The Joint Committee received testimony from a diverse array of witnesses on the issues of floor procedure, deliberation, and scheduling at May 18, 20, and 25 hearings as well as throughout its 5 months of testimony. Within the context of the ``efficiency'' of the Senate, witnesses focused on three specific issues: 1) the use of the filibuster and cloture, 2) the practice of placing holds on items on the calendars, and 3) reducing scheduling conflicts. Various reform suggestions were presented in all three areas. SUMMARY OF HEARINGS ON SENATE FLOOR PROCEDURES
The tension between the desire to maintain the Senate's tradition of unlimited debate and concerns for greater efficiency was prevalent throughout the hearings. Senate Parliamentarian Alan Frumin surmised that ``I don't think on the Senate side there is a consensus that what the body needs is greater efficiency. I think there would be quite a cry from the minority against measures whose stated objective was to increase the Senate's efficiency.''1
Several Senators noted the importance of the Senate's history of unlimited debate. Senator Richard Lugar of Indiana, a member of the Joint Committee, remarked that ``clearly the thing that distinguishes the Senate as a legislative body is unlimited debate . . . a traditional aspect that most Senators have felt very important for 200 years.''2 But others challenged the view that for reasons of design or tradition Senate debate should be unlimited. Steven Smith, professor at the University of Minnesota, testified that he ``would be dismayed, however, if the Joint Committee let go unchallenged some of the claims about the original design for the Senate. Let me emphasize, there is nothing in the Constitutional Convention, the Federalist Papers, or the Constitution itself that suggests that the Senate was expected to develop fundamentally different floor procedure than the House. It just [isn't] there.''3 Senator Harry Reid of Nevada, a member of the Joint Committee, concurred: ``most of the rhetoric about the Senate's tradition as a deliberative body is inflated . . . that in fact is a true statement.''4
Discussion centered on the use of the filibuster and whether changes to Senate Rule XXII on invoking cloture were necessary or desirable. Seeking to limit the opportunities to filibuster, some contended that in the past the filibuster was used sparingly only on major issues critical to Senators, while today it is used frequently and on issues ranging from critical to routine. Correspondingly, the number of cloture votes has increased dramatically. Senator Tom Harkin of Iowa testified that ``there comes a time when tradition has to meet the realities of the modern age. The minority's rights must be protected. The majority should not be able to run roughshod over them, but neither should a vexatious minority be able to thwart the will of the majority and not even permit legislation to come up for a meaningful vote.''5
By contrast, several Republicans supported the right to extended debate, noting that if Democrats were in the minority they would not seek to limit the use of the filibuster. Other reasons were offered by Senator Richard Lugar who asserted, ``It is a function of our Constitution that minorities are protected in many, many ways. Not to the point that they finally win if they cannot get a majority, but so a little time passes so, in fact, the public might be informed of what the issues are and may weigh in and people may change their minds. At least, that is a rationale for some of the more modern filibusters.''6
Many ideas for limiting debate were offered. There was significant agreement that the motion to proceed to a bill should not be debatable, or that debate on the motion should be limited to 2 hours. Under Majority Leader Mitchell's proposal on this subject, debate limits would not apply to motions to proceed to items involving a change in the Senate's Rules.
Senator Mitchell also proposed reducing the number of possible filibusters on a measure from six to two. Currently cloture could be required on the motion to proceed, on any committee substitute for the bill, on the bill itself, and on three motions to go to conference with the House. He testified that the current rules could involve a minimum of 24 legislative days on a single bill. Allowing two filibusters provides ``more than ample protection of the right of every Senator and of the Minority. It does not change the basic nature of the filibuster nor of the institution of the Senate itself, and it will significantly reduce delay and obstruction,''7 he stated. Relatedly, the Majority Leader testified that the Senate should require only one motion to proceed to conference, rather than the current three motions, which are all debatable.
Several of the Majority Leader's proposals pertained to expediting business after cloture had been invoked. These recommendations included: requiring a three-fifths vote (of all Senators) to overturn rulings of the Chair in a post-cloture situation; allowing committee-reported amendments to be considered germane post-cloture; and counting time consumed by quorum calls during cloture against the Senator who suggested the absence of a quorum.
Another recommendation involved lowering the number of votes needed to invoke cloture with each successive vote, so that eventually only 51 votes would be needed to cut off debate. Under Senator Tom Harkin's proposal, the number of votes needed would decline from 60 to 57, then 54, then a simple majority of 51. The Senator offered that his ``ratchet'' proposal ``would strike a fair, workable balance between prompt action and deliberation.''8 Professor Smith advised that the Senate create a ``straight track'' procedure for legislation, to limit debate as well as non-germane amendments for limited periods of time. The Senate would return to its regular procedures by a non-debatable motion subject to majority approval. Additionally, some suggested that what was needed was not a new rule, but self-restraint on the part of Senators to use the filibuster only for the most pressing national concerns.
The question of whether requiring 60 votes to invoke cloture was constitutional was debated extensively. Lloyd Cutler, former Counsel to President Carter, testified that the requirement for a supermajority is unconstitutional and that the Senate needs to correct this. ``I also submit that the Senate, which is in part a judicial body, has a judicial duty to consider and decide this question. And if a majority of the Senate were to agree that the supermajority requirements are unconstitutional, that same majority can, in my view, and should, amend the rule so that a majority vote would be sufficient to cut off debate.''9 Whether ``filibusters or the supermajority requirements of the rule are desirable or undesirable is beside the point,'' he continued.10
Mr. Cutler offered several arguments in support of his assertion, including the absence in the Constitution of ending debate among the cases where a supermajority is needed to take action. Also, he cited the quorum clause of the Constitution which states that a majority shall constitute a quorum to do business. ``For the Senate to adopt a rule, as it has, requiring the affirmative vote of 60 Senators to pass such a motion clearly violates the quorum clause of the Constitution...It means a supermajority of at least 61 Senators...must be present as the quorum to do the business of voting on the cloture motion and that 60 of them must be present to vote for cloture. That is a plain violation of the quorum provision of the Constitution itself.''11 Some Members countered that because the Constitution allows each House to determine the rules of its proceedings, the Senate may adopt a rule requiring a supermajority to invoke cloture.
Former Vice President Walter Mondale, the last witness to appear before the Joint Committee, spoke against major changes in the cloture rule but also warned that indiscriminate use of dilatory tactics might force changes in long-standing Senate traditions. ``I continue to support the current rules governing filibusters. I helped lead the fight to bring about the current 60-vote threshold. The reason I still stick with the need, though, is that I went through a time when I think American liberty was under threat. I went through a time here when wars were being started without the knowledge of the Senate. I went through a time here when money was being spent or impounded illegally . . . A lot of us found the ability to ventilate an issue, to get it out, to debate it, to stall everything, to be essential. There was no other place to go, really . . . No other institution in our system can perform this task. On the other hand, the increasing use of the filibuster on what appear to be normal, even routine, legislative issues may be weakening public support for this instrument...If Members continue to use the filibuster to fight over issues that are most appropriately resolved through simple majority vote, the body may soon find itself under pressure to get rid of this important protection, and I believe that would be a tragedy.''12
Another focus of attention pertained to the use of holds to delay or prevent items from being called up for consideration. In favor of limiting the use of holds, some argued that a historical Senate courtesy of temporary delay is being abused, with Senators using blanket holds for a number of bills, keeping holds on bills indefinitely, and using holds to retaliate against colleagues who have not supported their legislation. Sometimes staff put holds on bills and Senators do not know about it, some Senators asserted. On the problem of holds, Senator James Exon of Nebraska testified that ``the Senate time and time again has been tied into knots with the whole procedure [of holds], especially near the end of a session by the current ability of one Senator to stop a bill from proceeding by unanimous consent through the threat of an extended debate.''13
Several suggestions for limiting the use of holds were put forth. Senator Exon proposed requiring 16 Senators to place a hold on a bill, just as 16 Senators must sign a cloture petition before it can be filed, since a hold is a form of ``reverse cloture.'' Professor Smith stated that five objections, rather than one, should be required to object to a floor leader's request to call up a measure (as well as a request to limit debate or amendments.) Others said that the names of Senators placing holds should be made public, to enable Senators to work out their differences on relevant matters. Still others advocated imposing a time limit during which holds would be in effect. Rather than reform the hold itself, Senator Pete Domenici of New Mexico, Joint Committee Co-Vice-Chairman, noted that the Senate will go a long way towards eliminating holds by eliminating or reducing debate on the motion to proceed. Finally, some asserted that no change to the rules is needed; rather, what is necessary is the determination to proceed, and the Majority Leader should proceed with calling up items for consideration.
Witnesses and Joint Committee members alike often remarked that scheduling conflicts were the Senate's biggest problem. Senator David Boren, Co-Chairman of the Joint Committee, observed that ``several Senators have left the Senate frustrated because of the way we schedule our business on the floor. It is very difficult for them to balance committee business with floor activity, because often we do allow committees to continue to meet, very often, while the Senate is in session....We never know exactly what time of day we will start or what time of day we will finish....So there is no regularity of hours or predictability.''14 Senator Robert C. Byrd of West Virginia, the President Pro Tempore, summed up the issue saying, ``I believe that the primary problem is a root problem plaguing the Senate today, what I would term the `fractured attention' of Senators.''15
Suggestions for improving the scheduling of Senate business were offered. One idea related to ending the considering of commemorative legislation, which was viewed as taking up too much floor time. Also, many stated that the schedule of 3 weeks in Washington and 1 week in the state works well, but that the Majority Leader should schedule floor votes on all 5 days to increase attendance on Mondays and Fridays and to expedite legislation.
Senator Bob Dole, the Minority Leader, proposed that the Majority Leader set an agenda for Senate floor action every 30 days. He also testified that Senators could spend 6 months in Washington and 6 months in the States, allowing a return to the concept of the citizen legislator. Under this arrangement, Senators might get their work done more efficiently, and then have concentrated time to meet with the American people. Others suggested a 2-year cycle to deal with budgetary issues, with the off-year focused on other legislative matters or on oversight.
Reducing Senators' committee assignments could bring about faster consideration of legislation because more Members would be able to attend to their committee duties, it was argued. Other Members proposed establishing separate times for floor debate and committee sessions, and creating a master schedule of all meetings.
Other proposed changes pertained to various aspects of Senate Rules and practices. Majority Leader Mitchell advocated eliminating the rule permitting any Senator to demand that a conference report be read. Under another of his proposals, after a bill had been under consideration for 2 days, a motion requiring amendments to be relevant would be in order. Approval of the motion would require a supermajority of three-fifths of the voting Senators.
Other procedural issues were touched on by Senate Parliamentarian Alan Frumin in response to questions from Joint Committee members. When asked by Senator Harry Reid what ``is the biggest waste of time'' in the Senate, the Parliamentarian responded that ``it is safe to say that very few of us enjoy hearing two bells and seeing two lights indicating that a quorum call is in progress.''16 He differentiated between quorum calls for the convenience of the body (constructive delay), and calls to delay or prevent the consideration or adoption of a particular amendment. He remarked that if in the former case there is consensus for a quorum call, there might also be consensus for discrete recess periods.
Senator Reid questioned the Senate's practice of allowing bills to be open for amendment at any point. He stated that ``In the Senate we go wherever we want to go. And it is really, I think, frustrating to have a bill up, have no one there, and you just wait around, and then 3 days later you go back to section one of the bill.''17 In response to his question as to the feasibility of a rule requiring measures to be read section by section, the Parliamentarian stated that it would be very difficult to impose order on the consideration of amendments in the absence of a germaneness requirement.
Co-Chairman Boren sought suggestions for preventing the Senate from considering the same issue over and over again. He recalled a rule from the Oklahoma state legislature that prevented a matter that had been considered from being brought up again during a particular session, except by a supermajority. The Parliamentarian responded that ``I am skeptical as to whether any rules change would really accomplish this, because it becomes very difficult to determine that an issue is in fact the identical issue or substantially the same issue as one that has been disposed of before.''
FOOTNOTES1 Joint Committee on the Organization of Congress, Floor Deliberations and Scheduling Hearing, May 18, 1993. p. 8.
2 Ibid, May 18, 1993. p. 26.
3 Ibid., May 20, 1993. p. 98.
4 Ibid., May 20, 1993. p. 102.
5 Ibid., May 25, 1993. p. 146.
6 Ibid., May 18, 1993. p. 28.
7 Joint Committee, Operations of the Congress, Hearing, Jan. 26, 1993. p. 51.
8 Joint Committee, Floor Deliberations and Scheduling, Hearing, May 25, 1993. p. 146.
9 Ibid., May 18, 1993. p. 21.
10 Ibid., May 18, 1993. p. 24.
11 Ibid., May 18, 1993. p. 21.
12 Joint Committee, Testimony of Hon. Walter F. Mondale, Hearing, July 1, 1993. pp. 9, 20.
13 Joint Committee, Floor Deliberations and Scheduling, Hearing, May 25, 1993. p. 121.
14 Ibid., May 18, 1993. p. 7.
15 Joint Committee, Operations of the Congress, February 2, 1993. p. 4.
16 Joint Committee, Floor Deliberations and Scheduling, May 18, 1993. p. 11.
17 Ibid., May 18, 1993. p. 12.
18 Ibid., May 18, 1993. p. 16-17.