and get a vote.

JIM LEHRER: So, what about that?

SEN. TOM UDALL: I don’t have any doubt — and I think Lamar will agree — that, on both sides, there’s been this kind of war, because they haven’t had amendments. And then you have the filling of the tree. And it’s back and forth.

And we really do have to have a truce. And the way to do that, I believe, is, at the beginning of a Congress, like all legislative bodies do, you take a good, hard look at the rules. And what I have advocated is the constitutional option.

The Constitution says, at the beginning of a Congress, by a majority vote, you can close off debate, and you can adopt rules by a majority. And I think that will pull us all together to say, we have got to fix the filibuster. We have got to fix secret holds. We have to make the Senate more accountable, more transparent to the people.

And I think there are a lot of things that, I know when Lamar and I talk off-camera, that we can agree that we need to do.

JIM LEHRER: What about the amendments issue that Senator Alexander just raised? Would you be in agreement to do that?

SEN. TOM UDALL: That’s part of the package we’re working on right now.

I believe, in terms of minority rights, that the Senate is the place where the minority should be protected. So, we should protect minority rights. We should give them the right to amend. We shouldn’t try to restrict it.

And the important thing is — is to make sure that we get to the final vote, though. That’s what the filibuster does is, we’re running away from up-and-down votes. We’re running away from really facing the issues.

JIM LEHRER: Do we have a deal, Senator Alexander?

SEN. LAMAR ALEXANDER: No. Well, not yet, not yet…

(LAUGHTER)

JIM LEHRER: OK.

SEN. LAMAR ALEXANDER: … because, see, I disagree with that.

I think what the filibuster does is give you a chance to debate and amend and talk until you get a consensus. I mean, I can give you two examples. I remember, when I first came to the Senate, President Johnson — I was an aide in the Senate then.

President Johnson had the civil rights bill written in Senator Everett Dirksen’s office. He was the Republican leader. They had to overcome a filibuster of 67 votes to get it passed. But because the Republicans and Democrats talked it out, not only did they pass it; the country accepted it.

And then Senator Russell, who had been the leader of the filibuster, went back to Georgia and said: Well, I opposed it, but it’s the law of the land. Now we have to obey it.

What I’m afraid Tom and some of the Democrats want to do is to make it easier to do with all legislation what they did with the health care law, which is just pass it with a partisan vote. And what that does is get a worse result, in my opinion. And it created an instant movement to repeal the law, as opposed to what happened with the Civil Rights Act.

JIM LEHRER: Because there was no debate on the floor; is that what you’re saying?

SEN. LAMAR ALEXANDER: Because both parties weren’t involved.

See, when you have to have 60 votes, you have to get some Democrats and some Republicans. In the House, if it’s a Republican House, why, they will just zip through repeal of the health care law next week. And if it’s a Democratic House, they will abolish the secret ballot in union elections.

It comes to the Senate, if we have a 60-vote requirement, we say, whoa, let’s think about that.

SEN. TOM UDALL: The issue here on those of us that are focusing on reform is not taking away the 60-vote, except on the motion to proceed. What we’re trying to do…

JIM LEHRER: Wait a minute. There are two — we’re talking about — there’s a vote to proceed.

SEN. TOM UDALL: To just get the bill on the floor.

JIM LEHRER: Just get the bill on the floor.

SEN. TOM UDALL: Yes, just to get the bill on the floor.

JIM LEHRER: And you’re saying stop filibusters there.

SEN. TOM UDALL: That’s right. That’s right.

JIM LEHRER: In other words, the 60-vote requirement, and have the filibuster — but keep the filibuster on the merits, on the bill itself.

SEN. TOM UDALL: On the merits, and on amendments, on conference reports, these are the kinds of things where you should have a filibuster.

JIM LEHRER: Is that OK with you?

SEN. LAMAR ALEXANDER: No, it’s not, because that’s the weapon that the minority uses to make the Democrats — or the majority in this case — give you amendments.

See, if the majority would say, you can have all the amendments you want, they could get about any bill to the floor they wanted to, unless it were a bill that we were trying to kill about which there was no consensus. We don’t need to change the rules. We just need to use the rules.

Senator Byrd said in his last appearance before the Senate Rules Committee, look, confront a filibuster. The way you do that is to say, OK, we’re going to stay up all night. We’re going to vote on Friday. We’re going to vote on Saturday.

We didn’t vote on one Friday. We need to end the three-day workweek, be willing to vote on controversial issues, and look for consensus. We don’t need to change the rules.

SEN. TOM UDALL: Yes, and I agree. We do need to vote and we do need to work longer weeks.

But I think the healthiest thing, Lamar, for the Senate, would be able to look at the rules every year, really look at the rules, analyze them, look at what’s gone on over the past two years, and then see what’s working and what isn’t, then make changes.

And that, to me, is in the Constitution. He mentioned Senator Byrd. Senator Byrd used that himself. He went to the floor in 1979, and he told everybody, the Constitution is superior and supreme to the Senate rules, and we need to have rules reform.

And there have been a lot of battles on rules reform. And we need to take a hard look at the rules. And tomorrow is that day, that first legislative day.

JIM LEHRER: Are you OK with that, to have it debated, Senator Alexander?

SEN. LAMAR ALEXANDER: I’m glad to debate and discuss. I would like to get us — I think the Senate is a shadow of itself. I think we need to get away from…

JIM LEHRER: A shadow of itself?

SEN. LAMAR ALEXANDER: What it used to be.

Well, it used to be a place where almost any senator could get almost any amendment and debate it on — and it went on until 60 people said, that’s enough. Now we have gotten away from that. Now I bring up an amendment. Senator Reid says no. The bill comes in. It doesn’t go through committee.

So, we need to get back. I think most senators on both sides would like to see us do that. But I say to Tom gently that — that my Democratic friends need to be careful, because if they make the Senate like the House, where you can run a freight train through it, that, in two years, Republicans might win, and the freight train is likely to be the Tea Party Express. And they may not like that.

SEN. TOM UDALL: Well…

I just wanted to say on the issue of — I’m walking — he has predicted, many pundits say, two years from now, that the Democrats may be in the minority.

Any proposal I put forward with other senators will be fair to the minority, protect minority rights. And I’m assuming that I can live with it if I’m in the minority. So we’re not trying to do a partisan thing. We’re trying to bring the Senate back, bring it out of the shadows, make it transparent, make it accountable.

JIM LEHRER: Speaking of partisanship, why did the — the Democrats had, you know, 60 votes in the Senate up until a few days ago, like say yesterday or today. Why didn’t you change the rules then? Why are you waiting now to — the Republicans have more senators now?

SEN. TOM UDALL: The big — I only have been in the Senate two years.

JIM LEHRER: OK.

SEN. TOM UDALL: And when I came aboard, we were predicted to have 60 votes. It didn’t take place until Al Franken came in later in the year.

JIM LEHRER: Right.

SEN. TOM UDALL: And everybody said, well, we have 60 votes, and so we’re going to be able to get things done, and some of the Republicans will join us.

We ended up finding out that that hurdle was so big, and because of the hyper-partisanship, that we couldn’t get anything done. And, in fact, what we learned about the filibuster — and this is the fascinating thing — if the 41 senators who vote to say we want more debate, they don’t have to debate under a filibuster.

We’re in quorum calls. We’re in what’s basically in the Senate a constant filibuster without any debate. And what we want to do, Jim, just — just, we want to say if 41 senators want to move forward and say more debate, we’re going to give them debate, extend the debate.

SEN. LAMAR ALEXANDER: Jim, they could do that right now. I mean, they just haven’t done it. The truth is…

SEN. TOM UDALL: We can’t do it now.

SEN. LAMAR ALEXANDER: The truth is that the Democratic senators don’t want to vote on controversial issues.

And, second, they want…

JIM LEHRER: Why would they not want to vote on…

SEN. LAMAR ALEXANDER: Because they — for some reason — and I would like to use the Grand Ole Opry again. I’m volunteering for the Opry, but I decline to sing.

They don’t want to cast a controversial vote and go home and run for election. Well, if you don’t want to run — if you don’t want to vote, why run for the Senate?

And then the second thing is, we didn’t vote on one single Friday. Now, Senator Byrd said in that last appearance, if you think the filibuster is being abused, under — confront it under the current rules, and you can do it. And they haven’t done it once.

They tried one time. So, we’re going to stay up all night. And within three hours, they got an agreement.

JIM LEHRER: On a scale of 1-10, what do you think the chances are that you would support or there could be a bipartisan approach to changing the rules beginning tomorrow?

SEN. LAMAR ALEXANDER: I think the chances are good, because there are lots…

JIM LEHRER: Good?

SEN. LAMAR ALEXANDER: Well, yes, because there are lots of us who want the same thing. We want a Senate in which we do…

JIM LEHRER: That works?

SEN. LAMAR ALEXANDER: That works, in which we do our job.

SEN. TOM UDALL: That’s right.

SEN. LAMAR ALEXANDER: And I think the last two years have been an aberration. There’s been no incentive to work across party lines, because Democrats have had…

JIM LEHRER: OK. Is there one now?

SEN. LAMAR ALEXANDER: Yes, because we have got a fairly evenly balanced Senate. And nothing will pass the Senate unless some Democrats and some Republicans cooperate on that issue.

SEN. TOM UDALL: And that’s the reason, Jim, that’s the reason that, on the first day, with a more closely divided Senate, you step back. You exercise the constitutional option, and you say, let’s take a good, hard look at the rules.

And, hopefully, we can back off from some of the warfare and come together on these rules issues and on working together to make the Senate a better place.

JIM LEHRER: And it will be known as the Udall-Alexander rules, right?

(LAUGHTER)

SEN. LAMAR ALEXANDER: Well, if we both agree.

JIM LEHRER: Oh, if you both agree.

(LAUGHTER)

JIM LEHRER: Thank you both very much.

SEN. TOM UDALL: Thank you.