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Diplomacy in Action

Understanding Health Care: An Overview of Senate Rules and History

FPC Briefing
Donald Ritchie
Chief Historian of the Senate Historical Office
Foreign Press Center
Washington, DC
March 17, 2010

Date: 03/17/2010 Location: Washington, DC. Description: Donald Ritchie, Chief Historian of the Senate Historical Office, Briefing at the Washington Foreign Press Center on "Understanding Health Care: An Overview of Senate Rules and History." - State Dept Image


10:00 A.M. EDT

MODERATOR: Okay. Thank you everyone, and welcome to the Foreign Press Center. Today, we have with us Donald Ritchie, the Historian of the U.S. Senate. Mr. Ritchie has been with the Senate Historical Office since 1976 and he’s here today to discuss a little bit of the history and the parliamentary procedure that’s applicable in the healthcare debate.

So with that, I’ll turn it over to Mr. Ritchie.

MR. RITCHIE: Well, I’m happy to be here, and my office is very happy to be of assistance at any time. We deal with journalists practically every day, both in person and through our website. If you haven’t been to the website, it’s, g-o-v. And if you go to that section, it’s the Senate website, you can then go to the History section.

We have thousands of pages of information about the history of the Senate online, and up in the upper right-hand box is a little box called “In The News.” And in the morning when I get in, if I’ve seen something that’s sort of breaking, I heard something on NPR or whatever, I immediately talk to our web person and we post whatever statistics we have about that particular circumstance on – in that box. And actually, it’s reduced the telephone traffic in the office considerably. People now only call us when they can’t find it there or if they’re looking for something a little bit more.

But if you’re, for instance, interested in filibusters, there’s a lot of various materials, including whole oral history transcripts, interviews with people who over the years were involved in similar situations. So I’ve interviewed former parliamentarians, for instance, of the United States Senate. And so we’ve tried to put up much of that information.

Well, I suspect that you have heard that the United States Senate is cumbersome and slow and frustrating. And my mission here this morning is to assure you that that is absolutely correct and that, in fact, it was designed to be cumbersome and slow and frustrating. And in being cumbersome and slow and frustrating, it’s doing what the authors of the Constitution had in mind. The system was not designed to be efficient. It was not designed to be speedy. It was just the opposite, actually – that after we had fought a revolution, we created a very weak central government under the Articles of Confederation, and it didn’t work after 10 years.

And our – then the authors of the Constitution got together to figure out how to create a stronger government, but not too strong a government. And they were caught in this quandary of how do we make more of a central government but protect ourselves from the central government? And so the genius of the American Constitution was that it divided up the power so that no one branch had a majority of it. And even within the Legislative Branch, which was designed to be the major part of the federal government – the longest part of our Constitution deals with Congress, not the President or the Supreme Court – they divided up power between the two houses.

And if you had wanted an efficient government, they would never have created the United States Senate in the first place. We would have just had a House of Representatives. Or we’d have what many parliamentary systems have, which is a very powerful House of Commons, where the prime minister serves, and a very ceremonial but not so powerful Upper House where the former prime minister goes to read the newspaper. In a lot of parliamentary governments, there is not an equal balance between the two houses of the legislature.

But the American Congress is – not only is the United States Senate equal in every respect to the House of Representatives, but actually has more power than the House, because only the Senate deals with treaties, nominations, all the advise-and-consent issues. The only singular advantage that the House has over the Senate is that the House begins all revenue bills, but the Senate can amend all revenue and appropriations bills.

So we have this unusual circumstance where power is shared not only between three branches of government, but between the two houses of Congress. And I’ve worked for Congress now, for the Senate, since 1976, and I get lost when I go over to the House of Representatives. Honestly, I got lost just recently going to a meeting, because I have so few occasions to cross the line. And I’m common to the institution. Long-time staff and long-time members are familiar with one side or the other. Of course, about half of the United States Senate has previously served in the House, so they’ve brought a lot of legislative culture with them into the Senate. There are no members of the House who have previously served in the Senate right now, so it doesn’t – it’s not a two-way street.

And I compare the two bodies to a university where there’s a liberal arts school and an engineering school. They occupy buildings right next to each other and they have nothing to do with each other. And in fact, there is very little in common. The critical element in our U.S. Constitution about this is a line that says each house of Congress can write its own rules. And that is the deciding difference. The House and the Senate, for the last 200 years, have written rules that are very different. The House is a large body. Its written rules to allow the majority to get its way. The majority doesn’t even have to talk to the minority in the House. Regardless of which party is in the majority and the minority, majority parties can operate on their own. As long as they’ve got the votes, they can do it, and they have a very powerful Rules Committee in the House, and it determines how every piece of legislation is going to be dealt with.

The United States Senate is just the opposite. Whereas the House has created a “majority rules” operations, the Senate has always given more clout to the minority. And don’t confuse this with the minority party. In fact, throughout most of our history, the minority was the minority faction within the majority party, not one party versus the other. It’s only very recently that our parties have become so polarized. Sometimes it’s just a minority of one. We had, as you remember just a week or so ago, one senator who objected repeatedly to the unanimous consent agreement. And so by just – by objecting, he could stop the machinery of the institution.

Every U.S. senator is a powerful individual, and they’re powerful from the moment they take their oath of office because the Senate does the bulk of its work by unanimous consent. And that means any single senator, majority or minority party, been there for 30 years or just got there 10 minutes ago, they can say “I object,” and that stops the process. It takes decades to get that kind of individual power in the House of Representatives. Only the speaker and a couple of committee chairmen have the power that every single U.S. senator has, which is one reason why senators are very reluctant to change the system, because while it’s frustrating for them, it works for them as well.

And so I just thought what I’d do in the beginning is explain a little bit about this and then throw this open to questions. I recently was talking with the former parliamentarian of the Senate, Bob Dove, who is – we talk a lot about parliamentarians these days. The parliamentarian is the staff person of the Senate who advises the presiding officer on how to rule. The parliamentarian does not rule himself; he can’t make a rule. He advises the chair. The chair usually, 99.9 percent of the time, repeats back exactly what the parliamentarian told him, because the chair, whoever is presiding, is desperate for that kind of information. And if the chair ignores what the parliamentarian says, it takes just a simple majority of the Senate to overturn the ruling of the chair.

So it’s a somewhat precarious position. And the parliamentarian’s advice usually stands because the parliamentarian is an absolutely neutral figure. And I compare it to a baseball game where everybody in the stadium – all of the fans, all of the players and the coaches, even the sportswriters, are usually rooting for one team or the other. The only person in the stadium who doesn’t have a stake in which team wins is the umpire. And that’s the parliamentarian in the United States Senate.

The former parliamentarian, who is so neutral that he was at different times fired by the Democrats and by the Republicans, commented recently that whenever he would deal with the House of Representatives, they would sneer that the Senate had only two rules – unanimous consent and exhaustion. And he would respond back that the House has no rules; it just has a Rules Committee that makes things up as it goes along.

And actually, there is a fair amount of truth in those statements. The Senate Rules Committee is not anything like the House Rules Committee. The House Rules Committee on every single controversial issue – just like healthcare right now – sets the tone – sets the – defines the debate – defines how many amendments, if they’re going to be open or closed amendments. It defines how long they’ll debate. And as we have seen today, it can even divine whether they’ll vote at all on this issue. They just substitute everything and throw this together. These are – they’re arbitrary decisions, but they have the power of the Rules Committee.

On the Senate side, we have a Rules Committee, and it chooses parking space and office space, which are, as you all know, very powerful commodities, but has nothing to do with what goes on on the floor of the Senate. And so unlike the – in the House, where when the majority leader actually takes a bill off the calendar, he knows when they’re going to vote on this, and he’s probably counted heads and pretty well knows what the vote is going to be. When the Senate majority leader takes the same bill off the calendar, he has no way to predict when they’re going to be able to vote on this – today, tomorrow, next week, next month, or ever. He has no way to predict how many amendments they’re going to be or the nature of those amendments.

Now, he has some tactics to try to limit how long it’s going to take and how many amendments there are going to be. But they’re tactics. One of them, as you all know, these days is cloture. That’s something that was established in the Senate in 1917. We never had a cloture rule, meaning a way to cut off debate, until 1917. The only reason we got it in 1917 is we were about to go into the First World War and isolationists were filibustering against legislation that the President felt was essential. And there was a war fear – feeling in the country and that swept the Senate into establishing a cloture rule. And that was two-thirds. And two-thirds of the Senate is almost impossible to get. So we went for decades with very few cloture motions and almost none of them passing.

In 1964, we had 57 days of debate in the Senate, the longest filibuster in the history of the Senate. They finally got the two-thirds vote, they got the cloture, they passed the bill, and that had an impact on filibusters because it took civil rights off the table. That was the main reason why people had been filibustering for decades, to prevent civil rights legislation from being passed. So it sort of took the steam out of a group of southern senators who had been filibustering, but it also suggested to all the rest of the Senate, so, well, now we can filibuster on any issue that we think is important. And pretty soon, you’d see Northern liberal senators who were involved in filibustering after that.

1974, there is a huge reaction to the Watergate scandal, to the sense that the government is corrupt. The President has resigned and a lot of reformers are elected and they promise to change the way things are done. And one of the first things they do in the Senate is to try to abolish filibusters altogether, to turn Senate votes into simple majority votes. Those are the junior Senators. The senior Senators say, “Wait, wait, wait. We don’t want the U.S. Senate to be just a small version of the House of Representatives. There’s a reason for taking our time and deliberating in the Senate and we don’t want to give that up. So we’ll split the difference.” And they changed the requirements of the cloture from two-thirds to three-fifths. And that – those are essentially the only two major reforms. There have been some other tweaking of the process since then, but those are the two major reforms. And they were both instigated by outside pressures, really, on the institution.

So we now have a requirement of 60 votes. Well, in 1975 when that went into effect, the Democrats were in the majority and they had more than 60 senators. But nobody ever expected, in 1975, those 60 senators would ever vote together on any single issue. In fact, if all of the Democratic senators had all voted the same way on any issue, it would have made the front page of the newspapers because the Democratic Party was so split between its liberal and conservative wings that they just didn’t vote together. And so was the Republican Party. The Republican Party had as many liberal, moderate senators as they had conservative senators. And when we say we had bipartisan votes in those days, it was the conservatives in the two parties voting against the liberals in the two parties. And there was a lot of negotiation to get 60 people on board.

In the later 1980s, majority leaders of the Senate began to file cloture at the beginning of any debate that was going to be in any way divisive as a way of seeing how close they were to 60. And if you were close enough, if you were, say, at 57 or 58, you could single out who you could pull over to your side and then do a little more negotiating and then file cloture again until you get to the 60 and then you could proceed. Otherwise, why bother bringing it up, because you may never get to that vote and you have other things you need to do.

What we have seen, since the late ‘60s – the late 80s, about in 1987 on, is a steady progression of cloture votes, just a shoot straight up. And it’s Democrats and Republicans and Democrats and Republicans, if they’re in the majority, they all adopt the same tactic and they actually do it more than their predecessors did. At the same time we also see, going way up, failed cloture motions. And that’s because the minority leader has figured out that what the minority needs is 41 votes to stop something, and to – not necessarily to kill the bill, maybe to force the majority to amend the bill to satisfy them. But their strength is in that 41. And so the two parties, when they are in the majority or the minority, have adopted that tactic.

And we can’t quantify how many filibusters there have been because no one stands up and says, “Today, I’m going to filibuster.” It’s actually a pejorative term that’s brought up against them. And people stand up to speak and they say, “Well, you’re filibustering.” And you say, “Oh, no, I’m not filibustering. I’m having an extended discussion of a serious matter that the people need to know about.” So filibuster is really a form of – it’s in the eye of the beholder and it’s a matter of definition.

My definition of a filibuster is any tactic that prevents the majority from coming to a vote, on the assumption that the majority actually has a majority of the votes and it could prevail. But you just want to make sure that they can’t vote on that issue. And you can use the tactic of speaking for a very long time, which is what people think a filibuster is because they’ve seen “Mr. Smith Goes to Washington.” And we have had filibusters where people stand up and talk for hours and all the rest of it. But filibustering is also objecting to unanimous consent agreements, or even just little housekeeping things.

For instance, our rules require that the bill be read in full before you vote on it. But most of the time, we ask unanimous consent to suspend that and most of the time no one objects. But if someone doesn’t want the bill to proceed, they ask for the reading of the full bill. And you remember in December, we had a couple of instances where the clerks had to stand up for eight or 10 hours to read an enormously long bill. That was designed to slow down the process. And filibusters can also take place simply by voting against the unanimous – against the cloture motion. And there, in that case, there has not been any debate on the issue at all. Just a failed cloture motion is defined as a filibuster these days.

So the minority party actually has in its power an enormous number of tools, but it can also be a minority faction within one or the other party, and it can also be a single Senator. I call it minority muscle in the Senate. And as a result, the majority can’t usually prevail on its own in the Senate. Almost everything that happens in the Senate has some bipartisan support. Maybe not a lot, but enough and enough to get – meet those hurdles in the long run. And actually, if you look at it, the majority of legislation that the Senate passes, we pass by unanimous consent. And that means everybody’s on board. The compromises have been worked out in the committee. The only senators who are really concerned about that issue are on that committee. If their objections have been met, then there’s no reason to even debate the bill on the floor, which – we can just pass the whole thing, or maybe pass three-quarters of it in the Senate by unanimous consent and then just debate the portions that we disagree on.

So it’s not like the Senators are absolutely at a deadlock and they can’t do anything, even though they’ve been struggling over healthcare. They’ve actually been passing a lot of other legislation. They’ve passed – in an average Congress, they pass between four and five hundred pieces of legislation, for instance. So – some of that’s not so consequential, but some of it’s significantly consequential. But it’s – the process has worked in that sense.

There is a feeling that the way the system has been divided up, the House of Representatives, where every single member is going to run for reelection this year, needs to be close to the public opinion. But the authors of the Constitution were nervous about a pure democracy that would switch back and forth according to the shifts in public opinion. And they talked about the frenzy of public opinion.

I just recently this weekend saw “Henry VI, Part Two,” and there’s a mob scene in which the mob runs – literally runs back and forth across the stage changing sides with the demagogue. And one of the characters says the public opinion moves like a feather back and forth across. And that was the way, I think, that a lot of the authors of the Constitution – who for the most part were wealthy individual individuals, landowners – worried a lot about how the population would react, and they worried about a system that would be strictly majority rule and strictly driven by public opinion. So they created a system that, as James Madison, the principal author of our Constitution, said, “The Senate would be the necessary fence.” And the Senate is serving as a fence, essentially, to stop the sudden shift in public opinion.

Only one-third of the Senators are going to run in this election. And initially, of course, they were elected by state legislatures, not even popularly elected. But the idea was the Senate would insulated from sudden shifts. Of course, because the other third – next third will run in two years from now. And if that’s the way public opinion is moving, they’re all checking the prevailing winds. And all of them are concerned about reelection and they will respond to public opinion, but they won’t respond as quickly as the House of Representatives does.

And that is, frankly, the way the system has worked since 1789. The U.S. Congress has all of the powers that were given to us in the Constitution and has never lost the power. The senators never lost any power from the – it’s – we’ve changed the way in which senators are elected, but we’ve not tinkered with the basic powers of that institution.

I do an oral history program with longtime staff members and occasionally with senators as well. And I always ask them, how has the institution changed? And the interesting thing is the U.S. Senate has changed less because of internal reforms than it has because of external circumstances. What changed the U.S. Senate was jet planes that enabled members from California to go home on the weekends and changed the calendar in which they were only here a couple days a week instead of being here for months at a time. The women’s movement changed the Senate. When I came to the Senate in 1976, there was no women Senators. There are 17 today. They have a big clout. Some of them are chairmen of committees right now. Of course, the Speaker of the House is a woman. The civil rights movement had a big impact on the United States Senate.

And right now, the biggest change, I think, that’s taken place in the years since I’ve been there is that political parties today are different. They are – today, both parties are internally cohesive. There is far less ideological gap from the left to right wings within each party. They tend to think alike. They tend to vote alike. Their strategy is to stick together, to hang tough. And that has created problems for the majority leader, in particular, to try to create the kind of coalition that’s necessary, with kind of bipartisanship that the rules of the Senate have always called on. There are fewer people in the middle right now of either party, and therefore, party line votes, which were – didn’t exist in the 1970s, happen every day, practically, in the Senate now.

And so when I see a vote and I notice that it was 61 to 40-something, I look to see, well, who was the one Republican who joined with the Democrats on this particular vote in this case, or two Republicans. And in a lot of cases, it’s – and sometimes a couple of Democrats are voting with the Republicans and a couple of Republicans are voting with the Democrats, but quite often it’s the party – one party versus the other. And this is really unique to the American political system. You may have discerned, we are not a parliament. We are not – we don’t operate like a parliament. We don’t have the same ethos in the chamber. They don’t sit facing each other, they don’t heckle each other. The House just censured a member for saying to the President, “You lie,” at one of his meetings. British prime ministers have been told a lot worse in question time along the way. But that’s just – that’s not the ethos that the Congress has operated on for all these years. And its trying to figure out how to operate now at a period in which the two parties were so unwilling to bend to each other in a system that requires some kind of interparty cooperation.

So my thesis on this is people say the Congress is broken, and my question is, well then why has it worked for so long? Well, it’s worked because it serves the purposes of the institution. And I’ll close with a – and then open it up for questions. But I’ll close with a quote from the former parliamentarian of the Senate, Floyd Riddick, who – when I was green person on Capitol Hill and trying to learn my way around, I did an oral history with Floyd Riddick, who had been a parliamentarian for decades. And he tried to explain to me all of what I’ve just been saying. And he said at one point, “The rules of the Senate are perfect. And if they change every one of them, the rules of the Senate will be perfect.” And what he meant was the Constitution lets the Senate write its own rules. There’s a reason why they have the rules they have today. Essentially, the rules today are the same as they’ve been since the 1880s. And if they don’t work, the Senate has complete Constitutional power to rewrite them all. And any time you hear a law professor – law professors are the absolute worst sources of information about this – any time you hear a law professor say that some rule of the Senate or the House is unconstitutional, they don’t know what they’re talking about. The courts will not touch an instance of the rules of the Senate and House because they have not constitutional authority to intervene. Only the Senate and the House define their own rules.

So this is the system that we have. It is a cumbersome and slow and frustrating system. It frustrates anybody with an agenda. It frustrates presidents of the United States. It frustrates speakers of the House. It frustrates majority leaders of the Senate and members of the Senate and members of the House. Members of the House hate the United States Senate. They – the minority party in the House will say that the majority party are their opponents, but Senate is their enemy. And the House has passed over a hundred bills right now that the Senate has not taken up. And it’s very frustrating to members of the House who got out there and did their stuff and then they watched their work disappear in the Senate. But you know what’s frustrating to the Democrats in the House right now – what’s – a decade ago was frustrating to the Republicans when they were in the majority in the House. It hasn’t – the parties have changed but the institutions still work the same way.

And eventually, they do actually pass legislation. It sometimes takes years. One old-time staff member says to me that he estimated that he estimated that it took seven years from the time that a good idea came along until the time it was enacted. And that – he had been there since the 1950s. He might have – today he might extend the time limit on it. It might take even longer, but some things, like passing the civil rights, took decades to happen. And as we know, healthcare, the – universal healthcare has been proposed by presidents since Woodrow Wilson was president.

So big, controversial issues do not happen quickly in the Senate, except – and I give one coda to that – except in times of national crisis. When there is an economic crisis, when there is an international crisis, the Congress does move quickly. The procedure that the House is considering today was adopted in March of 1933 for the first time. And that was the Hundred Days of the New Deal. And Congress, which had a huge number of new Democrats who had just – a hundred new members of the House of Representatives elected along with Franklin Roosevelt, wanted to get the country out of the Depression as quickly as possible, and whatever the President asked for during that hundred days, they gave him. They modified some things. But – and they suggested things that he wasn’t proposing. But essentially, he got what he wanted. On his – the first day that they met, he gave them a banking bill. The House passed it in the morning, the Senate passed it in the afternoon, and the President signed it that night. The only thing I can say is that nobody in either house probably read that bill. Whatever was in it, they signed. It turned out to be a brilliant bill and it helped to save the banking system.

A week after September 11, 2001, Congress passed the Patriot Act. And it was, again, national unity that zoomed that bill through. There are a lot of members of Congress who today wish that had taken longer; that there are a lot of provisions that they’ve had to live with that they don’t really care for. And usually Congress doesn’t work fast, it doesn’t work efficiently, because it’s not designed to do that. And there are some good evidence when they do act quickly that having a second house for second thoughts was a good idea and that the system has a lot of trip wires that are – have served the country for a very long time even though they’ve frustrated people who really want to change things.

And that’s my lecture in a nutshell of how the legislative branch works. And I have a feeling you probably have specific questions about this, and I’ll try my best to answer them.

MODERATOR: And when you’re asking your questions, I ask that you just state your name and organization for the transcript.

QUESTION: (Inaudible) and I have a question for Mr. Ritchie. Thank you for being with us. This is very, very informative. My name is Richard Latendresse. I’m a French-Canadian TV reporter. Several questions, but one is – it’s a question we hear outside, of course, of the Congress and Senate. – Is – and I would like you to answer to this. Since when – this is the way the question is framed: Now that I’ve listened to you, (inaudible). Since when do we need a majority to be 60 senators? We hear that people say – especially, the liberals say, since (inaudible) –

MR. RITCHIE: The answer to that is 60 was the reform. It used to be worse. From 1917 to 1964, you needed 67. And before 1917, there was no means of cutting off that debate. There was no cloture at all. What’s changed is this – the use of cloture as a tactic since 1987. We can track that’s pretty well when that – when the leadership sat down and just decided, instead of holding filibusters, instead of having people stand up there and talk, the thing to do is to file a cloture motion at the very beginning. When – there’s a motion to proceed when you take a bill off the calendar and we’re going to start to debate it. That’s not a debatable motion. So the majority leader can go right to it without filing cloture. But these days, the majority leader almost always, on a controversial issue, files a cloture motion. And that sets the 60 vote trigger. Now, the other thing to keep in mind is that the two bodies are proportionally – set out in very different manners. The structure of the House is majoritarian. The structure of the Senate is non-majoritarian. The compromise that made our Constitution possible was the small states trying to join the union not wanting to be overwhelmed by the large states. So the compromise was the House would be proportioned by population and a majority of the U.S. population is reflected in the majority of the numbers of the House of Representatives. But the small states get equality in the Senate. And I always use the example of California and Wyoming. California has 35 million people, 53 Representatives, the biggest delegation we’ve ever had. Wyoming, which is a lovely state if you’ve ever had a chance to go there, has a half a million people on good days. It has lots of antelope, very few people, one Representative. That’s actually less than the average Congressional district, which is about 690,000. They’re only 500,000, but you can’t have fewer than one. So any issue in the House of Representatives that pits Wyoming versus California , its 53 to 1. In the Senate, California has two Senators and Wyoming has two senators. That’s like a 70-to-one ratio in terms of a reflection of the populations of those two states. There – half of the population of the United States lives in 10 states. They have 20 senators. The other half of the population lives in 40 states. They have 80 senators. So we can’t be a majoritarian body, just by – in definition.

Then the Constitution sets some certain supermajority requirements for Congress. To override the president’s vetoes, a two-thirds vote; for the Senate to ratify a treaty, it’s a two-thirds vote. If the House impeaches somebody by a simple majority vote, it takes a two-thirds vote of the Senate to throw them out of office. And also, to ratify amendments to the Constitution takes a two-thirds vote. So there a supermajority is written into the Constitution. And then there’s this provision the Senate and House can write their own rules. And so the Senate has – the House has adopted majority rule. Operations in the Senate has adopted supermajority rules. It’s varied and they can change the requirements, but it’s been there from Day One and it’s – as I say, 60 is actually the reform.

QUESTION: So a cloture rule implies a 60 vote? It’s like --


QUESTION: -- you cannot vote on this on the majority as – a simple majority?

MR. RITCHIE: Yes, and it’s – once you get the 60, now that means – that’s just – that limits the amount of time to get to the vote. When you get to the vote, not all the people who voted for cloture have to vote for the bill. You only need 51 to actually pass the bill. But you need 60 to get to that vote.


MR. RITCHIE: And that – what it does is it sets the – how much time is allotted before you get to that point. And in the House, there’s very little time to debate. There are – since the 1840s, there have been strict time limits on the amount of time anybody can speak on any particular issue. And there’s also very little chance for an individual member to add an amendment to a bill.

And it’s the reason why 51 or so of the senators are former House members. They like to come over to the Senate where they can debate forever and they can add as many amendments – and it doesn’t even have anything to do with the bill. The minority party loves to throw on amendments onto big bills that have nothing to do with the bill, but in fact are there to embarrass the majority. And it can be on abortion, it can be on gun control, it can be on any issue you want. It doesn’t have to have anything to do with that particular vote. That’s a huge power that they have, and it also frustrates the majority leaders. They don’t want embarrassing amendments to come up. They don’t want endless amendments to come up. So they adopt various tactics to control it. One tactic we might talk about is reconciliation, which is a means of control that they’ve developed.

QUESTION: Hi. My name is Hiroo Watanabe from Japanese newspaper Sankei Shimbon. For me, it’s very difficult to explain our readers (inaudible) the so-called deem and pass. Now, Democrat leader Nancy Pelosi is considering to introduce that procedure. My understanding is that if they introduce that procedure, they can deem that the Congress pass. Who to pass the – no, House would pass the Senate bill without voting that bill?

MR. RITCHIE: Well, they have to pass the rule that – but they wouldn’t have to vote on the bill. But they would have to pass the rule that it (inaudible).

QUESTION: But some opinion articles (inaudible) by Michael McConnell in the Wall Street Journal. The article said both houses need to pass same bill. So he argued that the deem and pass procedure would not be allowed by Constitution. (Inaudible) ask your opinion.

MR. RITCHIE: He’s talking through his hat, as are a lot of people who are political scientists who have weighed in on this issue along the way, that – first off, the courts do not intervene in issues that deal with the rules of the House and the Senate. They would be overwhelmed if they did, and they would also have no constitutional standing to do that.

Secondly, the thing to understand in the House is that real power in the House is in the Rules Committee. And in fact, the history – ever since the Rules Committee was created in the 1880s, much of the history of the House of Representatives has been fought over control of the Rules Committee. At one time, the Speaker of the House was the chairman of the Rules Committee. And so our big reform movement in 1910 was to throw the Speaker off of the committee. Then we went for a period from 1910 until 1961 where the Rules Committee was a separate power into itself, separate from them. And it was controlled by people who frustrated the Speaker of the House. In 1961, Sam Rayburn led a movement to grab control back. So even though the Speaker no longer controls the Rules Committee, the Speaker decides who gets on the rules committee.

And if you look at the ratios, the ratios of who’s the majority party on the Rules Committee and who’s the minority party, there is no relationship to the ratio those parties in the body. The majority party gets like two-thirds of the members of the Rules Committee because that is the real power of the Speaker of the House, is what they do in that Rules Committee. The rules of the House are suspended constantly to do business, and the Rules Committee really defines every single issue that comes up. And this – in some cases, the Rules Committee throws out the entire bill and substitutes its own bill as an amendment to the bill. They’re that powerful over the other committees in the process. They decide how long you’re going to debate, they get to decide how many amendments will be there, what the nature of those amendments will be, and they decide how you’re going to vote on it.

In the Congress, there are varieties of ways of voting. There – you can vote by roll call, so your name is – yes or no. But you can also vote by voice vote, in which case I hear the majority is on my side, and nobody’s actually taken a stand. Or in the Senate, you can just do it by unanimous consent and nobody objects, and so we’re all on board on this process. And in this case, they’re passing a rule that’s deemed passed. But of course, you have to pass the rule. So you’re not actually voting on the bill; you’re voting on the rule. But then the bill – the rule essentially has passed the bill. But the bottom line is that, whatever the House agrees to in whatever way it agrees to it, has to be exactly the same as what the Senate did. Nothing passes that is a semicolon different between the two. To me, actually, the great miracle of the system is that anything passes because those two bodies are so different that the fact that they can take a bill that’s this long and get agreement in both bodies is amazing.

Let me give you a non-healthcare example, but I think it’s a great one. In 2006, the House of Representatives passed an agricultural bill. It dealt with every issue in American agriculture. It was about a hundred and fifty, a hundred and sixty pages long. A year later in 2007, the Senate passed its version of the bill. It was fifteen hundred pages long, 10 times larger. And it was actually based on two different years’ worth of economic statistics: one 2006, one 2007. It didn’t necessarily jibe. Then they had to sit down in conference and take these two bills and put them together and come up with a common version. Then they had to go back and get both houses to pass these bills that were not quite exactly the same as the bills; in one case, very drastically different from the bill that was passed. Then they sent it to the president, President Bush. He vetoed it. Came back. Even though his party was in the majority, they overrode his veto because so many people had a stake in this bill and they’d been fighting over it for so long, they weren’t about to leave without having passed an agricultural bill.

And we have situations like that, that happen all the time. Now what’s different about the healthcare bill, because it does affect everybody, not just farmers, is that everybody in the country is actually paying attention to this bill. And so when I get calls from people saying, “Why is – why are you doing such bizarre things,” I say we do these bizarre things all the time; it’s just that you don’t pay attention to them. This is where the motto “those who love legislation and those who sausage shouldn’t see how either one of them is made.” Legislation is not a – it doesn’t follow those lovely flow charts that are in the all the political science textbooks. It’s a matter of bargaining.

I recently had a chance to interview a man named Bobby Baker. Some of you may remember, he was Lyndon Johnson’s right-hand man back in the 1950s, and he’s still living at 80. And he was just wonderful to reflect on. He left in a real scandal in the early 1960s. He lost his position. But he was one of the best legislative tacticians that ever came down the pike. And he said to me at some point, he said, “You know, any damn fool can get 20 votes in the Senate, but it takes a real politician to be able to get 51 votes.” And I think that’s the way Lyndon Johnson looked at it as well, is you can be pure on any issue, you can stand up and give the most eloquent speech, you can get 20 votes, and you lose. But you’ve got to cut the deal, you’ve got to figure out what the other side is willing to go up with, you’ve got to swallow some things you really don’t like, and you’ve got to put together a legislative package that’s going to get the 51 or the 60 votes, whatever is necessary to get it through those hurdles.

And in every piece of controversial legislation, everybody walks away not necessarily with everything that they wanted, and in some cases with a lot of stuff they didn’t want but they had to swallow because that was what was necessary. And I think the reason why the system has prevailed as long as it has is because we’re a large nation with a lot of different conflicting economic and regional interests, social and cultural conflicts, all sorts of differences. We’re not a unified nation in terms of the way everybody thinks and operates. And our Congress has got to figure out where there’s common ground, and they have to create something that everybody can live with. And even on something as controversial as civil rights, when it finally passed, the South said, “Okay. We fought the good fight and we’re going to have to deal with this now.” And the resistance to civil rights was before the Civil Rights Act was passed, not necessarily after it was passed. And sometimes these long, drawn-out, miserable conflicts actually produce something in the end that everybody says, “Well, this is the best we could do, too, and this is what we’re going to live with.”

Now the other part of this is that the bill that passes is usually not perfect, because of all these compromises. And in some cases, it takes years to perfect the bill. Social Security, when it was passed in 1935, left a huge part of the United States population outside. No farm workers and no domestic workers. Most African Americans were either farm workers or domestic workers of that period. They weren’t covered under Social Security. It wasn’t until the 1950s, 20 years later, that most of them were covered in this and that the system expanded.

So whatever comes out of healthcare, one way or the other, it probably won’t satisfy – some people are going to hate it, some people are going to be glad it passed but are going to be disappointed that it didn’t include provisions that they really wanted. And the battle is going to continue in the next several congresses to amend whatever passes in this Congress. In fact, most of the legislation Congress passes is actually amendments to previous bills. We are not starting from scratch every time around in the process.

So that’s sort of what seems to be at work, but in a much – this is a Cinerama Technicolor, three-dimensional version of what normally appears in the legislative process.


QUESTION: My name is Andrey Surzhanskiy. I’m a correspondent for Itar-Tass News Agency of Russia, and of course I would like to ask a question related to Russia. I would like to focus on international dimension of the Senate activities. The United States and Russia are negotiating the new START treaty.

MR. RITCHIE: Mm-hmm.

QUESTION: And the negotiators are actually near to completion of this document. And once they strike a deal, the treaty will go to the Senate --

MR. RITCHIE: Mm-hmm.

QUESTION: -- for approval. And if I’m not mistaken, it will require two-thirds (inaudible), which is 67.

MR. RITCHIE: It’s going to make 60 look nice by comparison, right?

QUESTION: Sixty-seven votes they need. And my question is this: If they don’t have the needed votes, which is 67, what’s going to do?


QUESTION: What’s going to happen?


QUESTION: Is it going to die? I mean, this treaty. Or is there any way to make a second or third try? What --

MR. RITCHIE: A very good question, because the U.S. Senate, one of those powers is – and that it does not share with the House, that it has exclusively, over treaty making. The only time the House gets involved is if there’s a dollar amount. If any money is spent, then the House has to be involved in voting on authorizing it. But the House can pass resolutions saying we support or we disapprove of this, and it doesn’t make any effect. It’s only the Senate that will vote on this. And the Senate is – tends to flex its muscle. There are a lot of treaties that presidents sign, that they spent a lot of time doing, that they don’t ever get ratified; it never goes into effect. There are – you can continue to bring up the treaty. It doesn’t have to be brought up just once; you can try other times. And you can amend treaties. And that’s the other interesting part of this. While it takes a two-thirds vote to pass it, it only takes a 51 to amend.

QUESTION: Oh, really?

MR. RITCHIE: And so inside the Senate, they may adopt amendments to try to broaden the support. Now these are things that weren’t in the original treaty, and then that means the president has to go back to the people he negotiated with to say, “They had – they made these changes.” Now the other side then can say, “Well, we don’t accept those changes.” But the president can say that was the only way he could get this passed.

And a good example of this was the Panama Canal treaties that Jimmy Carter put forward, overwhelmingly unpopular in the nation but something that the Congress had been grappling with for the long time and felt they really needed to deal with. The only way it was going to pass was in a bipartisan way. And so Senator Byrd, who was the majority leader, went out of his way to court Howard Baker, who was the Republican leader. And they worked very closely together on that bill. It got down to the end, there weren’t enough votes and they had to accept an amendment. It was known as the DeConcini Amendment, that basically said if there was any trouble in Panama, we could send troops in and solve the situation. It’s not what the Panamanians wanted to hear, but Byrd and Baker went down to Panama and said to the president of Panama, “This is the only way this amendment is going – this treaty is going to pass. So it’s sort of, you have to swallow this if you want this treaty to be passed. It’s an – this is like an emergency clause.” And Panamanians accepted it, they went back, they adopted it, and they got the two-thirds vote; it went through.

Actually, the Republicans used that as a campaign tool. And Ronald Reagan, who was opposed to the treaty, used it very effectively in the 1980 election. So it had a political connotation in the United States as well. But that’s – any treaty has that situation.

A lot of treaties just go so far and don’t go any further. The classic case in American history was President Woodrow Wilson, who went to France to negotiate the Paris peace treaty that ended the First World War, establish the League of Nations. His party lost the majority in the 1918 elections. He came back, he couldn’t persuade them to adopt the treaty that he had written. He refused to accept their modifications, and I think if there was a possibility of some compromise, he would have had to take less than he had bargained for. But since he had personally negotiated the treaty, he absolutely refused to compromise, and he lost. He lost a vote in 1919, another vote in 1920. We never ratified that treaty; we never joined the League of Nations. We wound up signing a separate peace treaty with Germany after the First World War. So there’s a lot of slips in there, and there are a lot of treaties that the United States signed with Russia that didn’t get adopted at various times.

Now, some treaties come back, and we get on to them years later. The treaty on genocide, for instance, was something that the Senate did not ratify for many years. We had one senator, Senator Proxmire, who every day stood up and gave a speech on why we needed to ratify the genocide treaty. And after awhile, people said, “You know, he’s right.” And so, like 20 years after that treaty had been negotiated, we signed on to it. It was an international treaty, a lot of other nations already as part of it. But it took somebody who was willing to really stand up for it. So it depends on what the relations are between the two countries, it depends on the relationship between the two parties, it depends on how strongly some of the members of the Senate feel about it.

One of the problems that Wilson made was he didn’t take any senators with him to negotiate the treaty. Most presidents since then have tried to include key members of the Senate in on the negotiation so that it – they have some stake in it when it comes to the Senate.

QUESTION: If the Obama Administration failed to get this treaty passed in the Senate, my understanding there are two possible scenarios. Either they will bring it back some – another time, or will try to amend this treaty.

MR. RITCHIE: Yes. Mm-hmm. Mm-hmm. They can – the Administration can renegotiate the treaty, or within the Congress they can amend the treaty. Within the Senate, I should say, the can amend the treaty.

QUESTION: And if they try to amend this treaty within the Senate, they will need only 51 –

MR. RITCHIE: Yes. Right.

QUESTION: -- votes. One more thing.

MR. RITCHIE: Although they might need 60 to get to that 51.

QUESTION: Ah, yeah. If President Obama says to his own party, “This treaty is very important for my international agenda; this is in the interest of the nation” –

MR. RITCHIE: Mm-hmm.

QUESTION: -- does it mean that would mean that he will get 100 – guaranteed 100 percent support of his own party? Because my understanding that the Democrats and the Republicans basically vote along the party lines these days. And like you mentioned you couldn’t imagine that several decades ago. And so –

MR. RITCHIE: There’s a famous American humorist, Will Rogers, who once said that he was not a member of an organized political party; he was a Democrat. And that – the Democratic Party has always been very divided, very fractious.

United States senators have always been very independent-minded. They’re there to represent their states. They quite often vote against the interests of their party or their presidents, and they don’t feel beholden to them. We don’t have a binding rule in our parties. These days, there is much more party regularity, and presidents are begging their people to stick together. But if he just does that within his own party, he still doesn’t have the two-thirds votes that he needs on this. And he’s got – the treaty – by the nature, a treaty has got to be bipartisan. It’s got to have significant bipartisan support and – because you need that two-thirds majority. And that’s always been the case. And our parties have often been very contentious. It’s not all been peaceful and happiness in the past. In fact, we’ve had to really – we fought a civil war at one point because we couldn’t resolve some of our political differences.

QUESTION: So in other words, there is no guaranteed 59 votes of his own party, Democrats, if he wants to get this legislation passed, even though he would be begging his own --

MR. RITCHIE: Mm-hmm. Some very strong Democratic presidents in the past – Woodrow Wilson, Franklin Roosevelt, John Kennedy, Lyndon Johnson – did not get a hundred percent support from their party on issues like this. And as I say, President Carter could not have passed the Panama Canal treaties without really major support from Howard Baker, the Republican leader. And Baker used to joke that he couldn’t afford to keep on supporting Carter as much as he was because he was undermining his own standing within his own party to some degree, because it was a very unpopular issue among a large faction of his party. It was a very brave stance that he took at that point. But I think the leaders of both parties realized this was a treaty we absolutely, desperately needed to resolve that particular issue.

So there’s no guarantee. The president of the United States is not a prime minister. Our Cabinet does not serve in Congress. Our president is not there and the – one of our more powerful speakers of the House, Sam Rayburn, was – when somebody once came up to him and said – a reporter said, “You’ve served under eight presidents,” and he bristled and he said, “I’ve served with eight presidents.” And the Congress sees itself as a separate branch of government, and it’s going to make up its own mind about this. And – because that’s part of the nature of our foreign policy is the tension between the president, who thinks that foreign policy belongs to him, and the Congress that says, “Well, wait. The Constitution gives us the power of the purse and we have the power to declare war. We raise the armies and the navies. We appoint all the – we confirm all the diplomats. We have a voice in foreign policy, too. You can’t make up your mind all by yourself. You have to consult to us. Otherwise, you’re not going to get your treaties ratified.”

MODERATOR: (Inaudible) a question coming from New York.


QUESTION: Yes, hi. My name is Philippe Antoine from RTL French radio. I have three questions. First, what’s, in your opinion, the most likely next step (inaudible)? Second one is, do you (inaudible) that technically they have enough time to pass (inaudible)? And the third one is, once the president has signed a law, is there still any possibility to bargain or to (inaudible) amendments (inaudible) end of the game?

MR. RITCHIE: Just to go backwards, that the – it’s not the end of the game because laws, of course, are constantly being amended, and of course the courts have a way of interpreting these. And the courts since 1803 have also exerted judicial review, in which they can throw out sections of a bill that they consider unconstitutional. So I don’t see this as the end of the process. No piece of legislation is the end of the process – that it’ll be debated. It may even be debated in this Congress. If not – but it’ll probably be debated in the next Congress as the ways in which each side wants to perfect whatever legislation’s been passed.

In terms of when the president leaves, there’s a – once the bill is sent to the president, there’s – a clock starts to tick. He’s got 10 days to sign it. If Congress is not in session and he doesn’t sign it, it becomes law without his signature. If Congress is not in session and he doesn’t sign it in the 10 days, then it’s a pocket veto; it just kills it at that point. He can reject the treaty – a bill and send it back. And of course Congress would then have the ability to override his veto. Wherever the president is, one suspects a plane will be following him very quickly with whatever piece of legislation is passed. And so I don’t think his being in the country or out of the country has anything to do with the final bill; it has much more to do with the psychology of getting his supporters to vote for it while it’s happening.

And so that – the clock is a critical instrument. That’s – December of last year was essentially an old-fashioned filibuster. It was designed around the fact that we were coming up to a major holiday in which every member of Congress had a plane ticket to go to someplace better than Washington, D.C., essentially. And so the minority faction, which was trying to stop any action, was basically trying to play out the clock. And that happens every time we’re going up to a recess or an adjournment of Congress. And the majority also knew that, first off, they had a limited amount of time but they also knew that everybody wanted to leave town, and so they could use that as an instrument – say okay, if we decide today you can leave today, you don’t have to wait until Christmas Eve to leave. And so they met seven days a week. We were voting at 1 o’clock in the morning and 7 in the morning, doing all sorts of things playing with the time. And that time element plays into whatever the issue is along the way.

Now the question about what will happen with this bill, I’m an historian and I have to say I have 20/20 hindsight. Once they do it, it will be perfectly clear to me what they did, but I can’t predict what they’re going to do or how it’s going to turn out. And in fact, one thing I have learned after watching Congress for 30 years is never take anything for granted. There are lots of curveballs that are thrown, lots of surprises. And these are very smart people on both sides. They are looking at every possible option, every tactic imaginable. It’s like watching two master chess players working. They’re thinking several moves ahead. And that’s really beyond me in terms of imagining what they’re going to do.

QUESTION: (Inaudible). Mr. Ritchie, thank you for your time. And I have two questions. Just now, you have said that the Congress system designed not to let the legislation be too speedy. But in the healthcare (inaudible), so many unfamiliar (inaudible) reconciliation and the deem and pass, something like that. So (inaudible) think that it is too speedy, too hasty for such a very important bill for every American. And another question is, you are a historian and you must witness so many efforts of the health care. So do – what the major difference, do you think, this time and the last time and also the time before in the congressional schedule (inaudible) something like that?

MR. RITCHIE: Yes, everybody always learns from history, and so we always learn from what they did the last time. And what you usually see is the tactic that they devised this time is the opposite of what they did the last time because the last time didn’t work. And so, for instance, in 1993, the White House under President Clinton took the lead in drafting the healthcare bill. And the complaints were, well, it was done in secret, we didn’t know what was happening, it was thrust upon us. And it got down to Congress and people, the factions, the committees fought all over who had jurisdiction over it and the clock ran out in 1994 and they never passed the bill, and that was used against the Clinton presidency and his party lost the majority in both houses.

So the lesson that the incoming majority this time felt was the President needs to set the parameters but then he needs to step aside and let the Senate and the House act. Then the House acted as the House tends to act, it acted fast, it did what it wanted, it did it essentially by majority vote, and then it sent it to the Senate. And the President, you may remember, wanted to have a bill by last summer to be finished. The Senate doesn’t work in a speedy basis. And it’s been negotiating ever since in one way or another. It actually – by the way, the Senate did pass this bill. That’s what happened in December.

Now the question is, the House passed a different version of the bill. And so, as in every bill that happens with Congress, now you’ve got to get these two back together and you’ve got to have one version of it. And that’s what the two sides are locked in this sort of procedural debate. Of course, those who oppose it say it’s happening too fast. Those who are supporting it say it’s taken us decades to get this far; if we stop now, we’ll lose the momentum. In 1994, we stopped and look, a decade, a dozen years went by before we came back to address this issue. The opposition says but in between, we dealt with things like prescription drugs, we did with other issues even though we didn’t deal with universal healthcare. So, I mean, there are legitimate arguments on both sides of this issue as, frankly, there are legitimate arguments on both sides of every issue that come down. People just see the world differently in these tactics.

I did want to talk a little bit about reconciliation. The “deem” part of it, which the House is going to do, is a House rule which has been around since the 1930s and which we don’t have on the Senate side, and so I can’t speak with any authority on that. But the reconciliation is something that the Senate devised in the 1970s as part of our Budget Act of 1974. The parliamentarian who was serving at the time said that the senators spent about 10 minutes thinking about that. In other words, it really was not a big deal when they adopted it. It was designed – initially, there were two budget resolutions and it was designed to get the two budget resolutions in order. It had a – the clock was ticking because you had to act by a certain date so that they could appropriate funds, and so it was a way of sort of saying, okay, when we have to reconcile this, there’ll be 20 hours to debate this and then you can add amendments but you can’t debate the amendments any further, and we just have to be able to reach that point to get – to move on to this next step. And everybody thought that was a relatively nice, fast, speedy device. Think about this. This is 1974. It’s the same time we’re adopting the cloture rule. We’re looking for ways to make the system more efficient.

And then both the Democrats and the Republicans began to think, well, this is a really nice device here. It limits the amount of time to debate and we don’t have to debate all these amendments. We can take one day and take all the amendments. We have something called “vote-o-rama,” when the members show up early in the morning and they vote over and over and over and over all day long until they exhaust themselves and they finally withdraw whatever amendments are left. But that means that 20 hours, that defines things.

And so each party began to use reconciliation for more than it was initially designed for. Democrats started this with tax bills and budget bills in the late ‘70s and 1980. Republicans picked it up and really gave it more juice with Reagan’s tax cuts in 1981. Both parties have used it over the years for some very significant issues. But the Senate held – pulled back a little bit in 1986 or ’87 when they adopted what’s known as the Byrd Rule. Senator Byrd said, hey, you’ve stretched this beyond the limits. We have to have some parameters on this. We have – this can’t be for anything that is – except budgetary issues. You can’t legislate on reconciliation. And you can’t increase the deficit. You’ve got to cut – whatever you’re doing has got to be cutting the deficit. Everybody said, okay, we could live with that. And now the question is, well, how do you decide if it meets those criteria? Well, the parliamentarian can figure that out. And how will the parliamentarian decide? Well, the parliamentarian will operate on figures given to him by the Congressional Budget Office, which is a nonpartisan office.

So you have these two staff operations, the Congressional Budget Office and the parliamentarian, who are deciding what Congress meant, what the Senate meant by this reconciliation. And when they get a bill like the healthcare bill, they’re going to take it apart paragraph by paragraph. Well, does this paragraph increase or decrease the deficit? Does it meet the – does it legislate or not? I can tell you a hundred percent, the parliamentarian does not want to do this job, did not ask for it, has never been happy with it and would love to see it – reconciliation stricken from the books because it’s nothing but a headache for him. It’s a godsend for majority leaders to get some things through. Any tactic to get you around the obstructionism that’s built into the system is a godsend for the majority leader. But it’s a real burden on the parliamentarian.

And the parliamentarian has taken a lot of heat during this debate and everybody suspects maybe he’s biased. Again, I go back to my baseball analogy. Whatever way a baseball umpire rules, half the people in the stand think he’s blind and they should throw the bum out because “that’s not what I see; that was definitely a strike. What’s the matter with you, ump?” He’s got to call it as he sees it, and that’s what the parliamentarian is trying to do right now. The parliamentarian is not a partisan person. He’s been – actually, the current parliamentarian has been in the parliamentarian’s office as long as I’ve been in the historian’s office, since the 1970s. He knows the rules better than practically any senator. There are a couple of senators, Senator Byrd being one, who know the rules better than everybody, but the parliamentarian spends his life studying these rules. And he advises both sides in this debate.

I asked one of the senior parliamentarians years ago, how could you possibly advise both sides in a contentious issue? He said, “I only answer the questions that they ask me. I don’t volunteer any advice.” And they ask him these questions because they know he knows the rules and because they assume that he’s nonpartisan and they need his advice and his support and his judgment, but they’re not always going to be happy with his call.

QUESTION: You have Al Franken of Minnesota, which is the only comedian serving in the U.S. Senate.

MR. RITCHIE: The only professional comedian. (Laughter.)

QUESTION: Professional – (laughter). Do you remember any other people with such unusual background? And in your opinion, what he actually does better in the Senate.

MR. RITCHIE: We have had – most senators have been lawyers and businessmen and – but we’ve had a few who have come from different fields. We’ve had some who were actors before. George Murphy, who used to tap dance with Shirley Temple in the movies, was a senator from California, for instance – but very few coming from that category. I remember Senator Daniel Patrick Moynihan, who was an academic who came into the Senate. Senator Moynihan was a six-foot-six leprechaun. He had a wonderful sense of humor. He was – and his sense of humor was just superb. For instance, the Hart Building, where I work, is a sort of modern structure. And when they were constructing it, during the winter they covered it in plastic. And when they took – the spring came, they took the plastic down and we could actually see the building for the first time, he introduced a resolution to put the plastic back up again. And you know, you need people like that from sometime. When issues get really hot and heavy, you need somebody who can crack the joke and --

QUESTION: To entertain –

MR. RITCHIE: -- entertain a little bit.

I have to say with Senator Franken, when – he came in just as Justice Sotomayor was being confirmed, and that was another very contentious issue. And I read the Congressional Record every day. And basically, both parties were giving stock speeches. There was a Democratic speech and a Republican speech, and you read it over and over and over in one way or another. He gave one of the best speeches on that. It was a – basically on what does a Supreme Court nomination mean to the people of my state, or just to the average person? How could this affect you? And he talked about Supreme Court decisions over the last decade that affected everyday life. I thought it was a terrific speech. I don’t know whether he wrote that speech or somebody wrote it for him. There are a lot of staff members to do this, but he’s a very smart guy and he was very articulate and there was no humor at all in his remarks. And I think he’s quite an interesting person, but he also has a great sense of humor. And from time to time, he makes everybody laugh. And that’s a good sign.

Sonny Bono of Sonny and – who was a congressman; he was married to Cher – did that, sort of, in the House to some degree, although Sonny Bono, no one ever accused him of being an intellectual, but whereas Al Franken graduated from Harvard, so he comes with interesting credentials in that sense. But he also was a little yeast that helped the bread rise a little bit in some of those debates. Sonny Bono used to send out for pizzas when they were having a late night session in the committee rooms. He sort of broke the ice a little bit in the process. And there are a few people like that.

Senator Dole had a terrific sense of humor, and that was another thing that used to get us through some difficult times. There are other majority leaders who, if you gave them a joke to read, they would read it like a Gettysburg Address. I mean, they are very serious people, and they sometimes have trouble bending a little bit.

QUESTION: But again, Al Franken is the only professional comedian.

MR. RITCHIE: Right now, yes.

QUESTION: Right now. No one else.

QUESTION: I’d like you to tell us, how does, and actually how can, a conference work, a conference committee.

MR. RITCHIE: Well, it doesn’t even have to work, actually. In recent years, if the same party controls both houses, they can skip the conference altogether. And what they do with that case is they bounce the bills back and forth, sort of like a ping-pong game. And okay, we passed it differently than you; you can pass an – in the House, you can – usually, what happens is that the first house passes it, it goes to the second house. The second house passes their version, comes back to the first house. The first house can adopt what they did or it can amend it, send it back. You can adopt that amendment or you can add another amendment to it. And you can go back and forth and back and forth like that.

QUESTION: So in the meantime, there’s no conference committee.

MR. RITCHIE: And at times, especially – let’s say the Republicans control one house and the Democrats control the other, you pretty much need a conference. And at other times, when it’s not quite as partisan an issue, there’s real differences like the farm bill, you bring everybody together and they sit down and it’s a – again, these are two very different bodies. And I’ve talked to a lot of staff who’ve participated in conference. House rules usually require everybody on the committee show up.


MR. RITCHIE: Big – the whole side of the table is full. Two senators come on the other side, the chairman and the ranking minority member. And I’ve got the – the senators hold the proxies for their senators. And the House members, who serve on fewer committees, know that bill. They’ve written it; they’ve lived it. They’re into it. They know every semicolon. The senators are on a lot of committees, they have a lot of issues, they have staff who are advising them what’s going on. Sometimes, the senators are very tuned in. Other times, the deal has been cut on the staff level and they’re just sort of looking it over. And so it’s not an equal basis. And sometimes the Senate staff despair that the senators aren’t as well prepared. But the senators have the final trump. They sit there and they say, “Well, you know, you make a very good point, but I can’t pass that in the Senate, so it’s going to go down to defeat if you do that here.”

I’ll give you an example, another favorite example. Again, it was in the last – two Congresses ago, 2006. The House passed a tax break, a tax bill. It had three big tax provisions, one of which was to repeal the estate tax. The Senate said, “We can pass two of those but we can’t pass the third. So if you put them all together, you’re going to kill the whole bill. But if you take them apart, we can get two-thirds of it passed.” And the – on the House side in that conference, they said, “Absolutely not. We know that you’re going to hold – you’re going to defeat the estate tax if you bring it up, so it’s got to be part of the package. So if you’ve got two-thirds that you really want, you’ll swallow the one-third you don’t want.”

And they called it a trifecta. If you’ve been to a racetrack, you know what a trifecta is. It’s picking the one – first, second, and third horse in the right order. Well, at the racetrack, the odds are really against picking a trifecta. And the senators said the odds are against this ever passing. And indeed, all three bills were defeated because it carried this one provision that wouldn’t go through the Senate. So the – in a conference, the senators can say, “Great idea, but it’s not going to pass the Senate.” And the House is going to have to bite their teeth and bite their tongue a little bit and go back and swallow it.

And that’s why you get this resistance, when the – remember during the president’s impeachment trial in 1999, some of the House managers said that they had to go over to Mount Olympus. That’s what they were calling the United States Senate at the time.


QUESTION: My name is (inaudible) from Yomuri Shimbun, Japanese newspaper. At this final stage in the healthcare debate, when people talking about deem pass and reconciliation, so are there any possible (inaudible) for the Republicans to block such a move in this final stage?

MR. RITCHIE: They’re running out at this stage, but they’re – never underestimate the ability of a minority to act to stop something from happening in the Senate. The minority has a lot of tools in their toolbox for stopping things. It’s much harder to pass something than it is to stop it. And so the Democrats are close to 60. They’ve been getting cloture on a number of issues, although probably they wouldn’t get it on this. They have the possibility of using reconciliation. There’s all these sort of possible avenues that they’re going to go down. We don’t quite know what it is. I mean, it’s really ploys, but there’s always the possibility in the Senate for slowing down the operation that – putting on the brake on something. So I don’t make any predictions about the final outcome of this.

One issue people have been saying is everybody thinks that a filibuster, for instance, is everybody standing up and talking for a very long time, and why don’t they do that anymore? And I hear this a lot lately: Well, why don’t they just make them filibuster? Why don’t they make them just stand up there and talk? It’s honestly not a punishment to ask United States senators to talk. They love to talk. And in fact, now that we have television in the chamber, that’s unlimited television time. And in fact, the majority can’t afford to let them just stand up there and talk by themselves. The majority has got to go out there and talk so that there’s some counterbalance to this, so that they’re not just telling their side of the story. You’ve got to have both sides of the story. So “Mr. Smith” is not a tactic that anybody really wants to do, although, as I say, in December, we came as close to that as we’ve ever had in recent years.

QUESTION: (Inaudible) question: Why is the Senate version of healthcare legislation is so different from House version?

MR. RITCHIE: Well, usually what happens – and this – not talking about the health bill but just the usual bill that comes out – when a bill comes, it starts, it starts in either house. The Senate could start it or the House could start it. Sometimes, just because somebody thinks more highly of that issue and sometimes because they think it’s more likely to pass in that body. But the first body passes it. Everybody who’s got a problem with what that version passed, every lobbyist, every special interest group, every citizens’ group, every – anybody who sees a flaw in that, meaning it’s going to hurt me somehow, goes to the other house. And the second house, which is often the Senate, becomes like a court of appeals on what’s wrong with the first version. And usually – but not always, but usually, the version that passes in the end, the conference, resembles whatever the second body did more than what the first body did just because it’s satisfied more of the objections.

Now sometimes it can go too far. Special interests are not equal, and sometimes the – industry, for instance, has more of a say and the second house sort of goes along with that and the first house says, “Absolutely not; you’ve compromised too far,” and they won’t agree with it, and they have to go back and forth on it. But the second house often is, and the Senate often in this case is a court of appeals.

Look at what happened with the healthcare bill. The first version of it that came out was much bigger than the Senate eventually passed. It was going to cost a lot more money than what the Senate was going to – it was going to have a public option. It was going to have all sorts of things. And they could do it because in the House, the majority could get its way. It got to the Senate and two committees started looking at it. One was the Health Committee, Senator Kennedy’s committee. And it was – talking about the bill that was very close to what the House had done, to report that out. The other was the Finance Committee. They’re the people who have to pay for whatever comes out. And they – Finance Committee, there are two committees that are really more powerful than all the rest are the money committees, Finance and Appropriations. Appropriations spends the money; Finance raises the money.

And so the Finance Committee spent months going over this bill. And there’s where the real compromises were being worked out. There’s where the bipartisanship was coming out. And the bill that they came up with was something about half the cost of the bill that the Health Committee in the House wanted. But it was closer to what the bipartisan consensus was. It fell apart for lots of reasons, more – probably more political reasons than anything else, but that was the attempt to reach that bipartisan consensus that the Senate does on a regular basis. Senator Baucus, who chairs that committee, is considered to be a fairly moderate-to-conservative member of his party. He’s not one of the more liberal members of his party. He worked very closely with Republican leaders. He worked particularly with some of the more moderate members of the Republican Party to try to figure out where was their middle ground. He got one Republican vote on his bill, but he was obviously trying for much broader support.

And so now the bill that the Senate finally passed is much closer to what Sen. Baucus’s bill was that – the Finance Committee’s version. That reflects as close to bipartisanship as they’ve been able to come on anything in the Senate. And – but it’s not what the House wanted. And if the – the House would have been very happy if there was no U.S. Senate. They would have a completely different vote. But they have to live with the Senate. And they have to tolerate what the Senate does and they have to compromise. And that’s – as I said, it goes right back to the very beginning, that why the Senate exists and why it was created.

QUESTION: (Inaudible) Tokyo newspaper. Could you clarify (inaudible) the steps that have to take place going forward, knowing that there’s some choices (inaudible) made on the House side (inaudible) back to the Senate.

MR. RITCHIE: Well, essentially, whatever the House does, it passes a bill – if the House adopts the bill that the Senate’s already passed, then it’s done.

QUESTION: That bill goes to the president.

MR. RITCHIE: Right, it goes to the President because the Senate’s passed it. And the Senate doesn’t have any say in it anymore. It’s just passed, it’s gone. If the House changes it, the Senate has got to change its bill to modify it, to reflect that. It can’t go to the President without some change. And there is the rub at this stage – that the House doesn’t like the bill the Senate passed, doesn’t want to pass it, but can’t figure out how the Senate could pass anything else. And they’re looking for ways to get around the procedural obstacles in the system.

And honestly, I don’t know what they’re going to do. I think they’re – right now, they’re trying to figure out what they’re going to do. And they are – as I say, and both parties have some terrific tacticians who deal with this issue in smaller steps all the time. This is just a bigger version of it, and they’re considering every possible option.

QUESTION: Can you just tell us for a second about the – you were talking about the – you call the – called it the internally – the parties are internally more cohesive (inaudible)

MR. RITCHIE: Mm-hmm.

QUESTION: -- and I would – they’re more homogenous, and –

MR. RITCHIE: Why did that happen?

QUESTION: Well, and – you haven’t seen this serious, I mean, to that point --

MR. RITCHIE: No, it’s been steadily progressing from the 1970s on. The biggest change was the change in the political – in the South in the United States. When I came to the Senate, almost every southern senator was a Democrat and was a conservative Democrat. That was – goes back to the Civil War era. It had a lot to do with civil rights. And once civil rights was not the issue anymore, the South became more competitive between the two parties. And frankly, the Republicans were more conservative than the Democrats on a lot of issues nationally and they reflected public opinion in the South more. And so, one by one, southern states that had the two Democratic senators now had two Republican senators.

At the same time, there were fights within the Republican Party in the primaries, and a lot of liberal senators like Clifford Case of New Jersey were defeated by conservatives who ran against them, who then went on to lose the national – the statewide election. So they drove out the moderates who had statewide appeal and more Democrats got elected, so most of the New England delegation now is Democrats and – where you used to have very strong moderate Eisenhower Republicans in that area.

And so steadily, the progressive wing or the moderate wing, whatever you want to call it, of the Republican Party retired and the Republican Party became essentially the conservative party. And the southern conservative wing left the Democratic Party and the Democratic Party became essentially the liberal party. And that’s taken place over the last several decades. It became much more obvious after the 1994 elections, and that created more of a sense of polarization. Also, in the House, there was a real polarization. And a lot of House members were coming into the Senate and they were bringing that ethos with them.

One thing to keep in mind is we’re still operating with the – under the constraints that were created by Thomas Jefferson when he wrote the first rules manual of the Senate. And he didn’t like people standing up and insulting each other and insulting their states and shouting at each other. And he wrote all this sort of very polite procedure, saying that the issues are going to be so divisive and so emotional that you wanted to figure some way to get people to be able to talk civilly to each other. So that’s why, when two senators are debating each other, they’re not talking to each other; they’re talking to the chair. “Mister President, the great – the senior senator from the great state of such-and-such has said silly things here today, and I’m here to rebut these all, but he’s my best friend.” And this is – it’s a very 19th century style that goes on. And it does help. It does help to diffuse a lot of the tensions.

I’ve been in parliaments. I’ve been to the Japanese Diet and I’ve been to the Australian Parliament and to the British Parliament, and there’s a – you’re used to lots of catcalls going back and forth and all the rest of it. That is not part of the style. And the House of Representatives in the United States is much more boisterous. It’s always been. Alexis de Tocqueville noted that in the 1830s. He also found the Senate very sedate, where somebody was giving a long speech and everybody was listening politely. And in fact, if if de Tocqueville came back today, going to the House and Senate, they would be slightly larger but the spirit would be the same as in both bodies.

And so we still operate in a remarkably civil manner in the chamber. There are exceptions to the rule, and sometimes senior senators take junior senators aside to tell them what a senator is supposed to do and how they’re supposed to act. And – but for the most part, it’s remarkably polite and low-key, given how divisive the issues are that they’re talking about.

MODERATOR: I think we have time for maybe one more question.

MR. RITCHIE: Can I just say that the Senate Historical Office is there to help. And so if you have any questions, you can go to our website at or you can call my office. I have cards here. And we’re happy go answer specific questions whenever you have them.

QUESTION: Thank you so much.