Cases. This action would probably take these actions out of the court and that is in the interest of this administration not to have the embarrassment of the Supreme Court if they came out with a decision contrary. I dont know how this will play after a i would love to hear by other members of the panel how this will happen to understand specifically how the Nuclear Option would even come into play. What happens on Tuesday Morning if there is no agreement how does it play out . Is the threshold merely lowered from 60 to 50 votes or will all Senate Debate be declared dilatory . Keep in mind two things when you look at this year, two of the biggest thing that happened politically were filibusters. You hear the demonization of the filibuster. They say it slows everything down and blocks legislation. My boss rand paul filibustered on the senate floor for 13 hours. That raised every americans awareness of the potential use of drones domestically in the United States. The American People heard it and were educated and having a national debate. In texas, the debate over abortion was raised by an individual getting up and filibuster legislation in the texas state legislature. Those are issues in the public to maine domain because of filibuster. If either party back in 2005, republicans consider doing this for a 2013, democrats are. Both parties should not consider doing this because it will ultimately destroy the nature of the senate and hurts our republic when you go down this road of making a very easy for the majority to steamroll the minority and not allow them to participate in the process. It would be really not wise for this to move forward. Thank you. Do you want to speak from there . Sure. I came to the u. S. Senate in 1966. When the senate was run by two leaders senator Mike Mansfield of montana, the majority leader and senator Everett Dirksen of illinois, the minority leader. It was a very Different Senate then. The filibuster was attacked then because of the issue of civil rights. I remember just about nine years later, in 1975, when a republican Vice President , nelson rockefeller, together with a Bipartisan Group led by then senator Walter Mondale and then senator from kansas, james pierson, republican, led a fight which basically was the Nuclear Option. They were successful. They changed the cloture rule from 2 3 down to 60. Now the proposal, i guess, is to change the cloture rule down to 51. I am the coauthor of a book entitled defending the filibuster. I wrote it with a gentleman who worked initially for senator paul tsongas of massachusetts and stayed on the hill for 30 years, ending up working for senator carl levin of michigan. The reason we wrote this book is we saw the benefits of the filibuster. When rich aronberg, my co author, came into the parliamentarians office in the late 1970s, we knew that in order to pass a bill that senator tsongas was interested in called the alaska lands bill, that the republican senator, senator ted stevens, would have to sign off on if we were to get cloture. This forced a bipartisan approach to that bill. The result was that that bill was adopted and signed by president carter but has been a successful build over the years. I would contrast that with the bill called the Affordable Care act which was pushed through by senator harry reid without any bipartisan support. For one goal that moment, that for one golden moment, that was possible because senator reid had 60 votes in his caucus due to the change of parties by senator Arlen Specter and suddenly, he had 60 votes. And he was able to successfully push through that bill. I would contrast those two bills in terms of their support in the country. I dont think it is a good thing for bills to have no support from the two parties. Basically, what happened in the Affordable Care act was that the bill only had support from the democratic party. That is one of the reasons why we wrote the book, defending the filibuster. It is true that right now senator reid does not have the 60 votes in his caucus. And he is supposedly going to use the Nuclear Option to change all that. This is not the first time this issue has come up. When senator bill frist was the Senate Majority leader and was being frustrated by votes on judicial nominations, he proposed the Nuclear Option and the result was that a gang of 14, seven republicans and seven democrats, worked together and came to the floor and said no. We are not going down that road. D that was to stop senator that was enough to stop senator frist. I would hope that as a result of the caucus on monday night there might be a Similar Group that would come to the floor and say, do not go down this road. Having seen what happened in 1975 when the senate did go down that road, the repercussions lasted for years. And the bitterness lasted for years. Its not something i would ever wish for the United States senate. The senate is an institution that i love. I worked there for 35 years. I now teach about how Congress Works at George Washington university. And i honor the senate. I can remember frankly that when this proposed, i went on the cbs evening news and suggested that if a group of senators would come to the floor and say stop the madness, we could stop it. And thats exactly what happened. D thats what stropped it. And that is what stopped senator frist. I sincerely hope that is what happens after that caucus on monday night and a group comes to the floor and says stop the madness. Good afternoon. Thank you to heritage for hosting us and thank you for letting me appear with these distinguished panelists. Since im going last here i thought i would take a step back and try to put it in context and provide a framework we can think about what has been said. I think hopefully this will help us understand how we arrived at where we are today. It will help us understand why i think its basically impossible to limit the use of the Nuclear Option in this instance to executive nominees which is what the majority has claimed they would like to do. And then lastly, and i think most importantly for the Long Term Health of the institution but also the republic why i think why it is ultimately impossible to transform this senate into a purely majoritarian body like the house of representatives. Because of that i think it should give them pause in their efforts. If they go through with this it may result in more dysfunction at the end without arriving at the end point in which they would like to. I think first here, imagine a continuum, think back to college and high school. Think of that as a rules based continuum. The house is obviously more rules based and the senate is better relations based. The senate informal rules govern things. Precedence, norms, traditions, acceptable behavior. This tells us something important about the legislative process. In the house its rules based. The important decisions are made before they get to the floor. The floor is just to ratify those decisions. In the senate is legislative process is critical. Because of that you often see large bipartisan majority support legislation once it goes through that process in the committee and on the floor. This is really important for the current discussion and the Current Issue the Nuclear Option and what is going to happen next week. The legislative process in the senate reveals Important Information about the level of resolve of both sides. And because of the process by which legislation is considered, the minority learns a lot of important stuff about how hard majorities are willing to push to get what they want. And the majority learns Important Information about how hard the minority is willing to push and react if the majority tries to restrict their rights in some manner. Today the process is almost completely broken down. Its almost nonexistent. And because of that Senate Majorities have largely acted to produce this by trying to achieve policy out comes without the input of Senate Minorities and even over their objections. If you look at what happens in the senate the number of amendments proposed, amendments that a senate goes down to the floor and offers to a bill has declined 2,164 to 974. The number of minority amendments proposed on the floor has declined from 1,043 to 400. And i think more importantly the number of recorded votes on amendments has declined from 428 to 228 in the last congress. And so when this happens, when there is virtually no floor process, the legislative process no longer tells us much about what side thinks is important and how hard they are willing to fight for their goals. When that happens the current way of business creates dysfunction because in a relational body when you dont have a lot of rules to tell you what you can and cant do, you have a lot of leeway to do things. Now both sides have incentive to use that to persuade the other side what they want to do is important and they will push as hard as they can to get it. What does this have to do with where we are today . Number one the Current Situation is unsustainable and the way we have bills on the fl nothing about what each side thinks is important. I think how the situation is resolved next week will encourage senate to employ Nuclear Options. This reinforces the dynamic weve seen. This is no surprise we are where we are today. In january 2011. The senate to diffuse a similar situation passed a compromise rules proposal. We eliminated the requirement that amendments be read and we eliminated the practice of secret holds. The senate reformed the executive process where some were removed from the process entirely and others were given a new special expedited process. In exchange the minority was given a gentlemans agreement where if they refrained from filibuster the majority would allow them to offer amendments. That fell apart. Fast forward to october 2011. A precedent was created where nongrmaine ermaneamendments could be offered on a bill because they had been shut out during regular course of business. Majority leader reid didnt like that so he employed the Nuclear Option to get rid of that. Fast forward to january 2012 the president disregarded the constitution and made appointments even though they were in session. The Supreme Court has decided to take up that case. In january 2013 there was yet another bipartisan rules agreement designed to diffuse tension and to discourage the majority from going nuclear. But i would argue that none of these instances especially the negotiated compromises actually worked. They may have made the situation even worse. This is why we cant restrict what is happening next week if it does in fact happen to just executive nominees because the minority will be in a worse position despite having cooperated in these other instances in the past. Because the majority learns a lesson each time. The majority is rational and it says this works. If we threaten and bluster and beat our chest, the minority will give us what we want. Right now i think we are seeing that understanding unravel. But they can still take that lesson from this situation. And if they do, you could see this threat employed again on d. C. Circuit Court Nominees on a Supreme Court nominee. On controversial legislation. There is no rational reason why they would limit themselves to just executive nominees. And this brings me to my concluding point on why i dont believe the senate can become the house. This has to do with the priding recitingofficer. Despite the wishes of the current majority the senate cannot become a body like the house. This is critical because the Nuclear Option whereby they would effect that change is dependant upon a complacent presiding officer. Yet the constitution stipulates the president is our presiding officer. This is problematic because in a majoritarianrules based body like the house you have to have a strong officer, you have to have the speaker to enforce order. Throughout history all senators in all parties have been hesitant to enforce order. This is because the Vice President is not a member of the senate. He may not be a member of the same party as the majority party. And even if he is, its not clear hell have the same priorities as the majority party. So what does all this mean . If in fact the Nuclear Option is employed next week, it will they the comedy on the comedmity relational aspect of gnat Decision Making is based and it will shift toward this rules based model the house follows. However the stipulation that the Vice President is our presiding officer will prohibit us from getting all the way there. The result will be even more of a dysfunctional body and cant operate at all because we dont have a strong presiding officer like the speaker. Yet the comedy that bob referred the comity that bob referredto is gone. So were in this weird no mans land where its very difficult to do anything. That would be bad for the republic and terrible for the senate. We will be happy to answer questions. The only thing i ask you wait for the microphone so our viewers around the country can hear your question. If i would identify who you are when you ask the question. I would ask one thing and that is to ask a question please and not make a statement. I want to ask these guys what do you think is going to happen . I think bob would have a great perspective on what is actually going to happen on Tuesday Morning . How does this play out . This presumes that there is no gang that comes out of the monday night discussion. Unfortunately what i think is going to happen is that senator reid is going to play out this game. And the result i think will be disastrous. I agree. Any questions from the audience . The heritage foundation. This is primarily a question for james although the other two might want to comment on it too. You talked about the merits of the filibuster whether there is a option to employ the Nuclear Option. We know within the context of the senate rules today, there is a majority approach with regard to the budget. To what extent oh do you think that the legislative dysfunction is resulting from that particular element of senate rules as it applies to the budget and therefore to the broad array of legislation in terms of the relationship based Decision Making process that you eluded to. I think the budget is a great example of why rules arent a panacea. The budget is a majoritarian document in the senate. A majority can pass it. We didnt pass one for several years and finally passed one. We are far apart on agreement for a budget with the house. It goes to show you significant conflict can exist even in a majority body and dysfunction can still exist. Could i just chime in because i helped write the budget act. I was part of a group that senator byrd called in to his office to go through the budget act and make sure that it worked. My contribution was writing in to the budget act what was then the standard unanimous consent agreement providing that amendments had to be germane. That there was a limitation on time of amendments, providing that the motion to proceed would not be debatable. I will tell you that in the 1970s when that act was written, there were many attempts to overcome the idea of senate filibusters. And that was just one of them. The war powers act was another. The whole idea of the legislative veto was very popular in the 1970s. And many things were written into law that avoided a filibuster. This was seen as a way of getting around the problems of dealing with senate bills on the floor. Unfortunately, i can tell you that our intentions were good. But by creating something called the reconciliation bill, we created a monster. Again, a bill that can pass with only majority support and has been repeatedly used by various president s. The whole idea of the budget process was to cut the president out of the budget. But president s have learned they can use this budget process whether it was president Ronald Reagan who got through his Budget Program or president bill clinton who got through his Budget Program or president george w. Bush who got through his tax cuts. Bills that would never have passed had they been subject to a senate filibuster. And in that sense, there is blood on these hands because i helped create it. Sorry. That wasnt my intention. This question is for mr. Dubs. Its unclear to me there is anything that would limit the applicable ability of theprecedent were talking about to certain types of nominations on the executive calendar. Is that youre view . That is exactly my view. My reaction is you go down this road and you have turned the nate into a manualty majoritarianinstitution and you have made it much like the house of representatives. And my reaction is the senate was never intended to be like the house of representatives. What types of things would parliamentarians office consider . Unfortunately if you look at what the ability of the parliamentarians office to control what the chair has said, i came to the senate when the Vice President of the United States humphrey cared not a whip for th