Done in nine days, and i was assured they can do the same this time. It doesnt look to be contentious. Both committees, house and senate, trying to keep it as a noncontroversial thing, coming to the end of the session here, so they need to move quickly. Will they will able to do it before the end of the year . Absolutely. We thank you for your time. My pleasure. Panelists supported the use of tbil buster stating its a powerful tool frequently use the by both parties to block or delay . As action on a bill. This is about an hour and 15 minutes. We, of course, welcome on each occasion those who join us on the heritage. Org website, and we ask everyone in house to check cell phones are off as a curtesy to the speakers, and we will, of course, post the Program Within 24 hours on the heritage home page. Those listening online are welcome at any time to send comments or questioning us, email us, and hosting the discussion this afternoon is mike frank, the Vice President for government studies. In this capacity, he oversees our work to help members of congress and the executive branch understand and defend conservative principles and exercise their constitutional powers. He previously servedded as director of communications for the House Majority leader dick army of texas, and prior to that, he was heritages director of congressional relations, and hes additionally served in the office of National Drug control policy and council for former representative of california. Please join me in welcoming my colleague mike frank. Mike . [applause] hello to everybody at heritage, good afternoon, and there are two types of people in washington. Those who really enjoy detailed discussion about Senate Procedure, and those who dont. Welcome. I can see which category you fit into. We have a great panel today to discuss something thats become more and more important moving forward, especially in the current nature of congress where the lines seem to be more and more stark and obvious than as any time as ive been in washington. We have four experts discussing the developments in cepsbly the filibuster, but the discussion will touch on other areas of Senate Procedure and precedent, and youll see a distinction between the two, senate rules and senate precedence on the other. Youll hear from four individuals who have a depth of experience in these matters that, i think, is unrivaled in the city. Ill introduce them briefly so they can turn it over to the discussion. Ill lead off with no particular order, james walden speaking first, working in the house of representatives and the senate, serving as the Senate Hearing committee. Hes an adjunct professor in the department of politics in the congressional and president ial studies program at catholic university. Hes gotmuy a degree with the university of scot lat, and a ph. D. , and authored numerous publications. Second speaker is norm, really doesnt need and introduction, writes for with the roll call, and hes an analyst at cbs news, author of several books which they may have read, the broken branch how the congress is failing america, its worse than it looks how the american constitutional system collided with the new politics of extremism. Hes been quotedded probably too many times for any data base to collect in one place. In the 1990s, there was an article i was in somewhere quoted, and you were quoted, and your quote was i have no idea. I thought to myself, you can get quoted for saying that, you achieved a unique status in washington, d. C. I congratulate you on that. [laughter] the third speaker will be bill who is currently in the policy public practice, serving assistant to george w. Bush in the white house, a policy adviser to bill frist, and chief of staff to joe pitts of pennsylvania. He has a very, very deep experience both in the house and senate, making him unique. Hes made of top of the pyramid in both chambers, and he was particularly active at the time on the issues concerning senate rules and precedent. Hes working on the sontorum campaign, culture upstream from politics, and other series. The fourth and final speaker is Brian Darling who is here at heritage for the time being before going to the senate to serve coup sill to senator rand paul. For now, heres here at heritage, monitors political events in the senate, the house, and the white house, and assesses their impact of the various policy decisions on things in general. Hes a very prolific media presence, and talk radio, cable tv, and hes had columns and events in other publications. Hes one of the most widely quoted analyst experts here at heritage. He graduated from boston, and he served previously in the senate for senators martinez, smith, and two other senators. He has a deep, extensive [background in the senate. Starting with james and moving on down. Thank you. Good afternoon. Please, bear with me, im slowly, but surely, getting my voice back. Seems like you are on the front end of losing your voice or back end of gaining it back. I thought what i would do this morning a start off with two quotes, which i think, help us frame the discussion that i think well have, and at least my comments, and ill briefly lay out a way to view this issue discussed today, a question of obstruction in the senate. The first quote is from a guy namedded william who wrote a book called the art of political manipulation, a professor of politics i believe, and in the book, he said it is true people win politically because they induced other people to join them; right . Thats how we think about politics. You convince and persuade other people to join you, you have a vote, and you win. He says winners reduced by more than attraction and persuasion, but win because they set up the situation in such a way that other people will want to join them or will feel forced by circumstances to join them even without any persuasion at all. This is what political strategy is about. It is about structuring the world so you can win. Thats the first, the second is from harry reid, and he said in december of 2010 that they, being the republicans, have had a lot of opportunities to offer amendments. The problem is not the offering of amendments, but well allow them to offer amendments, but they are not satisfied with that. They want the results. They are not willing to offer an amendment they may lose. They are only willing to offer amendments they will win. I think this is a good way to start the discussion of obstruction in the senate today, and the conventional view many of you are aware of. I think norm will do the conventional view justice here, and its the way people in ac academia and capital hill think about obstruction which is that the Minority Party in the senate and individual members have a lot of prerogatives under their voice with which to advance their own goals and obstruct the agenda of Senate Majority. The conventional view says that parties today have become increasingly polarized and partisanship at an alltime high. That reduces in the senate, the mar joyty, to use prerogatives to obstruct Senate Majorities because doing so brings electoral gain. Lastly, this results in gridlock; right . This scene seems like how people talk about ob instruction today, the conventional view. With that in mind, i want to go back to the second quote. When this was on the floor, it was two years ago, and in many respects, it was a situation like today. It wast the prefiscal cliff or fiscal cliff 1. 0. The 2001 tax cuts about to expire. Senator reid on the floor, the democrats did not want to extend all tax cuts, just some of the tax cuts, and he was trying to create an impression that, at the time, that republicans were obstructing the process and what the democrats wanted to do, but in reallots what reid was trying to do, i believe, was set the agenda and create an environment so that he could win politically and set up after the quote, a rare weekend session in the senate where he had two votes, no republican amendments allowed, and he set this up to show that republicans were obstructionists, and that they would not go along with what he said was good for the country, and this was a Public Relations ploy designed to shift attention from the democrats inability to come along with what republicans wanted to do, which is fine, their prerogative k to republicans saying we dont want to go along with what the democratsment to do. In short, he was seeking to control the agenda, and i think thats the real issue here. Certainly, there are times when minorities of both parties obstruct the majority because they need to or want to, but the real issue is one of agenda control. If you we actually have a way to think about this, you know, in political science, and, you know, norm knows more than i do, but look at House Majority parties, hey, that tells us a lot how they behave today. They try to structure the environment in a way to win, and they do so by controlling the agenda and preventing minorities to participate in the legislative process. Thats not a surprise to anyone. Thats whats done in the senate today and thats not the way the senate has been run. Theres a number of tools that they have at their di poe sure to do that. Third is filing cloture. Were familiar with that. Filing cloture is something done out of weakness by the party, but its actually a tool for the majority, a weak tool, but it is a tool to provide certainty, limit on amendments under circumstances, and allows the symbolic gesture on their part to create a line, a demarcation, clear for people who are for and against something. In the house, you do that with a closed roll, whatever you want. I think more egregiously, we have the same day closure. Typically, you file cloture, the idea is the bills on thennr fl, filibuster it, and the majority leader comes down, frustrated, and says we cant get it done. Its going on for too long, nont obstruction. Well, same day cloture is filing on a bill, not a motion to proceed, on a bill, the same day brought to the floor, the same day itsn r proceeded to. In the 110th, 111th, and 112th congresses, thus far at least, sameday cloture exceeded all other cloture motions. Then r third, fourth, fifth, ec, you get the idea. I find it hard to believe you can say in every circumstance that the Minority Party filibusters a bill because of cloture compiles. That is what the majority leader leads us to believe on the floor saying hes dealt with more cloture motions than any other leader in history, and those are all indicative of the moving on, though, he also fills the tree. This is a very important thing. You heard this many times. This strikes, i think, to the core of the minorities current criticism with the way the majority runs the senate. Those of you who dont spend time reading the precedents or follow the debates around here about the procedure, filling the tree essentially is the majority leader using his only formal tool which is the right of recognition to offer amendments to the legislation to exclude all other amendmentings. Once hes offered all amendments required or allowed under the rules, no other member can offer amendments until those are taking down. He doesnt take them down until he filed cloture, tip think on typically on the same day, shuts out all other amendments, and lets the clock run out. Reids done this more than anyone else, and weve all read the information on that. I find it incredibly persuasive used in tandem with the cloture vote. Reid says i fill the tree because i want to block that amendment because these amendments are just partisan employees, merely symbolic, scoring points, and this is not real deliberation. Thats what he says about filibusters and closure motions. When you take sameday cloture motions, and combine them with filling the free tree, theres two things, you excluded the process, and in the 110th congress, 56 of the all of the bills that had a same day cloture motion, the tree was filled. In the 111th, 98 of all of the bills, the tree was filled. 98 . In the 112th, i mean, we are not done, still going, but its likely to exceed that. Lastly, i think id like to say theres new developments in agenda control that the senate ma majority leader is now using in addition to sameday cloture in killing the tree. One is picking minority amendments that they filed to the exclusion of other minority amendments, and the making of public argument that minorities had a chance to offer amendments, not just the once wanted they offer, but ones they just filed anyway, and so, you know, they are complaining about voting against cloture because they doarnt get amendments is not legitimate. Its an important development. Lastly, a blocker motion to proceed. In the senate, the only power the majority leader has is priority of recognition, recognized before anyone else, allowing him to offer amendments. He also makes motion to proceeds to things, motions to proceed, those things because the senators have a vested interest in ensuring the schedule is orderly. Well, as hes truncated the ability by any member, not just the Minority Party, but the own members, what happens is more and more senators are not deferring to you anymore to move to proceed bills you want to because we are so frustrated with whats happening that we may also want to move to proceed to our own bills. What happens now is that the majority leader uses all of the tools together where he will file cloture on a bill, the same day its brought to the floor, fills the amendment tree to block out the amendments, and he does a blocker motion to proceed. He will move to proceed to another bill while the clock runs on that motion to prevent any other member to move to to proceed to a bill that he doesnt agree with. After two days, he has no intention of getting on that bill, after two days, the vote on the original bill comes up, invokes cloture or not, and then we go on about the business. East done everything he can to control the agenda in the senate in much the same way majority parties seek to control the party in the house. This is a very significant development, and i think it helps us when we have this conversation, i think its important to keep this in mind because its not necessarily a given that cloture motions are the same. Thank you. [applause] thanks, thank you, mike, delighted to be here. I promise not to speak for more than six or six and a half hours. [laughter] let me start with clearing out the underbrush that i think a lot of people hold about filibusters. First is filibusters unlimited debate, supermajorities to end debates are not in the constitution, enjigsed by the framers. The initial senates actually had something that the house has which is critical ton r moving o action which is a motion on the previous question, a way in which you have the simple majority to stop debate and move to a vote. In 1805, the president of the senate, Vice President , went for his farewell to the senate saying, you know, you have a rule book encrusted with a bunch of things, implicative, and many of them you dont even use, and why dont you just clean up the rule book, and heres some ideas. They said, okay, and adopted a set of rules that took out the motion on the previous question. It was not clear in the senate for awhile what that meant, that it basically meant that if one senator took the floor and kept talking or a group of senators did that that you could block action and block it indefinitely. There was no way to stop it until 1917 when we had crisis, really, over rearming prior to entry into the first world war, a ruling that created a process where you could, in that debate. Its been amended a number of times since then, but a lot of people think this is enshrine in the constitution, and its not, nor was the supermajority so that out of the way, let me just add a couple other observations. The rules been changedded a number of times, most significantly the last time was in 1975. In 1975 when it was changed, there was a shock wave in the political arena because the Vice President nelson rockefeller, no one else realizing he was about to do this, at the beginning of the new congress announced it was not a continuing body, and the senate basically said, woah, timeout, went back, con tim contemplated what would happen if the rockefeller ruling stood, and it would change the senate, and decided with robert byrd leading the way, to come up with a bipartisan agreement that would not allow that to happen. That changed the filibuster, and the fundmental change was moving from a requirement to end debate to invoke cloture of present voting down to three fifths of the senate. I would argue, and will in a minute, that that changed which seemed to lower the threshold actually altered the senate in the fundmental way meaning that the whole idea that its an issue of significance where the majority leader decides to bring to the hold to a halt went away. There was no need to take to the floor and dramatize an issue, come to the floor, now the burden on the majority to provide 60 votes. The rule has been in place since 1975 leading us to another conclusion which is if there are problems with the filibuster and issues now, which, obviously, there are, its not because of the rule. The fact is that from 1975, really, until 2007, while there were brief periods of problems, flair ups, frustration, every majority felt the frustration of a minority using the tool, and the majority, by the way, has not always, in fact, rarely has been simply a party acting together. Sometimes its been an individual rogue member of your own party. Democrats had that frustration with jim of south dakota, with howard of ohio, democrats and republicans had it with james allen of alabama, with jessi helms, and theres been a number of others. Sometimes its been factional, but it has not been a party based process. There was periods when there was great frustration, but, mostly, the senate went along and worked because its a body of individuals and a body where the Party Leaders tended to try to work things out, sometimes to isolate those individuals because the senates also a place which basically operates and has to under broader set of rules than the filibuster by consensus because everything requires unanimous con cement. Things changed. It was a cultural change, really. Its a cultural change building before that period of time. It was a cultural change that, as no doubt well hear, frustrated the hell out of bill friers as majority leader, and its one thats affected every majority leader before and sense, but its changed rather dramatically since, and the change is really of two parts. The first is that for the first time, really that i can see ever, you have a party acting in unison using the filibuster on a regular basis as a tool. Now, if you look at prominent examples of the use of the filibuster in the past