(Senate - December 11, 2013)

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[Pages S8609-S8667]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                           EXECUTIVE SESSION



  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to resume consideration of the 
following nomination which the clerk will report.
  The bill clerk read the nomination of Cornelia T. L. Pillard, of the 
District of Columbia, to be United States Circuit Judge for the 
District of Columbia Circuit.

                   Recognition of the Minority Leader

  The ACTING PRESIDENT pro tempore. The Republican leader is 

                      Senate Rules and Health Care

  Mr. McCONNELL. Mr. President, I just listened to the majority leader 
complaining about what we are doing this week. He is the one in charge 
of the schedule. He has spent a week here on nonessential nominations, 
none of which are emergencies, all of which could be handled later. It 
was his choice to spend the week on nominations that are not 
emergencies as opposed to doing things like passing a DOD authorization 
bill or things like taking up a budget resolution or things like doing 
a farm bill. So the majority leader has a choice as to what we are 
going to spend time on. He has chosen to spend this week on 10 
  Yesterday I talked about the left's ``ends justify the means'' quest 
for power and the lengths to which they are willing to go to satisfy 
it. The Obama administration and its allies have done just about 
everything to get what they want one way or the other, even 
fundamentally altering the contours of our democracy when they could 
not get their way by playing by the rules.
  We saw the culmination of that with the majority leader's power grab 
in the Senate last month. The real world consequences of that power 
grab are most sharply illustrated by the very nominee before us, which 
I believe I heard the majority leader commenting on what a stellar 
nominee this person is.
  Professor Pillard may be a fine person, but she is not someone who 
should receive a lifetime position on the second highest court in the 
land. She will be confirmed, however, because of the Democratic 
majority's power grab a couple of weeks ago. So let's take a look at 
her legal views. They certainly make one thing clear: The nominee 
before us is a liberal ideologue; in other words, just the kind of 
person this administration is looking for to rubberstamp its most 
radical regulatory proposals on the DC Circuit.
  Let's take the so-called Hosanna-Tabor case. Last year the Supreme 
Court reinforced a core First Amendment principle when it ruled 
unanimously that churches, rather than the government, could select 
their own leaders.
  Every single justice sided with the church's argument in that case. 
Every single one. It makes sense. Freedom of religion is a bedrock 
foundation of our democracy. I think every member of this body would 
surely agree that the government does not have any business picking a 
group's religious leaders for them. But Professor Pillard seemed to 
have a very different view. Prior to the Court's unanimous decision, 
she said the notion that ``the Constitution requires deference to 
church decisions about who qualifies as a minister'' in the case before 
the Court seemed ``like a real stretch.''
  This is the nominee, after the power grab, the Senate is about to 
confirm, who said that, ``It is a real stretch that a church would be 
able to pick its own leaders.'' This is an astonishing judgment from 
somebody who is about to end up on what we believe is the second most 
important court in the land.
  But she went on from that. The position of the church in the Hosanna-
Tabor case represented a ``substantial threat to the American rule of 
law.'' How do you like that, Mr. President? It is a substantial threat 
to the American rule of law that a church should be able to pick its 
own leaders. A substantial threat to the American rule of law.
  This was a case decided the other way from Professor Pillard's 
position, 9 to 0. Talk about radical. Talk about extreme. No wonder 
they wanted a simple majority to be available to confirm a nominee like 
this. I mean, even the Court's most liberal justices, as I mentioned, 
disagreed with Professor Pillard on this one.
  One of them characterized that kind of position as ``amazing.'' This 
is a member of the Supreme Court in the 9-to-0 decision, characterizing 
Professor Pillard's view as ``amazing.'' In other words, Professor 
Pillard must think that even the furthest left Supreme Court Justice is 
not far enough left for her. So you get the drift of where she is.
  We rightly expect justices on our nation's highest courts to evaluate 

[[Page S8610]]

before them with a judge's even-handed mindset, not the absolutism of 
an ideologue. But just listen. Listen to the kinds of things Professor 
Pillard has said.
  She has expressed sympathy with the idea that the rights of our 
Constitution--the same Constitution she would be charged with 
upholding--have ``just about run out,'' and that this necessitates a 
shift toward international law--a shift toward international law. 
Apparently, she feels the U.S. Constitution is no longer adequate, and 
we need to rely on foreign law to determine what we do here in this 
  She has said that abortion, essentially without limits, is necessary 
to avoid ``conscription into maternity;'' That even commonsense laws 
many American men and women support serve to ``enforce incubation.''
  She has referred to the types of ultrasound images that are now 
available to so many proud moms and dads to be as ``deceptive images.''
  Ultrasound is a ``deceptive image,'' according to Professor Pillard, 
perpetrated by the ``anti-choice movement.'' In other words, she 
appears to think that proud moms and dads should not believe their own 
eyes when they look at the images science has made increasingly 
available to us over the past few years.

  It is an understatement to say that these sorts of views are worrying 
for someone the President wants on one of our Nation's top courts. In 
short, Professor Pillard does not seem like a person with the mindset 
or the temperament of a judge. She seems like a person with the 
attitude and disposition of a leftwing academic, someone who seems to 
come to conclusions based on how well they support her own theories.
  Judges are charged with fairly evaluating the law that is actually 
before them, not the law as they wish it to be. So I will be voting 
against the Pillard nomination. It is important to keep this in mind as 
well. Nearly every single Democratic Senator voted to enable the 
majority leader's power grab last month. Those Senators are responsible 
for its consequences. That includes the confirmation of Ms. Pillard, 
regardless of how they vote on her nomination.
  So I would urge Democrats to rethink the kind of nominees brought to 
the floor moving forward because now they are all yours. You are going 
to own every one of them. A simple majority. You own them. Extremist 
nominees like Professor Pillard are the reason the President and Senate 
Democrats took the unprecedented step of going nuclear 2 weeks ago. 
They unilaterally changed more than two centuries of history and 
tradition and violated their own prior statements and commitments so 
nominees like this could rubberstamp the President's most leftwing 
agenda items.
  This is the playbook. Forget the rules. Forget checks and balances. 
Certainly forget the will of the American people. Do whatever it 
takes--whatever it takes--to get the President's agenda through. The 
other side of this, of course, is that Democrats are determined to 
change the subject from ObamaCare--anything to change the subject.
  We now know that this President engaged in a serial deception in 
order to get his signature health care bill enacted into law. The White 
House debated whether to tell the truth or not on whether folks would 
be able to keep the plans they have. They decided not to tell the 
truth, a conscious decision to mislead the American people going back 
to 2009.
  Their view was that the talking point was just too useful. They 
needed it in order to get what they wanted. So I would probably be 
looking to change the topic too if I were our friends on the other side 
of the aisle. Change the subject to Senate rules or nominees or 
anything else for that matter.
  The last thing the majority wants to talk about is ObamaCare, because 
they own it 100 percent. Not a single Republican in the House or Senate 
voted for it. Every single Senate Democrat did. The problem is what 
Senate Democrats have done by going nuclear here in the Senate is 
really no different from what they did on ObamaCare. Once again they 
said one thing and did another.
  The majority leader said publicly and repeatedly he would not break 
the rules, and then he did. He said he would not break the rules, and 
then he did. As I said a couple of weeks back, he might as well have 
said: If you like your Senate rules, you can keep them.
  Here we are today. Here we are today ready to watch Senate Democrats 
rubberstamp an extremely liberal nominee to a lifetime position on a 
vote threshold the majority leader, back when he was in the minority 
and supported minority rights in the Senate, said would be disastrous 
for our democracy.
  Anything it takes. Anything it takes to get this President's agenda 
around the checks that have been established to restrain power. 
Anything it takes to get around anybody who disagrees with them, 
whether it is ObamaCare or the judges they expect to defend it. 
Anything it takes, they are willing to do.
  Let me say again that nobody who supported this rules change can walk 
away from nominees like Professor Pillard or their rulings. They own 
  Let's get back to ObamaCare for a few minutes because that is the 
issue the American people are most concerned about now. That is the 
issue the Democrats want to distract us from.
  The American people should know what the liberal playbook is. The 
left believes the President's agenda runs straight through the DC 
Circuit Court. That is why they pressured Democrats to change the rules 
of the Senate to pack this court with folks like Professor Pillard.
  The goal here is actually twofold: First, grease the skids for an 
agenda that can't get through the Congress. Then build a firewall 
around it by packing this court with your ideological allies. That way 
Democrats can keep telling folks what they think they want to hear 
about ObamaCare and anything else, but they can also rest assured that 
nobody is going to tamper with it.
  All of this is in the context in which the national debate over 
ObamaCare and its failures should be viewed. None of it should distract 
us from what ObamaCare is doing to our health care system or to the 
millions of ordinary Americans who have been suffering under its 
  Over the past couple of months the American people have been witness 
to one of the most breathtaking indictments of big-government 
liberalism in memory. I am not only talking about the Web site--the 
subject of late-night comedy--I am talking about the way in which 
ObamaCare was forced on the public by an administration and a Democrat-
led Congress that we now know is willing to do and say anything to pass 
the law. They are willing to do or say anything.
  In the Senate we had the ``Cornhusker kickback,'' we had the ``Gator 
aid,'' we had the ``Louisiana Purchase,'' and they finally got up to 
the 60 votes they needed. They had to get every single Democrat, and 
they got them any way it took. This is coupled with the grossly 
misleading statement: If you have your policy and you like it, you can 
keep it. If you have your doctor and you like him or her, you can keep 
them. The President and his Democratic allies were so determined to 
force their vision of health care on the public that they assured them 
they wouldn't lose the plans they had, that they would save money 
instead of losing it, and that they would be able to keep using the 
doctors and hospitals they were already using. The stories we are 
hearing now on a near-daily basis range from heartbreaking to comic.
  Americans are very upset. Finally, the big-government crowd messed 
with an issue that affects every single American. In my State they have 
shut down the coal industry. That has had a big impact by creating a 
depression in Central Appalachia. One could argue they can go after the 
coal industry because it is confined to certain areas of the country. 
But on health care they are messing with everybody. The one issue every 
single American is affected by and cares about is their own health 
  The attention-getting stunts the President has engaged in--we can 
have those until we are blue in the face, but they don't change 
anything. All they do is remind folks of the way Democrats continue to 
set up one set of rules for themselves and another for everybody else. 
There is one set of rules for us and another set for everybody else.

[[Page S8611]]

Whether it is ObamaCare or the IRS or the NLRB or pushing the button on 
the nuclear option, it is all basically the same debate: We are going 
to do what we are going to do. We don't care what the rules are; we 
will break the rules. We will do whatever it takes to get what we want. 
It is a party that is clearly willing to do and say just about anything 
to get its way.
  Millions of Americans are hurting because of a law Washington 
Democrats forced upon them. What do they do about it? They cook up a 
fight over judges on a court that doesn't even have enough work to do. 
This is a court that they were arguing a few years ago shouldn't have 
any additional members because they had a light workload, and now the 
court has an even lighter workload.
  We know what this is about. As I indicated, I would want to be 
talking about something else too if I had to defend dogs getting 
insurance while millions of Americans lost theirs. It isn't going to 
work. The parallels between the latest move and the original ObamaCare 
push are all too obvious to ignore.
  The majority leader promised over and over that he wouldn't break the 
rules of the Senate in order to change them. On July 14 he went on 
``Meet the Press'' and said: ``We're not touching judges.'' This was on 
July 14 of this year. That echoed the promise he made in January of 
this year. It sounds very similar to ``If you like your policy, you can 
keep it.''
  Then there are the double standards. When the Democrats were in the 
minority, they argued strenuously against changing the rules. And let's 
not forget about the raw power at play. The American people decided not 
to give Democrats the House or to restore the filibuster-proof majority 
they had in the Senate in the last two elections--an inconvenient truth 
for our friends on the other side.
  They don't own the place anymore. They did in the first 2 years, with 
60 votes in the Senate and a 40-seat majority in the House, but not 
anymore. The American people took a look at that first 2 years and 
issued a national restraining order in November of 2010. Our friends 
don't want to be deterred by that. They are going to pursue their 
agenda through the courts and through the regulatory schemes the 
administration propounds. They changed the rules of the game to get 
their way. It is pretty clear that if one can write the rules of the 
game, they ought to be able to win.
  Earlier this year the senior Senator from New York said Senate 
Democrats intended to ``fill up the DC Circuit one way or another.'' It 
couldn't be any more clear than that. We will do it one way or the 
other. We break the rules, change the rules, and do what we want to do. 
The arrogance of power is on full display by an arrogant majority. It 
is on full display in the Senate.
  Our colleagues evidently would rather live for the moment and try to 
establish a storyline that Republicans--I just heard it here from the 
majority leader--Republicans are intent on obstructing President 
Obama's judicial nominees. It is a storyline that is patently 
ridiculous. One can keep saying things over and over, but it doesn't 
make it true. It doesn't make it true to keep saying the wrong thing 
over and over.
  Here are the facts. Before this current Democratic gambit to ``fill 
up the DC Circuit one way or another,'' as the senior Senator from New 
York said, the Senate had confirmed 215 judges and rejected 2--some 
provocation for breaking your word and breaking the rules of the Senate 
in order to change the rules of the Senate. That is a confirmation rate 
of 99 percent. Republicans have been clearly willing to confirm the 
President's judicial nominees. And on the DC Circuit, we recently 
confirmed one of the President's recent nominees by a vote of 97 to 0.
  The Democratic strategy of distract, distract, distract is getting 
old. It is not working. The American people are not listening to this 
ridiculous argument. They are worried about their health care and are 
angry at the people who caused them to lose their policies. In my State 
280,000 people have lost their policies, and on the exchange 26,000 
have been able to get private policies. The rest of them are all 
Medicaid recipients.
  The Democratic playbook of broken promises, double standards and raw 
power--the same playbook that got us ObamaCare--has to end. With the 
help of the American people, we will end it in 1 year. Meanwhile, 
Republicans are going to keep pushing to get back on the drawing board 
on health care--to replace ObamaCare with real reforms that help rather 
than punish the middle class.
  At this point I am going to refer to some constituent letters I have 
received related to ObamaCare that the Senate would find noteworthy.
  This is a letter from a constituent in Bowling Green:

       I am a 35-year-old college graduate and represent many 
     hardworking middle-class Kentuckians who are being directly 
     impacted by . . . ObamaCare. I am a married father of 2 young 
     children. We are, by most accounts, an average American 
     family. Before [ObamaCare] was passed, my family was insured 
     through a health insurance policy purchased on the open 
     market. We shopped several different policies and chose the 
     one that was the best fit for our needs.
       Recently, we received a notice from our insurer that our 
     plan didn't meet the requirements of the [new health care 
     law]. According to the letter, we were required by law to be 
     transitioned into a plan that did meet these new 
     requirements. Also included in the letter was our new 
     premium. That is what shocked us. According to the letter, 
     our premiums would be increasing by 124%, more than double 
     what we had budgeted for this expense.
       According to a speech by the Vice President on September 
     27th [of this year], a family of four earning $50,000 a year 
     could get coverage for as little as $106 a month. Should I 
     have to pay 8 times that amount because my wife and I both 
     work hard to provide for our family and earn more than the 
     Vice President's limit of $50,000 a year? Why should the 
     price of a product be based on my ability to pay?

  That is a very good question: ``Why should the price of a product be 
based on my ability to pay?''
  He continues:

       Would that work at the gas station? Should the price of a 
     gallon of gas be decided by my income tax return? Or at the 
     grocery store? Should the price of a gallon of milk be 
     determined by my income tax return? Or in shopping for a 
     home loan? Should the interest rate on my mortgage be 
     higher if I earn more than $50,000 a year? This predatory 
     pricing structure runs contrary to the basic American 
     foundational principles of Free Enterprise and is illegal 
     in every other marketplace. It should be illegal in health 
     care too.

  Larry Thompson from Lexington:

       My health plan that I have had for 10 years just got 
     canceled, and the least expensive plan on the exchange is a 
     246 percent increase--that means hundreds of extra dollars 
     per month we don't have. Obama lied and made a promise he 
     couldn't keep when he said repeatedly if we wanted to keep 
     our current health care policy we could.

  That is what Mr. Thompson from Lexington said. And he continues:

       He has really affected our lives for the worse--much worse. 
     I'm so mad. We must stop insurance companies from canceling 

  And of course the reason they are having to cancel policies is 
because the law makes them.
  Sherry Harris from Nicholasville in my State:

       Did you know the Lake Cumberland Hospital in Somerset is 
     not on the Anthem network? Which means anybody in Pulaski and 
     surrounding counties that qualify for a subsidy and want to 
     use it will have to drive to London, Corbin or Lexington to 
     get care?

  Harriet White from Rockfield, which is in Warren County, near Bolling 

       Dear Senator McConnell: I am deeply upset because of the 
     effect this health care act has had on our family's health 
     insurance. It has negatively impacted our finances and our 
     quality of care. The President promised that if you had 
     health care, you would not be impacted. The sad truth is 
     that, like my coworkers, my deductible has doubled, along 
     with my premiums. The only way to be able to adjust is for us 
     to either reduce or stop our 401(k) contributions. This is 
     hardly affordable health care. I don't understand why such a 
     blatant lie has been allowed to go this far. Do we not as 
     American citizens have the right to choose basic services? I 
     don't think the government should make choices for the people 
     that impact us in such a negative way. Thank you for your 
     time, and please keep fighting this gross abuse of power.

  Aaron McLemore from Louisville:

       Seeing as I'm a single male (31, policy being cancelled) 
     with no kids or dependents, and I'm paying for pediatric 
     dental care and maternity care, it doesn't make a whole lot 
     of sense to me.

  This is a single male, age 31, having to pay for pediatric dental 
care and maternity care, and he says it ``doesn't make a whole lot of 
sense to me.'' He makes more than $100,000 a year and doesn't qualify 
for a subsidy on the

[[Page S8612]]

Obama exchange. So the current policy of this 31-year-old is being 
canceled. A new policy from the exchange will more than double his 
monthly premium and nearly double his yearly out-of-pocket maximum. His 
higher costs aren't subsidizing lower income policyholders whose 
subsidies have already been paid by the government, but he is providing 
a subsidy in another way: The new act requires him to buy a policy with 
features he doesn't need.
  What ObamaCare is doing is moving McLemore out of the individual 
market, where people are sorted by age and health history and scope of 
coverage, to a market more like the traditional employer-based group 
policy in which young and old workers get the same coverage and pay the 
same premium.
  Mr. and Mrs. Spears from Louisville:

       I think you should know what is going on here in Kentucky 
     with Kynect--

  That is the Kentucky Web site--

       I had to sign my wife up since our governor canceled all of 
     the KyAccess policies effective January 1, 2014. I signed up 
     through the benefits firm, advising them that I wanted no 
     subsidies since we have always paid our way in 42 years of 
     marriage. He told me the full pay option of $517 per month 
     and advised no income verification was necessary since no 
     subsidies were involved. So I chose the Kentucky Co Op plan, 
     as I felt the monies would stay in Kentucky with this plan.

  He went on to say:

       And then I received four mailings from Kynect. One stating 
     she was declined coverage unless I sent income verifications; 
     also one stating I have to fill out a voter registration and 
     return as they have no information on my voting record.

  So what does whether you are registered to vote have to do with 
signing up for ObamaCare?
  The letter continues:

       I called Kynect today and advised them I am receiving no 
     subsidies and do not feel I should be required to send this 
     information to them. And if they wanted this information, I 
     file taxes every year and would be easily accessed. In 
     regards to voter registration, I advised this has nothing to 
     do with health registration, and I strongly objected to the 
     language linking the two in the letter. Any clear thinking 
     person would be upset at our State government trying to bring 
     voter registration into this mess, not to mention personal 
     information they should not need since no subsidies are 

  These stories go on and on.
  Lana Lynch from Brandenburg:

       My out-of-pocket expenses for my family of five went from 
     $1,500 a year to $7,000 a year. The best policy that is 
     available by my employer has a $7,000 out-of-pocket a year 

  And she works for a very large health care provider.
  Jeannine Gentry from Ekron:

       We are covered under my husband's policy through his 
     employer. We have not found out exactly how much the premium 
     is going to rise but have been told to expect between 150 to 
     300 percent increase per paycheck. We do know for certain 
     that our deductible will rise from $5,000 annually to $8,500.

  Ann Knauer from Sheperdsville:

       I received my insurance papers from United Healthcare and 
     found that my premiums had risen from $214 to $480 a month. I 
     only get $1,181 in Social Security a month. That's after my 
     Medicare payment. So I went online to see if I could get my 
     husband signed up for this ACA insurance. I filled out the 
     information, but was told that what I stated for our income 
     was incorrect and that I needed to send in proof of my 
     income. Then they insisted we fill out this form about voter 
     registration. We are already registered to vote and felt this 
     was completely unnecessary. The form did have a spot that 
     stated that we were already registered, but I just don't 
     trust the Web site, so we declined. We got forms in the mail 
     anyway. I'm just going to stick with my old insurance and pay 
     the higher premiums because I know what it covers. I have 
     Medicare and United Healthcare. I have kept this insurance 
     because of my husband, who is also retired but not covered 
     under any other insurance. My insurance came from my job that 
     I had before I retired, as part of the retirement package.

  Mike Conn from Prestonsburg. And I might say that Prestonsburg is in 
eastern Kentucky, in the heart of Appalachia, which is also suffering a 
depression as a result of this administration's war on coal. So this 
person who corresponded with me is also living in the middle of a 
depression-riddled part of my State also created by the Obama 
  Here is what he said:

       A policy that has similar coverage to what we had would 
     cost us around $1,100 a month. This is a 100 percent increase 
     for me and my wife. I was informed by the individual that was 
     helping me find coverage that it was because we live in 
     eastern Kentucky.

  Apparently their insurance company is not available there.
  Finally, he says:

       We will not pay that.

  Giselle Martino from Prospect:

       My premium health care, at premium cost to me, is being 
     canceled. I paid a very high premium to have a major medical 
     plan. I am now forced into the exchange for a lesser plan 
     with more exclusions and higher deductibles. I will most 
     likely never reach these deductibles. How does this help me? 
     I'm basically paying into the plan for the others. If I must 
     pay for my higher tier heart drugs anyway, why should I 
     bother with the health plan? What a disappointment this 
     administration has caused.

  Cheryl Russell from Owensboro:

       We got a letter from our insurance company saying our 
     current policy will not meet the Affordable Care Act, which 
     means it will go away. According to our insurance company, we 
     will have to take pediatric dental and vision insurance. We 
     don't have kids. They said it was because of ObamaCare. They 
     are allowing us to keep our plan until December 2014, for an 
     additional $38 more a month, so we can find another plan. 
     Another plan through this company that we had our whole life 
     will cost us at least $900 to $1,000 a month. It will cost us 
     over $150 more a month plus our deductible goes up to $5,700. 
     I sent you a message last week. I am sending this again. 
     Please keep taking a stand against ObamaCare. Our President 
     lied to us. Not only are we going to lose our insurance, but 
     when we go to a different policy we have to pay more. We will 
     never be able to retire. We are 58 and 56 years old. We will 
     have to work the rest of our lives just to pay for our own 
     insurance. The company we work for doesn't provide it. This 
     isn't fair and it isn't right. Thanks for taking a stand for 
     all those who are in Kentucky.

  So, Mr. President, in wrapping up my remarks, here is the situation. 
On Christmas Eve 2009, on a straight party-line vote--60 Democrats 
voting for and 40 Republicans voting against--the administration jammed 
through a 2,700-page rewrite of 16 percent of our economy. The goal, 
one could argue, was a noble goal--that of trying to reduce the number 
of uninsured in America from an estimated group of about 45 million 
  The first problem with this particular solution is that CRS--the 
Congressional Research Service, which doesn't work for either 
Republicans or Democrats--says when all is said and done we are still 
going to have 30 million uninsured. So what is the cost-benefit ratio 
of taking $1 trillion out of the providers of health care--roughly $750 
billion in reductions; cuts to hospitals, home health care, nursing 
homes and the like, hospice; billions of dollars in taxes on medical 
devices; taxes on health insurance premiums kicking in the first of a 
year; a $1 trillion impact on the providers of health care--and over on 
the consumer side I have just given a series of stories about how it 
impacts the consumers of health care: higher premiums, higher 
deductibles, lost jobs, a record number of part-time employees, and 
wreaking havoc on the American economy, the consumers of health care, 
and on the providers of health care--all to reduce the number of 
uninsured from 45 to 30 million.
  This has to be the worst cost-benefit ratio in the history of 
American government, all of this disruption--this catastrophic impact 
on 16 percent of our economy--in order to make a marginal reduction in 
the number of uninsured. This has to be the biggest mistake in modern 
times. In fact, I am hard-pressed to think of a single bigger mistake 
the Federal Government has made, and it has made some whoppers over the 
years. I am hard-pressed to think of a single example that comes 
anywhere close to this, a gargantuan, massive mistake, which has had a 
lot to do with the fact that we have had such a tepid recovery in our 
country after a deep recession.
  The pattern since World War II has been that the deeper the 
recession, the quicker the bounce-back--until this one: a deep 
recession, a tepid recovery. The government itself is the reason for 
that: massive overregulation, an army of regulators who will now have 
their work sped through the DC Circuit Court who believe if you are 
making a profit you are up to no good; you are obviously cheating your 
customers and mistreating your employees. They are here to help you. 
This massive bureaucratic overreach has definitely slowed our recovery.
  So I hope the American people will give us an opportunity in the not 
too distant future to pull this thing out root and branch and start 
over and do this right.
  Mr. President, I yield the floor.

[[Page S8613]]

  The PRESIDING OFFICER (Ms. Baldwin). The Senator from West Virginia.

                          A Nuclear-Armed Iran

  Mr. ROCKEFELLER. Madam President, I wish to speak about an issue of 
great importance to the national security of the United States and to 
all of our allies--which is, preventing Iran from ever having a nuclear 
weapon. There is no doubt in my mind that we will in fact do that, but 
certain things have to happen. The question is how, not whether, we 
prevent a nuclear-armed Iran.
  For the first time in years, there is a real opportunity to take a 
good step to verifiably eliminate Iran's nuclear weapons capability 
through tough negotiations rather than the alternative--which is, 
inevitably, acts of war.
  The initial interim agreement between the P5+1 and Iran is an 
encouraging first step, and I urge my colleagues not to put it at risk. 
How would they do that? By passing new sanctions right now. There is a 
lot of talk about that, and it is easy to look tough. I am kind of 
amazed, to be honest with you, that, I don't think, anybody from our 
side has gotten up and made a speech about this subject on the Senate 
floor. I meant to yesterday but I couldn't. I thank Senator Johnson, 
chairman of the banking committee, who has come to the rescue of all of 
us. He is not going to allow it to happen, and I totally congratulate 
him for that act of quiet and strong courage.
  Instead, we should simply state the obvious: If Iran reneges or plays 
games, there is no question in anybody's mind in this Senate that we 
will quickly pass new sanctions the very moment the need arises. To me, 
this is a clear-cut case. Again, I frankly do not understand why more 
of us, at least on this side, have not gotten up to make this case. I 
think I have some ideas, but I do wonder.
  There is still a long way to go, no question. But this diplomatic 
opportunity is real. Why? Because Iran wants and needs to find a way 
out of the financial isolation that our crippling sanctions have 
inflicted on its government, its business, and its people. It is 
devastating what our sanctions have done.
  Iran's people elected a president who proposed a different path. 
Ayatollah Khamenei, Iran's Supreme Leader, has given President Rouhani 
some flexibility to try and find an agreement. That is unprecedented, 
and most people think it is for real. We shall see. They did in fact 
agree to the initial deal. So already, one step has been taken with a 
good result. I don't think it is a coincidence.
  The immense power of U.S.-led global financial sanctions, backed up 
by our allies, has created the opportunity to resolve this issue 
diplomatically, with verifiable agreements and skeptical inspectors, 
rather than with bombs or boots on the ground.
  I have spent much of my tenure on the Intelligence Committee, going 
back before 9/11, with the Director of National Intelligence, the CIA, 
the NSA, the FBI, and the Treasury Department to build our tools to 
exploit and to freeze the international web of financial networks that 
enable terrorist and proliferation programs--particularly Iran's 
nuclear programs. I have staunchly supported the powerful multilateral 
sanctions regime that is currently suffocating the Iranian economy and 
forced the current Iranian regime to the negotiating table. They would 
not have been there otherwise. The effect of inflation and devastation 
of economic production and all the rest is devastating.
  This initial agreement is the first concrete result of those 
sanctions. It stops progress on Iran's nuclear program. It neutralizes 
Iran's most dangerous stockpile of nuclear material--that is, 20 
percent of enriched uranium--and it establishes strong monitoring 
mechanisms that enable inspectors to verify that Iran is in compliance 
with its commitments.
  The first step maintains the powerful sanctions regime that has 
forced Iran to the table. The agreement maintains that. The very small 
amount of targeted and reversible financial relief that it provides--
roughly $7 billion out of $100 billion in sanctions that the agreement 
leaves fully in place--only underscores the grip that we and our allies 
have on Iran's financial position. The grip will not loosen during this 
6-month agreement as we try to go to a next step. We will continue to 
control and limit Iran's access to money during the 6-month agreement. 
If Iran in fact reneges on the terms of the interim deal, Iran will not 
even get all of the small relief that we have agreed to. They will, 
however, get more sanctions, and over the next 6 months, the small 
amount of financial relief that Iran can gain in the deal will be 
dwarfed by the amount of their loss in oil revenue that our continuing 
sanctions will deny Iran. That was in place; that is in place. Iran 
will be in worse shape financially 6 months from now than it is today. 
That is a fact. The pressure does not relent. It just keeps going. So 
it is a good situation--tough, agreed to, and in place.
  That is why Iran needs to complete a final comprehensive agreement to 
eliminate its nuclear weapons capabilities. Does that guarantee it? No, 
it doesn't. But we are a step further than we were before because this 
interim agreement does not give Iran what it needs to escape financial 
ruin--which counts.

  I appreciate the concerns of colleagues who want more now. But we 
must give this opportunity a chance. However you see the first step, 
whatever your view of it is, the fact is that today Iran is further 
from a nuclear weapon than it would have been without this deal that we 
have just completed. We have accomplished this first step through 
diplomatic strength, without a shot fired. I think we can agree that is 
pretty good.
  We all want to put pressure on Iran to comply with the commitments it 
has made to the interim agreement--and we will--and to agree to a long-
term comprehensive deal--and we hope--that will prevent it from ever 
developing a weapon. But we have taken the first step.
  My colleagues, the pressure already exists for Iran to continue on 
this diplomatic path. Again, if Iran reneges on the commitments it has 
made in this agreement or balks at a final deal that verifiably ends 
its nuclear weapons capabilities, we will go right to, without doubt, 
the Congress imposing new and ever more powerful sanctions on Iran. But 
we don't have to do that now. In fact, it is a terrible mistake to do 
that now.
  Given the indisputable credibility of that threat, I urge my 
colleagues to consider how unnecessary and how risky it would be to 
preemptively introduce new sanctions right now. New sanctions now could 
be criticized as a violation of the interim agreement. It could be 
blown up that way. Such a move would separate us from our negotiating 
partners in the P5+1 and it could complicate the already difficult 
negotiations of a final agreement which we all pray for.
  I know some Senators doubt these risks. But I ask my colleagues this: 
If there is any chance at all that new sanctions right now might 
disrupt the agreement or jeopardize a future agreement, why on earth 
would we risk that? Why would we risk that? We know where we stand. We 
know where we are going. We can't be sure that we are going to get 
there, but we know that we always have the power to increase sanctions 
if they try to avoid certain things. But they haven't. So why pile on 
now and threaten to blow the whole thing up? Why would we risk an 
opportunity that may very well be the only chance we have to resolve 
this enormous problem without the use of military force? I do not know 
of an alternative to that.
  If we lose this diplomatic opportunity, then the use of force will be 
the only option to stop Iran's path to a nuclear bomb. All of us have 
lived with war for the past 12 years. Intimately, painfully, 
horrifically, we have all seen close up the incalculable financial and 
human cost that has come with these wars and the burden that the wars 
now put on our troops, their families, our economy, and, therefore, our 
people. This has only hardened my resolve to ensure that this immense 
sacrifice never happens unnecessarily--that we take great care to 
exhaust every possible avenue to diplomatic resolution.
  Colleagues, we have now an opportunity to eliminate Iran's nuclear 
weapons capabilities. We can do it peacefully. Let's not put that at 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.

[[Page S8614]]

  Mr. BAUCUS. Madam President, President Lincoln once said:

       Character is like a tree and reputation like its shadow. 
     The shadow is what we think of it; the tree is the real 

  It is my distinct privilege to rise today to speak on two nominees 
that are indeed the real thing--Justice Brian Morris and Judge Susan 
Watters. The Senate will soon take up both Justice Morris's and Judge 
Watters's nominations for United States District Judge for the District 
of Montana.
  One of the most important responsibilities I have is providing advice 
and consent to the President on nominations to the Federal bench. I 
approach each vacancy with the same criteria--I want the best, 
regardless of whether they are Republican or Democrat, liberal or 
conservative. Justice Morris and Judge Watters are the best. Their 
quality of character and breadth of experience are remarkable.
  Montana Supreme Court Justice Brian Morris is one of the brightest 
legal minds to ever come out of Montana. Justice Morris was born and 
raised in Butte, MT, and graduated from Butte Central High School. He 
earned bachelors and masters degrees in economics from Stanford 
University and received his law degree with distinction from Stanford 
University Law School in 1992.
  Justice Morris's experience after law school is as varied as it is 
noteworthy. He clerked for Judge John Noonan, Jr., of the Ninth Circuit 
Court of Appeals and Chief Justice William Rehnquist of the United 
States Supreme Court. He spent time working abroad as a legal assistant 
at the Iran-U.S. Claims Tribunal in The Hague and as a legal officer at 
the United Nations Compensation Commission in Geneva, Switzerland. He 
also spent time in private practice, handling criminal and commercial 
litigation with the Bozeman, MT, firm of Goetz, Madden, & Dunn.
  Justice Morris also served for years as the State's Solicitor 
General. He was elected to his current position on the Montana Supreme 
Court in 2004, and has demonstrated integrity, fairness, a steady 
disposition, and superb analytical skills on Montana's highest court. 
Justice Morris is known for his approachability, even-handedness, and 
down-to-earth manner. After all, he is from Butte. He can often be 
found reading to students at Smith Elementary School in Helena.
  Justice Morris has commanded the respect of his colleagues at the 
highest levels of the law. For more than 8 years, he has served the 
people of Montana on the bench and in the community. His nomination is 
an extraordinary cap on an already remarkable career, and I have no 
doubt that he will continue to serve at the highest level. I 
congratulate Justice Morris, his wife Cherche, and their children Max, 
Mekdi, Aiden, and William, on this achievement.
  In 1916, Montanans elected Jeanette Rankin to be the first woman to 
serve in Congress 4 years before women had the right to vote. We are 
especially proud of this fact. Judge Susan Watters, our second nominee, 
is another trailblazer we can be proud of. Not only is Judge Watters a 
respected jurist and dedicated public servant, but once confirmed, she 
will be the first woman to serve as a United States District Court 
Judge for the State of Montana.
  Judge Watters was born and raised in Billings, MT, and graduated with 
honors from Eastern Montana College. Judge Watters raised 2 young 
daughters while attending the University of Montana Law School, 
receiving her law degree in 1988. Since then, Judge Watters has 
cemented her reputation as a skilled trial lawyer and judge.
  After law school, Judge Watters served as Deputy County Attorney for 
Yellowstone County, handling civil and criminal cases. In 1995, Judge 
Watters entered private practice, taking hundreds of cases to final 
judgment in State and Federal court. In 1999, Governor Marc Racicot 
appointed her to sit as a State district court judge for Montana's 13th 
judicial district in Billings. Since her appointment, Judge Watters has 
been reelected 3 times, most recently with over 80 percent of the vote.
  Judge Watters has tried hundreds of cases during her 14-plus years on 
the bench. She has heard civil, criminal, probate, juvenile, and family 
law cases. Her trial court experience is remarkable.
  She further served her community by establishing the Yellowstone 
County Family Drug Treatment Court in 2001, the first of its kind in 
Montana. Its overwhelming success has made it a national model.
  Judge Watters is known for being fair, hard-working, possessing 
strong analytical skills and an excellent judicial temperament. Her 
extensive trial experience as a practicing lawyer and trial judge will 
be an invaluable addition to Montana's Federal bench.
  Judge Watters embodies the qualities that service on the Federal 
bench requires. She has served the people of Yellowstone County for 
over a decade, and I am absolutely confident that she will bring the 
same professionalism and dignity to the Federal bench. I want to 
congratulate Judge Watters, her husband Ernie, and their daughters 
Jessica and Maggie on this outstanding achievement.
  Justice Morris and Judge Watters are supremely qualified. Their 
service is sorely needed. We have two vacancies in our State. We have 
three Federal district court judgeships. The vacancies that Judge 
Watters and Justice Morris will fill are both considered judicial 
emergencies. Chief Judge Dana Christensen, our lone active judge, 
travels over 300 miles round trip to hear cases. In fact, I just spoke 
to him yesterday, telling him we would be filling these positions in 
Montana. He said, Max, I am getting in the car right now to drive. 
What's the distance? I won't say the distance. It is a 4-hour drive to 
Great Falls, MT, from Missoula, so he could sit and hear some cases in 
Great Falls. Judge Don Molloy travels over 340 miles one way. That is 
greater than the distance between Washington, DC and Hartford, CT. He 
does that to hear cases. We need our replacements.
  Justice Morris and Judge Watters embody the qualities Montanans 
demand of their Federal judges--their intellect, their experience, and 
integrity above reproach. I urge my colleagues to join me in supporting 
their nominations.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. ROBERTS. Madam President, I rise to address the nomination of 
Cornelia Pillard for the DC Circuit. It appears to me the environment 
in which we are discussing these nominations is a good example of the 
new rules of the Senate. We are already getting a taste of the new 
world order around here. It did not take long. It has only been a few 
weeks but we are already experiencing life in the new Senate. Those in 
the majority who wanted to change the rules are now certainly getting 
their wish.
  It should have been obvious that the rule change would impact the 
Senate in many unforeseen ways. We in the minority have had to find 
other ways to make our voices heard. As we watch the majority use its 
new power to move whomever it wants through this body, we should 
realize that we have started down a course from which we will never 
return. Indeed, we should expect more changes in the future. The 
majority changed the rules because it did not like how they were 
operating to frustrate their ambitions and agenda. If other things come 
about that frustrate the majority, we may have new changes to get rid 
of those frustrations too. The invocation of the nuclear option has set 
us on an irreversible course.
  A few weeks ago I came to this floor and quoted our former 
Parliamentarian Bob Dove. He and Richard Arenberg, one-time aide to 
former majority leader George Mitchell, wrote a book called ``Defending 
the Filibuster.'' This is what they said, and it bears repeating:

       If a 51-vote majority is empowered to rewrite the Senate's 
     rules, the day will come, as it did in the House of 
     Representatives, when a majority will construct rules that 
     give it near absolute control over amendments and debate. And 
     there is no going back from that. No majority in the House of 
     Representatives has or ever will voluntarily relinquish that 
     power in order to give the minority greater voice in crafting 

  Unfortunately, the majority didn't seem to care about the concern 
these wise men raised and went ahead with their rule change anyway. Now 
we are feeling the effect.

[[Page S8615]]

  This power grab is having other consequences too. Today I attended a 
hearing in the rules committee as the ranking member, for nominees to 
an agency called the Election Assistance Commission. You probably never 
heard of it. Madam President, I doubt if you have ever heard of it. It 
is a small agency with 4 commissioners--2 Democrats and 2 Republicans. 
Nominations to bipartisan commissions have traditionally been paired 
and moved jointly. This practice ensured each party has a voice in such 
  Before the rules were changed, the minority could be assured that 
their consent would be needed for appointments. That assurance is now 
gone. Will the majority just make its own appointments to commissions 
such as this now? I hope not. That is under discussion in the rules 
committee. But what motivation do they have to ever confirm any 
Republican nominee, if they so choose to even consider minority views 
in this regard? We are going down a dangerous path, and no one knows 
where it will lead.
  The same is true in regard to the atmosphere that we find with the 
affordable health care act. For some reason, the executive has decided 
to make any changes to the law without really considering coming back 
to the Senate or the House or the Congress to make these changes. So in 
part I come to the floor to speak about an issue that continues to keep 
me up every night--and every Kansan as well--that is the implementation 
of this affordable health care act, the health reform law.
  This is, indeed, the President's legacy legislation. Based on what I 
am hearing from Kansans at home, I would think the President would want 
to be remembered for something else entirely. Unfortunately, since the 
implementation of ObamaCare began, the stories and reports have only 
confirmed the many warnings that I and my colleagues have made during 
the debate for the last 3 years.
  People cannot keep their coverage. Despite the many, even hundreds of 
promises made by this President and the supporters of this law, people 
are losing their coverage. Premiums are increasing, even though the 
President and supporters of this law said premiums would decrease by 
$2,500 for all Americans. Most of the stories I hear, and especially 
from Kansans, involve many hundreds of dollars in increases in monthly 
  Even more recently, folks are realizing that what they had to pay in 
out-of-pocket costs are going to skyrocket. Deductibles are higher and 
the products, drugs, and services Kansans have to pay to reach their 
deductible has virtually exploded. This doesn't even count the 
increases to copays and other costs that patients are seeing, 
especially with regard to prescription drugs.
  This is being done in a way so that patients are getting the full 
information they need. So much for being the most transparent 
government in history.
  Along these lines I believe it is my responsibility to come to the 
floor and remind Kansans about several other provisions of ObamaCare 
that patients may not be aware will put the government between the 
patient and the doctor--their doctor. During the health care reform 
debate, I spoke at length in the Health, Education, Labor, and Pensions 
Committee and in the Finance Committee, and on the Senate floor about 
something called rationing, a subject that is very controversial. 
Specifically, I want people to know about the four rationers--boards, 
commissions, whatever you want to talk about--the four rationers 
included in ObamaCare.
  First is the CMS Innovation Center, the Center for Medicaid Services 
Innovation Center, which was given an enormous budget to find a way to 
reform payments and delivery models. What this really means is CMS can 
now use taxpayer dollars in ways to reduce patient access to care. It 
gives CMS new powers to cut payments to Medicare beneficiaries with a 
goal to reduce program expenditures, but the reality being that they 
will reduce patient access.
  There are new authorities also granted to the U.S. Preventive 
Services Task Force. The USPSTF used to be a body that was scientific 
and academic, that reviewed treatment, testing, and preventive health 
data and made recommendations for primary care practitioners and health 
care systems.
  I guess many would agree that is still what they do today. However, 
the weight of their recommendations holds significantly more weight as 
of today, due to the Affordable Care Act or ObamaCare. Because of this 
law, the health care law, the USPSTF, can now decide what should and, 
more importantly, should not be covered by health care plans. If the 
USPSTF doesn't recommend it, then it will not be covered by your health 
plan and you will bear the cost of the procedure. We are already seeing 
this with prostate exams, mammograms for breast cancer, which many 
people say have saved their lives. You reach a certain age and they 
will not do a PSA test. The same kind of criteria--with some degree--to 

  Rationale No. 3, the Patient Centered Outcomes Research Institute or 
PCORI. This outfit was given millions and millions of dollars to do 
comparative effectiveness research, also known as CER. I am not 
opposed--I don't know of any Member in this body who is opposed--to 
research, especially when it is used to inform the conversation between 
a doctor and their patients.
  But there is a reason this was formerly called cost-effective 
research. There is a very fine line between providing information to 
doctors and patients to help them make the right decision that works 
the best for them and then using that information to decide whether the 
care or treatment is worth paying for. I have long been concerned that 
this research will be abused to arbitrarily deny access to treatments 
or services in order to save the government money by Federal Government 
  Finally, there is my personal nemesis IPAB, which stands for the 
Independent Payment Advisory Board, and is just now making news as 
various people within the media are finally recognizing IPAB. This is a 
board made up of 15 unelected bureaucrats who will decide what gets to 
stay and what gets to go in Medicare coverage. They will decide what 
treatments and services will be covered and which will not, all to 
allegedly save money with no accountability. There is no accountability 
  When proposed--I remember it well both in the HELP Committee and the 
Finance Committee--supporters of the health care law told me we are too 
close to our constituents. Really? We are too close to our 
constituents. It makes it too difficult to make the hard decisions. 
Let's have somebody else do it. It will be more fair. We know them too 
much. We trust them too much.
  I could not believe it. I believe I am elected to make the hard 
decisions--I and others in this body--and take the hard votes. I 
believe that is the way Kansans and every other State constituency also 
wants it.
  Even worse is the fine print of IPAB. Get this. If Kansans determine 
they do not like the direction the IPAB is taking and call my office, 
and every other office in the Senate, to ask us to do something about 
it--to ask me to do something about it--we in Congress can overturn 
their decision, but it has to be by a certain margin. On the surface 
this sounds OK until you realize the President will never support 
Congress overturning the recommendation of this Board, so he will veto 
it. Overriding a veto takes a two-thirds vote, which is 66 votes to 
overturn a decision by IPAB.
  My colleagues have been changing the rules around here because they 
think 60 votes is too high a threshold. What are the chances of 
reaching 66 if a decision is made by IPAB with regard to Medicare?
  But wait. There is more. If the Secretary appoints a board unable to 
make recommendations for cuts to Medicare, then she gets the authority 
to make the decision of what to cut. This President has already cut 
one-half trillion dollars from Medicare to pay for ObamaCare, and he 
gave himself the ability to go after even more Medicare dollars and 
have no accountability with IPAB. This is egregious, if not ridiculous, 
but it is not new.
  I have been talking about the four rationers for a long time and what 
it means to patients. I will have more to say about it when the 
opportunity presents itself.
  What scares me, as I watch all the other warnings and broken promises

[[Page S8616]]

come true, is what is going to happen to Kansans--and I know other 
Senators have this same fear--when the warnings about the four 
rationers do come true.
  We need to protect the all-important relationship between the doctor 
and the patient, which I believe the four rationers put at risk. In 
order to do that, we need to repeal--and most important--and replace 
ObamaCare with real reforms that work for Kansans.

                             The Farm Bill

  In this atmosphere of uncertainty and new Senate order, I would like 
to talk about another subject that is related, for the lack of any 
progress we might have.
  This is becoming an all too familiar situation for Kansas farmers and 
ranchers and all of American agriculture. In some respects we are 
closer to signing a farm bill into law than 1 year ago, but we still 
have not yet completed this important task. As 1 of the 41 Members 
named at the conference committee in October, I was able to give a 
quick opening statement outlining my biggest priorities for the farm 
bill, including addressing regulations that protect crop insurance and 
reforming SNAP; i.e., food stamps.
  Unfortunately, that was the one and only time the full conference 
committee has met to date. With time in short supply, the four 
principals of the agriculture committee both in the House and the 
Senate--the ranking member, the chairwoman, the chairman, and the 
ranking member in the House--are trying to make the majority of 
decisions as best they can among themselves and behind closed doors.
  Sometimes you can get things done behind closed doors without 37 
people offering their opinion. I understand that. But with all due 
respect to those Members, we have real policy differences that deserve 
to be debated publicly, particularly in the commodity and the nutrition 
titles. The other 37 of us have been ready and willing to be put to 
work. Yet the conference committee has only met once with no future 
meeting scheduled.
  I am very disappointed that an agreement on the farm bill may be 
close and yet some of our ideas and suggestions and concerns will go 
unheard or unanswered, such as the new environment we live in, in the 
  As I said during the agriculture committee markup and our only 
conference meeting, I have real concerns with the direction of the farm 
programs in this year's bill. We have what are called target prices--we 
might as well just say subsidies or countercyclical payments or adverse 
market payments--which have proven to be trade and market distorting.
  For some commodities these prices are set so high that they may cover 
a producer's cost of production. That is right. We have a government 
subsidy over the producer's cost of production. That will essentially 
guarantee that a farmer profits if yields are average or above average.
  In this budget environment, and at a time when we are looking to make 
smart cuts, I simply don't know how to justify this subsidy program 
that can pay producers more than the cost of production and essentially 
becomes nothing more than an income transfer program, not a risk 
management tool.
  After the committee markup, I had hopes we could improve the farm 
bill to more resemble the risk-oriented and the market-based approach 
the Senate had previously taken, working with the distinguished 
chairwoman from Michigan and myself as ranking member.
  Last year I worked with the Senate leadership from both parties to 
consider the farm bill through, of all things, regular order. Everybody 
had a chance to offer an amendment. The first amendment that was 
offered had nothing to do with the farm bill. That amendment was by 
Senator Paul. Regular order gave all Senators the chance to improve the 
bill or make their concerns known.
  However, this year we considered a mere 15 amendments. The last time 
around it was 73 with 300 offered. Although 250 amendments were offered 
this time, we only had 15 amendments. All amendments regarding the new 
target price program were blocked from consideration and votes on the 
Senate floor--all of them. Senator Thune had amendments, Senator 
Grassley had amendments, Senator Johanns had amendments, and I had 
amendments. We all serve on the agriculture committee.
  Of course, the real problem with farmers planting for a government 
program and not for the market is that these programs only serve to 
extend the period of low prices due to overproduction.
  Besides high target prices for all commodities, the House wants to 
recouple payments with current production for the first time since 
1996. The Chamber of Commerce has warned that if we go down this road, 
we will quickly invite other Nations to initiate dispute settlements 
against the United States and do so with a good chance of success.
  I also have longstanding WTO, World Trade Organization, concerns, and 
the United States lost--and I mean really lost--in a case to Brazil in 
part because of the decoupled price program. We are still paying for 
  I am hopeful we will come to some agreement that works without 
further setting us up for a further trade dispute not ruled in our 
  Another sticking point seems to be SNAP, the Supplemental Nutrition 
Assistance Program. I think everybody is aware of that. It is important 
to note that at least 80 percent of the U.S. Department of 
Agriculture's budget goes to nutrition programs. SNAP was exempted from 
across-the-board cuts known as sequestration.
  The Senate bill only trims $4 billion out of a nearly $800 billion 
program in a 10-year budget. That is less than 1 percent of a 
reduction. It doesn't cut anybody's benefits. It looks at eligibility 
and other problems that are within SNAP.
  We have the responsibility to do more to restore integrity to SNAP, 
eliminate fraud and abuse, while providing benefits to those truly in 
  I offered an amendment during the committee markup and on the floor 
that would have saved an additional $31 billion for SNAP. I thought it 
was a smart and responsible way which would not take away food from 
needy families.
  The House took a similar approach and also included work requirements 
for food stamps and found a total of $39 billion in savings. That is 
about a 5-percent reduction over 10 years.
  It has also been mentioned that SNAP has already been cut by $11 
billion this year. However, the end of the American Recovery and 
Reinvestment Act of 2009 stimulus boost for food stamps was a temporary 
increase in benefits to assist individuals and families hurt by the 
recession. The end of this temporary increase is in no way related to 
the farm bill, and the Congressional Budget Office agrees that no 
budgetary savings are achieved. Reconciling the difference between $4 
billion and $40 billion in savings has proven very tough so far, if not 
impossible. However, unlike the majority of the programs in the farm 
bill, if we don't have a bill signed into law, the Food Stamp Program 
or SNAP will go unchanged and there will be no savings or reform to the 

  Last week I spoke with the Kansas Farm Bureau--800 members of the 
farm bureau and their families--and once again the No. 1 priority for 
virtually every producer was crop insurance. Even after the devastating 
drought over the last few years, crop insurance has proven to work. 
Producers from Kansas to Illinois and all over the country are still in 
business helping our rural families and our communities.
  In 2013, producers across the country insured a record number of 
acres, covering nearly 295 million acres and over $123 billion in 
liabilities. The takeaway message is clear: More farmers are purchasing 
crop insurance policies to protect their crops than ever before. In 
both versions of the farm bill, we are able to strengthen and preserve 
crop insurance. We need to keep that commitment through the final 
  The farm bill is the appropriate time and place to also address 
regulatory overreaches by the Environmental Protection Agency and the 
rest of the administration that impacts farmers and livestock 
producers. In that respect, I appreciate the House addressing several 
burdensome regulations that I worked on in the Senate, including 
pesticides, farm fuels, tank storage, the lesser prairie chicken--bless 
their heart--GIPSA, mandatory country-of-origin labeling, also called 
  Overall, I am disappointed that it looks as though we will not finish 

[[Page S8617]]

farm bill before the end of this year, despite the need for certainty 
and predictability all throughout farm country, not to mention the 
Department of Agriculture. Our folks back home have to make business 
decisions regardless of the status of negotiations.
  Just one example. Kansas wheat growers have already planted their 
2014 wheat crop and have been required to certify their acres; they 
just don't know what programs will be available to them. While we all 
want to provide long-term certainty to farmers, ranchers, their 
families, and American consumers, we have already let one extension 
expire in September, and the House may pursue extending the 2008 bill 
yet again. However, our Senate majority leader, Harry Reid, said 
yesterday that even if the House passes a short-term extension of the 
farm bill, the Senate will not pass it.

  A year ago in August I went to the floor, upset with the leader for 
failing to consider a bill the House passed to reinstate the livestock 
disaster programs from the 2008 farm bill in response to the 
devastating drought in the Midwest. It went on for 3 years. At the 
time, I called it shameful and an abdication of our duty to the 
cattlemen and women who feed the world and warned of the costs of 
inaction. We were able at that time to finalize a farm bill--still the 
same farm bill a year later--and our livestock producers are continuing 
to work to rebuild their herds after multiple years of drought. Yet 
livestock disaster programs remain on hold. Then the devastating 
blizzard hit the Dakotas and Nebraska this year, and those producers 
were left with little Federal support--a problem we could have 
addressed a year ago.
  All of us on the conference committee and every Member throughout 
Congress should be equally troubled if we leave this year without 
addressing the farm bill. I am committed to resolving these difficult 
differences in order to provide certainty and a forward-thinking farm 
bill that is responsible to Kansans and farmers and ranchers and 
consumers as well as taxpayers.
  We have to end this environment here where this so-called nuclear 
option has really gotten us into a hole that we keep digging, whether 
we are trying to get a farm bill done, whether we are striving to 
improve the affordable health care act or repeal it, or whether we have 
a commission that nobody has heard of in the rules committee that is 
sitting doing something, but we know not really what or what to do with 
  I see the distinguished Senator from Louisiana, who I think would 
like to be recognized at this time, so I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.

                   Unanimous Consent Request--S. 1610

  Ms. LANDRIEU. Madam President, I see my good friend the Senator from 
North Dakota on the floor today, and I wish to yield to her to begin 
this very important discussion on the importance of flood insurance 
relief for the country. She has been an outstanding spokesperson and a 
true advocate to help us get this right, this Flood Insurance Program 
that can help sustain the program itself for the benefit of the 
taxpayers as well as for the people in North Dakota, Louisiana, 
Pennsylvania, New York, and New Jersey who depend on it so much. So let 
me turn to our leader, Senator Heitkamp.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Ms. HEITKAMP. Madam President, we are here today to talk about 
something that is critically important to very many middle-class 
families who enjoy home ownership across the country, and business 
ownership, and it is the truly bipartisan Homeowner Flood Insurance 
Affordability Act, which seeks to address the recent flood insurance 
rate escalations across the country.
  This bill is measured, it is reasonable, and it allows for FEMA to 
complete a study on flood insurance affordability and provides Congress 
with assurance about FEMA's ability to accurately determine flood risk 
before implementing pieces of the Biggert-Waters Flood Insurance Reform 
Act. I think it is true in many cases that the Congress has good 
intentions. They passed the Biggert-Waters provisions, they passed the 
act, but implementation has been a nightmare. I don't think we are 
exaggerating in saying it has been a nightmare for very many of our 
community members, especially across the coastal areas. I think it is 
important that I speak as someone from a Plains State who has told 
people repeatedly that flood insurance is a huge impediment to success 
and to home ownership in North Dakota, in very many of my communities.
  I wish to mention some of the provisions of the bill. The bill would 
delay a rate increase for the following properties: primary, non-
repetitive loss residences that were grandfathered; all properties sold 
after July 6, 2012; and all property that purchased a new policy after 
that date. It is important that the folks out there who have already 
gotten these tremendous flood insurance bills understand that our 
effort is to make this bill retroactive to October 1 of this year so 
that those rate increases that were mandated by that date don't take 
  The basement provision is something we have spent a lot of time 
educating other Members about. It is a provision that affects very many 
communities across the country, including 14 in North Dakota, where 
some of our largest communities have flood-proof basements. They have 
lived by the rules and they have done all that they should do, so they 
have been granted an exemption from flood insurance, taking a look at 
where the foundation is as opposed to where the basement floor is when 
they determine vulnerability. That basement exemption is in danger of 
being repealed by FEMA, and we want to make sure that whatever we do 
recognizes that when those homeowners have played by the rules, have 
done what is right and flood-proofed their basements, it is recognized 
in a flood insurance program.
  Generally speaking, I came to the Senate to fight for North Dakotans. 
I have to imagine most of the Senators are here because they want to 
fight for the people of their States. A major way to do that is to 
protect American families and their homes and stop putting undue 
pressure on them. It is a simple idea, but it is proving much harder to 
implement than I would like.
  Flooding is a reality far too often in North Dakota, and there are 
many other communities across the country that see the same kind of 
plains flooding. Just in the past few years we have seen communities 
such as Fargo, Minot, Grafton, and others impacted by severe flooding 
that has destroyed homes and businesses.
  This fall flood insurance rates went up for millions of families. 
This puts families at risk. So many of them have to struggle to pay for 
flood insurance or they have to walk away, literally walk away from 
their investment in their home.
  Biggert-Waters is having an immediate impact on homeowners in my 
State. I will give one example. There is a woman I know from Grafton, 
ND, named Alison Skari who, with her husband Kyle, purchased a home in 
that small community about a year ago. At the time, the flood insurance 
rate was $901 for $100,000 worth of coverage. But when the policy 
recently came up for renewal, their flood insurance skyrocketed to more 
than $4,200 a year. Let me repeat those statistics. Their flood 
insurance cost when they bought their home was at $901. Today their 
bill is $4,200--a 375-percent increase for the same amount of coverage. 
In an email to me, Allison expressed a desire to raise her children in 
Grafton, but unfortunately they no longer can afford their home--not 
with these new rates. She said had she and her husband known about 
these rates when they bought their home, they would never have 
purchased their home.
  This story reinforces that we need to take a new look. We need to 
take a new look at this Flood Insurance Program. We need to take a new 
look at affordability of home ownership.
  Everybody knows that in the last--certainly since 2008 we have seen a 
slow recovery in home ownership. We have tried to make sure people can 
realize the American dream, and a big part of that is, in fact, the 
owning of their own home. Yet here we are in the Congress making it 
virtually impossible for middle-class families to buy and live in and 
enjoy their homes. That was never the intention of the Biggert-Waters 
provision. The intention was to bring the Flood Insurance Program to a 
more reasonable, market-based evaluation.

[[Page S8618]]

But I don't think anyone in this body anticipated these dramatic and 
very devastating increases.
  I believe we absolutely need to do something to send a message that 
we in this body are listening to the middle class. We are listening to 
the middle class. When every person who runs for office--in their 
campaign, I bet there isn't one person in this body who didn't say: I 
am there to help protect the middle class. This is our opportunity, in 
a bipartisan way, to step up and protect the middle class and to tell 
people that grasp of home ownership, that piece of the American dream 
is within their reach, and it is within their reach because we aren't 
doing devastating things here in Washington, DC.
  I thank my great friend from Louisiana. As a new Member, I preside 
frequently on the floor of the Senate, and I think that if there has 
been a canary on this issue, that early bellwether whom we look to and 
who said we are going to have problems, it was Senator Mary Landrieu, 
who alerted this body from the very beginning, who knew these increases 
were coming and so ably advanced her leadership on this issue. I 
applaud her for that. I applaud Senator Menendez and Senator Schumer 
and so many people on the other side who have worked with us to try to 
develop a bill that truly has bipartisan support. I urge this body to 
send a very important holiday present, a Christmas present to the 
middle class of America by passing this reform bill, by delaying these 
increases and making that dream of home ownership possible in the 
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Madam President, I thank the Senator from North Dakota 
for her very kind and very generous comments. She underestimates her 
own tremendous leadership skills. Arriving here as a new Member, she 
jumped right into this issue. She didn't need a lot of prep work. She 
understands her State. She understands basements, which we don't have 
in Louisiana because if we dig down even a few inches, we will hit 
water. So I had to become very well educated by my good friends, the 
Senators from New York, New Jersey, and North Dakota, about true 
basements. It just goes to show that when we work together, we can come 
up with good legislation that can really help our people, give them 
relief, being in partnership with them, helping them to keep and 
strengthen the equity in their homes and businesses as well as do right 
by the taxpayer. So I thank the Senator very much for her kind 
  I wish to through the Chair recognize the Senator from New York, who 
has been an absolutely outstanding advocate for the people of the east 
coast--particularly New York but the entire east coast in the aftermath 
of Sandy. It was so helpful to that region to bring them the relief 
they needed, which has worked, and I understand it is still going on 
and we have to do more. But if we don't fix this flood insurance issue, 
which, in fact, was a manmade disaster, it is going to make the natural 
disaster of Sandy that much worse.
  I wish to ask Senator Schumer if he has any comments to add to what 
has already been said.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Madam President, first, I wish to assure my colleagues 
that they don't have to be wearing a blue jacket to be supportive of 
this legislation, as the Senator from North Dakota, the Senator from 
Louisiana, and I happen to be wearing this afternoon.
  Second, I thank my friend and colleague from Louisiana. What my 
friend from North Dakota said is exactly right. She has been the Paul 
Revere of this issue, running up and down the aisles of the Senate, if 
you will, letting people know--``flood insurance increases are coming; 
flood insurance increases are coming''--because she saw it in her home 
State. She has been a great leader, and I hope we will pass the measure 
she has helped so importantly to craft when it is offered a little 
later by my colleague from New Jersey.
  I wish to say to her that she is exactly right about Sandy. We have 
families who were devastated by Sandy. They struggled to rebuild their 
homes. Then, all of a sudden, because of remapping and because of 
changes in the flood insurance law, they are hit with a flood insurance 
bill of $800, $900, $1,000. Let's make no mistake about it. These are 
not wealthy people. Lots of people in New York State who live along the 
water in Long Island and Queens and Brooklyn and Staten Island are 
working-class and middle-class people. Their homes are modest. Their 
jobs are modest. They can't afford $9,000 a year. For those who were 
told: Yours isn't going to rise, but when you sell your home it will, 
now they can't sell their homes.
  There are some things that make the rest of the Nation scratch their 
heads in wonderment, saying: What the heck is going on in Washington, 
DC? There are too many things, and one of them is flood insurance. How 
can we demand that average, middle-class people pay up to, in some 
cases, $25,000 or $30,000 a year for a policy that is capped at 
$250,000? How can we have so many homeowners have to pay $5,000, 
$8,000, $10,000 when they can ill afford it? We cannot do that. That is 
why this legislation is so important. It is just wrong.
  When we wrote the original Sandy bill, we put in an affordability 
provision, and there was supposed to be a study about how people could 
afford the insurance before any increases were put into effect. That 
did not happen.
  I have to say, the people at FEMA are good people, but they do not 
understand affordability. They are not measuring affordability. They 
are not paying attention to affordability.
  What is the job of Congress? One of our jobs--when an agency does not 
do what it is supposed to do--is for us to correct it and oversee it, 
and that is what has happened with FEMA and flood insurance.
  So we call for a delay until an affordability study is done, until we 
can figure out a new way to avoid average folks, middle-class folks, 
from being forced to either not have flood insurance, abandon their 
homes, or not sell their homes when they desperately need to do so.
  FEMA is saying: If we do not charge these people, the program will 
not be solvent. I will tell you something. If they continue to charge 
these rates, no one is going to buy flood insurance. People will drop 
out of the flood insurance program, and it will be even less solvent. 
So we have to come to a reasonable, thoughtful, and careful solution.
  As the first two of us who have spoken have shown--and my colleagues 
from Louisiana, New Jersey, Florida, New Hampshire, who are all here to 
discuss this issue--this affects every part of the Nation. It does not 
just affect Florida, although they have hurricanes. It does not just 
affect Louisiana, although they have hurricanes and floods. It affects 
our great river basins--the Missouri and Mississippi River basins. It 
affects the west coast, where flash floods can be very, very dangerous. 
It affects any place that is near water, which is most of America.
  We have so many issues. The maps that are drawn are way off base. I 
have areas in my State that are 5 miles from water and have never been 
flooded and are included in flood insurance. FEMA actually did not even 
measure the flood plains in Nassau County and imposed Suffolk County's 
flood plain. We had to force them to go back and start over.
  There is so much wrong with the way the program is now existing that 
it must be put on hold so we can come up with something better than 
FEMA is doing.
  So I hope my colleagues will support us. We have bipartisan support. 
The Senator from Georgia has been a great advocate. Others have been 
great advocates on the other side of the aisle. If you say to yourself: 
I am going to object because this is not affecting my State, believe 
me, it will. As FEMA draws maps in State after State across the 
country, the very same thing that is now afflicting North Dakota, 
Louisiana, New York, Florida, and New Jersey will afflict your State. 
You will be coming back to us 2 years from now saying: Hey, let's move 
that legislation.
  Let's avoid that problem. Let's do what we have to do. Put this on 
hold, go back to the drawing board, and create a FEMA program that both 
works and is affordable. I believe we can, if this Senate and this 
House will give us the chance.

[[Page S8619]]

  I yield the floor.
  The PRESIDING OFFICER (Mr. Brown). The senior Senator from Florida is 
  Mr. NELSON. Mr. President, before the Senator from New York departs, 
I want to say this is a real-life example. In Pinellas County, FL, 
which is the county that houses Saint Petersburg and Clearwater, a 
current flood insurance premium for a homeowner: $4,000. A new flood 
insurance premium--10 times as much--$44,000.
  Do you think that homeowner can afford that? Do you think that 
homeowner can now sell their house since that is the flood insurance 
premium that is facing a potential buyer? And, of course, the real 
estate market dries up.
  So it is a question of affordability, and I merely underscore what 
the Senator has already said and what the great Senator from Louisiana 
is going to talk about; that is, that you have a pause, you get FEMA to 
do an affordability study, and then you phase this in over time.
  It just so happens that 40 percent of these policies are in my State 
of Florida. We have more coastline than any other State, save for 
Alaska, and they are not afflicted by the same things we are, and they 
do not have a population of 20 million people. Lo and behold, our 
people are hurting, and we have to give them relief.
  So I beg anybody in the Senate: Please, when this unanimous consent 
request comes up, we have to have this relief for our homeowners and 
for the real estate market.
  The maps are a different question, and eventually we need to address 
the issue of the maps because they are obviously drawing some areas 
that are not flood prone. They are well above the flood stage, and 
somehow these maps have gotten misaligned. We can address that. But 
right now we have to address the affordability question.
  This is no fooling time, and I beg the Senate to let this legislation 
go by unanimous consent. I am anxious to have my colleagues make their 
  Mr. President, I am chairing the Aging Committee hearing right now. I 
look forward to the Senator from Massachusetts joining us after her 
  So with that, I yield the floor.
  The PRESIDING OFFICER. The senior Senator from New Jersey is 
  Mr. MENENDEZ. Mr. President, in deference to my colleague, who I 
understand may object--and although I have a statement--let me first 
precede it by making this request. As in legislative session, I ask 
unanimous consent that at a time to be determined by the majority 
leader, after consultation with the Republican leader, the banking 
committee be discharged from further consideration of S. 1610, the 
Homeowner Flood Insurance Affordability Act of 2013, and the Senate 
proceed to its consideration; that an amendment, which is at the desk, 
making technical changes to the bill, be agreed to; that no other 
amendments be in order to the bill; that there be up to 2 hours of 
debate equally divided between proponents and opponents of the bill; 
that upon the use or yielding back of time, the bill be read a third 
time and the Senate proceed to vote on passage of the bill; finally, 
the vote on passage be subject to a 60-affirmative-vote threshold.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Kansas.
  Mr. ROBERTS. Mr. President, I object on behalf of the ranking member 
of the banking committee. This bill has not been through the committee 
process and would undo the important rate reforms to the National Flood 
Insurance Program that were put in place in the most recent flood 
reform bill to address the program's $25 billion debt to the taxpayer. 
We must ensure that all Members have the opportunity to understand and 
weigh in on the changes being made by this action. This unanimous 
consent request would bypass this important step in the legislative 
process, and I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from New Jersey.
  Mr. MENENDEZ. Mr. President, I have to say, I am disappointed to hear 
an objection because this is a bipartisan effort that is being pursued 
in the Senate and the majority leader has been very gracious to offer 
us time to debate and vote on an important proposal. I am sure we will 
be back here again to try to achieve that. This is not a Republican 
bill or a Democratic bill. It is not a Republican or Democratic 
priority. It is a commonsense measure that has broad bipartisan 
support--exactly the type of support and cooperation the American 
people are yearning to see from their elected officials. More 
importantly, this legislation is critical to the lives of hundreds of 
thousands homeowners, and we should not simply let Senate procedure get 
in the way of finding solutions.
  Let me just briefly speak in support of S. 1610, which is the 
Homeowners Flood Insurance Affordability Act that we just asked consent 
to bring to the floor. It is a bipartisan, bicameral piece of 
legislation that would help people afford flood insurance so they can 
stay in their homes and businesses can stay open--all the while 
preventing property values from plummeting.
  At a time when there is far too little bipartisan cooperation, this 
bill stands as a notable exception. It currently is cosponsored by 23 
of my colleagues, including 7 Republicans, representing States from all 
corners of the country.
  It is supported by the National Association of Realtors, the National 
Association of Homebuilders, the American Bankers Association, and the 
Independent Community Bankers Association.
  You have heard from several of my colleagues who have spoken to this 
issue--and there are others, such as Senator Warren and my fellow 
colleague from New Jersey, Senator Booker, who I am proud to say has 
chosen this bill as the first piece of legislation to cosponsor in what 
I am sure will be a long and illustrious career in the Senate.
  The reason for that broad support is because flood insurance is not 
just a coastal or Northeast issue, it is an issue that affects the 
entire country. Every State in the Nation has properties covered by the 
National Flood Insurance Program, and every State in the Nation will 
see premiums on some of these properties increase as a result of 
  Some of these increases will be modest. Others are going to be 
prohibitively expensive and act as a de facto eviction notice for 
homeowners who have lived in their homes and played by the rules their 
entire lives. We certainly know this because we are already hearing 
from our constituents, and many more of our colleagues are hearing the 
same desperate cries from across the country, and many more will hear 
them as flood insurance maps get outlined by FEMA under the 
legislation, as renewals come up, and all of a sudden they are going to 
hear an outcry from their homeowners, who are going to say: This 
ultimately creates a set of circumstances for me where I am going to 
lose my home.
  The value of their homes will be dramatically reduced. Their ability 
to sell it will be dramatically altered, and they will, in essence, 
have taken what they have worked a lifetime to achieve and have it 
become a human catastrophe--made by the Congress.
  This is going to drive property values down. The housing market is 
still struggling to recover, and we all know that declining property 
values have a domino effect, causing neighborhood properties to decline 
in value, which, in turn, hurts the broader economy.
  We need to understand the impact that these dramatic changes in 
Biggert-Waters will have on the housing market before it is too late. 
We need to understand the impact these rate reforms will have on 
program participation, which is already dismally low. In fact, recent 
reports suggest that only about 18 percent of properties in flood zones 
participate in the program. If rates are raised too high and too 
quickly, people will simply opt to drop their insurance, decreasing 
participation, and the risk pool in the National Flood Insurance 
Program will ultimately feel the consequences.
  One study has shown that for every 10-percent increase in premiums, 
program participation decreases by approximately 2.6 percent; and the 
sharper the increases, the higher the proportion of dropouts.
  As with any flood insurance fund, the smaller the risk pool, the 
greater the risk. So increasing rates could have the

[[Page S8620]]

unintended consequences of actually making the program less solvent.
  Reduced program participation would also increase the amount 
taxpayers are on the hook for in disaster assistance payments. Since 
FEMA grants, SBA loans, and other disaster assistance are reserved for 
unmet needs, more uninsured homeowners mean more disaster assistance 
  We should be incentivizing people to purchase insurance so they have 
skin in the game and they will be motivated to take proactive 
mitigation measures--not pricing them out of insurance so they are 
forced to rely on taxpayer-funded disaster assistance.
  There is no question that we need to reform the National Flood 
Insurance Program in order to put it on a long-term path towards 
solvency and sustainability. But, unfortunately, Biggert-Waters forces 
changes that are far too large and far too fast. It requires FEMA to 
increase rates dramatically, even before FEMA knows the scope of these 
changes or how they will impact program participation.
  Think about that for a second. We are making dramatic changes in 
policy which could impact more than 5.5 million policyholders and have 
ripple effects throughout the housing market in our entire economy 
before we even know the extent of these changes or their impact.
  I have heard from countless New Jerseyans, many who have come to me 
in tears, who are facing this predicament. These are hardworking 
middle-class families who played by the rules, purchased flood 
insurance responsibly, and are now being priced out of their home.
  That is why we collectively introduced the Homeowners Flood Insurance 
Affordability Act that would impose a moratorium on the phaseout of 
subsidies and grandfathers included in Biggert-Waters for most primary 
residences until FEMA completes the study--that I offered as an 
amendment that was included in the legislation--completes the 
affordability study that was mandated in the law and proposes a 
regulatory framework to address the issues found in the study.
  So we are going ahead with all of these actions and all of these 
increases without--without--knowing the consequences of that study.
  It would also require FEMA to certify in writing that it has 
implemented a flood mapping approach that utilizes sound scientific and 
engineering methodologies before certain rate reforms are implemented. 
We saw this in New Jersey where, in fact, large swaths of communities 
were put in what we call the V zone, which is the most consequential 
zone in the opening maps. But when we pressed FEMA and brought 
information to them, those universes were dramatically reduced.
  The difference between being in that V zone and not can mean the 
difference between being able to continue to own your home or not. So 
we believe that this legislation is critical.
  Why do we come and ask unanimous consent? Why do we ask unanimous 
consent? Why did we ask unanimous consent? Why will we continue to ask 
unanimous consent? Because there is an urgency of ``now.'' If we do not 
act, and we go out of session and we come back next year, unless we get 
to this early on and make it retroactive, we are going to see the 
consequences of this take place across the landscape of this country. 
That is why we have Members from coast to coast; that is why we have 
Members from the South; that is why we have Members from the Midwest 
who all understand the consequences of not acting. That is why we have 
taken the unusual step, on a bipartisan basis, to ask for that 
unanimous consent request.
  For any property sales that occur during this period, the homebuyer 
would continue to receive the same treatment as the previous owner of 
the property unless they trigger another provision in Biggert-Waters 
not covered by my bill.
  For prospective homebuyers, the certainty that they will not see 
their rate dramatically increase simply because they purchased a home 
is critically important to maintaining property values.
  Also, this new legislation would give FEMA more flexibility to 
complete the affordability study.
  It would reimburse qualifying homeowners for successful appeals of 
erroneous flood map determinations.
  It would give communities fair credit for locally funded flood 
protection systems.
  It would continue the fair treatment afforded to communities with 
floodproof basement exemptions.
  It would provide for a FEMA ombudsman to advocate for and provide 
information to policyholders.
  Just as important as what this bill would do, it is also important to 
note what this bill would not do.
  This legislation would not stop the phase out of taxpayer funded 
subsidies for vacation homes and properties that have been repetitively 
flooded. It would not encourage new construction in environmentally 
sensitive or flood-prone areas. And it would not stop most of the 
important reforms included in Biggert-Waters.
  This legislation simply provides temporary relief to a targeted group 
of property owners who played by the rules and are now poised to see 
their most valuable asset become worthless, all through no fault of 
their own.
  This bill does not include everything I wanted and I know there were 
many other ideas that other cosponsors wanted to include. But in order 
to reach a true consensus, we limited the provisions in this bill to 
those that had broad, bipartisan support. That is why we are here 
today--Democrats and Republicans--calling for debate and a vote on this 
vital piece of legislation.
  I must say I am very disappointed to hear objection from the other 
side of the aisle.
  My friend the majority leader has been very gracious to offer us time 
to debate and vote on this important proposal and we will be back here 
day after day to try to do that.
  Because as I said before, this is not a Republican bill or a Democrat 
bill--it is not a Republican priority or a Democrat priority. It is a 
commonsense measure that has broad bipartisan support, exactly the type 
of support and cooperation the American people are yearning to see from 
their elected officials.
  More importantly, this legislation is critical to the lives of 
hundreds of thousands of homeowners. We should not let arguments about 
Senate procedure get in the way of finding solutions to their problems.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Mr. President, there are several other Members. Senator 
Menendez is the leader of our efforts. He and Senator Isakson have 
joined and have put together an extraordinary coalition. I would like 
to read the names into the Record because it is a testimony. In a place 
that cannot get three Members to agree on anything, we have over 20 
Members who agree to change the Biggert-Waters law. I want to read this 
into the Record and then ask through the Chair for the Senator from 
Massachusetts--both Senators are here--the senior Senator to be 
recognized for just a moment and then the junior Senator to speak on 
this issue.
  But Senator Menendez and Senator Isakson are our leads--again, New 
Jersey and Georgia. They are two very different States but have very 
similar challenges. They have people--middle-class families, small 
business owners--who have poured their life savings into homes and 
businesses, only to be destroyed by a piece of legislation that had 
great intentions but disastrous results. We do not have a lot of time 
to fix this. We need to do this before this body leaves, which is next 
  Myself, Senator Cochran, Senator Merkley, Senator Vitter, Senator 
Hoeven, Senator Scott from South Carolina, Senator Wicker, Senator 
Heitkamp from North Dakota, Senator Schumer, Senator Gillibrand, 
Senator Markey, Senator Warren, Senator Nelson from Florida, Senator 
Begich from Alaska, Senator Manchin from West Virginia.
  There is no ocean anywhere near West Virginia, but they have many 
middle-class families who are getting caught up in a quagmire here. 
This bill is the only bill that can release them and save taxpayers 
money. Senator Casey from Pennsylvania, Senator Klobuchar, Senator 
Booker, Senator Graham--who is also on the floor--and our newest 
cosponsor today, Senator Lisa Murkowski from Alaska.
  This is a very unusual coalition. I have been here a long time now. I 
have hardly seen a coalition this broad and diverse. So clearly we have 
something meaningful to say that needs change.

[[Page S8621]]

Please let us not let procedures and pride, bad tempers, keep us from 
doing what we know we need to do for our people.
  I thank Senator Warren who has been a tremendous help to us in 
putting this bill together, and might I add that it costs nothing. 
There is no score on this bill. So to anyone that could object because 
it costs the taxpayers: Nada. It does not cost anything. It is a zero 
score. We have done it that way to be respectful of all of the 
different opinions. But it will help to give us relief.
  Through the Chair I would like to ask Senator Warren to add her 
terrific voice and perspective on how it is affecting Massachusetts, 
one of our most important States.
  The PRESIDING OFFICER. The senior Senator from Massachusetts is 
  Ms. WARREN. Mr. President, I rise to join my colleagues in urging 
support for S. 1610, the Homeowner Flood Insurance Affordability Act of 
2013. This is a bipartisan bill that will help homeowners across our 
country who are getting hit with the newly revised flood maps and 
increased flood insurance premiums.
  I am very pleased to join colleagues on both sides of the aisle to 
call for this commonsense delay which gives FEMA time to get this 
right. I thank Senator Menendez who has been a tremendous leader, 
Senator Isakson, Senator Landrieu, who has gotten in there and gotten 
us all mobilized, Senator Cochran, many others of the cosponsors of 
this bill for their leadership and their commitment to work on this 
important issue.
  I also thank my partner in all things, Senator Markey, for the work 
he has done on this bill and for giving me the chance to speak first 
here so we could get going. Families purchase flood insurance to 
prevent the loss of their homes. But now many families fear that the 
price of flood insurance could be just as devastating as any storm. You 
cannot protect someone's home by pricing them out of it. Yet that is 
exactly what is taking place around the country. Congress changed the 
National Flood Insurance Program to move toward a more market-based 
system that more accurately reflected the true cost and risks of flood 
  This is a well-intentioned bill, but, unfortunately, homeowners are 
being blindsided by high rate increases and new flood zone maps. Many 
families are learning for the first time from news reports and letters 
that their mortgage companies are sending that they must purchase flood 
insurance. This is simply not an acceptable way of informing the public 
that flood insurance bills are skyrocketing.
  When FEMA released these flood maps this year and last, they knew 
they were placing hundreds of thousands of homeowners into a flood zone 
for the very first time. It is critical that these maps be spot on and 
correct. But many people do not trust many of the new changes, and 
their concerns are growing by the day. In fact, a recent independent 
review conducted by coastal scientists at the behest of my colleague, 
Congressman Bill Keating, concluded that FEMA used outdated wave 
methodology better suited for the Pacific coast when they drafted new 
flood maps for Massachusetts.
  They believe this resulted in FEMA overpredicting the flooding that 
could occur from once-in-a-century storms for much of our State. We 
need to pass this bill to give the government the time it needs to make 
sure that the maps are accurate, reliable, and reflect the best 
available scientific data.
  We also need to make sure that hard-working families who play by the 
rules can afford these policies. The Homeowners Flood Insurance 
Affordability Act that I have proudly cosponsored will provide relief 
to homeowners who built to code and were later remapped into a higher 
risk area.
  Furthermore, this critical bill will delay rate increases until FEMA 
completes the affordability study that was mandated by the Biggert-
Waters Flood Insurance Reform Act, and until subsequent affordability 
guidelines are enacted.
  Homeowners are facing flood insurance premium increases that can cost 
$500, $1,000, even more per month. Most hard-working families and 
seniors do not have that kind of extra money on hand to spend on flood 
insurance premiums they never knew they were going to need.
  FEMA has a lot of work to do.
  In the meantime, these families should not be hit with high costs 
when they challenge the flood map and win their appeal. Our bill will 
help address this injustice and will allow FEMA to utilize the National 
Flood Insurance Fund to reimburse people who successfully appeal a map 
determination. It also gives FEMA the added financial incentive to get 
those maps right the first time.
  I am pleased to join colleagues on both sides of the aisle in this 
call for a commonsense delay which will give FEMA time to get this 
right. I urge my Senate colleagues to support this much needed relief 
for homeowners. I thank Senator Markey for his leadership. I thank 
Senator Landrieu for her amazing leadership, and I thank all of my 
colleagues who are ready to move on something that is common sense and 
very much needed by families across this country.
  I yield for my colleague from Massachusetts, Senator Markey.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. MARKEY. I thank the Senator for her leadership. She and I have 
met with people all across the State of Massachusetts who are fearful 
of the impact that this can have upon their ability to live in their 
own homes, to sell their homes, to continue to operate their 
businesses, to sell their businesses.
  This is a fundamental issue for our State. Senator Warren and I bring 
this concern to the floor even as we know that it is a concern that is 
felt all across the country. It is Louisiana. It is New Jersey. It is 
South Carolina. It is West Virginia. It is the coastlines of our 
country. Yes, it is.
  The warmer the climate becomes, the warmer the oceans become; the 
warmer the oceans, the higher the tides; the more devastating the 
storms, the more changes that take place in terms of the impact on the 
homes, the businesses, all along the coastline.
  But climate change does not only affect the coastal areas. It is 
affecting our whole country--the whole planet. There is a huge change 
which is taking place. That is why we are out here. We are out here 
because of climate change. The storm that hit New Jersey, Hurricane 
Sandy, was devastating. We saw the courage of the people of New Jersey 
and New York in responding to that storm. But just with a couple of 
changes in the direction of that storm, it could have wiped out 
everywhere from Cape Cod up to Newburyport, Maine, and New Hampshire.
  But for a small change in that storm, it could have been down in 
Delaware, Virginia, wiping out that coastline. But for the grace of God 
go the States that we represent. The same thing is true all across the 
  We know that the pollution we pump into the sky heats the water and 
the air. It gives storms more power. We know this scientifically. With 
more powerful and more frequent storms, we realize that this tragedy is 
lapping right at the doors of every citizen. We have to do something to 
prevent it from becoming worse.
  But at the same time, we also have to realize that these families are 
innocent victims. They did not have anything to do with the policies 
that did not deal with climate change for a generation, that ignored 
the science. They are now dealing with the consequences of a failure to 
deal with that issue. We cannot allow the failure to act to be borne by 
those who are the least able to afford it.
  That is what is happening. It is going to be innocent Americans who 
now have to suffer because we did not have the political will to deal 
with this issue of climate change.
  I have heard, along with Senator Warren, from people all over my 
State. I have one business that relocated several years ago thinking 
that was going to satisfy the need to protect against climate change, 
against the change in the flood plain. Now, under the new plan, they 
will have to move the business again.
  It is unsustainable long term for any businesses, any family to think 
about living in these kinds of areas unless we begin to think through 
how we are going to adjust to this law that is on the books which will 
have an almost immediate impact upon families all over our country.

[[Page S8622]]

  We need to fix the flood insurance provisions that would have 
devastating economic impacts on our coastal communities. That is why I 
am proud to support the legislation of the Senator from Louisiana, the 
Senator from Georgia, Senator Isakson, Senator Menendez, Senator 
Merkley, and everyone who has worked on this issue.
  We have to ensure that we address the issue of affordability for 
these homeowners, affordability for these businesses in terms of the 
increase of the flood insurance rate caused by the new flood maps and 
ensure that we put that before any crippling flood insurance rate 
  We have to deal with affordability first. If affordability is not 
going to be dealt with, then there is going to be a devastation that is 
felt by millions of homeowners and businesses across this country.
  Climate change is real. It is here. It is dangerous, but the fear of 
rising floodwaters should not be compounded by the fear of an 
unaffordable spike in insurance premiums for homeowners and businesses 
across this country.
  I thank my colleagues for all their work on this issue. It is an 
indispensable part of the business of this Congress this year to pass 
this legislation. We must find a way to work together before we leave 
in order to pass this legislation.
  I call upon all of my colleagues to work together with us. This is as 
bipartisan as it gets in the Senate. We have to find a way.
  I congratulate the Senator from Louisiana for all of her great work.
  I yield back.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. I see the Senator from South Carolina on the floor to 
speak, but I wish to give some concluding remarks in this very 
important hour about this very important issue. We are down to the 
wire, and we do not have any time left to provide relief to homeowners 
and business owners all over this country.
  About 1 hour ago there was an objection registered from the 
Republican ranking member of the banking committee. I have a great deal 
of respect for that particular Member. I hope he will consider the 
tragic ramifications of his objection for millions of homeowners and 
businesses around the country and work with us over the next few days 
to mitigate any of his objections so we can move this bill to the floor 
and provide 2 hours of debate. We will accept, those of us in our 
coalition, a 60-vote threshold.
  Let me remind colleagues that a hearing was held in the banking 
committee by Senator Merkley, who chairs the subcommittee. This bill 
has been discussed for hours and hours in committee, in public. There 
are hundreds of stakeholder groups led by, I am very proud to say, GNO, 
Inc., Greater New Orleans, Inc., a very broad coalition of business 
owners and parish residents. They reached out across the country, down 
the coast, the gulf coast, to the east coast, to the west coast, North 
Carolina, to the good Senator on the floor from South Carolina, 
reaching out in areas in the Midwest and up in the Northwest.
  The reason they did that is because there are new flood maps going 
into effect in all of these places. I call attention to the diagram of 
flood maps in the United States. In purple, these were the flood maps 
that were in effect as of July 2012. In the green, these are proposed 
flood maps that have been introduced. We can see how many green 
designations there are.
  In the gold color, there are new flood maps possible. There is no 
State that is going to escape these new flood maps. As Senator 
Elizabeth Warren said, they are inaccurate. They don't have the 
capability, the finances, the resources to produce--or the technology, 
in some cases--accurate flood maps. There have been a record number of 
mistakes made that we have provided for from the public testimony.
  In addition, I wish to show a map of where levees are. There are many 
levees. I was surprised, myself, having become an expert on levees, I 
thought. No, I am not the expert I thought I was because I did not 
realize how many levees there were in other States. I have been so 
focused on mine that broke in 52 places and almost destroyed a great 
international American city, New Orleans. We are on the mouth of the 
Mississippi River, and I am well aware of the levee system that was one 
of the great engineering feats ever in the world, on the planet. It 
keeps the Mississippi River in its channel so we can have the great 
commerce we have had that helped build this great Nation. I am well 
aware of the great story about that.
  I was not aware of the tremendous flooding risk in California, in 
Arizona, in New Mexico, and in Montana, of all places. I knew about 
Arkansas, Illinois, and St. Louis because of the Mississippi River up 
to Minneapolis.
  Look at Pennsylvania. I was shocked to see so many flooding areas in 
the State of Pennsylvania.
  I wish to say it is not only a coastal issue, it is a national issue. 
We are the national Congress. These rates are going up now and it needs 
to be fixed now.
  I hope the Republican opposition will think clearly about their 
objection, the ramifications it will have, and find a way to say yes--
find a way to say yes.
  The bill that Senator Menendez and Senator Isakson are offering costs 
zero. It helps millions of people and ultimately will make the program 
fiscally sound.
  As the Senator from New York said so eloquently and so accurately: If 
you price people out of the program, there will be no one to support 
the program. The program will default, taxpayers will still have to 
pick up the debt associated with that program, and then we will also 
have millions of people losing their homes and their businesses. It 
makes no sense. It makes no financial sense.
  I am not going to speak too much longer, but I do wish to state I am 
very happy, as an American, there are many newspapers we can read. 
There are many blogs, a lot of radio shows, and all sorts of different 
opinions. We have to read a lot, think a lot, and get different views 
to find the truth.
  I am going to read the first paragraph of the Wall Street Journal 
because they need to listen to a couple of other bloggers or writers 
because they are way off base. The Wall Street Journal said last week: 
``Federal flood insurance is a classic example of powerful government 
aiding the powerful, encouraging the affluent to build mansions near 
the shore.''
  That statement is so inaccurate it is laughable.
  The people I represent in Louisiana--we hardly have a beach. I don't 
know if anyone has visited Louisiana. We don't have beaches. We have 
marshes. No one I know who lives in New Orleans or Baton Rouge is 
anywhere near a beach. I am going to read a letter from a very affluent 
and powerful person:

       I am a 66-year-old woman and have lived in the same house 
     in Broadmoor since 1974.

  I knew this neighborhood when the letter arrived at my desk because 
that is the neighborhood where I grew up and still reside. There is not 
a beach within miles of Broadmoor.
  She continues:

       I lived there with my family, raised a son who also lives 
     and owns a house in Broadmoor--

  It is a very middle-class neighborhood that we come from.

       --and plan to stay in my home for the remainder of my life. 
     I live on a very strict budget and have just this month 
     received my first Social Security payment. If something is 
     not done to change the law that will potentially raise my 
     flood insurance by the thousands, it will not be possible for 
     me to keep my home nor sell it.

  I wish to have the Wall Street Journal editorial board hear this. 
This is not a millionaire mansion on a beach. This is a 66-year-old 
woman who just received her first Social Security check. If this law is 
not changed by the 100 Members of this body in the next few days, she 
can either stay in her house or sell her house.
  Please do not lecture to us from some high place in some big 
corporate office about Senators on the floor of the Senate trying to 
fight for powerful interests for people in mansions who live on fancy 
beaches. That is not what this bill is about.
  I have hundreds of pictures. If the Wall Street Journal or any 
newspaper wants to editorialize about this, please check my Web site, 
``My Home Story.'' I have hundreds of pictures and other Senators have 
hundreds of pictures. I don't see a mansion.
  All I see are cries of people who say: Wait a minute. My house has 

[[Page S8623]]

flooded. I live in a simple neighborhood. I am a simple person. I am an 
American who works hard, and you are running me out of my home.
  The bill that passed, Biggert-Waters, was well intentioned but 
drafted inappropriately and has some very pernicious guidelines or 
rules in it that can only be changed by Congress. Some people wish to 
think that FEMA can wave a magic wand and make it work. FEMA cannot 
wave a magic wand. We have to do our job as Senators. I hope the Senate 
will do its job.
  We cannot agree on everything that needs to be fixed, I understand. 
There are many arguments about other things that some people think need 
to be fixed and others don't. But I don't know of anyone nor have I 
heard anyone on the floor give us one good, solid reason that the 
Menendez bill shouldn't pass, such as: I don't like section 1, I don't 
like section 2, I don't like section 10, maybe section 5--not one. It 
is all posturing.
  Please let us get over the posturing and help people who live nowhere 
near a beach, who are going to lose their homes and need us to act. I 
believe we can do it. As I said, we have great Republican leadership 
and great Democratic leadership.
  In closing, the Senator on the floor has my great respect. Also, 
Senator Isakson, who is the lead Republican Senator, is known in this 
body as an expert on real estate and finance. He is very clear in his 
appreciation and understanding that the real estate market is going to 
be shaken to its core, as well as homebuilders and community bankers 
who are holding mortgages on these 5 million properties.
  We have come too far. We have come too far in restoring this housing 
market. This bill was well intentioned but poorly drafted, stuck into a 
conference committee report at the last minute, not with as much 
oversight as we should have given. We can fix it. Let's do this.
  I thank the Senator for being so generous. It is a very important 
issue. I am prepared to stay here for as long as it takes before 
Christmas--even, I hate to say, up to Christmas Eve, as I wish to get 
home for a little bit of time, but this needs to be fixed before we 
leave for Christmas.
  The House can come back in January, take up this bill, and we can 
send it to the President's desk early in February, make it retroactive, 
and give people relief. This is not about helping out powerful 
interests and millionaires on the beach. This is about helping many 
Americans who have done nothing wrong and everything right. They have 
been in their homes since the 1960s, 1950s, in some cases from the 
1800s, and are going to be priced out of their home. Their equity will 
be stolen from them by a poorly drafted piece of legislation.
  We can do better and we should.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Blumenthal). The Senator from South 
  Mr. GRAHAM. Mr. President, I rise today to address the nomination of 
Cornelia Pillard for the DC Circuit.
  My colleagues, I have enjoyed my time in the Senate very much, 
although we live in a very difficult time. Politically, there are a lot 
of influences on individual Senators and parties and the body as a 
whole, so these are very difficult times. I can only imagine writing 
the Constitution today. I always thought that would be a good 
``Saturday Night Live'' skit: Go back to Philadelphia hall and have all 
the satellite trucks parked outside and the bloggers and talk radio, 
moveon.org--fill in the blank--all putting pressure on our Founding 
Fathers not to do this or that. We live in different times.
  It is absolutely good that people have a voice and influence and 
create organizations to advocate their cause. There seems to be an 
organization for almost every aspect of the economy. So lobbying the 
government, having a say about legislation, trying to push your 
representatives to do something you think is good for the country is 
very much a part of democracy, but eventually we have to govern.
  Democracy is a journey, sort of like when you are on vacation or you 
are driving to a place with your kids and they always ask: Are we there 
yet? But democracy is not an end state, it is a process. Democracy is 
really about protecting losers, not so much winners. Winners tend to do 
well in any system. Democracy protects the loser by having a rule of 
law, a process that says: If you lose the election or you are in the 
minority in a body, there will be rules there to give you a voice.
  One of the problems in the Mideast and throughout the world is that 
people are afraid to lose. In the Mideast it is a winner-take-all 
environment. The reason there are so many militias is that people don't 
trust the police or the government to be fair to their sect or their 
tribe, so they arm themselves, believing that if they don't take care 
of themselves, nobody else will. But that just leads to an endless 
state of conflict.
  So democracy is really a process, and it is designed to ensure that 
losers in a democratic process will still have basic rights. You can 
lose the election and not get fired. It is illegal to fire somebody 
because they are in the opposite party, unless it is a political job 
where one expects that to happen. You don't lose your right to speak up 
because you lost the election.
  When you find yourself in the minority in politics, it is important 
that you have a say. It is also important that the majority has the 
ability, having won the election, to do certain things--to run the 
place, for lack of better words.
  The Senate is an unusual body in traditional democracy. 
Parliamentarian systems are different from what we have set up. You 
have two houses in most places, such as the House of Lords. I don't 
know what power it has, but it is not too great. The parliamentary 
system is where you have to form coalitions. At the end of the day it 
is a completely different setup than we have here, where the party in 
charge, if they can form a big enough coalition, can basically just run 
the place.
  The House is a winner-take-all body. If you are in the majority in 
the House, you can decide what bills to bring to the floor, what 
amendments will be allowed on those bills, and how long to debate those 
bills. You have an almost absolute dictatorial ability to run the 
House. You determine everything. The minority has some say but not a 
whole lot. The House is sort of gang warfare. I have been there and 
love the institution. You will find that majorities will be fighting 
among themselves a lot in the House because that is where the action is 
in the House.
  I have been in the House, and I have been in the Senate. I loved 
being in the House, and I understood the way the rules worked--that if 
you were in the minority, what came to the floor was determined by the 
majority, what amendments were in order was determined by the majority, 
and that is just the way it was.
  When I was in the House, we would pass one measure after another that 
would go to the Senate and never be heard from again, and that was 
frustrating. But the older you get, you sort of realize maybe some of 
the things you wanted were not in the best interest of the country as a 
whole. And the fact that you knew that if it went to the Senate there 
would be a filtering process, unlike in the House, became somewhat 
reassuring over time.
  House majorities are more partisan, generally speaking. They are 
influenced by 2-year election cycles. It is a more passionate body 
because you are always up for election and the winner takes all. And 
when you win in the House, the people who got you there expect you to 
do things consistent with your party's agenda. Nothing wrong with that.
  In the Senate there has been a conscious effort to put some brakes on 
that kind of governing. When you send a bill to the Senate, you still, 
to this day, have to get 60 votes to bring the legislation to the floor 
and to get cloture, and the minority has the ability to say not only 
whether they want the bill to come to the floor, with a certain amount 
of amendments, but then they can negotiate with our friends in the 
majority to get the amendments we want and to allow the legislation to 
come forward. There are probably a lot of times when Republicans in the 
House voted understanding that this idea wouldn't make it through the 
Senate and that was probably OK.
  Here is what I feel. A lot of my colleagues have talked about Ms. 
Pillard, the nominee, being a radical judge and

[[Page S8624]]

being out of the mainstream. I don't want to get into that. All I can 
say is that my view of a Presidential appointment is for the Senate to 
provide advice and consent--constitutionally required--but to recognize 
that the President won the election and the Senate has the advise and 
consent powers, not the House.
  I have found myself in all kinds of judge fights since I have been 
here. I was a lawyer before I was a politician. I love the law. What I 
love about the law is that, in theory, it is a place where the poorest 
guy, the most unpopular person can still get a fair shake. Of course, 
that wouldn't happen in a political environment. It is a place where 
the richest guy or gal in town doesn't have to pay because they can 
afford to, only because they have a legal responsibility to. I love the 
idea of an independent judiciary, a jury of one's peers, protecting 
people's interests in a way politics never could.
  I would argue that the strength of the rule of law in this country 
has been our great saving grace. Elections happen all over the Mideast. 
Saddam Hussein got 90-some percent. We haven't been able to get there 
yet. I would argue that electing Saddam Hussein was a joke, that it is 
the institutions of government that really do provide freedom for 
people. An independent judiciary has been a Godsend to our country. It 
is not perfect by any means, but it was the courts that basically broke 
the stronghold of segregation because politically it would have taken 
far longer to get there.
  At the end of the day, in Bush v. Gore, maybe one of Vice President 
Gore's finest moments contributing to democracy was his acceptance of 
the ruling of the court. He fought like crazy, he lost a national 
election by a few hundred votes, all of his supporters are telling him 
they did this here and they did that there, and the next thing you know 
the Supreme Court rules 5 to 4, and he graciously accepted the 

  What has happened here is that the rules of the Senate have been 
changed in a very dramatic way for the first time really in 200-some 
years. Our colleagues on the other side decided that we would no longer 
require 60 votes to get a nomination to the floor or to approve a 
judge. Now it is majority rule--majority rule on judicial nominations, 
except Supreme Court and executive appointments.
  A lot of average people might say: Well, they won the election; why 
isn't 51 enough? My response is this: I think we all understand the 
benefits of being able to slow things down that come out of the House. 
And having to pick up some votes from the other side to get the 60 to 
pass legislation has probably saved the country a lot of heartache in 
terms of emotional legislation coming through the House to the Senate 
that would never make it into law. A lot of things I wanted have been 
killed in the Senate, and a lot of things I hoped never would see the 
light of day have died in the Senate. So it kind of works out.
  When it comes to judges, I have tried very hard to make sure that 
Republican and Democratic Presidents are treated fairly. I do not 
believe it is my job as a Senator from South Carolina to vote or block 
an appointment because I wouldn't have chosen that judge.
  I remember during the Bush Presidency there was a wholesale 
filibuster of Bush's judicial nominations, and we were thinking about 
doing the nuclear option. But seven Democrats and seven Republicans 
said: Wait a minute. Unless there is an extraordinary circumstance, we 
shouldn't filibuster judges. An extraordinary circumstance really is 
about qualifications or something unusual.
  I can say to my Democratic colleagues that we have denied two 
judicial picks by not allowing cloture. If advise and consent means 
anything, it means that, on occasion, you can say no. So there have 
been only two.
  As to the DC Circuit Court, this dispute about how many judges there 
should be on the DC Circuit Court has been going on at least for a 
decade--ever since I have been here. The Bush administration wanted to 
add judges to the DC Circuit because that is the circuit all appeals go 
to when government regulation is challenged by somebody in the private 
sector, an individual or a business. If you want to sue about ObamaCare 
regulations or the detention policy or the NSA's programs, it goes to 
the DC Circuit. So every President, quite frankly, would like to have 
an advantage there because it protects their administration's policies.
  I guess what I would say is that changing the rules because we have 
said no to two picks--outside of the DC Circuit--was, quite frankly, 
irresponsible, and it is going to change the Senate forever.
  As to the DC Circuit, no one can say this debate hasn't been going on 
before we all got here. Senator Grassley has been the most consistent 
guy in the world about the DC Circuit, even when Republicans were in 
charge. There are more needs out there. These judges are fine people. 
They could be put in the other spots where the need is greater.
  But we are where we are. So our colleagues decided, after two--I 
don't know how many have been approved, but two have been denied--
enough is enough on the judge side, along with the attempt to grow the 
court in the DC Circuit.
  We have had disputes about executive nominations. I remember 
Ambassador Bolton. And Mel Watt--really, honest to God, I like Mel. He 
is a great guy. I just don't think he is the right choice for Fannie 
Mae and Freddie Mac. And to my colleagues here, you are all wonderful 
people, but there is not one person in the Senate whom I would pick for 
that job because it has a very technical requirement to it.
  So here we are.
  Very quickly--and then I will turn it over to Senator Grassley--what 
does this matter in the long term? I think the first casualty of this 
rules change is going to be the judiciary itself, and here is what I 
mean by that. Now that we don't have to cross the aisle to pick up a 
few votes to get to 60 when there is a disagreement--and these are very 
rare; we don't filibuster everybody; they are fairly rare--we are going 
to have more ideological-driven picks on judicial nominations because 
once the filtering device of having to at least talk to the other side 
is removed, once that no longer exists, the pressure in the conference 
to pick the most ideologically pure, hardnosed, fire-breathing liberal 
or conservative is going to be immense.
  So what my colleagues have done is they have changed the face of the 
judiciary probably forever. And shame on you. I think that is going to 
be your legacy that will stand out long after all of us have gone 
because I don't see how you go back and put this genie in the bottle.
  I think we are going to find that judicial selections in the future 
are going to be those whom the most rabid partisans are going to pick--
the most faithful to the cause, not the most faithful to the law.
  I don't know what it is like on the Democratic side, but I can tell 
you what it will be like on the Republican side.
  There are a lot of people out there who have a list of judges they 
want to see on the court--yesterday. Some of these people are going to 
be tough for you to swallow, and I am sure you will do the same to us.
  What you are doing is making the majority self-regulated. There is no 
longer the excuse, for lack of a better word: I can't ``push'' this 
person through because I have to get somebody in. Those who want to 
make sure they are picking the best person who is not an ideologue, you 
are going to have a hard time of it.
  I think the judiciary is the biggest casualty over time, only equal 
to the Senate itself. It will not be long--and I don't know how long it 
will be--before the rules change for Supreme Court picks, because there 
will be replacements of several members of the Supreme Court in the 
next decade. That is just the way the life is. There will be opposition 
from the party out of power. There will be frustration. Somebody will 
be blocked that makes the party in power mad and they are going to 
change the rules. That is just going to happen. We are now about 
outcomes. We are not about process.
  The Senate is slowly but surely becoming the House, where winner 
takes all and ends justify the means: Anything you can do over there, 
we will do over here. That is just the way it is going to be.
  It will not be much longer until we have a Senate and a House and a 

[[Page S8625]]

House in one party--as happens every now and then--and there is going 
to be a centerpiece of legislation that has been the Holy Grail to that 
party that is an absolute nightmare to the other side; it is going to 
pass the House on a party-line vote, it is going to come to the Senate, 
and somebody is going to get frustrated and say: I have 51-plus votes. 
I may have 57 votes. I don't have 60. And they are going to change the 
rule on legislation because the pressure to do it, now that we have 
gone down this road, is going to be immense. I am by no means perfect. 
But when this happened on our watch, I tried to find a way to avoid it. 
But we are where we are.
  Finally, about ObamaCare. Let me tell you from a Member of Congress 
point of view something you should consider. All of us are Federal 
employees and we get a subsidy for our health care premiums similar to 
every other fellow employee. It is not a unique deal to Congress. If 
you are a member of the Federal Government, you get up to 72 percent of 
your premium subsidized. Other employers do that, but it is a darned 
good deal that is available to all Federal employees.
  Again, I compliment Senator Grassley. He said: If we are going to 
have ObamaCare, we ought to be in it. We, the Congress, and our staffs. 
Under the law that was passed--I think Senator Grassley was the 
originator of this idea--Members of Congress and our staffs have to go 
into the exchanges. But we have the ability to go into the District of 
Columbia exchange, and the law is written such--and every Member of 
Congress who takes this subsidy is entitled to do it. I don't blame 
them one bit. You have to go into the exchange, and your premiums are 
going to go up, but the subsidy will continue.
  Senator Vitter believes, and so do I, that because we are leaders we 
should take the road less traveled and experience more pain than those 
who follow. So I have been of the opinion that if you are going to 
change this law, the Congress should not only go into the exchange, we 
shouldn't get a subsidy any longer. Why? Because most Americans are 
going to lose their employer-sponsored health care as it exists today--
maybe not in total but their premiums are going to go up dramatically 
because employers cannot afford to pay the increased premium under the 
old system. So they will either lose employer-sponsored health care and 
become an individual or they are going to have to pay more because 
their employer is in a bind and they can't afford the subsidies that 
once existed--because premiums for employers, similar to individuals, 
are going to go through the roof.
  I wish to give an example about what I have chosen to do. I have 
chosen not to go into the DC exchange but to enroll in South Carolina 
because that is where I live. Enrolling in the South Carolina exchange, 
I will not get a subsidy. That was my choice. I accept that choice. Why 
am I doing this? To try to lead by example what I think is coming to a 
lot of Americans in some form or another.
  So here is what happens with me: Under the old system, I was paying 
$186 a month. If I went into the DC exchange, my premiums would go up 
but not a huge amount. But now that I am enrolling as a 58-year-old 
short White guy in South Carolina, my premiums are based on the county 
I live in and my age, with no subsidy, because I make too much money to 
get a subsidy. People at my income level don't deserve a subsidy 
because it would bankrupt the Nation more than we are already doing if 
we did that.
  Under ObamaCare in South Carolina, I chose the Bronze plan. Why? It 
is the cheapest one I could find. I am not independently wealthy. I 
make a very good living as a Member of the Senate, almost $180,000, but 
at the end of the day here is what is coming my way:
  My premium goes up to $572 a month from $186. That is $400 a month, 
almost, a 200-percent increase.
  Under my old health plan if I went to the doctor, I paid a $20 copay. 
Under the new Bronze plan, I pay $50.
  Under the old plan if I saw a specialist, it was $30. Under the new 
plan, it is $100.
  My old deductible was $350 a year. My new deductible is $6,350--a 
$6,000 increase.
  My old plan had a $5,000 out-of-pocket limit. The new one is $6,350.
  You also get rated not just on your age but where you live. I am 
paying $70 a month more than a county that is 40 miles away.
  The bottom line is that what I am experiencing a lot of other people 
are going to experience. I am paying a lot more for a lot less. How can 
that be?
  When you are told that you get more and you pay less and a politician 
tells you that, you ought to be very leery. That hasn't worked out in 
my life: You are going to get a lot more, but you are going to pay 
  The reason these premiums are going up is that all the uninsured--and 
I want to provide coverage to the uninsured as much as anybody else--
get insurance coverage with a subsidy. Who is paying those subsidies? 
The rest of us.
  So we are going to see next year employers having to back out of 
employer-sponsored health care either in total or in part. What we are 
going to find throughout this country is that people who had employer-
sponsored health care, just like the individual markets, their premiums 
are going to skyrocket--maybe not as much as mine, maybe not 200 
percent. The deductibles are going to go up--maybe not as much as mine 
at $6,000, but everybody in the country doesn't make $176,000.
  So every Member of Congress should look at what would your life be 
like if you didn't have a Federal Government subsidy, if you didn't 
enroll in the DC exchange, if you went back home and had to pick a plan 
similar to everybody else in your State? You ought to sit down and look 
at what your individual life would be like. If you just look, you will 
be shocked. I sure was.
  This is not about me, even though I am giving you an example about 
myself. It is about an idea called ObamaCare that is going to destroy 
health care as we know it in the name of saving it and making it 
  I think we all agree we need to reform health care. But I think most 
Americans believe their old health care system was working pretty good 
for them, but it could always be made better.
  So I would ask every Member of Congress, whether you go into your 
State exchange, if one exists, or not, do the math. You are going to be 
shocked at how it would affect you. Let me tell you, it is going to 
affect people you represent in similar fashion.
  So what do you do? Why don't we just try to sit down and start over 
and see if we can do better before it is too late?
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.


  Mr. SANDERS. Mr. President, there is a reason why the favorability 
rating of the Congress is somewhere, on a good day, around 10 percent. 
The reason I think is pretty simple: The American people are hurting. 
They look to their elected officials to try to do something to address 
the problems they have and the crises facing our country. Time after 
time, they see the Congress not only not responding to the needs they 
face but in many cases doing exactly the opposite. In poll after poll, 
the American people tell us the most pressing issue they face deals 
with the economy and high unemployment.
  When we look in the newspapers, we are told the official unemployment 
rate is 7 percent. By the way, that is a rate which has in recent 
months gone down, and that is a good thing. But the truth is, if you 
include people who have given up looking for work and people who are 
working part time when they want to work full time, real unemployment 
in this country is 13.2 percent. That is enormously high.
  The unemployment rate for our young people is close to 20 percent, 
and there are parts of the country where it is higher than that. 
African-American youth unemployment is close to 40 percent.
  So what we are looking at all over this country are millions and 
millions of people who want jobs, who want to work, and who can't find 
those jobs. We are looking at a younger generation of workers who 
cannot get into the economy. If you are a young person and you leave 
high school, for example, and you can't get a job in your first year 
out there or your second year, if you think

[[Page S8626]]

this does not have a cataclysmic impact on your confidence, on your 
self-esteem, you are very mistaken.
  I fear very much and worry very much about the millions of young 
people out there who are not in school, who are not working. 
Tragically, many of those young people will end up on drugs. Some of 
them are going to end up in jail. These are issues we have to consider.
  What the American people tell us over and over is: Yes, the deficit 
is a serious problem. I believe it is. Everybody in the Congress 
believes it is. But what the American people also say is: High 
unemployment is an even more serious issue.
  According to a March 2013 Gallup poll, 75 percent of the American 
people, including 56 percent of Republicans, 74 percent of 
Independents, and 93 percent of Democrats, support ``a Federal job 
creation law that would spend government money for a program designed 
to create more than 1 million new jobs.''
  What the American people are saying is, yes, we have made progress in 
the last 4 years. We have cut the deficit in half. We have to do more. 
But what the American people are saying loudly and clearly is that we 
need to create jobs.
  What they also understand, and poll after poll indicates this, is 
that when we have an infrastructure that is crumbling--roads, bridges, 
water systems, wastewater plants, our rail system--when we have an 
infrastructure that is crumbling, we need to invest in rebuilding that 
infrastructure. When we do that, we create significant numbers of jobs. 
That is what the American people want us to do. When is the last time 
you even heard that debate here on the floor of the Senate?
  The unemployment crisis, the need to create jobs--that is what the 
American people want us to do, and we are not even talking about that 
  There is a second issue about which the American people are very 
clear. It is a funny thing--sometimes the media writes about how 
partisan the Congress is, how divisive the Congress is. Senator 
Grassley and I supposedly hate each other, we do not talk to each 
other, and all that nonsense. That is not the reality. The truth is 
that among the American people, surprisingly enough, there is a lot of 
consensus. I mentioned a moment ago that the American people very 
strongly believe that we should invest in our infrastructure and create 
jobs. Unfortunately, that is not what we are doing.
  Here is another issue about which the American people are loud and 
clear. They understand that--tragically in today's economy--most of the 
new jobs that are being created are not good-paying jobs. That is the 
sad reality. Most of the new jobs that are being created in today's 
economy are low wage jobs and many of them are part-time jobs. If you 
are making $8 or $9 an hour and you are working 30 hours a week, you 
are going to have a very hard time supporting yourself, let alone a 
  What do the American people say? They say raise the minimum wage. 
Raise the minimum wage.
  Let me quote from today's Wall Street Journal:

       Americans strongly favor boosting the Federal minimum wage 
     to $10.10 an hour but oppose raising it above that, a Wall 
     Street Journal/NBC News poll finds. In the survey, 63 percent 
     supported a rise to $10.10 an hour from the current $7.25 

  Sixty-three percent of the American people support that. Democrats 
strongly support it, Independents support it, and many Republicans 
support it. One would think, therefore, when the vast majority of the 
American people understand that $7.25 an hour is a starvation wage and 
that we need to raise the minimum wage to at least $10.10 an hour, we 
would be moving on it. Maybe we would get a UC on it, a unanimous 
consent. Let's get it done. I fear very much that right here in the 
Senate we are going to have a very difficult time gaining 60 votes. I 
hope I am wrong, I sincerely do, but I am not aware at this point that 
there are any Republicans prepared to support an increase of the 
minimum wage to $10 an hour. I believe in the Republican-controlled 
House it would be extremely difficult to get legislation widely 
supported by the American people through that body.
  But not only will my Republican colleagues not do what the American 
people want in terms of raising the minimum wage, quite incredibly, I 
have to tell you that many of my Republican colleagues do not believe 
in the concept of the minimum wage. Many of them believe we should 
abolish the concept of the minimum wage, so that if you are in a 
situation in a high-unemployment area where workers are desperate for 
work and an employer says: Here is $4 an hour; take it or leave it, 
that is OK for some of my Republican colleagues.
  Again, we are in a situation where the vast majority of the American 
people want to do something about low wages. They want to raise the 
minimum wage, and we are going to have a very difficult time getting 
that legislation through. I hope I am wrong, but I do know that unless 
the American people stand up, get on the phone, start calling their 
Senators and Members of Congress, we probably will not succeed in doing 
what the American people want.
  Interestingly enough, what the American people also understand is 
that raising the minimum wage will help us with the Federal deficit in 
a variety of ways. It may be a surprise to some Americans to know that 
the largest welfare recipient in the United States of America happens, 
coincidentally, to be the wealthiest family in America. The Walton 
family, which owns Walmart, is worth about $100 billion. They are the 
wealthiest family in America. They own more wealth as one family than 
the bottom 40 percent of the American people--extraordinary wealth. One 
of the reasons they are so wealthy is the American taxpayer subsidizes 
Walmart because Walmart pays low wages, provides minimal benefits, and 
many of their workers end up on Medicaid, they end up on food stamps, 
and they end up in government-subsidized housing. I am not quite sure 
why the middle-class working families of this country have to subsidize 
the Walton family because they pay wages that are inadequate for their 
workers to live a dignified life.
  My hope is that when the American people are loud and clear about the 
need to raise the minimum wage, their Congress will respond, but I have 
to tell you that I have my doubts.
  What we also hear--and most recently from Pope Francis--is an 
understanding that there is something profoundly wrong about a nation 
and increasingly a world in which so few have so much and so many have 
so little. In the United States of America today we have more wealth 
and income inequality than at any time since the late 1920s, and we 
have more wealth and income inequality than any other major country on 
Earth. Today the top 1 percent of our population owns 38 percent of the 
wealth of America, financial wealth of this country, and the bottom 60 
percent owns 2.3 percent. The top 1 percent owns 38 percent of the 
wealth of America, and the bottom 60 percent owns 2.3 percent. Is that 
really what America is supposed to be about? I think not. I think Pope 
Francis recently talked about that issue. He talked about the moral 
aspects of that issue. He is exactly right.
  Those are some of the issues we have to talk about.
  Another issue out there that I think we have to be very clear about--
and again the American people are extraordinarily clear about this--the 
American people understand that Social Security has been probably the 
most successful Federal program in the modern history of this country. 
For the last 70-plus years it has kept seniors out of poverty. In fact, 
before Social Security 50 percent of seniors in this country lived in 
poverty. Today that number, while too high, is about 9.5 percent. That 
is a significant improvement. And Social Security, despite what is 
going on in the economy--in good times and bad times--has never once 
failed to pay all of the benefits owed to every eligible American.

  Today Social Security has a $2.7 trillion surplus. It can pay every 
benefit owed to every eligible American for the next 20 years. Do you 
know what the American people say about Social Security? They say it 
loudly and clearly. Republicans say it, Independents say it, and 
Democrats say it. Do not cut Social Security. Do not cut Social 
Security. Yet I have to tell you that virtually all Republicans think 
we should cut Social Security. Some Democrats believe we should cut 
Social Security. The President of the United States has talked about a 
chained CPI--a very bad idea--about cutting Social Security.

[[Page S8627]]

  Maybe we should listen to the American people and make it very clear: 
No, we are not going to cut Social Security. In fact, we are going to 
take a new look at Social Security and see how we can make it solvent 
not just for 20 years but for 50 years and in addition to that increase 
benefits. There are pretty easy ways to do that, including lifting the 
cap on taxable income that goes into the Social Security trust fund. As 
you know, today, if somebody makes $100 million and somebody makes 
$113,000, they both contribute the same amount into the Social Security 
trust fund. Lift that cap. You can start at $250,000, and you will 
solve the Social Security solvency issue for the next 50 or 60 years. 
That is exactly what we should do, and that is what the American people 
want us to do.
  In terms of Medicare, people say Medicare has financial problems, and 
it does. The issue--and interestingly enough, it gets back to what 
Senator Graham was talking about. He was talking about his health care 
plan in South Carolina. It sounds like a pretty bad plan to me, I agree 
with him. What is the issue there? The issue we have to look at, which 
we don't for obvious issues, is how does it happen that in the United 
States of America--before the Affordable Care Act; things will change a 
little bit--before the Affordable Care Act, we have 48 million people 
who are uninsured, we have tens of millions more people who have high 
deductibles, like Senator Graham--a $6,000 deductible is 
incomprehensible--and high copayments. At the end of the day, 48 
million people uninsured, high deductibles, high copayments, health 
outcomes that are not particularly good--better than some countries, 
worse than other countries--infant mortality worse, longevity worse, 
life expectancy worse, yet we end up spending twice as much per person 
on health care as any other nation. How does that happen? How do we 
spend so much and get so little value? Is that an issue we are prepared 
to discuss? I guess not because the private insure companies say: Don't 
talk about that. We are making a whole lot of money out of the current 
health care system, including the Affordable Care Act. We make a lot of 
money, our CEOs do. Yes, we are spending 30 cents of every dollar on 
administrative costs, on bureaucracy, on advertising. Don't touch that 
because that is the American health care system. I suggest we have to 
take a hard look at what goes on in the rest of the world.
  People have said we have the best health care system in the world. 
That is not what the American people say. The polls I have seen show 
that there is less satisfaction with our system than exists in other 
countries around the world, for obvious reasons. We spend a lot. We get 
relatively little.
  Are we prepared as a Congress to stand up to the insurance companies? 
Are we prepared to stand up to the drug companies that charge us far 
higher prices for prescription drugs than any other country on Earth? 
Are we prepared to stand up to the medical equipment suppliers?
  I don't think so because that gets us into the issue of campaign 
finance, where people get their money to run for office, because these 
guys contribute a whole lot of money.
  Are we prepared to stand up to Wall Street? We have six financial 
institutions on Wall Street that have assets of over $9 trillion--
equivalent to two-thirds of the GDP of the United States of America. 
They write half of the mortgages in this country, two-thirds of the 
credit cards. Do you think maybe it is time to break up these guys or 
are we going to march down the path of too big to fail and have to bail 
them out again? Do you hear a whole lot of discussion about that, Mr. 
President? No, not too often.
  Let me conclude. We had the president of the World Bank here 
yesterday talking about global warming. As I think most people know, 
the entire--well, virtually the entire scientific community, people who 
study the issue of global warming, understands that the planet is 
warming significantly, that it is already causing devastating problems, 
that the issue is manmade, and that if we do not address this crisis by 
cutting greenhouse gas emissions and moving away from fossil fuels, the 
habitability of this planet for our kids and our grandchildren will be 
very much in question. That is what the scientific community says. Have 
you heard any debate on this floor about how we are going to 
aggressively transform our energy system? We do not do it.
  Let me conclude by saying this. There is a reason the Congress has a 
favorability rating of about 10 percent, and that is that the American 
people are hurting and we are not responding to that pain. We are not 
addressing the many crises facing this country, and the American people 
are saying to Congress: What world do you live in? How about joining 
our world? How about changing your attention to our needs?

  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, we are in postcloture debate on the 
nominee for the Circuit Court for the District of Columbia. I want to 
speak on that nomination, but I am also going to take time to speak on 
issues dealing with the Defense Department, the farm bill, and the new 
nominee for the Department of Homeland Security.
  I will take a few minutes to discuss the President's ongoing scheme 
to stack the DC Circuit with committed ideologues so that the 
President's regulatory agenda doesn't run into judicial roadblocks.
  Yesterday, the Senate confirmed the first of three nominees to the DC 
Circuit that the court does not need. Let me emphasize that: Does not 
need. Of course, the Senate denied its consent on these nominees just a 
few short weeks ago.
  Some may ask: What has changed during that time? The vote count 
certainly has not changed. It is not as if Democrats persuaded some of 
their Republicans colleagues to change their minds.
  That is what you would expect in a body that operates based upon 
rules that guarantee the minority a voice. That is what you would 
expect in what is supposed to be the greatest deliberative body on 
Earth. That is what you would expect under normal circumstances, but as 
I explained in an earlier speech this week on another nominee for the 
same court, these are not normal circumstances.
  No, today's circumstances are different.
  Today the President's legislative agenda cannot get traction in 
Congress. And, no, it is not because Republicans will not negotiate 
with the President. It is because the President of the United States is 
out of step with the American people.
  Today the President's signature health care law, which was passed 
without a single Republican vote, is becoming more and more unpopular 
with each passing day. And no, it is not because the administration has 
not done a good job of ``messaging'' ObamaCare. It is precisely because 
of that message.
  Today, the President can't get climate change legislation passed by 
Congress, and, no, it is not simply because of Republican opposition. 
It is because the President's agenda is too extreme even for some 
Senate Democrats.
  The President and his agenda are out of step with the American 
people, and as a result, he cannot get his agenda adopted in this 
Congress. But that doesn't seem to matter to the radical liberal 
interest groups who support these policy initiatives. They want 
results--no matter what.
  These liberal interest groups are not satisfied with constitutional 
separation of powers. They want the President and his allies in the 
Senate to do whatever it takes to get the same results they would get 
if there were 535 Members of Congress just as liberal as the President.
  Those interest groups want the President to legislate by executive 
order and by administrative action. They want the President to suspend 
the law when it suits his purposes, just as the English kings used to 
do. In fact, the reason our Constitution requires--and let me emphasize 
requires--the President to ``faithfully'' execute the law is because 
the English kings would unilaterally--and selectively--suspend laws 
passed by the parliament. But none of this matters to the liberal 
interest groups. They want results--no matter what.
  In fact, the President has made such a practice of legislating by 
Executive Order and administrative action, that he has created the 
expectation among

[[Page S8628]]

his most faithful supporters that there is nothing he cannot do 
  Just a week or two ago, the President was delivering a speech in 
California when one of his own supporters interrupted and heckled him 
for not issuing an executive order to stop all deportations.
  The heckler shouted:

       Use your executive order to halt deportations of 11.5 
     million undocumented immigrants in this country. You have the 
     power to stop deportations right now.

  The President responded:

       Actually, I don't. We are a nation of laws.

  I must say, I understand the confusion. The most extreme elements of 
the President's supporters have witnessed him pick and choose which 
laws he will faithfully execute and which he will suspend, or as the 
President likes to say, ``waive.'' So, it is no wonder that those 
supporters would say: Just issue an executive order. We want results.
  It is just like King George III.
  It is no wonder that those supporters would say: We don't care that 
there isn't support in the Congress to pass legislation imposing cap-
and-trade fee increases. We want results
  Just like King George III.
  It is no wonder that those supporters would say: We don't care if 
Democrats block judges to the DC Circuit based on the standards the 
Republicans are applying today. That was then, this is now. We want 
  Just like King George III.
  It is no wonder that those supporters would say: We don't care about 
two centuries of Senate history and tradition that has been passed down 
faithfully from one majority leader to the next. We want results.
  Just like King George III.
  Climate change regulations are too important. Salvaging ObamaCare is 
too important.
  So as we all know, the majority buckled to the pressure from these 
extreme liberal interest groups and broke the rules of the Senate to 
change the rules. They tossed aside two centuries of Senate history and 
tradition. This history and tradition--until 2 weeks ago--had been 
carefully guarded and preserved by each succeeding majority leader.
  Those leaders remembered the history of King George III.
  They did all of this just so they could install the President's hand-
picked judges, so they could hear challenges to his signature health 
care law and to the rest of his regulatory agenda, such as climate 
change regulation.
  But when a President selects a nominee for the specific purpose of 
rubberstamping his agenda--an agenda that has proven too extreme for 
even Members of his own party--he needs a judge who can be counted upon 
to follow through.
  Given that it is inappropriate to ask prospective nominees how they 
would rule on particular cases, how would this White House make certain 
that their nominees would follow through and rubberstamp the 
President's agenda?
  Based upon Professor Pillard's record--and that is the nominee we 
will be voting on tomorrow--apparently the White House looked out over 
academia and selected the most liberal nominee they could find.
  Because Professor Pillard fits that bill to a T.
  I have heard my colleagues come to the floor and argue that these 
nominees to the DC Circuit are mainstream. Professor Pillard may be a 
fine person, but make no mistake about it, she is not mainstream. She 
is the furthest thing from it.
  I am sure that the White House is confident she can be counted upon 
to rubberstamp its agenda, but don't confuse her views with the 
mainstream of American legal tradition. I have a sampling of things she 
has written and said. I will read some of what she has written, and I 
then ask you to determine if she is mainstream.
  She has written this about abortion:

       Casting reproductive rights in terms of equality holds 
     promise to recenter the debate towards the real stakes for 
     women (and men) of unwanted pregnancy and away from the 
     deceptive images of fetus-as-autonomous-being that the anti-
     choice movement has popularized.

  Think of ``deceptive images of fetus-as-autonomous-being.'' Is that 
  She argued this about motherhood:

       Reproductive rights, including the rights to contraception 
     and abortion, play a central role in freeing women from 
     historically routine conscription into maternity.

  Now, think about that: ``historically routine constriction into 
maternity.'' Is that mainstream?
  She has also argued this about motherhood:

       Antiabortion laws and other restraints on reproductive 
     freedom not only enforce women's incubation of unwanted 
     pregnancies, but also prescribe a ``vision of the woman's 
     role'' as mother and caretaker of children in a way that is 
     at odds with equal protection.

  Is that in the mainstream?
  What about her views on religious freedom? This really ought to shock 
you. She argued that the Supreme Court case of Hosanna-Tabor 
Evangelical Lutheran Church, which challenged the so-called 
``ministerial exception'' to employment discrimination represented a 
``substantial threat to the American rule of law.''
  The Supreme Court rejected her view 9 to 0. Nine to zero. And the 
Court held that ``it is impermissible for the government to contradict 
a church's determination of who can act as its ministers.''
  Do my colleagues honestly believe that it is within the mainstream to 
argue that churches shouldn't be allowed to choose their own ministers? 
I don't think so.
  I asked Professor Pillard about Hosanna-Tabor and religious freedom 
at her hearing. She testified this way:

       And I have to admit, Senator Grassley . . . I really called 
     it wrong on that case. I did not predict that the Court would 
     rule as it did.

  In other words, she tried to dodge the question by leaving the 
committee members with the impression that she had merely taken a stab 
at predicting the case's outcome and that she had gotten it wrong.
  Of course, I wasn't troubled that Professor Pillard had wrongly 
predicted the outcome. I was troubled because she actually argued that 
a ruling in favor of the church would represent a ``substantial threat 
to the American rule of law.''
  I don't believe that there is a single Member of this body on either 
side of the aisle who would subscribe to that argument anymore than the 
nine justices of the Supreme Court did. If I am wrong about that, then 
I would like to hear the Senator explain how it is mainstream to argue 
that granting our churches the latitude to choose their own ministers 
represents a ``substantial threat to the American rule of law.''
  These are the so-called ``mainstream views'' the President wants to 
install on a court that will hear challenges to his most important 
priorities. Is it any wonder that the President apparently has high 
confidence will Professor Pillard rubberstamp his agenda?
  Before I close, let me make one final point.
  Given the circumstances surrounding how these nominees were selected 
and nominated;
  Given all three were nominated simultaneously for the purpose of 
changing judicial outcomes and rubberstamping the President's agenda;
  Given they were nominated and rammed through the process, without 
regard to the fact that there is not even enough work for them to do;
  Given the President was originally denied consent under the Rules of 
the Senate;
  Given that the President and certain far-left liberal interest groups 
successfully persuaded the majority of the Senate to cast aside two 
centuries of Senate history and tradition in order to get them 
  And given the extremely liberal record I discussed;
  If you were a litigant challenging the President, or one of his 
administrative actions and you drew a panel comprised of Professor 
Pillard, Millett, and Judge Wilkins, can you honestly say that you 
would be confident you would get a fair shake?

  Of course not.
  And that, my colleagues, is a sad commentary on the damage the 
President and the Senate majority have inflicted not only on the Senate 
but also on our judiciary and fundamental notions of the rule of law.
  I urge my colleagues to oppose the Pillard nomination.

                 How the Audit Process was Compromised

  For several years, I have been trying to get the Defense Department 
inspector general to do its job, and I have had

[[Page S8629]]

several investigations, a lot of them implemented because of 
information that comes to me from whistleblowers. I will speak to that 
point now and talk about two important audits bungled by the Department 
of Defense inspector general's office.
  There is something very important I need to say right upfront. A 
brandnew inspector general, Mr. Jon Rymer, is now in place. The events 
I am about to describe happened a few years ago, but none reflect on 
his leadership which I hope will bring about a big change in the 
inspector general's office at the Department of Defense.
  When faced with a frontal assault on its audit authority by the 
target of one of its audits, senior IG officials got a bad case of weak 
knees and caved under pressure. They trashed high-quality audit work 
that was critical of a certified public accounting firm and its 
opinions. In doing this, they covered up reportable deficiencies, they 
allowed the audit target to run roughshod over sacred oversight 
prerogatives, without uttering one word of protest or asking one single 
  I am talking about audits of the financial statements produced by the 
Department's Central Accounting Office. This is what I refer to as 
DFAS, which stands for Defense Finance and Accounting Services. The 
audits were conducted by a CPA firm, but supposedly under the watchful 
eye of the inspector general, or IG, but not really under his eye.
  The story of the two bungled audits is told in an oversight report 
which I have now posted on my Web site.
  While I received the first anonymous email on this matter in April of 
2012, my audit oversight work actually began more than 5 years ago. It 
was triggered by a steady stream of tips from whistleblowers 
complaining about the quality of these audits. These reports then 
grabbed my attention.
  My colleagues may wonder why the Senator from Iowa is down in the 
weeds in such arcane issues. The reason is simple. It is the importance 
of audits.
  Audits are probably the primary oversight tool for rooting out fraud 
and waste in the government. To protect the taxpayers, Congress needs 
to ensure that government audits are as good as they can be. They must 
produce tangible results. They must be able to detect theft, waste, 
mismanagement, and then recommend corrective action.
  With mounting pressure for serious belt-tightening under 
sequestration, audits have taken on an even greater importance. Audits 
should help senior management separate the wheat from the chaff and 
apply mandated cuts where they belong. Sequestration cuts should be 
guided by hard-hitting, rock-solid audits. Unfortunately, rock-solid 
audits produced by the inspector general's office are hard to come by, 
and that is the problem.
  After evaluating hundreds of audits, I issued three oversight reports 
in the years 2010 and 2012. With a few notable exceptions, I found that 
the inspector general's Audits were weak, ineffective, and wasteful--
wasteful when we consider that we spend $100 million a year to produce 
them. Poor leadership is part of the problem, but there is still 
another driver; that is, the Department's broken accounting system. It 
allows fraud and waste to go undetected and unchecked. That is bad 
enough, but the lack of credible financial information makes it very 
difficult to produce hard-hitting audits. Auditors are forced to do 
audit trail reconstruction work to connect the dots on the money trails 
and, of course, that is very labor intensive, very time-consuming work.
  Although the Department continues to spend billions to fix the busted 
accounting system, I am sorry to say it is still not working right. The 
Department cannot pass the Chief Financial Officers Act audit test. It 
is unable to accurately report on how the taxpayers' money is spent as 
it is required to do each year under that law. By comparison, every 
other Federal agency has passed that test. Why not the Department of 
  So long as the accounting system is dysfunctional, audits will remain 
weak and ineffective and the probability of rooting out much fraud and 
waste during sequestration is low--and then still continuing to waste 
$100 million that we spend on the inspector general's office.
  While I am talking about the need for better audits, I would like to 
offer a word of encouragement to the Special Inspector General for 
Afghanistan Reconstruction, John Sopko. He is the head of SIGAR, which 
is the name for the Special Inspector General for Afghanistan, or 
SIGAR, for short. SIGAR is cranking out aggressive, hard-hitting 
audits, and I commend SIGAR for doing that--setting a good example. The 
audits I am about to discuss, by contrast, deserve darts, not laurels.

  I first came to the floor to speak on this subject on November 14, 
2012. At that point, I completed a preliminary review of seven red 
flags or potential problem areas that popped up on my radar screen. 
Since then, I have double-checked the facts. I have confirmed my 
preliminary observations. I did this by examining the official audit 
records known as work papers. So I will not walk the same ground again 
tonight. Instead, I will briefly summarize what I did, how I did it, 
what I found, why it is important, and offer some fixes for 
  To conduct this investigation, I had to examine literally thousands 
of documents. I could not have done it without the help and guidance of 
CPA-qualified government auditors. Evidence uncovered in the work 
papers were validated with interviews and written inquiries with 
knowledgeable officials. Together, these tell the story of what 
happened and of course it is not a pretty picture.
  True, my report is nothing more than a snapshot in time, but if this 
snapshot accurately reflects the work being produced by the IG audit 
office, then we have big problems.
  In a nutshell, this is what I found out: A CPA firm, Urbach Kahn & 
Werlin, which goes by UKW, had awarded an unblemished string of seven 
clean opinions on the central accounting agency's financial statements. 
Then the IG stepped in and took a 2-year snapshot for fiscal years 2008 
and 2009. It was supposed to report on whether those statements and 
opinions met prescribed audit standards, but due to a series of ethical 
blunders, that job was never finished.
  A third review was planned for 2010, but after the 2008-2009 fiasco, 
it was canceled, allowing DFAS--the Defense, Finance, and Accounting 
Service--it allowed DFAS to rack up another string of clean opinions 
through last year. All together, this work probably costs the taxpayers 
in excess of $20 million.
  The work performed by DFAS in 2008 and 2009 was substandard. The 
outside audit firm rubberstamped DFAS's flawed practices using 
defective audit methods.
  For its part, the inspector general was prepared to call foul on the 
CPA firm for substandard work but got sidetracked and then steamrolled 
by DFAS. The contract gave the IG preeminent oversight authority to 
accept or reject the firm's opinions. The whole purpose of the contract 
was to position the auditors to make that determination. If the firm's 
opinions met prescribed standards, they would be endorsed. If not, the 
IG would issue a nonendorsement report.
  On both the fiscal year 2008 and 2009 audits, the record clearly 
indicates the IG's audit team determined that the firm's opinions did 
not meet prescribed standards. They did not merit endorsement. Though I 
cannot cite work papers to prove it, whistleblowers alleged that top 
management ordered them to endorse the 2008 opinion with this caveat: 
If known deficiencies were not corrected in the 2009 opinion, a 
nonendorsement was guaranteed. When the very same deficiencies popped 
up again--in other words, in 2009 as they did in 2008--the auditors 
prepared a hard-hitting nonendorsement report as promised. It was even 
signed. The transmittal letter was ready to go out the door.
  The nonendorsement decision had been communicated to DFAS via email 
in unmistakable terms. In line with that decision and contract 
requirements, the IG took steps to cut off payment to the CPA firm 
based on advice of the inspector general's legal counsel.
  The next step was to issue the nonendorsement report. But this is 
where the inspector general chickened out. In a power vacuum, DFAS 
moved swiftly to block the report with a blatant end-run maneuver to 
bypass independent oversight. So DFAS literally neutered independent 
oversight by the inspector general with two bold moves: On the

[[Page S8630]]

same day the IG's office notified DFAS in writing that a nonendorsement 
report would be forthcoming, DFAS unilaterally and proudly declared 
that it had earned a clean opinion and ordered that all disputed 
invoices be paid. This was an act of out-and-out defiance.
  Next, it kicked the IG off the contract. Yes, my colleagues heard me 
right. The agency being audited literally kicked the inspector 
general--the oversight agency--clean off the oversight contract. In 
making this end-run maneuver, DFAS broke every rule in the audit book.
  What happened was a frontal assault on the inspector general's 
oversight authority. The frontal assault was mounted by the agency 
being subjected to the audit and by an agency whose financial reports 
were found to be grossly deficient. In the face of such outright 
defiance, I would like to think that any inspector general would have 
stood up to the offending agency and held its ground and protected and 
defended its oversight prerogatives. That is the law--but not the 
Department of Defense inspector general.
  Instead, the IG's knees buckled under pressure. The IG retreated 
before the onslaught. The IG caved and trashed the report. The IG 
rolled over and played possum, giving DFAS the green light to proceed 
full speed ahead.
  The IG accepted these blatant transgressions without expressing one 
word of criticism, without expressing one concern, without raising one 
single question.
  Other than a lone hotline complaint that disappeared down a black 
hole, no protest was ever lodged, no corrective action was ever 
proposed, and obviously no corrective action ever taken.
  The inspector general's silence appeared to signal total acquiescence 
to a series of actions that undermine the integrity of the audit 
process, which is the basis for ferreting out waste, fraud and 
mismanagement and illegal activity.
  For a Senator who watches the watchdogs, what I see is a disgrace to 
the entire inspector general community. The IG allowed DFAS to run 
roughshod over the contract, the IG Act, audit standards, and 
independent oversight. The audit firm probably got paid for the work 
that was never performed--payments that were alleged to be improper.
  Instead of exposing poor practices and improper actions by both the 
accounting agency and the CPA firm, the Office of Inspector General 
allowed sacred principles to be trampled. It just kept quiet. It turned 
a blind eye to what was going on. It hunkered down. It tried to cover 
its tracks.
  Two misguided acts set the stage for the collapse of oversight of 
these audits.
  The problem began with the contract. At the insistence of the 
Department's chief financial officer and accounting agency, the IG 
agreed to a contractual arrangement that put DFAS--the target of the 
audit--in the driver's seat. This contract allegedly violated the IG 
Act and standing audit policy, according to the assistant IG who spoke 
out at that particular time.
  To address this issue, a fragile waiver arrangement was crafted. It 
was supposed to address the legal issues and protect the Office of 
Inspector General's interests under the DFAS contract. All the parties 
involved agreed to abide by this questionable setup.
  But being nothing more than an informal trust, it came unglued under 
the pressure and controversy generated by the nonendorsement decision.
  Even the Office of Inspector General legal counsel voiced grave 
concerns about the fragile waiver arrangement. In his opinion, the 
terms of the contract ``transferred''--those words come from the Office 
of Legal Counsel--``transferred'' the Office of Inspector General 
oversight function to DFAS, the very component whose financial data was 
being subjected to the oversight. In his words--meaning the Office of 
Legal Counsel's words--the contract terms will leave the Office of 
Inspector General ``open to criticism on the Hill. . . . In two years 
some Senator will yell at us [about this]. If I had known about the 
arrangement,'' he said, ``I would have advised against it.''
  Counsel's concerns were well-founded, and similar to a modern day 
Nostradamus, this prediction has come to pass.
  The second problem was a failure of leadership at the top. When the 
inspector general's auditors reached the conclusion that the CPA firm's 
opinions did not measure up to prescribed standards, the current deputy 
IG for audit drove the final nail into that coffin.
  The official audit records make it crystal clear. The deputy IG gave 
the fateful order: ``There will be no written report.'' This was a 
lethal blow. This is how the report got bottled up. True, it 
disappeared from public view. It got buried, and DFAS was promised it 
would never see the light of day; that is, until one of my 
investigators came along and dug it out of a pile of work papers. 
Here--for the benefit of my colleagues--here it is in my hand. I hold 
it up. It did not get buried like they thought it would get buried.
  Once the deputy IG had smothered the report, DFAS knew it had the 
green light to bypass oversight with impunity.
  All of this bungling could have harmful consequences.
  First, compelling audit evidence, which undermined the credibility of 
the financial statements prepared by the Department's flagship 
accounting agency, was shielded from public exposure. The suppression 
of that evidence has helped to immortalize the myth of DFAS's clean 
opinions. It is so bad now that the myth is an inside joke. It is 
laughable, according to a former accountant. Here is what he said on 
the record to McClatchy News on November 22, 2013:

       When I was there, DFAS would brag about getting a clean 
     opinion. We accountants would just laugh out loud. Their 
     systems were so screwed up.

  If the output of the Defense Department's flagship accounting agency, 
which disburses over $600 billion a year is, indeed, laughable, then 
Pentagon money managers have another big problem. As that famous 
whistleblower Ernie Fitzgerald liked to say: ``It's time to lock the 
doors and call the law.''
  Since the myth involves the reliability of data reported by the 
Department's central accounting agency, it has the potential of putting 
the Secretary of Defense's audit readiness initiative in jeopardy. 
DFAS's apparent inability to accurately report on its own internal 
housekeeping accounts for $1.5 billion--it is $1.5 billion that they 
have--casts doubt on its ability to accurately report on the hundreds 
of billions DOD spends each year. If the Department's central 
accounting agency cannot earn a clean opinion, then who in the 
Department can?
  Second, the integrity and independence of the inspector general's 
audit process may have been compromised. If the independence of the 
audit process was, in fact, compromised, as my report suggests, then 
the Department's primary tool for rooting out waste and fraud could be 
disabled--at least it was in these cases.
  If that did indeed happen, then it probably happened with the 
knowledge and silent acquiesce of senior officials in the IG's office, 
the institution that exists to root out fraud, waste, and abuse.
  In simple terms, the watchdog appointed to expose waste--not only 
expose but stop fraud and waste--may have been doing some of it himself 
or herself. If true, it clearly demonstrates a lack of commitment on 
the part of senior management to exercise due diligence in performing 
its core mission.
  Almost all of the key players allegedly responsible for the bungled 
audits still occupy top posts in the IG's audit office today. Surely, 
these officials did not act alone. This was a concerted effort. 
According to recent news reports, other higher-ups were allegedly 
involved. Senior IG officials must bear primary responsibility for this 
unacceptable and inexplicable failure of oversight. They could have, in 
fact, stopped it.
  To address and resolve these issues, I made four recommendations in a 
letter recently sent to Secretary Hagel and the new Inspector General 
  First, the Department of Defense CFO should pull the DFAS financial 
statements for the fiscal years 2008 and 2009 and remove those audit 
opinions from official records.
  Second, the OIG needs to undertake an independent audit of DFAS's 
financial statements for fiscal year 2012 and determine whether those 
statements and the CPA firm's opinion meet prescribed audit standards. 
The fiscal year

[[Page S8631]]

2012 beginning account balances must also be verified. In response to 
my oversight, the inspector general has initiated what he called a 
postaudit review of DFAS's fiscal year 2012 financial statements. This 
is, in fact, a good move. But to ensure that it is done right this 
time, I asked the U.S. GAO to watchdog the inspector general's work. I 
want independent verification because last time there was none. This 
process will be completed next year.
  Third, the inspector general should address and resolve any 
allegations of misconduct involving DFAS officials and make appropriate 
recommendations for corrective action.
  Fourth, I am referring unresolved concerns regarding the conduct of 
IG officials to the Integrity Committee of the Council of the 
Inspectors General on Integrity and Efficiency for further review as 
provided under the IG Reform Act of 2008.
  What happened here is almost beyond comprehension.
  All of it happened under the IG's watchful eye. All of it probably 
happened with top-level knowledge. Most of it probably happened with 
top-level approval. Some of it was probably allowed to happen through 
tacit approval or silent acquiescence. All of it was bad for the 
integrity and independence of the audit process and the accuracy of 
financial information in the government's largest agency.
  As I said a moment ago, the Department has a new IG, Jon Rymer. I 
hope he is a genuine junkyard dog who likes aggressive, hard-hitting 
audits. I hope Mr. Rymer will take a long, hard look at what happened 
and work with Secretary Hagel and others to find a good way to right 
the wrongs and get audits back on track. I know he can do it, and I 
stand ready to help him in any way I can. I want Mr. Rymer to know my 
door is open to him.

                             The Farm Bill

  Mr. President, I wish to talk about the farm bill, specifically about 
reforming payment limits for farm programs, something this Senate 
agreed to in a bipartisan way.
  Beyond saving money, these reforms help ensure farm payments go to 
those for whom they were originally intended, small- and medium-size 
farms. In addition, the reforms include closing off loopholes so 
nonfarmers cannot game the system.
  Supporters of the farm bill need to take a hard look at what 
challenges were presented last year to getting a bill done. We need to 
forge ahead knowing some tough decisions need to be made.
  There are more reforms we need to make in programs such as food 
stamps, and they are reforms that can cut down on waste, fraud, and 
abuse in the program but also safeguard assistance to the people who 
actually need it.
  While I support closing loopholes in the food stamp program, I 
believe the farm bill should also close loopholes for farm programs 
that are so absurd they are just so obvious.
  As we move forward on finalizing a new farm bill, I wish to state 
clearly that sections 1603 and 1604 relating to the farm payments--
which are in both the House farm bill and the Senate farm bill--should 
stay in that bill. There should be a ``do not stamp'' on those 
provisions under negotiation now between the House and Senate. Most 
important, for House conferees, they should remember that these 
provisions were put on the floor of the House of Representatives in an 
amendment sponsored by Congressman Fortenberry of Nebraska, with an 
overwhelming vote in the House of Representatives. So this is a case of 
where the majorities of both bodies support these provisions. Yet they 
are under attack by House conferees.
  These farm payment reforms strike a needed balance of recognizing the 
need for a farm safety net, while making sure we have a defensible and 
responsible safety net. In case there is any doubt, we do need a farm 
program safety net. For those who argue we do not need a safety net for 
farmers, I argue they do not understand the dangers to a Nation which 
does not produce its own food.
  For all the advances in modern agriculture, farmers are still subject 
to conditions out of their control. While farmers need a safety net, 
there does come a point where a farmer gets big enough that he can 
weather tough times without as much assistance from the government. 
Somehow, though, over the years, there has developed this perverse 
scenario where big farmers are receiving the largest share of the farm 
program payments.
  We now have the largest 10 percent of the farmers receiving 70 
percent of those farm payments coming out of the Federal Treasury. 
There is nothing wrong with farmers growing an operation bigger. But 
the taxpayers should not be subsidizing large farming operations to 
grow even larger, making it very difficult for young farmers to buy 
land or to rent land to get into the operation.
  By having reasonable caps on the amount of farm program payments any 
one farmer can receive, it helps ensure the program meets the intent of 
assisting small- and medium-sized farmers through tough times.
  My payment reforms essentially say that we will help farmers up to 
250,000 per year, but then the government training wheels come off. 
Those new caps will also help encourage the next generation of rural 
Americans to take up farming. I am approached time and again about how 
to help young people get into farming.
  When large farmers are able to use farm program payments to drive up 
the cost of land and rental rates, our farm programs end up hurting 
those they are intended to help. It is simply good policy to have a 
hard cap on the amount a farmer or farm entity can receive in farm 
program payments.
  While both bodies of Congress have decided to cap farm payments, crop 
insurance is still available to large operations, no limits on 
indemnity. Section 1603 and 1604 which I authored and which Congressman 
Fortenberry authored, in our current farm bill, set the overall payment 
caps at $250,000 for a married couple.
  In my home State of Iowa, many people say that is still too high. On 
the other hand, other farmers in other parts of the country say it is 
way too low. But I recognize agriculture can look different around the 
country. So this is a compromise. Just as important, however, to 
setting a hard cap on payments is closing loopholes that have allowed 
nonfarmers to game the farm program. The House and Senate farm bills 
also end the ability of nonfarmers to abuse what is known as the 
actively engaged test. In essence, the law says one has to be actively 
engaged in farming to qualify for farm payments.
  Is that not common sense? However, this has been exploited by people 
who have virtually nothing to do with farming or with a farming 
operation and yet receive payments from the farm program. Not citing 
myself, but the Government Accountability Office issued a report I 
released in October outlining how the current actively engaged 
regulations are so broad that they essentially are unenforceable. Those 
comments came from the USDA employees who administer the program.
  The report illustrated that one farming entity had 22 total members 
of which 16 were deemed contributing ``active personal management 
only'' to the farm. What does ``active personal management only'' mean? 
That means they are becoming eligible for farm programs because of one 
of the eight overly broad and unenforceable eligibility requirements 
that currently exist. More simply put, they likely are not doing any 
labor and are nothing more than a participant on paper to allow the 
entity to get more government payment.
  Our Nation has over a $17 trillion debt. We cannot afford to simply 
look the other way and let the people abuse the farm safety net. I 
mentioned earlier how we need to assess some of the challenging areas 
of farm policy as we look to pass a 5-year farm bill. Some tough 
decisions need to be made.
  However, my reforms to payment limits do not pose a tough decision. 
They are common sense. They are necessary reforms that are included in 
both the House and Senate versions of the farm bill. I wish to take 
this opportunity to thank Senator Stabenow, the chairman of our Senate 
committee, for fighting for these Senate provisions. You see, these 
provisions were part of the Senate bill, representing a majority of the 
  More important, these same provisions were added on the House floor 
by Congressman Fortenberry of Nebraska by an overwhelming majority. So 
Senator Stabenow has the high

[[Page S8632]]

moral ground in conference with the House conferees in fighting for 
payment limitation. She represents a majority of the Senate; whereas, 
the House conferees, in opposing her, represent a minority of the House 
of Representatives.

                       Homeland Security Nominee

  The last issue I am going to speak about, then I will yield the 
floor, deals with the some correspondence I am trying to have with the 
nominee to be Secretary of Homeland Security.
  On July 12, Secretary Napolitano announced she would be leaving the 
Department of Homeland Security after 4 years heading up one of the 
largest departments of the Federal Government. On October 17, the Obama 
administration announced it had finally found a replacement. The 
Committee on Homeland Security moved quickly on Jeh Johnson's 
nomination, approving him by voice vote on November 20.
  On November 15, before the committee approved him, I sent a letter to 
Mr. Johnson, along with several colleagues on the Judiciary Committee. 
We on the Judiciary Committee asked for his views on a number of 
important matters, including our Nation's immigration policies and the 
fair treatment of whistleblowers.
  We asked if he would cooperate with us on oversight matters and work 
with us to improve immigration policies going forward. Because the 
Judiciary Committee has primary responsibility on immigration matters, 
it is necessary for us to know any nominee's position on almost any 
issue. It has been nearly 1 month, and there has been no response to 
our letter and no indication that he might respond.
  In fact, I would be surprised that any nominee would respond to 
Congress any more given the majority only needs a simple majority to 
vote for confirmation. Thanks to a rule change done unilaterally by the 
majority, there will no longer be a proper vetting of executive branch 
nominees. The rule change essentially takes away the Senate's 
constitutional role of advice and consent, thereby allowing nominees to 
ignore Congress on issues of extreme importance such as immigration.
  But I am still going to pursue these questions, even though we do not 
have the leverage we used to have when a 60-vote majority was 
necessary, because Congress has a responsibility to know how laws are 
going to be enforced by the President's a appointees. President Obama 
promised this would be the most transparent administration in history. 
Yet getting answers from this President or his administration on 
legitimate Congressional oversight has been like pulling teeth.
  They have stonewalled Congress at every turn. Over the last 5 years, 
the administration has gone around Congress and pushed the envelope 
with their authority. He has ignored his constitutional duties to 
faithfully execute the laws by picking and choosing which laws he wants 
to enforce. Congressional oversight, an important responsibility that 
holds the government accountable for its people has been nearly 
  In other words, the checks and balances of government do not work the 
way the Constitution writers intended. Now it is going to get worse. 
There will be more blatant disrespect for checks and balances than we 
have ever seen. So I would like to take time to read some of the 
questions--just some of the questions--that we asked Mr. Johnson. I 
think these would be reasonable questions that any Secretary ought to 
tell us what he is going to do if he gets sworn into that office. I 
think they underscore how important it is that we have answers before 
we move forward on the nomination.
  First and foremost, we asked Mr. Johnson about his commitment to 
uphold the laws on the books. We asked if he would continue the lawless 
policies created by the former Secretary and her deputy. We asked about 
what he would do to improve the morale of immigration officials and 
agents who are concerned about their nonenforcement protocols. We want 
to know how he would strengthen cooperation between Federal and local 
law enforcement entities.
  Secondly, we asked Mr. Johnson what he would do to improve border 
security. We want to know what specific measures he will implement to 
ensure that the Department will comply with the Secure Fence Act of 
2006. In 2010, Secretary Napolitano suspended our Nation's only 
comprehensive border security measurements, known as the operational 
control metric.
  More than 3 years have passed and the Department of Homeland Security 
has failed to replace that metric. Will Mr. Johnson then hold the 
Department accountable by regularly releasing a comprehensive border 
security metric? Will he commit to achieving operational control of the 
borders as required by our law? We do not know that. We would expect 
him to answer that he is going to enforce the laws. But will he? Will 
he answer?
  Individuals who overstay their visas account for about 40 percent of 
the undocumented population of this country. This presents a national 
security risk. Without a biometric exit system, this country will have 
no clue who remains on our soil undocumented. Will Mr. Johnson make it 
a priority to finally implement the entry-exit system Congress mandated 
in 1996, still not being enforced?
  Third, we asked about the culture of the U.S. Citizenship and 
Immigration Service. In January 2012, a Department of Homeland Security 
inspector general released a report criticizing the USCIS for 
pressuring its employees to rubberstamp applications for immigration 
  In that report, nearly 25 percent of the USCIS officers surveyed said 
supervisors had pressured them to improve applications that should have 
been denied. We want to know if he will take measures to better screen 
applicants and do away with the get-to-yes philosophy. That get-to-yes 
philosophy is a gigantic risk to our national security.
  Just look at the EB-5 Program which allows foreign nationals to 
obtain green cards if they invest in the United States. We asked 
whether he would make it a priority to improve that program. We asked 
Mr. Johnson about his position on immigration reform, especially since 
the bill passed the Senate, and the House could act, sending a bill to 
the President.
  We asked if people who are in the country illegally, in removal 
proceedings or subject to an order of removal, should be eligible for 
immigration benefits, including legal status. We asked whether illegal 
immigrants convicted of a felony or convicted of multiple misdemeanors 
should be eligible for benefits, including legal status.
  We want to know if gang members, drunk drivers, domestic abusers, and 
other criminals should be allowed to stay in the country. It is 
important for us to know from Mr. Johnson because the Senate bill 
provides a way for those law breakers to gain citizenship. Mr. Johnson 
may be responsible for implementing that.
  Finally, we asked Mr. Johnson to comment on issues generally 
impacting the Department. We asked if he would pledge to cooperate with 
congressional oversight efforts and be responsive to all congressional 
requests for information and do it in a timely manner. We asked that 
because we have received very little cooperation in the last 5 years 
from that Department. We asked if he believed whistleblowers who know 
of problems with matters of national security should be prevented from 
bringing that information to Congress. We asked if he would commit to 
ensuring that every whistleblower is treated fairly and that those who 
retaliate against whistleblowers would be held accountable.
  No matter what department one manages, the answers to these questions 
are very important and should be simple to answer. We need a Secretary 
who is well versed on these issues. We need a Secretary who will 
implement policies that truly protect the homeland. We need cooperation 
and transparency. We need answers. In other words, what is wrong to 
expect answers to these questions I just related before we give advice 
and consent to this nomination?
  Majority Leader Reid has indicated through his cloture motion on Mr. 
Johnson that answers to these critically important issues are not 
  Senators cannot consent to just anyone to head this department. We 
should not fail in our constitutional responsibility of advise and 
  This body should not move forward with this nomination, and I 
encourage my colleagues to consider these issues when the cloture vote 

[[Page S8633]]

  I yield the floor.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. I ask unanimous consent that at 9 a.m., Thursday, December 
12, all postcloture time on the Pillard nomination be considered 
expired and the Senate proceed to vote on confirmation of the Pillard 
nomination; that upon disposition of the Pillard nomination, the 
mandatory quorum required under rule XXII be waived with respect to the 
cloture motion on the Feldblum nomination and the Senate proceed to 
vote on the motion to invoke cloture on the Feldblum nomination; that 
if cloture is invoked on the Feldblum nomination, all postcloture time 
be yielded back and the Senate proceed to vote on confirmation of the 
Feldblum nomination; finally, that the motions to reconsider be 
considered made and laid upon the table and the President be 
immediately notified of the Senate's action.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Iowa.
  Mr. GRASSLEY. I object, and I wish to state the reason I object.
  The PRESIDING OFFICER. The objection is heard.
  The Senator's time has expired.
  Mr. REID. I ask unanimous consent that the Senator be allowed to 
speak for whatever time he feels appropriate.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. The reason I object for the minority to moving these 
votes is we should follow what regular order we have left on 
nominations, especially after the way the majority changed the rules on 
nominations 2 weeks ago.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. My friend, the senior distinguished Senator from Iowa, that 
is what we are talking about here, the face of obstruction--not him, 
but the Republican caucus, stalling for no reason other than to stall 
for time.
  No wonder the rules were changed. No wonder the American people look 
at the Senate as a dysfunctional body. A couple of weeks ago we voted 
to make it a functional body so that nominations can be confirmed for 
any President. The President deserves to have his team.
  We have been wasting days, weeks, and months on nominations. We have 
scores of people and positions that need to be filled. We are only 
dealing with a handful. People understand the rules. We have changed 
the rules the last couple of Congresses--very little--but we have 
changed them.
  If we have a Supreme Court Justice or a Cabinet officer or someone of 
that level, they get 30 hours of time following the cloture vote. What 
are they supposed to do during that 30 hours? Come and explain their 
position why they oppose a person.
  For virtually every one of these nominations there hasn't been a 
single, single complaint about any of them. This culminated by virtue 
of the Republicans in the Senate making a decision that people who 
serve in the prestigious DC Circuit Court of Appeals were not entitled 
to have a full court. There are eight there now, and they said that is 
enough. That is, some say, the most important court in America; some 
say more important than the Supreme Court.
  The Republicans arbitrarily have said we are not going to fill those 
spots, not only because of qualifications, not because of their 
education, their experience or their integrity, only because they don't 
want them filled. That is a new low.
  I am disappointed to have to inform the Presiding Officer and all 
Senators tonight that because Republicans are wasting time, all of this 
staff, police officers--and some of them are getting paid over time--
will have to work. Why? Because the Republicans are wanting to waste 
more of this body's time and this country's time. No wonder the 
American people feel about the Senate as they do. For 5 years the 
obstruction that has taken place is unprecedented.
  We are going to continue to work tonight and remain in session as 
long as we need to. Republicans are forcing us to waste this week on 
nominees they know will be confirmed. Every one of them will be 
  There are no objections to the qualifications of these nominees, with 
one exception, and there are only little squeaks here and there about 
what could be wrong. But the outcome of each vote we will take over the 
next 4 days is a foregone conclusion. Yet the Republicans insist on 
wasting time simply for the sake of wasting time. There is no reason 
these votes couldn't take place right now or in the morning, and we 
could move to some important items.
  I have Senators come to me all the time--the chairman of the 
Veterans' Affairs Committee was here a few minutes ago, the 
distinguished junior Senator from Vermont. He has some important work 
he wants to move on this floor. They have passed some things in the 
House--and that doesn't happen very often, but they passed it. They 
sent it over, and it deals with veterans.
  He wants to bring that to the floor, have a debate, and offer an 
amendment. We can't do that because we are wasting time in the Senate 
on this senselessness.
  The junior Senator from the State of Delaware has spent weeks and 
weeks on manufacturing, which has shown some promise in America the 
last few years. Jobs are being created. Working on a bipartisan basis 
with other Senators, they have legislation they want to bring to the 
floor to talk about ways of improving manufacturing, capabilities, and 
capacity in the United States.
  We can't do that. We are here postcloture looking at each other and 
doing basically nothing, as we have done for vast amounts of time 
because of Republican obstructionism.

  I had a meeting with the chairman of the Environment and Public Works 
Committee and the junior Senator from the State of Rhode Island a few 
minutes ago. In the world today we have something called climate 
change. It is here. Climate is changing all over the world. We have 
global warming.
  Are we doing anything legislatively to address that? No, nothing. She 
has a portfolio of legislation that she would like to take care of.
  There is going to be zero done because we are sitting under these 
lights complaining about the Republicans wasting time. We could finish 
these votes now, but we are going to work into the weekend.
  We had a break for Thanksgiving. It was very pleasant for me to be 
home for 2 weeks. Unfortunately, I had a death in the family that put a 
real cloud over things, and that is an understatement.
  Christmas is coming. Everyone should know that we are going to work 
until we finish the items we have before us this week. I am going to 
file on a number of other nominees as soon as I get a chance, and we 
are going to finish those. If we have to work the weekend before 
Christmas, we are going to do that. If we have to work the Monday 
before Christmas, we are going to do that. If we have to work through 
Christmas, we are going to do that. I know the game they are playing. 
They have done it before. A lot of nominations they will ask to be sent 
back to the administration, and they will have to start all over again. 
We are not going to start all over again.
  We need a director of the Internal Revenue Service. I think that is a 
very good idea. We need to fill Chairman Bernanke's spot as chairman of 
the Federal Reserve. That would be very important for us to do with all 
the problems we have financially.
  We are going to do that before we leave. If it means we have to work 
through Christmas, we will work through Christmas.
  Even if we are spending a lot of time--as we have done over the last 
5 years because of their obstructionism--looking at the lights, and 
that is about all we have to look at because we are not looking at 
substantive legislation as we should be, the only impediment to holding 
votes without delay in reasonable hours is blatant, partisan Republican 
  It is pointless spending an entire week wasting time and waiting for 

[[Page S8634]]

vote. This is a foregone conclusion that is going to happen to every 
one of these votes. This is exactly the kind of blatant obstructionism 
and delay that has ground the Senate to a halt and prevented Congress 
from doing the work of the people over the last 5 years.
  I remind Members that without cooperation there will be rollcall 
votes, perhaps after midnight tonight, and as early as 5:30 in the 
morning. With only a little cooperation, Senators can stop wasting time 
and resources.
  The only way the Senate can stop wasting time is if we get some 
reasonableness and clarity from the Republicans. If there were ever an 
example why the rules had to be changed and how we tried during two 
successive Congresses to be reasonable--remember the exercise? Judges 
would only be opposed under extraordinary circumstances. There isn't a 
single judge that the President of the United States has nominated who 
has problems that are extraordinary. I think what is going on is a 
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. COONS. I came to speak to a bipartisan bill which I hope to take 
a few minutes to talk about, but first I wish to comment on what is 
happening or not happening on the floor and the comments of the 
majority leader.
  I have been a Senator for only 3 years, as the Presiding Officer well 
knows. We were sworn in as a group of those elected to the class of 
2010. I just came from an inspiring event where the Vice President, who 
previously held this seat on behalf of Delaware, gave an award to the 
former majority leader, a real patriot, a veteran, former Senator Bob 
Dole. They talked about how compromise, principled compromise, made it 
possible for Senator McGovern and Senator Dole, folks from opposite 
ends of the political spectrum, to work together in the interests of 
hungry children in the United States.
  Frankly, what I have seen in the 3 years that I have been in the 
Senate, the 3 years that we have served together on the Judiciary 
Committee, has been a slow walk.
  There are minority rights in this body, but there are also minority 
responsibilities. There are majority rights but also majority 
  I wish to add to the comments of the majority leader that the 
nominees to serve on the DC Circuit, the nominees to many district 
court seats, whose confirmations I have either presided over or 
attended, were not objected to on substantive grounds. I have trouble 
with the idea that the three empty seats on the DC Circuit do not need 
to be filled.
  I have listened at great length to the arguments about caseload and 
about workload. As the chair of the courts subcommittee of the 
Judiciary Committee, I presided over the presentation of the Judicial 
Conference's report on where we need additional judgeships and where we 
  I will note briefly and in passing that Judge Tymkovich, who 
presented this report, did not suggest there was some need to reduce 
the DC Circuit by eliminating these currently vacant spots.
  We could go through this chapter and verse. This has been debated to 
death on this floor. In my view, we have three excellent, qualified 
candidates. I regret that we have spent so much time burning the clock 
and that we have had to make changes that ultimately will make it 
possible for qualified nominees to be confirmed. It is, to me, a 
subject of some deep concern that we cannot work better together, 
Republicans and Democrats, to move work forward.

  If I might, I would like to move for a moment to an example of 
exactly the sort of bipartisan bill that we should be able to move to 
here, that if there weren't this endless obstruction, if we weren't 
running out the clock on nothing, we might be able to get done 
together. This is an example of the sort of reaching across the aisle 
that used to dominate this body when giants such as Dole and McGovern 
served here but is no longer the case. They are no longer the daily 
diet of this body. We are no longer reaching across the aisle and 
finding ways to make our country more competitive, create more 
manufacturing jobs in partnership with the private sector, and 
responsibly reduce our deficit.
  I was encouraged as a member of the budget conference committee that 
we seemed to be moving toward enacting a significant--small in scale 
but significant in its precedence--deal for the Budget Committee that 
could allow us to go back to regular order for appropriations. But 
here, as we waste hour after hour running out the clock to confirm 
nominees, I wonder. I wonder whether we are going to be able to take 
up, consider, and pass substantive legislation.

                      Children's Advocacy Centers

  If I might, I would like to take a few minutes to talk about why I 
initially came to the floor today; that is, to talk about the power of 
children's advocacy centers. Children's advocacy centers exist across 
the country today in large part because this Congress, on a bipartisan 
basis, passed back in 1990 the Victims of Child Abuse Act--a bill that 
for the first time authorized funding for an important nationwide 
network of what are called children's advocacy centers. These centers 
help deliver justice, they help heal victims of violence and abuse, and 
we must act to continue empowering their service to our Nation.
  Today is a time when we could work together to reauthorize that 
initial landmark bill from 1990 and rededicate ourselves on a 
bipartisan basis to something that is one of our most sacred 
obligations: protecting our children, protecting the victims of child 
abuse and delivering justice for them. That is what this bipartisan 
bill does that was introduced earlier today along with my colleagues, 
Senators Blunt and Sessions and Hirono--a great example of being able 
to work together across the aisle.
  As parents, as neighbors, as leaders of our Nation, we have no more 
sacred obligation than protecting our children. In most of our cases, 
we dedicate everything we have as parents to ensuring our children's 
safety, to providing for their future, and that is what this bill is 
all about--that responsibility.
  Tragically, too often, despite our best efforts, too many of our 
children fall victim to abuse. We cannot guarantee their safety, but 
what we can do is ensure that when children in this country are harmed, 
we can deliver justice without further harming them. Thankfully, 
children's advocacy centers, for which this bill reauthorizes funding, 
are critical and effective resources in our communities that help us 
perform this awesome and terrible responsibility. Through this bill, we 
can continue to prevent future tragedies and deliver justice in ways 
that are effective and less costly than communities can deliver alone.
  This bill helps prevent child abuse proactively. Just last year its 
programs trained more than 500,000 Americans, mostly in school 
settings, in how to spot and prevent child sexual abuse.
  Secondly, and in my view most importantly, this bill delivers 
justice. Children's advocacy centers increase prosecution of the 
monsters who perpetrate child abuse. One study showed a 94-percent 
conviction rate for center cases that carried forward to trial.
  Third, and in many ways equally as important, this bill helps to 
heal. Child victims of abuse who receive services at a child advocacy 
center are four times more likely to receive the medical exams and 
mental health treatment they desperately need compared to children who 
are served by non-center supported communities. No parent ever wants to 
go to one of these places or have to bring their child to one of these 
places, but those parents who have under these tragic circumstances, 
nearly 100 percent of them say they would recommend seeking this help 
to other parents.
  How do these advocacy centers achieve all these different results of 
prevention, of justice, and of healing? Well, they are unique because 
they bring together under one roof everybody who needs to be present to 
help deal with the tragedy of child abuse: law enforcement, 
prosecutors, mental health and child service professionals--all focused 
on what is in the best interest of the child.
  Through a trained forensic interviewer, they interview the child to 
find out exactly what happened. They ask difficult, detailed questions, 
and they structure the conversation in a trained and nonleading way so 
the testimony can be used later in court, preventing what otherwise is 
retraumatization, making it possible for child victims to testify in a 
way that will lead to justice but without forcing those children

[[Page S8635]]

to take the stand and to repeat over and over what they testified to 
once at a center.
  Prosecutors take the information obtained in the interview all the 
way through the court system, while doctors and other child service 
professionals ensure the child is getting the help he or she badly 
needs to begin the process of healing.
  One place, one interview, with all the resources a victim would need 
to move forward to secure justice and to heal.
  In my home State of Delaware, we have three children's advocacy 
centers, one in each of our counties. In the last year, I visited the 
centers in Wilmington and in Dover and saw firsthand the extraordinary 
work the professionals there do. These are places haunted by the 
tragedies that are described and recorded there, but the staff are 
welcoming, nurturing professionals, and the law enforcement and mental 
health and child service professionals who are there are deeply 
dedicated to making sure that they achieve justice and that they 
promote healing.
  It was striking on my tours, my visits, to see how strategically and 
thoughtfully each of these centers has been put together, how they have 
worked through every possible detail to enable obtaining the testimony 
needed to secure justice while enabling healing of child victims. This 
is critical in order to avoid retraumatization--a threat that is real 
for victims and for their long-term healing process. The centers in 
Wilmington and Dover and Georgetown in my home State show over and over 
how these centers create the sort of nurturing but effective space to 
ensure that we both meet the needs of victims and secure justice.
  As I am sure the Chair knows, in my home State of Delaware just a few 
years ago we saw exactly the kind of evil we most dread in this world 
when a pediatrician, a man named Earl Bradley whom many Delawareans 
trusted with their children's health and safety, was found to have 
sexually assaulted more than 100 of our children. Delaware is a State 
of neighbors, and his horrific crimes against our children, our 
families, and our communities affected all of us. Attorney general Beau 
Biden and his team effectively led the investigation and prosecution of 
this monster. Thankfully, children's advocacy centers were able to play 
a key role in ensuring that the interviews and the assistance provided 
to the victims and their families were effective and that ultimately 
justice was rendered.
  Randy Williams, the executive director of Delaware's Children's 
Advocacy Center in Dover, wrote to me:

       Our multidisciplinary team worked tirelessly and seamlessly 
     in providing forensic interviews, assessments, medical 
     evaluations and mental health services for every child 
     referred to our centers.

  Randy went on to say:

       I feel confident that our team's outstanding collaborative 
     response was a direct result of the financial and technical 
     assistance and training resources made possible over many 
     years through the Federal Victims of Child Abuse Act.

  In the end, Dr. Bradley was convicted on multiple counts. Over 100 
victims were involved. He is now serving 14 life sentences plus 164 
years in prison.
  As a nation, we have no greater responsibility than to keep our 
children safe. As a father, there is nothing that keeps me up at night 
more than concerns about the safety and security and health of my own 
children. We must do everything we can to prevent sexual abuse of those 
most vulnerable and those most precious members of our society--our 
children. When that tragedy strikes, we need to be prepared with the 
best services we have to foster healing and deliver justice.
  This specific bill is about upholding our responsibility to our 
children, to our families, and to this Nation's future. It is at the 
very core of why we serve and of what we believe. I am grateful that 
this is a bipartisan bill, that this is a bill which can demonstrate 
the best of what this Senate, this Congress, and this country is 
capable of. It represents the best of our Federal commitment to 
targeted, effective, and essential assistance to State and local law 
enforcement, to our communities, and to our children.
  I urge my colleagues to join with us because in the end, no child 
should fall prey to physical or sexual abuse. No mother or father 
should have a haunting experience of finding that an adult they trusted 
took advantage of that trust and horribly hurt their child. No country 
should tolerate these crimes when there are things we can do now, 
today, on a bipartisan basis, to protect and to heal our children and 
to ensure that justice is secured.
  With that, Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I came to the floor to talk about several 
other things, but after hearing the majority leader and my colleague 
from Delaware, I think the revisionist history needs to stop.
  This place ran from 1917 under a process where any one Senator could 
stop anything. That was changed by a two-thirds majority of those 
present voting to a number less than that. The point I am getting to is 
that we are in this process because the rules weren't good enough to 
accomplish what the majority wanted to accomplish and the majority 
leader wanted to accomplish. Majority Leader Byrd didn't have any 
trouble when he had the same vote number. Majority Leader Daschle 
didn't have any trouble. Neither did Frist or Dole. None of them had 
any trouble. As a matter of fact, what we have seen and what has 
happened is a lack of effective leadership in building bipartisanship.
  The Senate wasn't designed to be the House, as my colleagues have 
recently made it. The Senate was designed to absolutely protect 
minority rights. And what happened the week before we went on 
Thanksgiving break actually hurt the majority more than it hurt the 
minority because now the majority has lost the ability to hold their 
own administration accountable.
  The majority leader used the words ``reasonableness'' and 
``clarity.'' Reasonableness is compromise. Reasonableness is allowing 
amendments on major bills. Clarity is the ability of Senators to offer 
their viewpoint on $600 billion bills. Reasonableness would be to say 
that every Member of this body ought to be able to contribute important 
ideas to the Defense authorization bill or to the farm bill or to any 
other major piece of legislation.
  So we have gone down this road. It can be stopped. All this can be 
stopped, but it cannot be stopped without the recognition of the damage 
done to this body by a very frivolous act.
  The revisionist history I am talking about is with the DC court. 
There is no difference in what the President is doing on the DC court 
than what Roosevelt decided to do or attempted to do. Everybody knows 
the workload there is enormously small compared to all the rest of the 
courts. Everybody knows there are also judicial vacancies that are much 
more important than those.
  So what is the reason for this? It is so we can continue to have 
executive orders and bureaucratic rules and regs come through that are 
going to get challenged because they are not within the consent and the 
vision of the laws that are passed, and, in fact, they can be enforced 
by a stacked court. My colleagues can't claim anything other than that. 
We know that is what is going on, and they know that is what is going 
on. That is going to be there forever. That is a legacy of the Obama 
administration, and it is a planned legacy.
  So it is not about what is claimed to be Republican obstructionism. 
It is about changing the very nature of our country. It is about 
changing the rule of law. It is about whether the President will be an 
emperor or be the President. And my worry is that we are moving fast 
and quickly toward an executive branch that has decided and has stated 
very proudly: If the Congress won't do it, we are going to do it 
anyway. Where does that fit in with the rule of law? And we have heard 
that three times from this President. In fact, they are doing it--
ignoring law.
  So now the very court where those laws will get challenged is going 
to be stacked with his nominees, and we refuse to admit this very same 
point was made by senior members of the Judiciary Committee when the 
Republicans were in charge. No one can deny that history. It is out 
there. Senator Schumer did it, as well as others, knowing that court 
should not be filled.

[[Page S8636]]

  Now, we know it is going to get filled. We understand what is 
happening. What is at risk is the future of our country and whether we 
will really have balance between the powers of the judiciary, the 
executive, and the legislative branches in this country. What we are 
seeing is a reshaping of that. It is a dangerous trend. It was 
something our Founders worried about, and we have seen executive orders 
and executive privilege taken to new heights that have never been seen 
in this country before by this administration.

  So let's be clear what we are talking about. This isn't about 
obstructionism. This is about you limited our rights. You also very 
well limited your own rights in the ability to extract information.
  We just heard Senator Grassley spend 1 hour on the floor talking 
about the lack of response from this administration. There is no tool 
for you to get answers anymore, there is no tool for any of us to get 
answers anymore, because we can no longer hold any nominations because 
they will go through. So there is no power. We have given up the one 
significant power to hold the executive branch accountable.
  Not only that, but we have diminished the minority rights that are 
part of what the Founders created to force compromise--to force us to 
compromise, to bring us together. There is not ill will. There are 
damaged hearts in this institution today.
  We understand the strong beliefs on the other side, but we don't 
understand the lack of moral fiber that is associated with avoiding and 
violating what has always been the tradition of the Senate--which is, 
you change rules with two-thirds votes of those duly elected and 
present. Rule XXII still stands. It just has a precedent in front of 
  So for the first time in our history in this body, one group--because 
they couldn't achieve compromise and wouldn't compromise--has forced a 
changing of the rules, not through two-thirds of duly elected and sworn 
members but by fiat and by simple majority. What is next? We are going 
to make it the House. That is what is next. That is coming. I know that 
is coming.
  So consequently what is going to happen in our country is we are not 
going to have significant deliberation. We are going to have laws 
changed at public whim, rather than the long-term thinking and an 
embracing of what the Constitution says.
  The whole purpose for this body is to be a counter to the House in 
terms of response to political and public demand; to give reasoned 
thought and forced compromise, so that what comes out of here is a 
blend of what both the public wants, but also what the public might 
have lost sight of in terms of a short-term view versus a long-term 
view. You are putting that at risk. It is coming at risk. The very the 
soul of the country can unwind right here in the Senate.
  So what remaining powers do we have as minority Members--and you may 
get to find that out someday--is to use the rules that are there to our 
  In the past, nominations were agreed upon between the majority leader 
and the minority leader, and they were ferreted out and moved. We have 
had 21 nominations come through the homeland security committee. I 
voted positively for 19 of them, against one, and voted present on one 
today. I would say that is about 90 percent that I am in agreement of 
moving the nominations.
  We actually force compromise on our committee. We actually work to 
compromise on our committee. But that is because of the leadership of 
Senator Carper to create an atmosphere where you can have compromise 
and you can have back and forth. We don't have that leadership in the 
Senate as a whole. The Senate has never seen these problems. But it is 
not about the rules. It is about the leadership and who is running the 
  Most of my colleagues on the other side of the aisle haven't been 
here for a long time. They have never seen it in the majority work. 
Seventy-seven times the majority leader over the last 7 years has 
filled the tree and barred amendments. That is more than all the rest 
combined in the entire history of the Senate. Is that about us or is 
that about him not wanting to allow the place to work? He is a good 
man. But the problem is that leadership matters, and this place is not 
  I will make one other statement I think needs to be made. I believe 
that climate does change. I believe that climate is changing all the 
time. Global warming has been disputed now. It is undeniable; it is not 
global warming. We are now into a global cooling period, and that is 
OK. You can have cooling. But the fact is the science is still nebulous 
on all the claims being made. I have said before on this floor, I am 
not a climate change denier. But I am a global warming denier, because 
the facts don't back it up.
  We heard what the majority leader had to say about the importance of 
getting things through on climate change. There may be important things 
we need to do, but we ought to be doing them together rather than in 
opposition. If that were the attitude, that we would work together, if 
we would have an open amendment process--a truly open amendment process 
where the majority leader isn't picking our amendments and deciding 
what we can offer--pretty soon you are going tell us what we can say on 
the floor. You are going to determine what I can say on the floor. This 
is the first step in this process. That is the ultimate conclusion to 
this process that you have started.
  So it is about leadership, and it is either there or it isn't. Right 
now, it is not there.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Nebraska.
  Mr. JOHANNS. Mr. President, I appreciate the comments of the Senator 
from Oklahoma, and I would like to use his comments maybe as a 
springboard for some thoughts I have, not only on this nomination but 
on the terrible mess we find ourselves in today here in the Senate.
  I am a fairly new Member of the Senate. I came here just 5 years ago. 
I thought a lot about reelection, and I announced some months ago that 
I would not seek a second term in the Senate. So you might say I don't 
really have a fighter in this ring. I am here for a limited period of 
time. I have already decided that. My interest is seeing the Senate 
operate in a way which will be in the best interests of our country, 
that will fulfill the vision that our Founders had of a country where 
there would be freedom and where the minority would be able to voice 
their view as well as the majority.
  The process by which the House of Representatives and the Senate were 
put together was a very thoughtful process. Our Founders looked at our 
country and its future, and they decided there needed to be a body 
where the population would be represented based upon numbers, based 
upon the population, and that became the House of Representatives.
  For a State like Nebraska, 200-some years later that doesn't work 
very well. It is pretty obvious that our three House Members can be 
consistently, routinely outvoted by a whole bunch of other States: 
California, New York, Pennsylvania, Florida, Texas. I could go on and 
on. We have three Members in the House. It is obvious that we are going 
to be on the losing end.
  The other piece of that is it is a majority-based body. So if you are 
in the majority, with the Rules Committee, you pretty well set the 
rules. It just works that as long as the majority can keep their 
members together, they are going to win. That is just the way it works. 
About the only way you can change that is to change the majority.
  When our Founders looked at that, they said: We have to have a 
different approach in the Senate. That led to the great compromise.
  What we ended up with is just a remarkable system. If you think about 
it, Nebraska in the Senate is as powerful as California. Nebraska is as 
powerful as Pennsylvania because we each get two Members. We are 
equally represented.
  They also recognize that the pendulum would swing. Sometimes one 
party would be in control, and sometimes another party would be in 
control. Originally, when the Senate was set up, any one Member of the 
body could come to the Senate floor and object or just debate something 
to death. That pretty well was how it operated, and it operated for 
decades and decades that way.
  Then came World War I and Senators began to recognize that funding 

[[Page S8637]]

war was going to be a very serious problem. There was a tremendous 
amount of affinity between Senators and people back in the country 
where their ancestors came from--Germany--and they had to find a way to 
end debate. So they finally, after discussing this and debating it, 
decided the best way of doing that was to put something in place where 
you could literally take a vote. I think back then, if my memory serves 
me correctly, if two-thirds of the Senators voted, they could end 
  That was quite a change for the Senate. The whole idea that a single 
Senator wasn't going to be able to literally force issues in the Senate 
was a very difficult issue. But that change was made, and it operated 
that way for many decades following. Then in the 1970s, the decision 
was made that it would take 60 votes to end debate. It would pull the 
number down to 60. But it was always recognized that the rules could 
only be changed by a two-thirds majority; that is, until just a few 
weeks ago. Then, something happened here in the Senate that literally 
shakes the foundation of this country and it shakes the foundation of 
this body.
  I guess if you are in the majority at the moment, you are probably 
saying: Geez, Mike. It seems to work out pretty well. Well, it won't 
work out very well for the history of this body, for this institution, 
for its Members, and, most importantly, for the citizens of the United 
States, because it was the method chosen to change the rules that is 
the frightening piece.
  Think about this. We came down here a few weeks ago. A ruling was 
made by the Chair, and the majority leader said: I will appeal that 
  Now, we all know, if we have read the Senate rules--and I hope to 
goodness we have all read the Senate rules--that by appealing the 
ruling of the Chair, you can overrule the Chair by a majority vote.
  Let me repeat that. We bypassed the rule that says it takes two-
thirds to change the rules of the Senate, and the majority said: We 
will appeal the ruling; and if we get a majority, we will overturn the 
ruling. That is what happened, and that is where we find ourselves 
  This isn't inconsequential, and we are not trying to be arbitrary and 
capricious, but we are trying to make the point that this is a huge 
issue for the future of our country. Let me point out what this now 
means for the Senate. What this means is that if the majority leader, 
whoever that is, Republican or Democrat, does not like the way things 
are going, they can appeal the ruling of the Chair and overturn that 
ruling by a majority vote because now the precedent is set. It is in 
our history. It is in our rules.

  Some look at this and say: You need not panic; this only applies to 
circuit court nominees, district court nominees, and executive 
  Let's think about that for a second. Let's say we have a Supreme 
Court of the United States where there are four members who are pretty 
consistent in ruling one way--some might call it the liberal way--and 
we have four members who are pretty consistent in ruling another way--
some might call it the conservative way--and there is one member of the 
Supreme Court who kind of moves back and forth between the four over 
here and the four over here, between the four liberal members and the 
four conservative members, whatever you want to call it. That is a 
pretty unpredictable vote.
  Let's say something happens. Maybe there is a health issue. Maybe 
there is a decision by that member there in the middle to retire. I 
don't know. It could be a whole host of things. That is the human 
condition. Things happen to us. Let's say we are in the last 18 months 
of an administration. The President is due to go out. The campaign has 
already started. People are showing up in Iowa, New Hampshire, South 
Carolina, and everywhere else. They are raising money. They have 
Presidential races they are organizing, and they are doing all the 
things they need to do. You have Republicans thinking: By golly, it is 
our time. We either keep the White House or win the White House. You 
have Democrats thinking the same. And you have a President who all of a 
sudden has a Supreme Court appointment smack dab in the middle of four 
members on one side and four members on the other side.
  Let's say the majority has the ability to put somebody of their own 
ilk into that position--whether it is Republican or Democrat or liberal 
or conservative. They look at this and they say: You know, we could 
lose the White House or we might not get the White House. These are 
appointments for life. It is not as if we are appointing somebody for 4 
years; these are appointments for life. We have kind of come to the 
conclusion, as we talked about it on our side of the aisle, that, by 
golly, it is in the best interests of this country if we can make this 
appointment. You know what. We do not have 60 votes to get it done. We 
have counted the votes. It looks as though this is going to come out of 
the Judiciary Committee on a straight party-line vote. What are we 
going to do now?
  I know what will happen. You know what will happen. Every Member of 
the Senate knows what will happen. I don't care if you are a Republican 
or a Democrat or a conservative or a liberal or a Socialist or whatever 
you want to call yourself, we know what will happen. There will be a 
ruling by the Chair. There will be an appeal by the majority leader. 
And all of a sudden we will have a rule where you can confirm a Supreme 
Court nomination--a nomination to a job for life--based upon a majority 
vote. Does anybody think for a minute that is not going to happen? Does 
anybody think for a minute that the circumstances surrounding that will 
not occur?
  I guess if you are on the Republican side of the aisle and it is a 
very strong conservative who is going to the Supreme Court, maybe you 
look at that and say: Thank goodness. We saved the country.
  Maybe if you are a Democrat and it is a good strong liberal who is 
going onto the Supreme Court, you say: Thank goodness. We saved the 
country, and it was worth it.
  But you see, here is the dilemma in which we find ourselves. The 
dilemma in which we find ourselves is that the majority of this body 
has now set the precedent and you cannot pull it back. There is not any 
way now that you can unwind the clock and turn back the clock.
  Let me offer another thought. Let's say we are a few years down the 
road and you have a piece of legislation and your side of the aisle has 
decided that piece of legislation is absolutely critical for the future 
of this country. Maybe it is cap-and-trade, maybe it is another health 
care bill--whatever. All of a sudden somebody says: We have to get this 
done. We are in the last 12 months of this administration. We are 
looking at the numbers. We are not going to win the White House again, 
the way it is looking. The precedent is there: Appeal the ruling of the 
  The point I am making is this. It is not that the rules were changed. 
The rules have been changed in the Senate a number of times by the way 
the Senate rules contemplate--with a supermajority voting to change 
those rules. Now we have torn that up because now we have established a 
  I am in the process of reading Senator Byrd's history of the Senate--
a remarkable man. I got to know him a little bit. He was still here 
when I came to the Senate, before he passed. He happened to be on the 
other side of the aisle, but I came to respect him so much. He would 
never have stood for this. He never would have tolerated that this 
institution would be so mistreated by anybody, Republican or Democrat. 
Boy, in his heyday he would have been at his seat screaming at the top 
of his lungs about what we were doing to the Senate with this vote, 
what the majority was going to do to the future of this great body.

  In his history of the Senate, he talks about how important it is that 
there is this body where a minority view of the world can be 
  If I were the majority leader, I guess I would like this to run 
efficiently and well-oiled and smoothly. I was a Governor. I was a 
mayor. The days when I got my way were much better than days when I did 
not get my way. I did not like being frustrated by the legislature. I 
didn't like the city council telling me I couldn't get my way. I could 
not understand, some days, why they could not figure out that I was 
  One day I was sitting down with a State senator. He had been there a 
lot of years. I was complaining about the way the legislature was 
treating me. I couldn't understand why the legislature couldn't follow 
everything the

[[Page S8638]]

Governor wanted done. He listened very patiently and he looked at me 
and he said: You know, Mike, nobody elected you king.
  I think that is what Bob Byrd would have said--nobody elected any of 
us king. You see, our Founders set up this system with the whole idea 
that we would not have kings anymore, that there would be checks and 
balances, and that we would be forced to deal with each other, 
sometimes more artfully than at other times but that we would be forced 
to deal with each other.
  The majority leader came down here and he said: I don't understand 
this, and he talks about this process. This process got started because 
he filed cloture on 10 nominations. Why are we not working on this? If 
you look at the history of the Senate over the last years--I have been 
here; I watched it; I turn on my TV in the office to see what is going 
on on the Senate floor. Do you know what I see? Exactly what you see, 
what all of us see. We sit hour after hour, in cloture or in quorum 
call hour after hour when amendments are pending.
  I thought--I had this mistaken impression--that every Senator could 
file an amendment; that if I had a better idea on something, I could 
file an amendment and I would get a hearing on the amendment. I would 
be able to come down here and try to argue to my colleagues: Pass my 
amendment. We have not seen that kind of process for years under this 
  I didn't think it was possible to mishandle the Senate when I came 
here. I looked at the books of rules and interpretations and volumes, 
chapter after chapter written about the rules of the Senate, and I said 
to myself: There is no way you could mismanage this body because these 
rules are as intricate as they could be. Boy, was I proven wrong. You 
can mismanage this body. We have seen it. And that is where we find 
ourselves today.
  At the end of the day, why did it happen? Why did it happen? Why are 
we putting ourselves in this position? A former U.S. Senator from 
Nebraska who had been here--I think he was here three terms. He had a 
wonderful saying. When his party was not in power, he would say at 
speeches: Ladies and gentlemen, let me remind you, the worm will turn. 
It was his way of saying: You know what. I have been in the majority 
and I have been in the minority, and it will change because the people 
will send a message into this Chamber, just as they did on the health 
care bill. They will send a message that this is not the kind of 
country they want.
  We somehow have to figure out how to put this back in the box. This 
nuclear option needs to be sealed up, hidden away, and never used 
again--I don't care if the Republicans are in the majority or the 
Democrats are in the majority. This basically means, today, that all of 
those rules, all of those chapters written about those rules have no 
meaning whatsoever because there are no rules. If I do not like what is 
going on here and I am in the majority, all I have to do is appeal the 
ruling of the Chair and get my team to stand together and we have 
changed the way the Senate operates. It is as simple as that.
  I think at times in our history we would like to think that we are 
the smartest people in the world, that we thought of something no other 
person has thought of in the history of this country. Not true. If you 
read what Senator Byrd wrote about the history of the Senate, many 
times U.S. Senators, dissatisfied, losing personally because of a 
ruling of the Chair, had an opportunity to appeal that ruling and win 
and realized that was the wrong course of action because they would set 
a precedent that you could change the rules by breaking the rules. That 
is exactly what happened a couple of weeks ago. It is not the fact that 
the rule has changed, although I disagree with where we ended up, it is 
the method by which the majority--Democrats--changed those 
rules, because that method is now precedent and it is now available to 
Republicans and Democrats and it is wide open. I guarantee that in our 
lifetime we will see a Supreme Court nominee put on the Supreme Court 
by this method. I guarantee that we will see--whether it is in our 
lifetime or at some point after--that there will be a situation where 
legislation is now done by a majority.

  What does that mean for the country? I will give a good example. The 
great compromise protected States such as Nevada, Nebraska, and Iowa. 
We all get two Senators. We all get to come to the floor and fight for 
what we believe in.
  I imagine that every Senator would say something to the effect of: I 
come from a beautiful State, the State of Nebraska. We are conservative 
people by nature. I don't think you live in Nebraska unless you have a 
pioneer spirit and you are conservative by nature. That is who we are. 
We essentially believe that less government is a good idea.
  When I was Governor, people didn't want me running their schools. 
They had a school board. They felt they could make thoughtful and 
intelligent decisions about running their schools. I thought they could 
too. That is the nature of who we are.
  Do you realize that on executive appointments--district court and 
circuit court judges--we basically get dealt out of this. Let's say I 
have a problem with a nominee, and I want to put a hold on that nominee 
until they come to my office and deal with me. Everybody on both sides 
of the aisle gets the opportunity to use that. Well, guess what. That 
was voted away a few weeks ago.
  Why would a Republican administration deal with anyone in today's 
majority? Why would they care? It doesn't make any difference.
  I went through that process. I was a member of the President's 
Cabinet. I hope I would have the decency that if anybody asked me a 
question, I would answer the question or try to solve their problem or 
try to work with them. Quite honestly, why do they need to? How can 
that issue be forced now? They don't need your vote. They can get 
through the process if their party is the majority of the Senate. This 
body was never intended to operate that way.
  I want to spend a few minutes of my time talking about what I really 
think this is about, and this makes it an even more tragic story. The 
majority leader was here a few minutes ago and said: Well, if you are 
going to be like this, then we will work on Christmas. We will work the 
weekend before; we will work the day before.
  I was sitting there thinking: What is new about that? What's even 
threatening about that? I mean, that is the way business is done.
  We sit through hours and hours of quorum calls and then all of a 
sudden they file cloture on 10 nominees 2 weeks before the break? It is 
kind of obvious to me what is going on here. Is it obvious to anyone 
else what is going on here? They are trying to force the issue.
  Why didn't we start working on this weeks ago? Why don't you run the 
Senate 24/7 so we can move amendments and give us the opportunity to 
vote on amendments? Why sit hour after hour in a quorum call?
  I think what this is really all about is this: We had reached an 
agreement. Remember that evening when we all walked down the hall--
Republicans, Democrats, and Independents--and went into the Old Senate 
Chamber and shut the doors. There was no media or staff. It was just us 
talking about the Senate.
  I am not going to share a lot about what was talked about in there, 
but I thought it was a pretty good meeting. We have done that a couple 
of times. We did that on the START treaty, and we did it that evening a 
few months ago.
  It wasn't very pleasant, but over the next day or so we shook hands 
and said to each other: OK, we get it. We don't want to get in the 
business of breaking the rules to change the rules. We understand the 
precedent that is setting. Once you put that on the books, like I said, 
you can't unwind the clock.
  So, OK, this is what we are going to do--and I must admit I didn't 
like it very much. I thought we were giving up too much. Having said 
that, the alternative was not very attractive. We shook hands, like 
gentlemen do, and we called a truce and those were the rules we would 
operate under.
  Everybody said: We dodged a bullet on that one, and the Senate will 
continue to function like it has functioned the last 225 years. It will 
function as a place where the minority, whoever that might be at any 
given time, has a

[[Page S8639]]

voice. It is the only body in the world that operates like that.
  As I said, I must admit I had qualms about it. I talked to some of my 
colleagues on both sides of the aisle about my qualms, and at the end 
of the day I reached the conclusion that it was better than the nuclear 
  So why did this come up again? If we had reached a deal--if we shook 
hands like gentlemen and women do, why did this come up again? I 
thought this was behind us. I thought we would make our way through 
nominations and work long hours. Most of these are very 
noncontroversial, and I thought we had reached an agreement.
  We had reached an agreement. We all knew we had reached an agreement. 
So why did Democrats feel that all of a sudden we needed to revisit 
  The argument I want to make tonight is this--and I am going to draw 
on a little bit of history. When I first came here, I sat in a chair 
over there. I will never forget it. It was Christmas Eve day when we 
were brought in here to vote on a piece of legislation. Christmas Eve 
votes are pretty unusual around here. We all sat at our desks. We don't 
usually enforce that rule, but we all sat at our desks.
  For people like me, I left this Chamber very, very sad and 
discouraged. On a pure party-line vote, a monumental piece of 
legislation that practically no one had read and was poorly 
understood--in fact, the Speaker said: We have to pass this to 
understand what is in it. No truer words were ever spoken. It passed. 
Not a single Republican in the House or the Senate voted yes on that 
  When I came here, I kind of had the idea that there would be give and 
take, that I would get my idea, you would get your idea, and at the end 
of the day the Senate was a body that would force compromise or the 
bill wouldn't pass.
  Something unusual happened. The President was a Democrat, the Senate 
had 60 Democrats, so debate could end, and the majority of the House 
was overwhelmingly Democrat. It became very clear to me that my view of 
the world didn't matter, and it wasn't going to matter because as long 
as they could sweeten this thing up and do deals, and whatever else, my 
State was impacted by it. We all remember the Cornhusker Kickback. But 
at the end of the day it passed.
  I could never figure out how that bill would work. It just didn't 
make any sense to me. I had been a Governor. I had seen how failed 
Medicaid was--40 percent of the doctors would not take Medicaid. I 
could not imagine how adding millions to that system was going to help 
poor people. To me it looked like it was going to hurt them. It was 
kind of like giving them the bus ticket and then saying: We are only 
running one bus in Washington, DC, these days. It is probably not going 
to be very successful.
  I looked at what was happening in the rest of the bill, and it just 
didn't make any sense to me. I think I know why we revisited this rule. 
When the rollout occurred right about that time, all heck broke loose. 
The American people finally realized how bad this bill was. In fact, 
there is one State out there, the State of Oregon, that didn't sign 
anybody up because their system melted down.
  The exchange was a mess. People found out that all of these 
promises--remember this one: If you like your plan, you can keep it, 
period. If you like your plan, you can keep it, period.
  Not only was that used on the campaign trail--you know, we all get 
out on the campaign trail and hyperventilate here and there. That 
phrase was used by somebody in real authority: The President of the 
United States of America. He went to the American people and said: If 
you like your plan, you can keep it.
  I said how could that possibly work. The whole idea is you have to 
force people off their plan and onto a different plan. If you like your 
plan, you get to keep it?
  In 2010, the administration's own rule on this subject showed that as 
many as 80 percent of small business plans and 69 percent of all 
business plans would lose their grandfathered status.
  A very thoughtful Senator, a guy by the name of Mike Enzi, put in a 
resolution of disapproval which would have canceled that regulation. 
Back then he was able to get it to a vote. You would think that if you 
want to support the President of your party and his pledge to the 
American people--if you like your plan, you get to keep it, period--you 
would vote with your President. You would think that would be 100 to 0.
  I don't know how Republicans could be against that. I don't know how 
Democrats could be against that. After all, that is what this person in 
authority promised the American people: If you like your plan, you get 
to keep it, period. He said it over and over. It was like a broken 
  You know how that vote went here? Let me remind everybody. It failed 
on party-line votes. Democrats voted no on the resolution: If you like 
your plan, you get to keep it. My goodness. Is that an embarrassment or 
  What was the message that day? Were they trying to say: No, if you 
like your plan, you don't get to keep it? The President isn't being 
truthful with you. Was that the message that day? What was going on? I 
mean, I was stunned by that vote.
  How could you be against the President's own promise? That was back 
in 2010. That information was available to the President and his people 
back in 2010. Yet they kept saying it: If you like your plan, you get 
to keep your plan.
  One other estimate by the Congressional Budget Office, which I think 
generally we all respect--they do good work for us. They do our 
scoring. They said that up to 20 million employees could lose their 
employer-sponsored insurance. Wait a second. That information was 
available too. So how has this promise worked out?

  This fall, more than 4.7 million cancellation letters went out in 32 
different States. I have read the articles. I imagine everybody in the 
Chamber has read the articles. They say 4.7 million people got 
cancellation letters in 32 different States. The cancellation letter 
basically said: Well, sorry. This big law got passed on a party-line 
vote, and you don't get to keep your plan, just as was predicted by the 
CBO and the administration's own people. This should not be stunning to 
anybody in this body, but it was stunning to the American people.
  The President said: Oh my goodness. I think this is a problem. So he 
said to insurance companies: You have to fix this. You have to get 
people their plan. If they like their plan, they get to keep their 
plan. And it didn't matter whether it was Democrats or Republicans in 
given States, they said: Mr. President, you can't unwind that clock.
  What I would say to that is, wait a second here. I don't like this 
law, but it passed. I was sitting there the day it passed. It passed on 
a completely party-line vote. And people literally were caught in a 
situation--millions of them--where they realized they wouldn't get to 
keep their plan. So could the President solve that problem? No. It 
wasn't a policy fix; it was a political fix. That is what he was doing. 
He was literally trying to solve a political problem for the majority 
that passed the darn bill. I mean, it is unbelievable.
  Many weighed in. The American Academy of Actuaries said this:

       Changing the ACA provisions could alter the dynamics of the 
     insurance market, creating two parallel markets operating 
     under different rules, thereby threatening the viability of 
     insurance markets operating under the new rules.

  Now, I am as competitive as anybody. I have run a lot of elections. I 
understand the importance of being in the majority in this body. I 
especially understand that after what the majority did over the last 
few weeks. We went 225 years as a country, and it was only in the last 
couple of weeks that the majority said: Look, we are tired of dealing 
with you, minority. We are going to get our own way.
  It reminded me of the day ObamaCare was passed. It was identical. It 
was like: Johanns, get lost. We don't care what you think about this. 
We have 60 votes. Sit down and shut up.
  Is that the way the Senate is supposed to operate? I don't think so. 
I don't think that is what was envisioned when this body was put 
together, and it has been forever changed. It happened because 
ObamaCare is out of control. It is not the Web site. The Web site was a 
mess. It just proved to us that the White House couldn't manage this. 
That is what it proved to us. But we can fix a Web site. They can get 
smart people who go in and figure it out.

[[Page S8640]]

That wouldn't be me, but there are many people in the United States who 
could be brought to bear to solve this problem of dealing with the Web 
site. It is not the Web site, although it is a huge embarrassment. It 
was a huge embarrassment for the White House. It was a huge 
embarrassment for the President of the United States. It was a huge 
embarrassment for Kathleen Sebelius. It was a huge embarrassment for 
the Democrats who voted for this. But at the end of the day it can be 
fixed, and I would guess they would fix it. I kept saying to people 
back home that I think they will get it fixed. How tough is that? How 
tough would it be to do it the right way the first time? But they 
didn't. It just proves they are not very competitive.
  What is happening here is the wheels are coming off this policy 
because the policy never made any sense. When the President made this 
announcement: Insurance companies, you fix it, America's health 
insurance plans said that premiums have already been set for the next 
year based on the assumption of when consumers will transition into the 
new marketplace. Who decided when they would transition into the new 
marketplace? The insurance companies didn't. The majority did. The 
White House did. Health and Human Services did.
  They go on in their statement:

       If now fewer younger and healthier people choose to 
     purchase coverage in the exchange, premiums will increase and 
     there will be fewer choices for consumers.

  Well, let me say something that is obvious to everybody in this 
Chamber. Your premiums are going up. Why? Young people are so turned 
off. Young people are so turned off by what is happening. I had a young 
person show up at a town hall. This was a year and a half ago. They 
said: Here is kind of the deal. It is just my wife and I. We don't have 
children. We are both working. We are trying to get ahead. We don't 
make a lot of money, and we decided the best plan for us was kind of a 
catastrophic plan. We will deal with our day-to-day health care needs, 
which, incidentally, aren't much because we are young and fortunately 
we are healthy. We have a high deductible.
  I was listening to that, and I said: God bless you. This is America. 
They can make that choice. That was the best choice for them. They 
thought about it and decided the money they were making might be better 
allocated someplace else. What a great country that people can decide 
  Well, what happened with this health care bill? That decision was 
taken away from that young couple. They were ordered by the Federal 
Government, under penalty, to buy a given plan. Now, I have not caught 
up with that young couple, but I bet they are mad as wet hens. I will 
bet they have looked at what has happened to them and they are saying: 
  We all know the little secret here: Young people are paying more for 
coverage that they don't need to finance me in my sixties. Does that 
make any sense?
  I could go on and on about what is happening here with this health 
care bill, but it is not sheer coincidence that Senators in the Senate 
reached an agreement months ago on the rules. We shook hands on it. We 
put that behind us. Right about the time ObamaCare rolled out, all of a 
sudden that agreement wasn't valid anymore, and we got set up on a 
manufactured crisis to force a vote, and the method chosen to change 
the rules forever changes how the Senate operates.
  In our history, many Senators had the opportunity to change these 
rules and thought better of it because they so respected and admired 
this institution, that they believed there was a place for a minority 
whether that Senator was in the minority or the majority at the time. 
That is what happened.
  I will take another step. All of us know what this is really about. 
This is about control of this body. All of a sudden, because of 
ObamaCare and the truth coming out about what a terrible piece of 
policy this is, it became evident that Members over here were in deep 
trouble and were going to lose their elections if their elections were 
held now, and the majority had to change the conversation. So the 
agreement we reached after that night we spent in the Old Senate 
Chamber hashing through this, debating and discussing it, basically got 
torn up and tossed out the window, and the majority forever changed how 
this body will operate and what this body is going to be about in the 
  So what I say to my colleagues tonight is this: I am not planning on 
being here much longer. I have made that decision. One could say I 
don't have a boxer in the ring. A year from now, I will be doing 
something else. Some will be here, some won't be here. But at the end 
of the day, what I will remember about this time in the Senate is that 
a precedent was set that is vastly different from the way this Senate 
operated for 225 years. A precedent was set that allows the majority to 
take control of executive branch appointments, district court 
appointments, circuit court appointments. It is a precedent that would 
allow a majority to take control of a Supreme Court appointment. It is 
a precedent that will allow a majority, when it chooses to--not if; I 
believe it is a question of when--to take control of the policymaking.
  So it is true when we say that if they were attempting to change the 
conversation, I say to the majority Members of the U.S. Senate, away 
from ObamaCare to this, all they have done is reminded the American 
people that what they are really doing is abusing this institution in a 
way that, quite honestly, is going to be very hard to turn around.
  My thought is this: I feel very strongly that we can reverse what has 
occurred here, but we can't do it as a minority. We need the majority 
to back off. We need the majority to recognize that this body has 
existed through difficult times, it has existed through wars, it has 
existed through attacks on our country, and we have found a way to 
operate. We need the majority to recognize that we reached an agreement 
many months ago after an evening spent together in the Old Senate 
Chamber where we debated these things and, like gentlemen and 
gentlewomen, we shook hands and put this behind us for this session.
  We can do the work of the Senate. We can do the work for the American 
people. I have no doubt about that whatsoever.

  I am very concerned, though, that we have put the Senate in a 
position where it is a very vulnerable body now. Any majority can now 
use this precedent to turn this into something that is entirely 
different than what anybody who founded this country believed it should 
be. When the majority decided that it would bypass the requirement that 
rules would be changed by a two-thirds vote and do it by appealing the 
ruling of the Chair, they put the Senate in a position where there are 
no rules. There are no rules. All you need is 51 Members--50 if you 
have the Vice President in the Chair--who decide to stick together and 
make that Supreme Court appointment. They can get it done. All you need 
is 50 Members, if you have the Vice President in the Chair, who decide 
they stick together, and they would do a legislative process by a 
majority vote.
  Many, many times the nuclear option was discussed, it was debated, 
and Senators much wiser than I looked at the history of this great 
country and its future and decided it was a step that should never be 
taken--that was until a couple of weeks ago, all driven by the fact 
that this piece of legislation called ObamaCare has turned out to be 
such a train wreck and that there was a need to change the discussion 
and change the topic and try to draw the people's attention away from 
that legislation, and that is how this rule got adopted. It is a sad 
time in our Nation's history. It is a sad time in terms of what is 
going on.
  What I would offer is my hope is that wise people will realize the 
problems they have created for this country in the future, realize that 
the precedent they have set forever changes the way we operate and back 
away from what occurred.
  Let's start doing the work of the Senate. If that means we work 
through Christmas, good. I am here. If that means we work on weekends, 
if that means we work around the clock, fine with me. I am good. I will 
do it. I will be happy to do it. But to try to streamline this process 
in a way that silences the minority is not right, and it is not what 
this country should be about.
  I yield the floor.

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  The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from 
Connecticut is recognized.
  Mr. MURPHY. Mr. President, I ask unanimous consent that after I 
finish speaking, Senator Blumenthal be allowed to speak.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                               Sandy Hook

  Mr. MURPHY. Mr. President, this Saturday we are going to mark the 1-
year anniversary of the shooting in Sandy Hook, CT, in which 20 little 
6- and 7-year-old boys and girls lost their lives, as well as 6 adults 
who worked in that school who were charged with protecting them.
  Senator Blumenthal and I have come down to the floor today to offer 
some thoughts as we reflect on the 365 days that have passed since the 
most horrific mass shooting that most of us have ever seen in our 
  I think back a lot on that day--being in the Sandy Hook firehouse as 
the parents realized that their sons and daughters were not coming back 
from that school. One of the things I remember about that day is 
getting an awful lot of phone calls from my colleagues from all around 
the country, Senators and Congressmen who represented places such as 
Columbine and Aurora and Virginia Tech and Tucson. They all called 
because they had been through this before and they just wanted to offer 
their condolences and a little bit of advice on how a community can try 
to get through these awful, tragic, shattering incidents.
  I sort of thought that day how awful it was that there were that many 
colleagues, that many representatives from across the country who could 
call and give me advice. What a tragedy it is that we are amassing this 
bank of expertise across the Nation on how to respond to mass 
shootings. It speaks to how far and wide the carnage and the 
devastation are from these mass shootings that are occurring now it 
seems almost on a weekly or monthly basis somewhere around the country. 
It is not getting better; it is getting worse.
  In 1949 a guy by the name of Howard Unruh went through the streets of 
his town of East Camden, NJ, firing shots indiscriminately such that he 
killed 13 people. It was the Nation's first mass shooting. Now we have, 
unfortunately, had a lot of mass shootings since that first one in 
  But here is what is stunning: Of all of the mass shootings that have 
taken place since 1949, half of them took place from 1949 to 2007 and 
the other half have taken place in the last 6 years. Something has gone 
wrong. Something has changed. The problem is that it is not this place. 
We are approaching the 1-year mark of the school shooting in Sandy 
Hook, and it will be a week of mourning, but here in the Senate it 
should also be a week of embarrassment. It should be a week of shame 
that after 1 year passing since 20 little boys and girls were gunned 
down in a 5-minute hail of furious bullets, the Senate and the House of 
Representatives have done nothing to try to prevent these kinds of mass 
atrocities in the future.
  I come down here today not just to challenge this place to act but to 
tell you a little bit about what I have learned in the last year. I 
have learned a lot, but I want to distill it down to two pretty simple 
things I have learned.
  I did not work on the issue of gun violence when I was a Member of 
the House of Representatives, in part because my corner of Connecticut 
did not have tremendously high levels of gun deaths. Now it is central 
to my mission as a Senator.
  What I have learned over the last year is that despite all the 
rhetoric we hear from the gun lobby, when you change gun laws to keep 
guns out of the hands of criminals and to take dangerous military-style 
weapons and ammunition off of the streets, guess what happens. 
Communities become safer. The data tells us this.
  Since 1998 the National Instant Criminal Background Check System has 
blocked more than 2 million gun sales to prohibited purchasers. That is 
up to 2 million criminals--people with criminal histories who should 
not have bought a gun--who were prohibited from buying a gun. The 
background check system works but for the fact that only about 60 
percent of gun purchases actually go through the system because more 
and more guns are being bought in online sales, more and more guns are 
being bought online, and more and more guns are being bought at gun 
  We know background checks work because we have stopped 2 million 
people who would be prohibited from owning guns because they have a 
history of domestic abuse or serious felonies or mental illness. Two 
million times we have stopped those people from getting guns.
  Second, we can compare what happens in States with near universal 
background check systems versus States that have looser laws. I will 
give you one statistic, for instance. In States that require a 
background check for every handgun sale, there is a 38-percent 
reduction in the number of women who are shot to death by intimate 
partners. Deaths from domestic violence are almost 40-percent less in 
States that have near universal background checks.
  The same data exists for assault weapons as well. In 1994 we passed 
the assault weapons ban. Over the next 9 years crimes committed with 
assault weapons declined by two-thirds.
  There are legitimate arguments that there are other factors that 
contributed to that decline, but certainly a portion of that decline is 
connected to the restriction on assault weapons. Thirty-seven percent 
of police departments reported a noticeable increase in criminals' use 
of assault weapons since the 1994 Federal ban expired.
  When it comes to these high-capacity magazine clips, we do not need 
the data that is out there because common sense tells us that if 
somebody decides to do mass damage with a high-powered weapon, they are 
going to do less damage if they only have 10 bullets in a clip rather 
than 30. Adam Lanza in Sandy Hook Elementary School got off 154 bullets 
and killed 20 children and 6 adults in less than 5 minutes. In Tucson, 
a 74-year-old retired Army colonel and a 61-year-old woman were able to 
subdue the shooter when he went to change cartridges. In Aurora, the 
rampage essentially stopped when James Holmes went to switch 
cartridges. When you have to reload multiple times, there are multiple 
opportunities for these mass shootings to stop. We should do things to 
make sure the shootings never begin in the first place, but the carnage 
is much worse when these madmen are walking into shopping plazas, movie 
theaters, and schools with 30-round clips and 100-round drums.
  But here is the second thing I have learned. I learned this as well 
over the last year. I have learned about the amazing ability of good to 
triumph over evil even when this place does not act to change the laws. 
I have learned that despite the evil of those 5 minutes in Sandy Hook, 
the community of Newtown has amazingly found a way over and over to 
bring so much beauty and goodness to essentially cover up and drown out 
that horror. I have seen these kids' memories become the inspiration 
for literally thousands of acts of generosity and kindness.
  Daniel Barden was a genetically compassionate little kid. He was that 
kid who always sat with the kid in school who did not have anybody 
sitting next to them on the bus or in the classroom. When his parents 
would take him to the supermarket, they would be all the way to their 
car with their groceries, and they would look back and Daniel would 
still be at the door holding open the grocery store door for people who 
were leaving.
  His parents started a Facebook page that challenges people to engage 
in little, small acts of kindness in Daniel's memory. It had about 
40,000 likes the last time I had checked, and the stories are endless--
a woman who bought coffee and doughnuts for a firehouse in New York 
State; a Missouri woman who helped restock a food pantry in Daniel's 
honor; a woman in Illinois who paid for a stranger's meal and just 
wrote ``Love from Daniel Barden'' on the bill.
  Jack Pinto was a very active 6-year-old boy. He enjoyed playing 
sports of all kinds. He was buried in his New York Giants jersey. His 
parents, Dean and Tricia Pinto, have raised money and put some of their 
own money in to pay for hundreds of children all around the country to 
have access to the same kind of opportunity to play sports that Jack 
had, despite the fact that their families might not have the resources 
the Pintos do.

[[Page S8642]]

  Jessica Rekos loved animals. She loved whales and horses most, so her 
parents started a foundation, the Jessica Rekos Foundation, and they 
have provided yearlong scholarships for horseback riding lessons for 
students who would not otherwise have the resources to be able to have 
the opportunity to enjoy horses in the same way Jessica did.
  This week an effort is under way in Newtown and across the Nation to 
inspire people to every day do a different act of kindness as a way to 
pay tribute to the 1-year anniversary. These charities that have sprung 
up in the wake of Newtown are doing amazing work to change people's 
lives--just the small acts of kindness that maybe we all do in trying 
to pay tribute to the memory of those kids and those adults. That makes 
a difference.
  Charitable acts and changes in behavior--they are necessary although 
insufficient responses to the scourge of gun violence that plagues our 
  This place has to change the laws. Do something because you do not 
want to be next. You do not want to be sitting on a train station 
platform, as I was on December 14, when you get a call that 10 or 20 or 
30 or 40 kids or adults have been gunned down in your State. You 
certainly do not want to get that call when you had a chance, but you 
did not take it, to do something to prevent it.
  I got calls that day from my colleagues all across the country 
because there are not many corners of the Nation that have not been 
touched by gun violence. Some 11,000 people have been killed by guns 
since December 14 of last year. When one person is killed, 
psychologists tell us there are 10 other people who sustain life-
altering trauma as a result of that shooting. So just imagine when 26 
kids and adults die in a small community.
  So I wish to leave you not with my words but with the words of a 
mother from Sandy Hook who represents the scope of the trauma that has 
been the reality for Sandy Hook for the last 365 days. Sandy Hook is 
recovering but very slowly. The charities and the acts of kindness, 
they make a difference, but there is a lot of head shaking in that 
community as to why this place has not risen to the occasion, shown the 
same type of courage those families have and done something to change 
the reality of everyday and exceptional mass violence across this 
  Here is what this mother writes. These are her words in an open 

       In addition to the tragic loss of her playmates, friends, 
     and teachers, my first grader suffers from PTSD. She was in 
     the first room by the entrance to the school. Her teacher was 
     able to gather the children into the tiny bathroom inside the 
     classroom. There she stood, with 14 of her classmates and her 
     teacher, all of them crying. You see, she heard what was 
     happening on the other side of the wall. She heard 
     everything. She was sure that she was going to die that day 
     and did not want to die before Christmas. Imagine what this 
     must have been like. She struggles nightly with nightmares, 
     difficulty falling asleep, and being afraid to go anywhere in 
     her own home. At school she becomes withdrawn, crying daily, 
     covering her ears when it gets too loud and waiting for this 
     to happen again. She is 6.
       And we are furious. We are furious that 26 families must 
     suffer with grief so deep and so wide that it is 
     unimaginable. We are furious that the innocence and safety of 
     my children's lives have been taken. Furious that someone had 
     access to the type of weapon used in this massacre. Furious 
     that gun makers make ammunition with such high rounds and our 
     government does nothing to stop them. Furious that the ban on 
     assault weapons was carelessly left to expire. Furious that 
     lawmakers let the gun lobbyists have so much control. Furious 
     that somehow, someone's right to own a gun is more important 
     than my children's right to life. Furious that lawmakers are 
     too scared to take a stand.

  She finishes by writing this:

       I ask you to think about your choices. Look at the pictures 
     of the 26 innocent lives taken so needlessly and wastefully, 
     using a weapon that never should have been in the hands of 
     civilians. Really think. Changing the laws may 
     ``inconvenience'' some gun owners, but it may also save a 
     life, perhaps a life that is dear to me or you. Are you 
     really willing to risk it? There must not be another Sandy 
     Hook. You have a responsibility and an obligation to act now 
     and to change the laws.
       I hope and pray that you do not fail.

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut
  Mr. BLUMENTHAL. Mr. President, many words have been spoken since 
Newtown, including the very powerful words of my colleague just now. 
But the plain, simple fact is no words can capture what I feel about 
that day. No words ever will capture that day or the days and weeks and 
months afterwards, when we have grieved and healed and resolved that we 
will do everything within our power to make sure that kind of massacre 
never happens again.
  But equally important is that the deaths by gunfire are reduced or 
prevented--those 26 senseless, unspeakable deaths of 20 beautiful 
children and 6 great educators but also the 194 children who have been 
killed by gunfire since Newtown, and the 10,000 or more deaths caused 
by gunfire, person by person, a tragic river of senseless deaths that 
we have the power to prevent, the power in this body and the power in 
this Nation.
  As much as we should be shamed and embarrassed by the failure to act, 
we also must have hope and resolve that we will act. History is on our 
side. The example of courage and strength provided by those families 
ought to give us the resolve and the determination to act; likewise, 
the examples of courage and resolve by Father Bob Weiss, who had a 
service in St. Rose of Lima on the evening of December 14, one of the 
most moving public experiences I will ever have. As I said then, the 
world is watching Newtown. The world has watched Newtown. It has 
watched First Selectman Pat Llodra, who has led Newtown with her own 
courage and strength and determination, including coming here as my 
guest on the night of the State of the Union to be an example for all 
of us about what a public official can do by her own example, leading 
by her own example.
  We will mark, this Saturday morning, at St. Rose of Lima the 1-year 
anniversary at a service Senator Murphy and I will attend. I have worn 
since virtually that day a bracelet. I wear it now. It says, ``We are 
Newtown. We choose love.'' If there is a message for all of us in this 
Chamber, it is that we continue to choose love. We are all Newtown. Our 
town is Newtown. All of our towns are Newtown. I see this bracelet 
literally from the time I wake in the morning to when I go to bed. It 
will always be an inspiration for me, inescapably our hearts and minds 
go back to that moment when we first learned about this horrific, 
unspeakable tragedy.
  Of course, I went to the Newtown firehouse that day. The sights and 
sounds of grief and pain are seared in my memory. They will be with me 
forever. So will be the story of the children whom we lost: Grace 
McDonnell and Allison Wyatt, who loved to draw pictures for their 
families and planned to be artists; Chase Kowalski, a Cub Scout who 
loved playing baseball with his father; Jessica Rekos, who wanted to 
research orca whales and become a cowgirl.
  We will never forget the heroism and the bravery of the educators 
such as Vicki Soto and Anne Marie Murphy. Vicki Soto is in this 
picture. Her brother Carlos came to a service today here in Washington. 
He has continued, and so have his sisters, to come to events that 
provide impetus and movement and momentum to the effort to stop gun 
  Vicki Soto and Anne Marie Murphy literally shielded their students, 
sought to save them with their own bodies. Dawn Hochsprunk and Mary 
Sherlach ran unhesitatingly toward the danger entering their school and 
perished doing so. There are heroes in this story. It is not only about 
bad people who used guns improperly and illegally; it is not only about 
evil; it is also about good. The good includes the first responders and 
police who stopped the shooting when they came to the school and ran 
toward danger and toward gunfire and thereby ended it, when the shooter 
took his own life.
  It is also about Ana Marquez-Greene, a beautiful girl who loved music 
and flowers, loved to wear flowers in her hair. She was described by 
Bishop Leroy Bailey as a beautiful, adoring child. That picture evokes 
the stories of all of those children: beautiful, adoring, a future and 
a life ahead of them.
  For all of those stories and the tears, and the teddy bears and 
tributes that were outside of the firehouse, Newtown has refused to be 
defined simply by tragedy; refused to be locked in its past. It has 
moved forward, because Newtown is not just a moment, it is a movement. 
It is not just a moment in

[[Page S8643]]

history defined by tragedy, it is a movement to make the world better. 
It is a movement to make America safer.
  That is the movement we have articulated and sought to advance. Those 
families, including Neil Heslin, who has come here numerous times for 
his son Jesse, have been an example of courage. Indeed, they have been 
profiles in courage. When Neil Heslin dropped Jesse off at school on 
the morning of December 14, Jesse gave him a hug and said: ``It's going 
to be all right. Everything's going to be OK, Dad,'' because Jesse was 
that kind of kid, Neil told the Senate Judiciary Committee in his 
testimony. His pride in Jesse, as well as his grief, brought tears to 
all of our eyes.
  Jesse was just that kind of kid. He never wanted to leave a baby 
crying. He never wanted to leave anybody feeling hurt. Jesse and Neil 
used to talk about coming to Washington, about meeting with the 
President. Neil met with the President but Jesse was not there, at 
least physically he was not there. He was with all of us as we worked 
with Neil to make America safer and make sure Newtown is not a moment 
but a movement toward a better, safer America.
  I thank my colleagues for the outpouring of feeling and support on 
the eve of that tragedy. It was a rare moment of bipartisan unison and 
feeling as well as words. I wish to thank them as well for meeting with 
many of those families because they demonstrated a graciousness and 
generosity regardless of their views on any of the issues relating to 
gun violence and any of the bills on the floor. That graciousness and 
generosity I hope will prevail on this issue and again move us forward.
  The acts of kindness and generosity that followed have been inspiring 
as well.
  College students and firefighters have come together to build 
playgrounds in honor of the Sandy Hook victims. Bill Lavin of New 
Jersey, on behalf of the New Jersey firefighter system, has done 
yeoman's work. There are now new playgrounds in their memory in 
Norwalk, New London, Fairfield, Ansonia, Westport, and Stratford.
  I have visited many of them. They are distinct, reflecting the 
character of those children such as Ana Marquez-Greene.
  The Newtown High School football team took time away from celebrating 
a perfect winning season to devote their efforts to the children and 
educators we have lost.
  The Sandy Hook Run for the Families not only raised more than 
$450,000 for the Sandy Hook Support Fund, but it also broke the world 
record for attendance. In millions of actions, large or small, in 
Connecticut, all around the country, the people of Newtown, the State 
of Connecticut, and the country showed what compassion, giving, and 
kindness truly means in action. They chose to honor them by action.
  Often the compassion and kindness unleashed by the Newtown tragedy 
took many other forms that were unheralded, unreported, and unspoken. 
These were acts of kindness that were not in the newspapers or in the 
public view but simply acts that meant something to the recipient and 
to the giver.
  These fundraisers and vigils, emails and postcards, small and large 
signs of recognition and love from our colleagues, from people across 
the country, are a form of giving back. They give me hope that 
eventually we will prevail in this effort to make a difference.
  Scarlett Lewis, Jesse's mom, is also a hero. She heard about the Cruz 
family who had lost two of their children to a drunk driver. Scarlett 
responded with that same resilience and strength by offering to give a 
fundraiser for the Cruz family.
  When she was asked about her family and about what she had done, she 

       What brings meaning to the suffering is doing something for 
     someone else. . . . In doing something for them I'm also 
     helping my own healing.

  Nearly 90 percent of Americans support commonsense measures such as 
background checks, a number that is virtually unchanged since the issue 
soared to the forefront of our political discourse in the wake of Sandy 
Hook. Even in gun-owning households the support is virtually identical, 
88 percent. That figure hasn't changed. A mountain of public support 
has failed to produce measures, but our resolve is unchanged because 
those memories of Sandy Hook, those examples of kindness and 
compassion, will drive us forward, as will the more than 10,000 other 
victims including at least 14 children under the age of 12 in 43 
different States.
  Congress has shamefully and disgracefully failed to act, but that is 
not the end of the story. There has been one vote, and we lost, but 
that vote is not the end of this movement. Newtown is not a moment. It 
is a movement. Surrender is unacceptable; the status quo is 
inexcusable. The families and Newtown community have refused to 
surrender to personal despair, and we cannot surrender to political 
dismay or difficulty.
  I was moved the other day when I saw a clip of Ronald Reagan 
endorsing the Brady bill. Ronald Reagan, as President, was a victim of 
gun violence, as was Jim Brady, who was paralyzed by the same hail of 
bullets that struck the President of the United States when they were 
fired by a deranged person, John Hinckley.
  Twelve years passed before the Brady bill was passed. It was 12 years 
of struggle, work, resolve, and courage by Sarah and Jim Brady, with 
eventually an endorsement by Ronald Reagan.
  The sadness and anger I feel today, prompted by the memory of that 
tragedy and this body's failure to respond, is mitigated by the 
knowledge that history is on our side, that America is better than the 
oath we took in April. The people of Newtown have not failed. The 
people of America have not failed, and this body has not yet failed.
  We can and we will do better because Newtown and that vote will be 
with us.
  Newtown is more than a moment. It is a movement that eventually will 
  I yield the floor.
  The ACTING PRESIDENT pro tempore.
  Mr. BURR. I rise to address the nomination of Cornelia Pillard to the 
DC Circuit Court. This nomination is a good example of government 
overreach that has led to things such as the ObamaCare debacle.
  Let me say to my colleagues who have been on the floor speaking about 
Newtown, I had an opportunity to spend an hour with parents of Newtown 
children. It is a compelling personal story that they shared.
  No parent should have to watch a child die. No parent should have to 
live and a child die. My heart still goes out to those who lost 
children at Newtown.
  Today, with the Affordable Care Act fresh on my mind, I venture back 
to think about when I came to the floor in 2009 and said in front of my 
colleagues of the Senate and the American people--I wish to spend the 
balance of this second half of the hour rehashing some of the things I 
came to the floor to talk about.
  There were numerous opportunities before the legislation was passed. 
I remember it was very close to Christmas in December of 2009.
  I said premiums will increase for younger and healthier individuals 
because of the new federally mandated rating rules. Over 40 percent of 
the uninsured are ages 18 to 34, the same group that will be hit with 
the highest increases if this bill passes.
  What do we hear Americans are focused on today? Young people. Are 
they going to join?
  Today their insurance is three times lower than what it will be in 
January of 2014. Why? Because of the Affordable Care Act.
  No. 2, premiums will increase because of new federally mandated 
insurance standards. Experts estimate many of the health plans 
purchased today by individuals and small businesses will not meet the 
minimum requirements mandated by this bill, which means that all 
Americans will be forced to buy richer plans.
  Let me remind those who are listening that this was in 2009 on the 
Senate floor. Listening to the comments of those today who say we never 
anticipated some of these things would happen--if they didn't 
anticipate, it is not because people weren't on the Senate floor. It 
wasn't because we made this up. It is because people who were experts, 
CMS actuaries, CBO administrators, were sharing with us what would 
happen if this legislation became law.
  Premiums will increase because of new federally mandated benefit 
packages. The bill empowers the Secretary

[[Page S8644]]

of Health and Human Services to decide which benefits are covered and 
which benefits are not.
  What are Americans learning every single day? When they can get on 
the exchange, they are finding that they are 65 years old and they have 
to have maternity coverage.
  I turned 58 and my wife has pretty much informed me we are not going 
to have more children, but I can't buy coverage without maternity 
coverage. Why? Because they want to charge me more to shift that cost.
  We didn't have health care reform. We just changed where we are 
shifting the cost from. Now we are embedding the premium versus 
charging more at the delivery point of health care and shifting it 
within the delivery system.
  We are shifting it within the population by charging those of us who 
are a little bit older more--because we mandate that we have to have 
services we are never going to use--and younger people who are healthy 
who probably are never going to need to go to the doctor. I hope they 
do because prevention is actually one of the most beneficial things we 
can promote. Now we are going to charge them three times what they were 
paying, and we believe they will take it?
  Premiums will increase because of the new excise tax on medical 
devices. Innovation is what saves health care dollars. Yet in the 
Affordable Care Act, or what some call ObamaCare, we actually put new 
taxes on medical devices.
  Every time we have a stent that is inserted, every time a medical 
device is used on a person, their health care bill goes up because we 
have now taxed the device they are using. If the device price goes up, 
and the reimbursement goes up, the premium goes up.
  It is starting to make some sense. Again, this was in 2009 before we 
passed the bill. Premiums will increase because of a new excise tax on 
health plans.
  We actually taxed the same health plans that are in the exchange that 
we told everybody would save them money. Premiums will increase because 
of the new excise tax on prescription drugs. Wait a minute. I thought 
we were bringing down the cost of health care.
  In 2009, again, new taxes on devices, new taxes on health plans, new 
taxes on prescription drugs, these were all things that we all knew. 
The President knew it. My colleagues who voted for the plan knew it, 
but everybody seems to have amnesia today: Oh, my gosh. How could the 
costs go up? I never knew this was going to require people to buy a 
health insurance policy that had benefits they would never use.
  Premiums will increase because of a new fee to sell plans in the 
mandated exchanges. This phenomenal exchange market that created 
competition, we now created a new fee on the part of insurers to enter 
the exchange. Premiums will increase because of a new tax for 
comparative effectiveness.
  Comparative effectiveness means we are trying to bring new generics, 
whether they are in pharmaceuticals or biologics to the marketplace. We 
have decided to tax that process. Premiums will increase because the 
bill forces 15 million more Americans to enroll in Medicaid.
  Why is that happening? It happens because doctors are paid so little 
on Medicaid that they have to charge more for everybody else. We are 
cost shifting when we purchase the premium, and all of a sudden we are 
learning we are cost shifting even when the service is delivered. 
Reform? No.
  In 2009, again I came to the floor and I talked about the Affordable 
Care Act, ObamaCare. Zero times did it mention provisions prohibiting 
the rationing of health care--zero. Nine times it mentioned new taxes 
created in the bill. Thirteen pages are in the table of contents. The 
bill weighed 20.88 pounds and it took 36 pages for the CBO to estimate 
the pricetag of ObamaCare; 70 government programs authorized by the 
bill, and 1,697 times in the Affordable Care Act the Secretary of 
Health and Human Services was given the authority to create, determine, 
and define things in the bill. This is a bureaucrat whom we allowed 
1,697 times to determine what Congress's intent was in the legislation 
through almost 3,000 pages; 3,609 times the word ``shall,'' not 
``may,'' was in the bill. It cost $6.8 million to taxpayers per word.
  Let me remind you. This is what I came to the floor and talked about 
in 2009 before the Senate passed this legislation in the dark of night.
  Twenty-four million people left without health care. This is the bill 
that was supposed to insure everybody. Twenty-four million people 
without health insurance; a $1.2 billion cost to the taxpayer per page, 
and $5 billion to $10 billion of additional funding needed for the IRS' 
implementation of the bill.
  In other words, we are going to fund $5 billion to $10 billion for 
the IRS to chase down people who owe a penalty because they made the 
determination they couldn't afford or they didn't need health care 
  There are $8 billion in taxes levied on uninsured individuals. There 
is a way to make health care affordable--tax people who don't have it.
  So $25 billion of additional Medicaid mandates placed on States; $28 
billion in new taxes on employers not providing the government-approved 
plans; $100 billion estimated annually of fraud in Medicare and 
Medicaid; $118 billion in cuts in Medicare Advantage--to seniors all 
across this country who found this product to be the one that provided 
the most security and benefits for them; $465 billion in cuts to 
Medicare--cuts to Medicare. This was the health care system that was at 
that time projected to be insolvent by 2017.
  There are $494 billion in revenues from new taxes, fees, levied on 
American families and businesses; a $2.5 trillion cost for full 
implementation of the legislation.
  At that time we had a $12 trillion debt. Today, we have a $17 
trillion debt. Health care was supposed to be more affordable because 
we reformed it. We didn't reform it. We took it over. The Federal 
Government took it over.
  Let me go to another process I talked about in 2009. This is all 
marked up. It has been in my desk drawer since then. It is a word 
search of the bill. There are 4,677 times where the legislation said 
shall, must or require; 899 times it said tax, fee or revenue; 470 
times it said agency, department, commission, panel or bureau; 196 
times it said regulate or regulation; 134 times it mentioned treatment; 
180 times it mentioned prevention; 40 times it mentioned choice; 25 
times it mentioned innovation; and 13 times it mentioned competition.
  If we listen to those who are out selling this awful plan today, what 
are the three words we hear? Choice, innovation, competition--those 
things that are mentioned the least in the almost 3,000 pages of health 
care legislation in 2009. This bill wasn't reform. This bill spent 
trillions of dollars at a time of record deficits and debt. When fully 
implemented, I said then, this bill is projected to cost $2.5 trillion 
over 10 years. CBO said at the time that this bill will increase 
Federal health costs, not lower it.
  What have we heard from the President? It is going to lower health 
costs. It is going to bring it down. It is going to be more affordable. 
Middle class, this is the greatest deal for you.
  The bill raised taxes by more than $500 billion at a time of record 
unemployment. The bill violated the President's own pledge to protect 
the middle class. Who gets taxed in this bill? Again, this is from 2009 
on the Senate Floor, right here, before the vote. Uninsured Americans, 
insured Americans, families with high-value insurance plans, high 
health costs, small business, individuals who need medicines or medical 
devices, and employers that provide retiree drug coverage. Employers 
that provide retiree drug coverage, we tax them.
  The bill cut $466 billion in Medicare to fund new government 
programs. Medicare faced at that time a $38 trillion underfunded 
liability and insolvency that was projected to occur in 2017. Instead 
of fixing those problems, this bill raided Medicare to start a new 
government entitlement. The bill cut Medicare Advantage. It cut 
hospitals, it cut nursing homes, it cut home health, and it cut 
  Nobody in the administration can go out today and say: Oh my gosh, we 
didn't know this was going to happen. We talked about it right here day 
after day after day.
  These are not things we made up. If we did, we would be prophets, 
because they are all coming true. Everything is aligning with what we 
  The bill would increase premiums, making care more expensive, not 
less. I mean let's get past what was the easy

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part, and that was setting up the exchange, setting up the Web site. Or 
at least it should have been.
  New taxes in this bill will get passed on to consumers, increasing 
yearly premiums--this is what I said then; listen to this--by $488 a 
year, according to some estimates. The average premium would increase 
by $2,100 for a family policy in the individual market.
  There are individuals who are seeing $488 a month in increase, and in 
addition to that a deductible they have never had applied to them 
  This bill imposed costly new burdens on struggling States. The bill 
threatens health care choices millions now enjoy with a tangled web of 
new rules, regulations, and government-run plans. The government will 
require you to purchase insurance or face a fine and will tell you what 
kind of insurance you have to have, even if you like what you currently 
  I am not a prophet. I was going by what the experts said in reading 
the bill. So for everybody who went out and said: If you like your 
insurance, you can keep it; if you like your doctor, you can keep him; 
if you like your hospital, you can keep it--we were on the Senate Floor 
saying: That is not what the bill says. It is not going to happen.
  This bill cut $135 billion from hospitals, $120 billion from 11 
million seniors on Medicare Advantage, nearly $15 billion from nursing 
homes, nearly $40 billion from home health agencies, nearly $7 billion 
from hospice. Cutting Medicare to fund a new government program in my 
book is not reform. It is ignorance.
  The CMS Office of the Actuary--let me tell you, the Actuary is like 
the gold standard. The CMS Actuary is like the guy who puts that stamp 
of approval on it, and there is nobody higher from the standpoint of 
what the actuary says. He says the bill increases national health 
expenditures. National health expenditures under this bill would 
increase by an estimate of a total of $234 billion, 0.7 percent, during 
2010 and 2019.
  That is exactly the opposite of what everybody is out saying today. 
Despite promises that reform would reduce health care spending growth, 
the bill actually bends the health care curve upward. According to the 
analysis, the national health expenditure as a share of GDP is 
projected to be 20.9 in 2019, compared to 20.8 percent under current 
  How could you go out and make a claim this was bending the cost curve 
down? How could you promise the American people it was going to be 
  The total number of persons with employer coverage in 2019, according 
to the CMS Actuary pre-2009, when the bill was passed, was projected to 
be 5 million lower under the reform package than under current law. Let 
me say that again. The CMS Actuary told us in 2009, before we passed 
this bill, that employer-based coverage would drop by 5 million 
individual covered lives. I might say that some estimates are coming in 
at 100 million employees losing their health care under employer plans 
right now.
  The new fees for drugs, devices, and insurance plans in the bill will 
increase prices and health insurance premium costs for consumers, and 
this will increase the national health expenditure by approximately $11 
billion per year.
  The bill funds $930 billion in new Federal spending by relying on 
Medicare payment cuts which are unlikely to be sustainable or 
permanent. As a result, providers could find it difficult to remain 
profitable; and absent legislative intervention, they might end their 
participation in the Medicare program, possibly jeopardizing the care 
to beneficiaries.
  See, it wasn't Republicans who talked about rationing, it was the 
Actuary at CMS in his analysis of the Affordable Care Act. He said: 
Here is what is going to happen. It is seniors who are going to get 
hosed on it because they are not going to have access to the doctors 
  The bill is especially likely to result in providers being unwilling 
to treat Medicare and Medicaid patients, meaning that a significant 
portion of the increased demand for Medicaid services would be 
difficult to meet.
  How could anybody listen or read what the CMS Actuary said and 
remotely go out and tell the American people: Geez, this is going to 
increase coverage for everybody.
  The CMS Actuary noted that the Medicare cuts in the bill could 
jeopardize Medicare beneficiaries' access to care. He also found that 
roughly 20 percent--20 percent--of all Part A providers--hospitals, 
nursing homes, et cetera--would become unprofitable within the next 10 
years as a result of these cuts, meaning they are going to go out of 
  You know, pretty soon it is not going to be the network the insurance 
provider put together, it is going to be the fact the hospital went out 
of business because they couldn't withstand what this bill has done to 
  The CMS Actuary found further that reductions in Medicare growth 
rates through the actions of the Independent Medicare Advisory Board--
now, that is going to sound a little odd to some because prior to the 
bill passing it was called the Independent Medicare Advisory Board, but 
it is now called the Independent Payment Advisory Board--IPAB--an 
entity that when set up and it is kicked in--16 members picked by the 
President--will determine reimbursements and scope of coverage. It is 
not the Congress of the United States. If we don't legislatively do 
something with their recommendation, it becomes law. It goes into 
  The bill would cut payments to Medicare Advantage plans by 
approximately $110 billion over 10 years resulting in less generous 
benefit packages and decreasing enrollment in Medicare Advantage plans 
by about 33 percent. So 33 percent of seniors would lose their 
Advantage plan. Again, this is 2009. This is not today.
  The President, in 3,000 pages said it would reduce costs. The chief 
actuary says that is not the case.
  Let me read a letter I got in the last couple of weeks from Lori 
Perez from Willow Springs, NC.

       I am a divorced mom of three. I received insurance through 
     my employer. My rate has increased $100 a month. This is a 
     huge difference that will have to be budgeted by reducing 
     groceries and foregoing my son's braces I had planned for 
     2014. I looked into dropping my company provided insurance to 
     join an exchange but I do not qualify to receive a subsidy 
     because my insurance rate is less than 9\1/2\ percent of my 
     income. It is 9 percent. My yearly income qualifies. 
     Apparently, Obama thinks I can afford an additional $1,200 a 
     year. I am considering dropping my insurance, paying out of 
     pocket as needed for health care, and paying the fine at the 
     end of the year. It would be less expensive. This is 
     ridiculous. What can we do?

  What do you say to Lori? Oops. That is the law. Here is somebody who 
was 100 percent satisfied, an employer doing the right thing, and the 
Federal Government has now put her in a situation where she is 
considering just giving up her health care, doing away with it. Why? 
Because she can't afford it. This is a woman with a job. She is 
thinking about giving up her groceries and delaying her son's braces. 
Why? Because of ObamaCare.
  Where are we today? Let me speed forward. I said we have the health 
care exchange, the healthcare.gov Web site. There are companies every 
day that get Web sites set up. This one is complicated. They had 3 
years to do it. It still is not right today. But I am convinced they 
will get it right.
  For the first time the American people are getting on the Web site 
and they are able to look at the health care options they have. And 
what are they finding? They are finding that the premium costs for 
something equal to what they had are two times, three times more 
expensive per month. They are finding this new thing they have never 
had before called deductibles. And I am not talking about a $100 
deductible that you pay before you get participation in a doctor's 
visit or an emergency room visit; I am talking about $1,000, $3,000, 
$5,000. I have heard from friends who have now signed up for plans and 
have a $15,000 deductible.
  I say to my colleagues--especially my colleague from Florida--it 
sounds like a health savings account, doesn't it? You have insurance, 
but you are responsible for the first $15,000. The guy who shared that 
with me, his premium is $1,444 a month with a $15,000 deductible. I 
don't think he is going to drop it, but sticker shock is rampant.
  Benefit package. How many people have come up to me and said: I am 
not going to have any more children, but I have to have maternity 
coverage. Something is wrong.

[[Page S8646]]

  They are right--something is wrong.
  How many kids would like to have a scaled-down version that allows 
them to have a set of benefits, and they are willing to roll the dice, 
and if something bad happens, they will pay out of pocket? No, they 
don't get that option. The choice does not exist--unless it is a choice 
of the things created in the Affordable Care Act.
  Networks. This is one the American people haven't gotten to yet, and 
I can't wait until it happens. I have gone through getting on the DC 
exchange and going through the process of trying to figure out whether 
my doctor in North Carolina is available in this plan or that plan. 
Wait until the American people go onto healthcare.gov and they start 
picking a plan and look to see: Is my primary doctor on there? Is my 
hospital on there? Is the specialist I see on there? Are the drugs that 
I take on this plan?
  This is incredibly complicated. The American people were used to 
calling their insurance broker and saying: Here is how much coverage I 
want, here is how much I have to spend, and here is my health 
condition. And they designed a program to meet their health condition, 
their income, and their age. Now we penalize you for your age--if you 
are old or young--and we force everybody to take the same benefit 
package regardless of whether they can afford it, and we say: If you 
don't get it, we are going to charge you this year a 1-percent penalty 
on your income, and that goes up to 2\1/2\ percent at the end of the 
transition period.
  We are going to get past this period which I call the enrollment plan 
period. Next, we get to the part the President delayed. We never 
understood that something that was in statute, the executive branch 
could just decide, no, it is not going to go into effect. But for large 
and small employers, they had a 1-year delay. All of a sudden, in 2015, 
their employees are going to be in the same marketplace that we are.
  What makes that particularly difficult is we extended the enrollment 
period for individuals in healthcare.gov until March 31, 2014. They can 
still enroll. Well, April 1, 2014, through April 27, 2014, insurers 
will have to decide what their premium cost will be in 2015. So given 
that they have no real experience on what the mix of ages and health 
conditions in their plan is, what are they going to do? They are going 
to err on the side of higher premiums; that is, higher than we will see 
in 2014, which a majority of the American people say are higher than 
they can afford. Imagine what it is going to be like in 2015. And in 
that group is the 80 percent of America, not the 5 to 10 percent who 
are provided for by employers today.
  I see my colleague here, and I am infringing on his hour, but I do 
want to stress one last thing. I mentioned only once the Independent 
Payment Advisory Board, IPAB. At the end of the day, mark my word, 
everything that I commented on I read from my 2009 notes--notes that I 
came to the floor then and said: This bill shouldn't become law, and 
here is why. I spent 5 minutes talking about that today.
  But I am going to make this statement, and I will come back to the 
floor 2 years from now when IPAB is up and running and the benefit 
packages have been cut down and the reimbursements have been cut to 
doctors and hospitals, and I will point to the statement that I made 
here that picking a 16-member advisory panel that has the authority and 
the power to set the scope of coverage and, more importantly, the 
reimbursements will have a most devastating effect on health care in 
this country.
  It will ration health care because of the doctors who choose not to 
participate in plans that participate in the exchange. It will force 
hospitals out of accepting plans that participate in the exchange. And 
for those of us forced by government to be in the exchange and to 
choose, our choices will be gone. Our costs will go up. We will get 
care--when we are queued in line or at the emergency room or from a 
doctor we don't know or don't trust or from a hospital we have to drive 
to. It is not going to be reassuring to that mother who now has 
maternity coverage but no obstetrician and no local hospital to deliver 
a child because, you see, we didn't reform health care. We didn't do 
anything to liability. We just changed the pocket we pay out of. We 
taxed everybody we could find to pay for it. And still--as I said in 
2009 and I believe will be true today--at the end of the process, there 
will be 24 million people without health insurance. Why? Because of 
ObamaCare. Because of the choice--or the lack of choice--we gave them.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Manchin). The Senator from Florida.
  Mr. RUBIO. Mr. President, I intend to be here for the next little 
bit--under an hour--sharing this time on the floor with you to discuss 
some of the issues before us, particularly the pending issue before us 
of nominations and the concern we have about that.
  People back home and across the country may be watching the news 
tonight or perhaps over the last few weeks they have watched the news 
and wonder what this debate is about. I wish to use this opportunity 
tonight to address the nomination of Cornelia Pillard for the DC 
Circuit because it is a good example of the government overreach that 
has impacted all sorts of issues in our lives. So on this nomination 
issue, let's lay the groundwork here so people back home understand 
what is happening.
  Last week or the week before last the Senate majority, by a simple 
majority vote, changed the practice of the Senate that has existed here 
since the beginning of the Senate, and they did so in an effort to grab 
more power for themselves and the President.
  Basically, here is the precedent which has been set here and which is 
exemplified by the nomination before us. The precedent which has been 
established from now on is that any Presidential nominee, except for 
the Supreme Court--at least for now--is only going to need a simple 
majority vote to confirm them. There are problems with that because in 
the Constitution it gives the Senate--wisely--the power to advise and 
consent. The reason that was done, especially for judges, is that these 
are lifetime appointments. When someone is made a Federal judge, it is 
for the rest of their lives--unless they are impeached, which is a rare 
occurrence, thankfully. So these are people who are going to serve on 
the bench for the rest of their working lives, making decisions about 
the application and interpretation of our Federal laws. That is why the 
Senate was given this extraordinary opportunity to vet these people and 
to look for a supermajority of votes in this Chamber before someone is 
put in a position such as that. The other positions, of course, are 
Cabinet nominees, and so forth, and those are very important as well.
  By breaking the rules to change the rules of the Senate--something 
that, by the way, we were told at least on two occasions this year was 
not going to happen but ultimately did--what we basically saw was the 
ramming through--just as ObamaCare was, on a party-line vote--of the 
President's nominees, and tonight's nominee is an example of that. This 
is going to have enormous consequences on this institution for sure. 
You are seeing it play out tonight.
  I say to my colleagues in the majority party that the history of this 
body is that power trades hands. I believe that as early as January 
next year when a new Congress reconvenes, you won't be in the majority, 
you will be in the minority. Soon thereafter, there may be a Republican 
President appointing judges and appointing Cabinet members and other 
appointees. Now, all of a sudden, a simple majority is going to be 
enough, and you have set that precedent.
  Beyond the impact that is going to have on this institution, it is 
going to have an impact on this country. It is going to have the impact 
of putting these activist judges, such as the nominee before us 
tonight, on the bench. It is going to have an impact on a wide range of 
issues, from ObamaCare, to the sanctity of life, to the Second 
Amendment, just to name a few.
  Why does the majority want to pack this particulate bench, this 
particular DC Circuit Court of Appeals with a supermajority? Why? Well, 
it is because it is a court which is often called the second highest 
court in the country. It is a court which is key in reviewing all these 
regulations that are being imposed upon us. It is a court which is key 
in reviewing all these assertions of Executive power that this 
President and other Presidents have instituted.

[[Page S8647]]

  The current DC Circuit as currently made up has proven to be somewhat 
of an obstacle to the big-government agenda the White House and the 
majority here in the Senate have been pursuing, and they don't like it. 
That is, by the way, why the majority leader earlier this year said: We 
need at least one more--meaning one more judge--and that will switch 
that majority on that court. Well, with that vote, by changing the 
rules, that is what they are setting up for here.
  Now they seek to expand it tonight or early tomorrow with a nominee 
who, quite frankly, is completely out of the mainstream. For example, 
on the question of abortion, do you know what Professor Pillard calls 
pregnancy? ``Conscription into maternity.'' I don't know what that 
means, but I bet the vast majority of Americans would see that as 
outside the mainstream.
  By the way, as you look at the majority pulling out all these stops 
to confirm controversial nominations, such as this one who is someone 
completely outside the mainstream, they do so despite the fact that 
they have spent most of the last 10 years basically filibustering some 
of former President George W. Bush's best nominations to the judiciary, 
especially to the DC Circuit. Let me give some examples.
  Senate Democrats, over 2 years, refused to even give Peter Keisler a 
Judiciary Committee vote despite his extraordinary credentials and a 
record of public service. At the time, they argued among other things 
that maybe the DC Circuit wasn't busy enough to warrant filling some of 
these vacancies. He was just the most recent of several Republican 
nominees to the DC Circuit whom Senate Democrats blocked and 
filibustered. There were others. For example, they successfully 
filibustered Miguel Estrada, a Honduran-born legal superstar, a person 
who some said may one day be the first American of Hispanic descent to 
serve as a Supreme Court Justice. Senate Democrats voted seven times to 
filibuster this great American success story and this great judge. 
Other nominees to the DC Circuit, including then-California Supreme 
Court justice Janice Rogers Brown and Brett Kavanaugh, also faced long 
delays of failed cloture votes and filibuster attempts, as did, by the 
way, President Bush's nominees all across the country.
  The numbers on this issue do not lie. Numbers are facts, and the 
numbers don't lie about the double standard that has been applied here 
today. For example, tonight's vote on Judge Pillard will come after 
just 190 days after her nomination. For historical context, Senate 
Democrats obstructed now-Chief Justice John Roberts' DC Circuit 
nomination by 729 days. Another impressive nominee whom I mentioned 
earlier, Mr. Cavanaugh, took 1,036 days. Miguel Estrada was obstructed 
for 184 days. Janice Brown's nomination took 684 days. Tonight, 190 
days. And on that and similar cases, they have completely changed the 
rules of the Senate and how the Senate nominates people to lifetime 
appointments to the second highest court in the land.
  But despite this record and despite the fact that the DC Circuit is 
still known to be underworked today, the majority presses ahead on what 
will be a midnight or 1 a.m. vote to install a controversial law 
professor on the Nation's second most important court.
  So what has changed? What caused the same people who used to 
routinely filibuster highly qualified judges to now come here and make 
these changes?
  What has changed is that now there is a Democrat in the White House. 
What has changed is they now want an ideologically compliant court. 
What they want is a liberal activist court, one that protects all the 
things they have rammed through Congress over the years and imposed 
through regulations and pushed through Executive order.
  Now we know why Senate Democrats were less interested in the workload 
of the DC Circuit or the objective qualifications of the nominees over 
the past decade, why they were less concerned about that than they are 
today. It is because their dreams came true of having a Democrat in the 
White House and a majority in the Senate so their efforts to keep 
vacancies open, that is what has brought us here today, in order to 
fill them in order to radically change the Federal judiciary into their 
own image.
  But I think what is important to understand is that this whole effort 
to start this debate about judges and all that is an effort to distract 
from another big government intrusion that everyone knows too well; 
that is, ObamaCare. Interestingly enough, this Sunday I was at a 
wedding. I was approached by someone who had a story similar to what my 
colleague from North Carolina just outlined. This is outside of 
ObamaCare. This is someone who has employer-provided care, but that is 
going to be impacted by these changes that are happening in the law. 
She had just gotten notice that her premiums had gone up, but here is 
what is worse. Her deductible had gone up to about $5,000 or $6,000. 
She doesn't have $5,000 or $6,000. The way she quickly figured it out 
is she is going to have to spend $6,000 she doesn't even have before 
she can even begin to use the health insurance plan that she can barely 
afford. She is basically uninsured.
  I wish I could tell you that is a rare story and we are not getting a 
lot of input about that, but we are. This ObamaCare disaster is 
starting to take its toll. I think it is unconscionable, by the way, 
that the majority seeks to distract focus of this body on these 
important issues such as ObamaCare by pulling this stunt on the judges. 
But what it doesn't stop is the wave of letters we are getting from 
people all across the country. These letters are not talking points. 
These are not complex policy analysis. These are not op-eds in 
newspapers. These are the letters from real people who are being 
impacted in real ways by this law.
  I wish to share with you some of their stories. I am going to leave 
their last names out to protect their privacy, but I wish no share with 
you some of these examples because these are very typical of the kinds 
of things we are hearing about all across the country.
  Philip in Winter Springs. Philip is retired. He is living on a fixed 
income with insurance from United Health Care that he has for himself 
and for his wife. His monthly premium increased from $530 to $867. That 
is over a 60-percent increase in his monthly premium and his $15 copay 
has doubled now to $30.
  How about Charles in Winter Garden? Charles had employer-provided 
health care which ObamaCare caused to spike in price nearly 80 percent 
more for his plan and his deductible is $12,000. He cannot afford $156 
a week for health insurance if he wants to be able to provide for his 
two children and pay his bills.
  Here is one from Janet in Titusville. Janet is a single mom who is 
losing insurance for herself and her children in January. This is not 
Janet's first challenge with the economy, by the way. She has been 
unemployed for 3 years. She took an underemployed job to provide 
insurance for her kids but only to lose it 1 year later. She just wants 
insurance that doesn't cost nearly 10 percent of her income so she can 
provide for her kids.
  David in Lakewood Ranch has an insurance plan that will be canceled 
as of April 1, 2014. His current policy costs him about $291 a month 
with a $6,000 deductible. The new policy his insurance company 
suggested raises his monthly premium over 60 percent to $466 with a 
$12,000 deductible as well. David also looked at the silver plan for 
the exchanges but the monthly costs would be $525, with a $7,500 
deductible. David's other problem is if he waits until his current plan 
is canceled on April 1, 2014, any other costs he has leading up to his 
deductible did not count on the new policy so he will be spending even 
more trying to reach a deductible that will increase along with his 
much higher monthly premiums. As he wrote to our office: I just want my 
old plan back.
  Colleen in Winter Park is self-employed. She chose to have a plan 
that costs her $60 a month because that is all she can afford. She says 
that while she knows if she had to use her policy there would be 
hospital costs, she is more than willing to accept the risks.
  Guess what. Her policy has been canceled. The new option is a $600-a-
month plan and there is no way she can afford that plan. There is no 
way she can afford it.

[[Page S8648]]

  How about Sarah in Live Oak. Sarah had an individual policy for 
herself with a $2,000 deductible that ran $68 per month. Her plan has 
been canceled. Now she is looking at a $288-a-month plan with a $5,000 
deductible. She feels she has been lied to by the President and by 
Congress and who can blame her for feeling that way.
  How about Warren in Sanford. Warren in Sanford had health insurance 
for his family, four members of his family, with a monthly premium of 
$533 and a $10,000 deductible. While he would have preferred a lower 
deductible because his family is healthy and he was willing to take 
that risk, now that plan is gone. So Warren went on the exchanges to 
look for a new policy. His new monthly price was $1,300, more than 
double his old plan, with a $13,000 deductible. As Warren noted: 
``Bottom line is I will be paying more and I will be getting less.'' He 
will be forced to do things like skip vacations or miss out on his 
children's activities.
  Then there is Joe in Melbourne Beach. Joe had a health care plan that 
was canceled because of ObamaCare. He liked his plan. He told our 
office that he ``took great care in selecting my plan that I felt was 
right for me and for my needs.'' Now he has to shop for a new plan and 
all he sees are more expensive options. He tried the ObamaCare Web 
site, but it did not work for him, and on top of the Web site not 
working he is nervous about security risks when it comes to submitting 
his information to these Web sites.
  There is Kenneth in Land O Lakes. He and his wife had a private 
insurance plan for over 11 years, but they do not anymore. They 
received a letter in the mail canceling their plan, telling them that 
``due to the recent ACA legislation this policy is no longer 
available.'' The new option that is available to him, by the way, is 
from an insurance company that had a premium that was double the price 
of his current plan: $2,400 more a year. He doesn't know how he is 
going to cover this additional expense.
  I don't think anyone disputes that we have a health insurance problem 
in America. But this is a disaster. Of course they want to do this 
judge thing. Of course they want to trigger some sort of fight about 
judges, Republicans objecting to judges and nominees. If you supported 
this, if you had voted for the law that does this to people, you don't 
want to talk about this. If you are responsible for the passage of this 
law, if you have gone around the last 2 years bragging about this law, 
if you are the one who went around telling me if you have a policy you 
like you can keep it, why would you ever want the world focused on 
  The problem is people are going to be focused on this because this is 
no longer a theory. ObamaCare is no longer some theoretical thing that 
is going to happen at some point in the future to someone else. 
ObamaCare is happening to real people right now. Right now, all over 
this country, people are feeling these impacts. These are real people. 
This is not some outside third-party group running a commercial. This 
is not someone here giving a speech about what they think is going to 
happen. This is what is happening now and there are going to be more of 
these and it is going to impact Republicans and Democrats and 
conservatives and liberals, red States and blue States. Everyone is 
going to be impacted by this. They already are being impacted by this. 
This is going to have a dramatically negative impact on our economy, on 
our people, and our country as a whole.
  That does not mean we do not have a health insurance issue that 
should not be addressed. We could have addressed it and we still can 
by, for example, giving people more options in a truly vibrant, 
private, personal marketplace. Allow people to buy insurance from any 
company in America that will sell it to you. Allow people to buy it 
with money that is not taxed, just like when your employer buys it for 
you. Incentivize, encourage people, make it easier for people, make it 
more rewarding and more flexible to put money in a health savings 
account so you can have tax-free money you can use to pay your 
deductible, to pay your copayments, to pay out of pocket, to pay for 
your kid's braces. These are real options that are available to us, 
none of which were pursued.
  Instead, what was pursued is this big government solution, one-size-
fits-all plan rammed down the throats of the American people just like 
the judges, just like the nominee tonight. She is being rammed down our 
throat. Because when what you stand for cannot withstand scrutiny, when 
you have a judge such as the one before us tonight who is so outside 
the mainstream, you don't want a process that examines their record and 
requires consensus. You have to ram it through. When you have a law 
that so fundamentally alters the makeup of American health care, you 
don't want this thing being analyzed. You have to ram it through. They 
did it on ObamaCare and they did it on judges.
  There is a reason our Republic was set up this way. There is a reason 
the system of checks and balances was set up this way. There is a 
reason the Senate was built this way, with people who serve 6-year 
terms, two per State. Because they wanted a Chamber that would slow 
things down and look at them carefully and weigh them.
  But you cannot do that when you are changing the rules to ram things 
through. What you are going to get are radical lifetime appointments to 
the bench such as what we are on the verge of doing tonight in the 
Senate and what you get are these damaging changes to the law on health 
care which leave people with fewer choices, with more expenses and, 
here is the kicker, with less access to the quality health care that is 
second to none in the United States.
  We have the best health care providers in the world. When rich and 
powerful people around this planet get sick, do you know where they 
come? They come to the United States. They come to our centers of 
excellence. Other places around the world have quality places similar 
to that too, but they are only available to people who have money to 
pay out of pocket. Their government-run insurance plans don't allow you 
to do that. They socialize you. They force you to wait in line behind 
other people until your turn is up. The only people who can go to the 
front and get the highest quality health care in many places on Earth 
are the richest people in the world who can afford to pay for that out 
of their pocket. This law brings us a little closer to that because 
many of these quality providers, the Sloan-Ketterings, the Mayo 
Clinics, the MD Andersons, these extraordinarily high-quality health 
care centers, many of these are not on the health care plans at all. In 
order to fit under ObamaCare, you have to cut people out of the plan so 
we get closer to the day when the only people who can afford to go to 
these centers are people who can afford to pay for it out of their 
pocket and everybody else, people on ObamaCare, they are just going to 
get whatever the plan covers. That is what you are stuck with. That is 
what we are headed toward.
  We are going to deny the American people access to the highest 
quality health care system in the history of the world, not the best 
health insurance marketplace--there are reforms that need to happen 
there--but qualitywise, second to none. We are going to deny people 
access to that.
  The other reason, by the way, this whole debate on judges is very bad 
for the country is it distracts us from the fundamental issue of our 
time, the central issue that faces our people and our country. It is 
one that I wish we spent more time focused on around here. I think both 
parties are a little guilty of not focusing on it enough.
  When I was a child, when I was younger, I had all kinds of ideas 
about what I wanted to be when I grew up. I was blessed with parents 
who taught me that every single one of these dreams are within my 
reach. From my earliest memories, my parents instilled in me the belief 
that even though my family was not rich or powerful or connected, I 
could grow up to be anything I set my mind to because I was in 
America. Because I am an American. My parents knew America was special 
because they knew what life was like outside of it.

  My parents were born into a society that most people are born into--
where the success you have in life is predetermined by the family you 
were born into. By the grace of God, my parents were able to come 
here--the one place on Earth where that isn't true--and the promise of 
America changed their lives.

[[Page S8649]]

  My parents never made it big. My mother worked as a cashier, a hotel 
maid, and even a stock clerk at Kmart. My dad was a bartender who 
primarily worked at banquets. Through hard work and determination, my 
parents made it to the middle class, and they gave us, their children, 
the opportunity to do all the things they were never able to do--to be 
anything we wanted to be. As I said, they were never rich, but my 
parents achieved the American dream.
  That phrase, the ``American dream,'' is a phrase we use all the time, 
but it is a phrase that is often misunderstood. The American dream has 
never been about becoming wealthy or famous. Instead, it is about 
people, like me, who were born and raised here. It is about things I 
sometimes think we take for granted.
  The American dream, what is it about? It is about a happy and stable 
home life where you can live without fear for your safety or the safety 
of your family. It is about the freedom to worship any way you want. It 
is about having the chance to get a good education and find a job that 
rewards hard work with financial security. The American dream is about 
being able to send your kids to college and being able to retire 
comfortably. It is about the opportunity to pursue happiness without 
being limited by your social status or your background. Perhaps most of 
all, the American dream is about being able to give your kids the 
chance and the opportunities you never had. This is the true American 
dream. It is not just a phrase. It is our identity as a nation. It is 
what it means to be an American.
  We are still a country where the American dream is possible. We are 
still a place where, if you work hard and are determined, you can earn 
a better life. But we have to be honest. Over the last 10 years it has 
gotten harder to achieve this. It has gotten harder to find a good job 
and get ahead financially. It has gotten harder to save for retirement 
and send your kids to college. It has gotten harder to pay for health 
care, childcare, and the monthly payments on your student loan.
  For the last 5 years we have been told that a bigger government that 
does more and spends more is the answer to this problem. Do you know 
what that has left us instead? It has left us with about $17 trillion 
in debt and millions of Americans chronically out of work. The result 
is that despite all of this news we get from time to time about how the 
economy is getting better or the stock market is climbing, for many 
people across this country there is a sense that recovery is not 
reaching them. That is creating true uncertainty and even fear about 
the future. There is the constant worry that you could lose everything 
you worked so hard for. There are doubts about whether you will ever 
make enough and have a few extra dollars after payday or be able to 
save for the future. Even for those who are enjoying the life they 
always wanted, you find a growing sense that their children may not get 
that same chance.
  It is not surprising that some are starting to wonder whether the 
time has come for us to lower our expectations. Maybe the time has come 
to downgrade the American dream. This doesn't have to be the new 
normal. We have a choice. If we go in a new direction that gives us a 
government that creates less debt, an economy that creates more stable 
middle-class jobs, an education system that trains our people for the 
jobs available now and in the future, strong families who teach the 
values of success, and a financially healthy Social Security and 
Medicare system for retirees--if we are responsible enough to 
courageously and boldly fight to do these things, we can save the 
American dream. We can restore it. Actually, we can expand it to reach 
more people than it has ever reached before.
  Our first priority here should not be ramming through rules changes 
to get liberal judges appointed. Our first priority should be more 
stable middle-class jobs. That should be our first priority. Stable 
middle-class jobs are the cornerstone of the American dream.
  Let me break it to everybody here in Washington: Politicians don't 
create jobs. Politicians don't create these stable middle-class jobs. 
These stable middle-class jobs are created by everyday people when they 
start a business or grow an existing one. That, my friends, is the 
reason the American free enterprise system is the single greatest 
engine of prosperity the world has ever known. The key to our success 
as a country has always been a thriving free enterprise system, not a 
thriving bigger government.
  What we need from our government are policies that foster a free 
enterprise system, that provide opportunities for everyone who is 
willing to work hard, and a government that stops spending money it 
doesn't have. We have to bring our $17 trillion debt under control.
  We need to address our broken Tax Code. We need one that creates more 
taxpayers, not more taxes. The current one we have is a major obstacle 
to the American dream. Why? Because our current Tax Code is expensive 
and complicated. Our current Tax Code is rigged. It is rigged to help 
those who are politically connected. It is rigged to help them at the 
expense of everybody else.
  We need to reform the runaway regulations we have. They are 
destroying job creation. By the way, they too favor the well connected. 
They too favor the people who can afford to hire lobbyists to help 
write these rules and lawyers to help write the loopholes.
  We need government policies that remove unreasonable restrictions on 
energy exploration here in this country so we can be freed from our 
dependence on foreign oil and create more jobs in the energy sector but 
also in manufacturing.
  As I mentioned earlier, we need to get the cost of health care under 
control but not through the big-government solutions, such as 
ObamaCare, that were rammed down the throat of the American people but 
by encouraging the development of an individual health insurance market 
that gives people more choices, not more mandates.

  The middle-class jobs of today and in the future will require more 
education and skills than ever before. That is why one of the most 
important investments of our time and our resources that we can make--
instead of wasting time on all of these distractions on changing the 
Senate rules to force through radical judges like the one being 
proposed here tonight--is in a quality and affordable education system 
that gives our people the unique skills they will need to succeed in a 
new global economy. To do that we need to take the power out of the 
hands of Washington, DC, and give it to the State and local school 
boards so they can undertake innovative reforms.
  We need to pursue policies that expand access and interest in 
science, technology, engineering, and math because that is what the 
jobs of the future are going to be based on.
  As mentioned a moment ago, we need to get the cost of college under 
control. I know. I graduated with over $100,000 in student loans. We 
need to give working Americans trapped in low-paying jobs access to 
college or a career education that is affordable and flexible so it 
meets within their busy lives. If you are a working parent--
particularly a single parent who is working--you can't just quit your 
job and move to the nearest college town to go to school for 4 years. 
We have to create programs. We have to reform our existing programs so 
they are accessible and affordable for people who are in this position. 
It will give a receptionist at a law firm the ability to become a 
paralegal. It will give a mail clerk at a medical office the ability to 
become an ultrasound technician. We have to meet this issue. There is 
an extraordinary need.
  By the way, we have to give all of our students more access to career 
and vocational education. You can still make a good middle-class living 
as an airplane mechanic or as an electrician. Why have we stigmatized 
these? Why have we told children in this country that if they go into 
these fields, they are not successful? These are good, stable, and 
necessary middle-class jobs. You know what happens when a kid wants to 
work with their hands but they are not learning it in high school. They 
drop out. We have to address that--not just at the Federal level but 
across the country.
  In addition to a good education, the American dream was built on a 
set of

[[Page S8650]]

fundamental values such as hard work, discipline, honesty, and self-
control. Teaching these values is the responsibility of our families. 
Government can't impose these values, and, quite frankly, it can't 
teach them. Government policies should encourage and reward them.
  I think we should empower parents by giving them the ability to send 
their kids to any school they choose. There is no reason why a parent 
should not be able to put their kids in the best possible educational 
setting just because they are poor. There is no reason why we should 
force people to send their kids to failing schools just because that 
happens to be the school right down the street. That is not fair. If 
you are rich, you can send your kids to any school you want. You know 
what. They do. Do you know who can't do that? The people who can't 
afford to pay for that. That is wrong, and we should change it.
  We should strengthen our charities and our churches, which make an 
extraordinary contribution in helping the less fortunate and 
reinforcing values that are so important to success. We should 
reinforce them by making important changes to our Tax Code that will 
encourage and reward Americans for donating more.
  We need to have safety net programs. The free enterprise system 
doesn't work without a solid safety net. It needs to be a safety net 
that helps people who cannot help themselves or to help people who have 
fallen to get back up and try again. We don't need a safety net that is 
a way of life.
  We need to reform our existing safety net programs--welfare, 
unemployment insurance, disability, and Medicaid. They should all be 
reformed so that in addition to providing for those who are in need, 
these programs should also be promoting work and education and self-
  Last but not least, I think the American dream means the ability to 
retire with stability and security. That is why having a financially 
healthy Social Security and Medicare system is so important. We can 
bicker around here all we want about how many votes it takes to get a 
judge in or who is obstructing what. Here is a fundamental fact: Social 
Security is going to run out of money in 20 years, which happens to be 
right around the time I will be getting close to being eligible for it. 
Medicare is going to run out of money in as few as 8 years.
  The good news is that if we act and start to take steps to address 
that now, we can fix these programs, and we can fix them without 
disrupting the lives of people who are on those programs now--like my 
mother. I would never support any changes to these programs that would 
hurt people like my mother, who is on Social Security and Medicare. We 
can fix it, but to fix it, people like me--decades from retirement--are 
going to have to accept that while our Medicare and Social Security 
will be the best in the world, it is going to be different than it was 
for our parents, but it is going to exist.
  By the way, beyond this, we should do some other things. We should 
make it easier, through changes in our taxes, for people to work beyond 
their retirement years. We should expand access to tax-advantage 
savings accounts for those who don't have access to a 401(k). We should 
incentivize people to save for their retirement.
  I think what has bothered me the most in the 3 years I have been here 
is the lack of urgency about any of this. People talk about it. They 
propose laws called good things that maybe they polled and it sounded 
good. But in terms of moving on any of these things I just talked 
about, there is not a lot of urgency about it. We need to have more 
urgency about it. We need to stop wasting time around here changing the 
rules of the Senate to get a couple more of the President's radical 
appointments to the bench confirmed and spend a little bit more time 
figuring this out.
  For most of the history of the world, almost everyone who was born 
was poor, without power, and without wealth. That only belonged to a 
select few. For most of the history of the world, your future was 
determined by your past. If your parents were poor, you would be poor 
too. If a person was born without opportunities, so were their 
children. What makes our country special is that hasn't been true here. 
What makes America special is we are a people not united by a common 
race or a common ethnicity; we are a people united by a common value: 
The idea that everyone has the God-given right to achieve a better life 
without being held back by the government or by one's social standing.

  Right now, I work here. Washington is broken. It was broken when I 
got here and it still is. It is a process that is unable to function. 
With all due respect, it is a process that is plagued with people--in 
both parties, by the way--who are more interested in being someone than 
in doing something. I am telling my colleagues that if we continue on 
this road we are on right now, if we continue on the road we have 
placed this country on, we are going to lose the things that make 
America special. That is what we should be focused on, because there is 
another direction we can take. If we can find the political courage to 
boldly and responsibly confront and solve the challenges before us, we 
can restore the American dream. Actually, we can expand it to reach 
more people than it ever has before.
  Every generation of Americans before us has had to do this. Every 
generation before us has been asked to do something to keep America 
special. Each has been asked to make sacrifices and take bold steps to 
preserve what makes us exceptional, and now it is our turn.
  I remember a few years ago, there was a moment that reminded me of 
what is truly at stake here. I have shared this story many times. I was 
about to give a speech in a hotel ballroom. I think it was in New York 
City. There was a bartender there who had heard me speak before about 
my father, who was also a bartender, and he approached me with a gift. 
The gift he gave me was a name tag that said ``Rubio, banquet 
bartender,'' a name tag the same as they give in hotels. At that 
moment, I was reminded of how this country literally changed my 
family's very life. Not so long ago, it was my father who stood behind 
a bar, just like the one that gentleman stood behind, in order to give 
me the chance to earn a better life, and America made that possible. It 
was never easy. Both of my parents worked well into their retirement 
  I remember when I was in high school, well past midnight, on many 
nights, I would hear my father's keys jingling at the door as he came 
home from another long day of work. When we are young, the meaning of 
moments such as that escapes us. But now, as I get older and my 
children get older, I think I understand that moment a little bit 
better. Like the man who gave me that name tag that night in New York, 
my father was coming back from more than just another day at work; he 
was coming back from a day of fighting, so that the doors that had 
closed for him would be open for me.
  This is still one of the few places on Earth where a person can do 
that. That is what makes us special.
  Before us is the question of whether this generation of leadership is 
up to the task of keeping this country that way. I don't personally 
have any doubt that we are up to the task. Despite our many 
differences, I believe our people are much more united than our 
politics would lead one to believe.
  Every single one of us, every single American is the descendant of a 
go-getter, of an immigrant or of a slave or of someone who overcame 
extraordinary odds to stake their claim in this American dream. Every 
single one of us comes from someone who refused to accept the life they 
lived and always desired to have something better for themselves and 
for their families. Every single one of us is a descendant of someone 
who insisted that their future must always be better than their past.
  This is who we are as a people. This is who we come from. I believe 
that is still who we are. All we need now are leaders that reflect that 
in their policies and in their priorities.
  So I still have more faith in this country than perhaps the political 
coverage might lead us to have because we are free people, and we are 
always going to vigorously debate the best way forward. Sometimes, 
because of the nature of our Republic, it takes us a little longer to 
get it right, but we always have. I believe we will again. In the end, 
there is no such thing as the Republican dream or the Democrat

[[Page S8651]]

dream, there is only an American dream. Despite all the challenges this 
country faces and despite some of the skirmishes on the floor of the 
Senate--at times unnecessary, such as this debate with the judges and 
the rule change--despite all of that, I know for a fundamental fact 
that the American people are not willing or prepared to give up on this 
American dream.
  That requires us to act. That requires us to stop wasting time around 
here and to focus on the issues. We have this golden opportunity to 
restore this American dream and to bring it within reach of more people 
than ever before. We have an opportunity before us to claim our 
heritage as a people who always leave behind a Nation better than the 
one that was left for them. We have a chance to usher in a new American 
century and to write the latest chapter in the story of the single 
greatest Nation that man has ever known. So I hope as we conclude these 
debates on issues such as this, we will somehow find a way to begin to 
work together on what really matters, on matters of importance, on what 
impacts Americans now and those yet to come.
  That leads me to one final point. I see my colleague from Wisconsin 
is on the floor, as well as others who wish to speak. I will close with 
one more point, one more issue I think we are being distracted from 
because of the silliness of breaking the rules to change the rules so 
we can impose on the American people out-of-the-mainstream judges and 
cabinet appointments that are less than qualified, and that is the 
issue of American leadership in the world. Look around the world today. 
Look at the impact of uncertainty about our foreign policy and what 
effect it is having across the planet.
  I am going to be honest and straightforward about this issue 
especially: This is an issue for both parties to reflect on for a 
moment. We all understand why we are wary--and we should be--of 
international engagement. We have gone through a decade of two 
conflicts in the Middle East. We turn on the television and we see 
people we have spent money and sacrificed lives on behalf of burning 
our flag and celebrating our tragedies, and we wonder, Why are we 
involved in the world. Why are we engaged in these places? But I hope 
everybody understands that in the absence of American leadership a 
vacuum is created, and that vacuum leads to chaos, and chaos ultimately 
impacts our national security and our economic well-being.

  Take a brief tour around the world with me for a moment and my 
colleagues will see what I am talking about. Turn on the news and see 
what is happening in Ukraine where a country is being increasingly 
intimidated into going back into basically what looks like an effort to 
reconstitute the former Soviet Union, being torn between that and 
choosing modernization in the West with the European Union. There are 
people in the streets protesting against that and riot police going in 
there to force them out.
  Look at the Middle East, where Iran proceeds full speed ahead with 
weaponizing, towards creating a nuclear weapon and the impact that 
would have--and not just on arming the one country in the world that 
most uses terrorism as a tool of statecraft. We had testimony today 
from the administration. No country in the world uses terrorism more 
than Iran does, and they are going to get a nuclear weapon. It won't 
just be Iran getting a nuclear weapon. If Iran gets a weapon, so will 
Saudi Arabia and potentially Turkey. Look at what is happening in Asia. 
The Chinese have announced that a certain area belongs to them and 
their airspace, that others have to get permission from them and notify 
them before anyone flies through there. South Korea and Japan and 
others, they are starting to wonder whether America will live up to its 
commitments to provide for their defense and to assist them or maybe 
they need to strike out on their own and provide their own defense 
  Look at the opportunities in the Western Hemisphere we have abandoned 
because we have taken our focus elsewhere. I could go on and on.
  Are we a strong enough voice on behalf of religious liberties? 
Meanwhile, religious minorities around the world are being oppressed in 
unprecedented ways. In particular, Christians in the Middle East are 
facing persecution that is reminiscent of the early days of the church.
  How about human rights? How about human trafficking and modern day 
slavery? All of these things require American leadership.
  We can't solve every problem. Foreign aid isn't charity. It needs to 
further our national interests and the funds need to be accountably 
spent. But this is something we should be more focused on and we are 
not. Why? Because we continue to get involved in these sorts of 
skirmishes here and, in particular, undermining the ability of this 
body to function by changing the rules by breaking them.
  So I hope this will serve as an opportunity to reevaluate all of 
this, because the challenges before our country are real and the 
consequences of not acting appropriately are dramatic. I hope we will 
take this seriously, because we still have time to get this right, but 
we do not have forever.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 20 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WHITEHOUSE. Mr. President, this is the 52nd consecutive week we 
are in session that I have come to the floor to ask us to please, for 
Lord's sake, wake up to the damage carbon pollution is already doing to 
our atmosphere, oceans, and climate, and to look ahead, to use our God-
given sense, and to plan for what is so obviously coming.
  In those weeks, I have spoken about all different aspects of carbon 
pollution, its effect on sports and our economy; its effect on oceans 
and coasts; its effect on agriculture and wildfires; its effect on 
storms and insurance costs. I have spoken about the measurements we can 
already make of the harm already happening: Sea level rise, which we 
measure with a yardstick, basically; ocean temperature, which we 
measure with a thermometer; and ocean acidification--the fastest in 50 
million years, according to research published in ``Nature 
Geoscience''--which we can measure with litmus tests.
  I have, I hope, to anyone listening with their logic turned on, 
thoroughly rebutted the deniers' phony arguments against solving carbon 
pollution, whether those arguments purport to be based in science or 
religion or economics or our competitiveness.
  I have listed the thoughtful and responsible groups--from the Joint 
Chiefs of Staff to the U.S. Conference of Catholic Bishops, from 
Walmart to NASA, from Ford and GM to Coke and Pepsi, from America's 
garden clubs to just last month our major sports leagues--who 
understand the truth about climate change and are saying so.
  I have done my best to expose the calculated campaign of lies that we 
are up against and the vast scandalous apparatus of phony organizations 
and engineered messages that are designed to propagate those lies. I 
have traced the connections back to, of course, the big carbon 
polluters and their billionaire owners. I have been obliged to point 
out that the money of those big polluters and billionaires floods this 
Chamber, that their lobbyists prowl the outer halls, and that to a sad 
and disappointing degree this Congress is bought and paid for by that 
polluter influence.
  One factor we have yet to consider is whether as an institution 
Congress has just become completely irresponsible. Maybe this Congress 
just cannot operate as an institution at an intelligent level. Some 
Congresses are going to be smarter and more responsible than others. 
That is just the natural order of variation. Some Congress is going to 
be the sorriest Congress ever. Maybe we are it.
  Some organizations, like NASA, for instance, are very smart. That is 
why NASA is driving a rover around on the surface of Mars right now. 
That is a seriously smart organization.
  Some organizations take ordinary people and call them to be their 
very best, to play at a level above their natural talents, to heed a 
higher calling than their selfish inclinations. At their best, our 
military and our churches tend to achieve that.

[[Page S8652]]

  Some organizations, however, take even the most talented people and 
drag them down to the lowest common denominator, and stifle the best 
and bring out the worst in even those very talented people.
  I ask people watching, which type of organization do you think 
Congress is right now? Which type do you think we are? As an 
organization, it is hard to say anything kinder of Congress than that 
it is now a really irresponsible organization. We could not even keep 
the U.S. Government running. Standard & Poor's estimated that our tea 
party shutdown foolishness cost Americans tens of billions of dollars 
for no gain--none. We cannot sort out the basics of building and 
maintaining our American infrastructure. Our own American Society of 
Civil Engineers gives our country a D-plus for infrastructure.
  That is not complicated stuff. Yet we flub it like a football team 
that fumbles the ball at the snap.
  Get a little more complicated and Congress seems to get even worse.
  Let me show you just one health care chart. This chart I have in the 
Chamber shows the average life expectancy--in years--in a country 
compared to the cost per capita of health care in that country. 
Together, they make a pretty good proxy for how a country's health care 
system is doing. This group shown here on the chart represents most of 
the OECD member and partner countries--our industrialized international 
  This, shown here on the chart, is us--way out here, all alone, 
spending the most by far for results that are mediocre at best. We 
would save nearly $1 trillion a year if we could just get our per 
capita cost down to what Norway and Switzerland spend. They are the 
next two most expensive countries on the planet, and we are $1 trillion 
a year more laid out per capita. Think of what we could do as a nation, 
what we could build and invent with $1 trillion a year if we were not 
wasting it on bad health care. And bad it is. We get worse results in 
longevity than virtually any modern economy.
  Look who beats us: Japan, Great Britain, Switzerland, Netherlands, 
Norway. Germany does, Italy does, Greece does, Luxembourg does. They 
all beat us. Chile and the Czech Republic are the two countries we beat 
for longevity.
  Look at the size of that problem--those lives lost, those trillions 
of dollars wasted--and then look at the quality of the health care 
discussion we are having in Congress, and tell me this is not a 
completely irresponsible organization.
  That brings us to climate change. Yes, it is complicated, when you 
are trying to predict and model something as complex as what our 
climate is going to do in the years ahead. But it is also simple, when 
you look at the stuff that everyone agrees on, the stuff that you can 
measure, the stuff that you would have to be a nut or a crank or an 
eccentric to dispute.
  Nobody responsible--nobody responsible--disputes the principle that 
adding carbon dioxide to the atmosphere raises the temperature of the 
Earth, and that it does so through the so-called greenhouse effect. A 
scientist named John Tyndall figured that out at the time of the 
American Civil War. I brought his musty old paper in here several 
speeches ago. Its old leather binding was flaking and peeling. When 
that report was first published, Abraham Lincoln had just been elected 
President. In all the years since then, this principle of science has 
always been confirmed and validated. It is not some questionable 
theory. The greenhouse effect is real. It would not just be wrong, it 
would be irresponsible to deny that.
  Nobody responsible disputes that for over a century our modern 
economy has run on fossil fuels and that burning those fossil fuels has 
released gigatons of carbon dioxide into the atmosphere. The Global 
Carbon Project estimates that mankind has pumped about 2,000 gigatons 
of carbon dioxide into the atmosphere since 1870. That is a pretty 
solid estimate, and I have never even heard anyone dispute it.
  So we know those two things: adding carbon dioxide to the atmosphere 
traps more heat; and we have released an estimated 2,000 gigatons--
2,000 billion tons--of carbon dioxide into the atmosphere.
  Let's go on from there. It is a known principle of science that a 
significant portion of that multigigaton carbon load is absorbed by the 
oceans, and that the chemical reaction when that absorption happens 
into the oceans makes the oceans more acidic. No responsible person 
disputes either proposition. It is not some theory. It is something 
that you can actually do and measure in a lab. Again, it would not just 
be wrong, it would be really irresponsible to deny that.
  We also know that the oceans do more than absorb carbon. They absorb 
heat. Indeed, they have absorbed most of the excess heat trapped by 
greenhouse gases--over 90 percent of the heat between 1971 and 2010, 
according to the recent IPCC report. What happens when the oceans 
absorb heat? They expand. Thermal expansion is a basic 
physical property of liquids. It can also be shown in a very simple 
lab. It is not a theory. Again, it would be not just wrong but 
irresponsible to deny that too.

  It would not just be wrong, it would be irresponsible to deny what 
those simple measurements and clear principles tell us. But we do. We 
do. We deny it. Congress will not wake up and address this problem. 
Like those monkeys: See no carbon, hear no carbon, speak no carbon.
  Because we are so irresponsible, because we deny this reality, we are 
failing to take precautions and, as a result, many people will suffer.
  For those of us who love this country and are proud of it, and are 
proud of our government, and want this country and its government to be 
a beacon of hope and promise and rectitude, it hurts a little extra for 
the Congress to be such a failure. It hurts a little extra that we in 
our generation have driven Congress--the hub of our noble American 
experiment in democracy, the beating heart of this great Republic--down 
to that low level.
  It is a harsh judgment that this body is an irresponsible failure. 
But on climate this Congress got it the old-fashioned way; it earned 
  I will close with a final observation. Compare the irresponsibility 
of this ``see no carbon, hear no carbon, speak no carbon'' Congress 
with the recent exhortation from Pope Francis. Here is what the Pope 
said. I will quote him at some length.

       There are other weak and defenceless beings who are 
     frequently at the mercy of economic interests or 
     indiscriminate exploitation. I am speaking of creation as a 
     whole. We human beings are not only the beneficiaries but 
     also the stewards of other creatures. Thanks to our bodies, 
     God has joined us so closely to the world around us that we 
     can feel the desertification of the soil almost as a physical 
     ailment, and the extinction of a species as a painful 
     disfigurement. Let us not leave in our wake a swath of 
     destruction and death which will affect our own lives and 
     those of future generations.

  The Pope continued:

       Here I would make my own the touching and prophetic lament 
     voiced some years ago by the bishops of the Philippines:

  And he quotes them:

       ``An incredible variety of insects lived in the forest and 
     were busy with all kinds of tasks. . . . Birds flew through 
     the air, their bright plumes and varying calls adding color 
     and song to the green of the forests. . . . God intended this 
     land for us, his special creatures, but not so that we might 
     destroy it and turn it into a wasteland. . . . After a single 
     night's rain, look at the chocolate brown rivers in your 
     locality and remember that they are carrying the life blood 
     of the land into the sea. . . . How can fish swim in sewers 
     like the . . . rivers which we have polluted? Who has turned 
     the wonderworld of the seas into underwater cemeteries bereft 
     of color and life?''
       Small yet strong in the love of God, like Saint Francis of 
     Assisi, all of us, as Christians, are called to watch over 
     and protect the fragile world in which we live, and all its 

  What is our answer to the Pope, to this great Christian leader? In 
Congress, it is the monkey answer: Hear no carbon, see no carbon, speak 
no carbon.
  We still have time to mitigate the worst effects of climate change.
  We can actually do it in painless ways. We can even do it in 
advantageous ways, in ways that will boost our economy, but we have to 
do it. We have to wake up. We simply have to wake up.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. JOHNSON of Wisconsin. Mr. President, I rise to address the 
nomination of Cornelia Pillard to the DC Circuit. This nomination is a 
good example of the government overreach that has led to the ObamaCare 

[[Page S8653]]

  The good Senator from Rhode Island was talking about how much we 
spend on health care in this Nation. The very unfortunate fact is the 
Patient Protection and Affordable Care Act does not address that cost.
  Let's face it. The Patient Protection and Affordable Care Act is 
about as Orwellian a name as you could possibly come up with for a 
piece of legislation. We are watching millions of Americans lose their 
health care coverage. Those patients are not being protected by the 
Patient Protection and Affordable Care Act. We certainly are not 
watching the cost of health care decline.
  The Patient Protection and Affordable Care Act did not bend the cost 
curve down. It has dramatically increased or bent the cost curve up. Of 
course, anybody who even has the slightest knowledge of basic economics 
realizes that if you mandate expensive coverages on any insurance 
policy, the price is not going to go down, the price is going to go up. 
We are witnessing that.
  We are certainly witnessing that in my home State of Wisconsin, where 
a young man aged 27, on average, is seeing his premium increase by 124 
percent, going from a little over $1,100 per year, to closer to $2,500 
per year. A young woman of that same age, 27, is seeing her premium 
increase by 78 percent, going from about $1,400 per year to about 
$2,500 per year. That is not bending the cost curve down.
  That is not even talking about the added or the increased cost of 
their deductibles, the increases in their maximum out-of-pocket amounts 
they are going to be spending every year. So again the Patient 
Protection and Affordable Care Act does nothing that it promises. It is 
a disaster for our health care system. It is a disaster for our Federal 
budget. It is a disaster for people and their health and their lives.
  I am on the floor of the Senate tonight, normally not down here at 
this time. Normally, I would be sitting at home doing a little bit of 
homework. So I guess what I would like to do is spend a few minutes 
doing what I would be doing at home, reading letters from constituents 
from Wisconsin.
  When I introduced my piece of legislation, trying to protect as many 
Americans as possible from the damage of the health care law, trying to 
honor the promise President Obama and Members of this Chamber made 
repeatedly to the American public that if you liked your health care 
plan, you could keep it, I told a story about a couple in Wisconsin who 
contacted our office. Initially, this couple wanted to be identified. 
They wanted their story told. By the time I had gotten ahold of them on 
the phone, to make sure they were actually getting some help in 
securing some health care, the husband had second thoughts. He watched 
his government. He watched the Internal Revenue Service being used as a 
political weapon. So he feared for his privacy. He feared for his 
economic security. So he asked me: Please do not use my name. Tell my 
story, just don't use my name.
  That is a pretty sad fact. That is something we need to ponder. It is 
something we need to address. But that couple, their story is pretty 
simple and pretty sad. His wife was suffering from stage IV lung 
cancer. He was recovering from prostate cancer. They were participating 
in the high-risk pool in the State of Wisconsin, a risk-sharing pool 
that worked.
  It was expensive for them, but it was something they could afford. I 
knew it worked because in my 31 years of business, as I provided health 
care for the people who worked with me, every now and again, 
unfortunately, one of the people who worked for me would have a serious 
health condition. When we would go to renew our policy, frequently 
those individuals, if the condition was bad enough, would be lasered 
out. They would lose coverage under our plan. But that was OK because 
the State of Wisconsin, very responsibly, made a provision for those 
individuals, the high-risk sharing pool.
  So what would end up happening is because they were denied coverage, 
they automatically qualified for the high-risk pool. I, of course, 
would pay for that coverage in the same way we would pay for coverage 
through our own health plan. What I found over the years, because this 
happened a number of times, is the coverage was very comparable. It was 
not a Cadillac plan but solid insurance coverage. So similar coverage 
and very comparable price.
  It was a plan that worked. It was a plan that covered those 
individuals with high risks. It was a plan that covered 22,000 
Wisconsinites until this body, this Congress, passed the Patient 
Protection and Affordable Care Act, which I describe here as neither of 
those two things.
  As a result of the passage of that bill, those high-risk pools are 
now obsolete. So this couple got the letter saying they would lose 
coverage as of January 1. Put yourself in the position of people 
suffering from cancer or recovering from it. You have a lot of worries 
in life. You do not need the additional worry of losing your health 
care plan. But that is what this couple faced, as millions of Americans 
are facing the exact same worry, the exact same harm, the exact same 
damage. It is unconscionable.

  They obviously went onto healthcare.gov, almost 40 times when I 
talked to them. They were never able to successfully log onto it at 
that point in time. So we helped this couple get in touch with the 
insurance carriers that would be operating within the exchange. They 
started getting quotes. They quickly learned their premiums were going 
to double. Their out-of-pocket maximums were also going to come close 
to doubling as well. So the Patient Protection and Affordable Care Act 
did not protect these two individuals, and it certainly did not offer 
them affordable care.
  As I went through letters from our constituents, we did make a few 
phone calls, knowing I was going to come down here, and asked if 
anybody would want to be identified. A few brave souls agreed to be 
identified. I will read their names as I read their letters. The first 
Wisconsinite, Michael Wagner, writes:

       I am self-employed and have a family of four. The President 
     said we could keep our plan if we liked it and our doctors. 
     Not true. We are being pushed off our plan for the exchange. 
     He said the average family of four would save an average of 
     $2,500. Not true. I think he just makes numbers up. My 
     equivalent policy on the exchange will cost $7,500 more per 
     year. That is almost a 100 percent increase.
       He said we can keep our doctors. Not true. Our current 
     company and PPO network is not offered on the exchange. The 
     list goes on and on. The bottom line is that this needs to be 
     stopped. If it is not, the American people will stand up and 
     the landscape of Senators will be unrecognizable after the 
     next midterm election. Thank you for your time, and I hope 
     you have the gall to stand up for your constituents.

  Mr. Wagner, I definitely have the gall to stand up for my 
constituents. The reason I ran for the Senate was not because I wanted 
to be a Senator. The primary reason I ran for the Senate was to be the 
vote to repeal this monstrosity, to be the vote to protect Americans 
from the damage I full well knew this law would inflict on millions of 
our fellow citizens.
  The next constituent who wrote to me, Darren Schauf, wrote:

       We are a small manufacturer in Sparta, Wisconsin, who has 
     been in operation since the mid 1960s. We currently employ 24 
     people and are a family-owned business, fabricating large 
     fiberglass statues and water slides that are shipped all over 
     the U.S. and Canada. We have been providing our employees 
     health insurance for 15 years, paying for 100 percent of the 

  Pretty responsible employer. Those are the types of businesspeople I 
know. Those are the types of businesspeople who are very concerned 
about the people who work with them. Those are the types of 
businesspeople who this President demonizes in his class warfare. Let 
me go on:

       We have experienced the increases in health care cost over 
     the years and weathered them fine. I received our renewal 
     this week for next year. Because of the Affordable Care Act, 
     our premium went from $3,887.77 per month to $7,103 per 
     month. How does this happen? What definition of 
     ``affordable'' is being used to describe this effect? We will 
     not be able to pay 100 percent of our employee's premium at 
     this rate. How can we get a plan that is at least close to 
     the cost that we were paying last year?

  Mr. Schauf, I know how you can get a plan close to what you were 
buying last year. If this body would take up my bill, If You Like Your 
Health Plan, You Can Keep It Act, that is a true grandfather clause 
that actually would honor that promise for millions of Americans. We 
cannot save the policies that have already been lost. We cannot repair 
all the damage already done by this health care law. But we can still 
help millions of Americans if we act, if we are responsible, if we 

[[Page S8654]]

  The next two constituents to write me are Brad and Dawn Nielsen. They 

       My wife and I just received a notice that our monthly 
     health care insurance cost will increase by 184 percent, 
     increase by $1,330 per month starting in January 2015, and 
     you need to understand how cheated we feel with this and what 
     you have done.

  I am assuming he is referring to President Obama and Democratic 
Senators and Democratic Members of the House who voted for this 
monstrosity. Again, I ran to be the vote to repeal this law.

       We are both retired and have been paying our health care 
     insurance for the past 3 years. We have what would be 
     considered a good policy that falls in line with what would 
     be considered a gold package as it relates to the ACA 
     guidelines. We will be able to keep this policy with our 
     insurance carrier through 2014 with a 7\1/2\ percent increase 
     in the monthly premium that is to cover the new--

  He puts in quotes--

     ``the Affordable Care Act'' cost. Although we were not happy 
     about the increase, we were told by our carrier that the 
     monthly premiums will increase to $2,054.51 per month 
     starting January 2015. This is not right. You as our 
     representative need to understand what you have allowed to 
     happen to us as well as others.

  Again, Mr. and Mrs. Nielsen, I wish--I wish we would have prevented 
  I wish the Members of this body would hear your plea and do something 
to protect you, as the bill claims to do, to repair the damage.

       We have worked hard, made sacrifices to be able to retire, 
     saved through our company's retirement plan, invested when we 
     could and even put both our kids through college. Now to be 
     forced to pay an outrageous amount for something we have had 
     for the last 3 years isn't right. This increase is a game 
     changer for us and will dramatically affect our standard of 
     living moving forward.
       It is important that you understand what is happening and 
     the need to change this unfair law.

  I hope the President, I hope Members are listening.
  The next constituent, Jeff Cubinski, writes:

       I am sending you this email about the 2014 ACA. I just 
     received my letter from Humana stating my insurance is going 
     to increase nearly 300% from $550/month to $1559/month. I 
     cannot afford this--how is this Affordable Care? I have 
     carried insurance all my life being self-employed--what is 
     this plan trying to put the self-employed out of business???? 
     I want to keep my plan the way it is--why are we being forced 
     to change to a plan that has benefits we DON'T need?? Please 
     help us citizens that have been carrying health care. Please 
     make Government for the people by the people again!

  I wish to quickly answer that question. Why is this individual being 
forced to change to a plan that has benefits that he doesn't need? It 
is because there are people in Washington, in this alternate universe, 
who believe they are so smart, so clever, they know what is best for 
every American. They are so compassionate. They are trying to help.
  They are not helping much. This law is not helping much. It is doing 
real harm.
  President Obama and Senate, Members of the House, please listen to 
these constituent letters. Have a change of heart. Work with us to 
limit the damage before it gets greater.
  Those were the individuals we contacted who were willing to be 
identified. The rest of the individuals were either not contacted in 
time or decided, as the couple, that they had seen their government be 
used as a weapon against other citizens and decided to remain 
  The next Wisconsinite writes:

       I am writing you to inform you that as of January 1st 2014 
     my family of six and I will no longer have health care. This 
     will be the first time in my life or the life of my children 
     that we will be in this position. The reason for this is the 
     Affordable Health Care Act, laughable name. On that day my 
     premiums through work will go from $250/month to well over 
     $1000/month. In looking through the Market place, my family's 
     premium would also be well in excess of $1000/month.
       We are a typical middle class family, my wife and I both 
     work full time, our combined income is in the $75,000 range. 
     We are home owners with a mortgage, we drive 8 to 9 year old 
     cars, our children go to public schools, we do not live an 
     extravagant life style.
       I have been struggling to figure what to cut to be able to 
     afford this new health care system the government stuck us 
     in. No matter what we cut it will not add up to $1000. The 
     other option is to put our house on the market and try to 
     find something else outside of Madison. That is not what we 
     want to do. Our kids are in high school, one with special 
     needs and we feel that would be unfair to them.

  So do I.

       Mr Johnson please explain to me how on earth is this 
     affordable and fair.

  I can't. It is not affordable; it is not fair; it is utterly unfair. 
It is utterly unnecessary, but it is a fact. It is one I hope everyone 
who supported this bill can live with. I hope it is a fact that 
everyone who voted in support for this bill thinks about and is held 
fully accountable.

       I find this Affordable Care Act to be divisive, unfair and 
     an unjust tax on the middle class.
       I will not vote for anyone that supported this Act or 
     continues to support this Act given the effect that it is 
     having on my family. Sir, I am begging for your help. Please 
     find a way to help my family and the rest of the Americans 
     like us.

  Did we hear that, an American citizen begging for help from the harm 
that the Affordable Care Act, the Patient Protection and Affordable 
Care Act, inflicted on his family. He is begging this Congress, this 
chamber, this President, for help. Please hear him.
  Another constituent writes:

       I'm feeling very upset and stressed over the new health 
     care laws. I feel they are unfair and hurting working 
     families. Our household income has shrunk and our health care 
     cost is going up over $300 a month. According to 
     healthcare.gov if insurance costs more than 9.5% of gross 
     income it is considered unaffordable. When a single person 
     applies only his/her income is taken into consideration. When 
     a family applies total household income is used to figure 
     out affordability of single-only coverage. Single only 
     coverage for myself is about 8% of our family income; 
     single only coverage for my husband is about the same. 
     That means 16% of our income would be used for insurance 
     (throughout employers) just for us. 16% of our income 
     would be gone and our 4 children would be uninsured. 
     Family coverage costs 12% of our family income still 
     higher than 9.5%. Where is our tax credit? We don't 
     qualify for tax credits because we have ``affordable 
     insurance through our employers.'' If total household 
     income is used why isn't family coverage affordability 
     taken into consideration. Last year my family made about 
     $55,000 (174% of the poverty level.) Next year we will 
     make less due to reduced hours. Money is already tight, 
     this new law will make things very uncomfortable for my 
     family. I am turning to my representatives for help. 
     Please help families in the same situation to the best of 
     your ability; we need your help! This law is hurting us; 
     be our voice.

  Another Wisconsinite writes:

       I just called Physician's Plus to find out about the status 
     of our Health Insurance policy. Our policy will not be 
     renewed due to the Affordable Care Act.

  It seems these constituents decided to drop the patient protection 
because he obviously wasn't feeling particularly protected.

       My husband and I are freelancers in the video production 
     field. My husband works so hard to support and take care of 
     me and our two children. We are not rich, by any means, just 
     taking care of business. We have paid 100% of our premiums 
     for 15 years. We have bought coverage that makes sense for 
     our family at different times. Currently, we pay $513.60/
     month with a $3000 deductible. When I called Physician's Plus 
     yesterday, the person there said that my plan cannot be 
     renewed. He said the new premium for a comparable plan will 
     be $1743.00!!!

  Again, that compares to $513 and it will be $1,743.

       We cannot afford this in any way. I guess we are the 
     collateral damage?
       I have tried to get on the ACA to find out our options. I 
     refuse to give them personal information so I can only go by 
     the Kaiser Foundation estimate. There is only one plan that 
     will keep our Pediatrician and it looks like we will be 
     looking at a $12,000 deductible with close to a $1000/month 
     premium. We are on the high end, so get a very minimal 
     subsidy. We do not want to get any help from the government, 
     we want to be independent, but the government is forcing 
     their hand on us!

  Again, we live in the land of the free, the home of the brave, and 
yet these brave Wisconsinites are being forced. They are being coerced. 
This is the antithesis of freedom of choice.

       Please understand we want people to have health care, but 
     why are they destroying us in the process? I am in the 
     process of scrambling to find a job that provides insurance. 
     I was offered a Educational Assistant job that has been 
     changed to 29 hours, no health insurance.

  I wonder what caused that change in employment.

       Most opportunities I am finding have recently dropped 
     insurance coverage has a benefit.
       We are scared about the future.

[[Page S8655]]

  This is what the Affordable Care Act has done. That is what the 
patient protection and Affordable Care Act has done to Americans, to 
Wisconsinites. It has made them fearful. They are afraid, they are 
scared for their futures. Good job, Congress. Good job, President 
Obama. My, aren't we a compassionate lot. Didn't we do a fine job. 
Aren't we smart.
  The next Wisconsinite writes:

       I'm extremely unhappy with the so called ``Affordable Care 
     Act.'' Unfortunately, for my middle class family, the new law 
     is creating un-affordable health insurance. I am a 35 year 
     old project management consultant and my wife and I have 2 
     children. We currently purchase health insurance on the 
     individual market and are very happy with our coverage. We 
     currently pay $352 per month to cover our family of 4. The 
     plan offers a copay of $35 when going to the doctor, and has 
     a $7,500 deductible for our family.
       I have begun researching what our health insurance premiums 
     will cost going forward under ObamaCare and I am outraged 
     with what I've found. The cheapest policy I can find is 

  Let me refer back to the fact that they are paying $352, so that is 
more than a 100-percent increase.

     --$761.71 per month for a Bronze plan and a $12,600 

  Again, that compares to the $7,500 deductible under the plan that 
they are ``happy with.''

       This is 116 percent more than what we currently pay, with a 
     higher deductible. If I look at a comparable plan to what we 
     have now, the new cost will be around $900 per month, which 
     is a 156 percent increase. Also, our income is slightly above 
     the threshold to get any subsidies.
       The new regulations in ObamaCare will not benefit our 
     family, but they will more than double our cost. We need to 
     repeal this terrible law and replace it with simple, market 
     based incentives. Health insurance should be more like car 
     insurance. You don't submit a claim to get your oil changed 
     in your car. Same goes for health care. We should pay out of 
     pocket for routine health care using a transparent price 
     structure that allows consumers to shop for the care they 
     want. Then have a cheap insurance policy for major illness 
     coverage. Republicans need to communicate this alternative, 
     and make it simple for people to understand.

  I could not agree with this individual more. He continues:

       I realize repeal and replace is not possible until after 
     the 2016 elections, but I appreciate and support 
     wholeheartedly your new ``If You Like Your Health Plan, You 
     Can Keep It Act.'' For the millions of people out there like 
     me, we should be able to keep our current plan indefinitely. 
     Hold the President to his promise and pass this law to 
     grandfather in all existing policies.

  Let me just stop a minute and talk a little about the bill I did 
introduce--If You Like Your Health Plan, You Can Keep It Act. It is a 
pretty simple act. I encourage my colleagues to cosponsor it and pass 
it as soon as possible. I wrote it a certain way. I wrote it using the 
exact same grandfather language that was in ObamaCare. The problem with 
the grandfather language within the Patient Protection and Affordable 
Care Act is that, yes, it grandfathered plans, as long as you totally 
changed them. We took the grandfather language and we just pulled out 
the you just have to totally change your plan. We made it a true 
grandfather provision: the same language, the true intent, the honest 
  So I urge my Democratic colleagues to support that bill. Again, let 
me emphasize we cannot at this late hour, unfortunately, salvage most 
of these plans that have already been lost to the individuals whose 
emails I am reading from tonight. But there are millions of Americans 
who will lose their coverage in the future.
  Let me tell you how it is going to happen. I bought health care for 
the people who worked for me for 31 years in my business. I always was 
going to do that. There was no way I was ever going to subject the 
people who worked with me to the financial ruin of not having a health 
care plan.
  That being said, as the previous writer was saying, I didn't pay for 
their auto insurance, I didn't pay for their homeowners or property 
insurance. I always kind of wondered: Why am I having to make these 
very personal decisions for the people who work with me? Why am I 
having to decide on their levels of deductible and having to decide is 
it a PPO or an HMO? I know the reason why. It was government 
interference in the marketplace back in the 1940s, with wage price 
  Unions very naturally said: You can't raise our wages, give us some 
other benefit tax free, and that began the destruction of our health 
care system in terms of patient involvement, in terms of a competitive 
marketplace. Back then, 68 cents of every health care dollar was 
actually paid by the patient. There was free-market competition to 
ensure cost restraint, to ensure high-quality and high levels of 
customer service. That is what the free market does. Today, only 12 
cents of every $1 is paid by the patient.
  But getting back to the millions who are going to be losing their 
employer-sponsored care, most employers care deeply about the people 
who work with them. They also would not expose the people who work with 
them to financial risk. But under the Patient Protection and Affordable 
Care Act, the decision is totally different now. Now an employer is 
going to be facing double-digit premium increases when these plans they 
were able to quickly renew before January 1 come due in 2014.
  If the exchanges, as they should have been from day one, start 
operating properly, employers are going to be faced with a decision: 
Should I pay $15,000 per family for family coverage? By the way, that 
is up $2,500 per year, not down $2,500 per year as President Obama 
promised us. Do I pay $15,000 per family coverage and try to comply 
with the 20,000-plus pages of law and rules and regulation or do I pay 
the $2,000 or $3,000 fine, and I am not putting my employees at 
financial risk? I am potentially making them eligible for subsidies in 
the exchange.
  That is the decision employers are going to be facing. Here is the 
kicker. Even those who are saying: I am not going to do that; I am 
going to keep providing that coverage, just wait until the first 
competitor drops coverage and pays the $2,000 fine rather than a 
$15,000 fine. Marketplace competition is brutal. It is not fun. It is 
why businesses that succeed should be celebrated, not demonized. But 
that is a decision to be made by millions of employers. As a result, 
tens of millions of additional Americans will lose the health care 
coverage they get through their employers using pretax dollars and get 
forced into the exchanges.
  Maybe some will get subsidies paid for by the American taxpayer--
actually, paid for by a debt burden placed on the backs of our children 
and grandchildren because we can't afford the Affordable Care Act. That 
is what is going to happen. That is what this Chamber, this Congress, 
this President needs to consider.
  That is why I am asking my colleagues in the Senate to join with me 
to pass the If You Like Your Health Plan, You Can Keep It Act--so we 
can protect millions of Americans, so we can honor that promise that 
was made repeatedly by this President and Members of this Chamber who 
voted for and supported this bill. Accept responsibility, be held 
accountable, act responsibly, and join me in that effort to protect 
  Another Wisconsinite writes:

       Please allow me to introduce myself and my family. We are 
     an average, middle class Wisconsin family that is having a 
     really bad year. My husband was diagnosed with cancer in May, 
     I lost my job and our family health insurance in June. 
     Because of preexisting conditions, our only insurance option 
     was the high insurance risk sharing pool.

  Again, that is the plan in Wisconsin I certainly found worked for 
real Americans. It worked. It will now be obsolete because of the 
health care law.
  This individual continues:

       For our family of three (myself, husband and college 
     student daughter) our monthly premiums are $783 per month, 
     with a $7,500 individual deductible. With the high insurance 
     risk sharing pool ending December 31, 2013, I am searching 
     for insurance, as I have yet to find employment. I have tried 
     over 20 times to get on the affordable health care Web site 
     with no luck. I have been able to set up a log in and user 
     name, and have entered some information, which is never saved 
     when I have to log out due to a ``please wait'' message that 
     never goes away. I am working with an insurance agent to 
     secure quotes outside of the government Web site, as I am 
     sure we are way too middle class to be afforded any type of 
     subsidy. Although I am unable to determine this through the 
     defective Web site. Our cheapest quote is $1,580 per month--

  Again, that compares to $783 per month. Again, basically a 100-
percent increase.

     --with a $12,500 deductible.

  Her previous deductible was $7,500.

       Therefore, the Affordable Care Act would cost my family 
     over $9,500 more per year in premiums and our total 
     deductibles to meet

[[Page S8656]]

     will increase to $37,500 from $22,500 for the family. The 
     total effect is $24,500 additionally in 2014. Are we 
     seriously supposed to be able to absorb this into our budget? 
     What does our family do in this situation? We simply cannot 
     afford $1,580 per month for insurance or $24,500 per year. 
     What are our options? My husband will undergo chemotherapy 
     and has a surgery scheduled for 2014. I am feverishly--

  Do you hear that word--``feverishly''

     --looking for employment with health insurance coverage. I am 
     sure we are not the only family adversely affected by the 
     law. Please provide answers for all of us. I look forward to 
     hearing from you.

  Again, my plea is to please provide true protection. Please provide 
security. Please accept the responsibility of what this law, what your 
support for this law did and is doing to millions of Wisconsinites, to 
millions of Americans. It is simply immoral what this law is doing to 
people, to their lives.
  It is not going to be pretty what this law is going to do to our 
health care system. It will lower quality and it will produce rationing 
because the only way the government can afford to provide all of this 
access is actually by limiting access. Of course, we are already seeing 
a very limited number of doctors who are actually accepting these 
contracts from the networks that are provided in the exchange, 
primarily because of all of the mandated coverages that are 
dramatically increasing the price of health care, as I have 
demonstrated this evening in these emails and these letters we are 
receiving from real people, from people who are suffering because of 
the Patient Protection and Affordable Care Act.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Schatz). The Senator from Pennsylvania.
  Mr. TOOMEY. Mr. President, I rise to speak on the topic of the 
nomination of Cornelia Pillard to the DC Circuit.
  Before I go to that specific topic, I wish to address a broader 
topic, which is how we got in these circumstances in the first place 
and why we are here tonight, why we are having this discussion, and how 
this nuclear option, as it has been described, has come about.
  Most immediately was November 21, 2013, just a few weeks ago, when 
the majority party in the Senate unilaterally decided to break the 
rules of the Senate, violate the rules and rewrite the rules 
themselves. Despite the fact the rules clearly say it takes a two-
thirds majority of the Senate to do that, they decided to disregard 
that and change the rules themselves. So they did that on November 21, 
  What they specifically did, the specific rule change they imposed 
unilaterally on the Senate, was to completely eliminate the opportunity 
for the minority party to have any ability to be a check or a balance 
to the process of selecting and confirming the nominees of a given 
President to the judiciary of the United States of America, the Federal 
judiciary, or to the executive branch.
  It is a little bit sweeping, but that is exactly what has been done. 
This is contrary to the entire history of the Republic, where this has 
never been done before, and it applies to lifetime appointees. Of 
course, Federal judges, as we all know, once they are confirmed, they 
hold that office until they decide they are done--at whatever age that 
might be. It is a lifetime appointment. Unless they commit an 
impeachable offense, there is nothing anybody can do about it.

  One of the things that is interesting about this decision by our 
Democratic colleagues is they decided to eliminate the rights the 
minority party has had in the Senate for centuries. They decided to do 
that despite the fact that 20 of them warned vehemently against 
engaging in this very activity just a few years ago. As a matter of 
fact, none other than the Senate majority leader who personally led 
this effort, Senator Reid, said in 2009:

       The right to extend the debate is never more important than 
     when one party controls the Congress and the White House. In 
     these cases, a filibuster serves as a check on power and 
     preserves our limited government.

  In 2009 the senior Senator from New York said:

       The checks and balances which have been at the core of this 
     Republic will be evaporated by the nuclear option. The checks 
     and balances say that if you get 51 percent of the vote, you 
     don't get your way 100 percent of the time.

  That is what our friends, the leadership of the majority party, the 
Democratic party, said very recently.
  So you have to ask yourself, why would they do a complete reversal? 
Why would they do a 180-degree switch? Why would they go from a 
position of absolute vehement opposition to the nuclear option that 
denies the minority party any say whatsoever in the confirmation of 
Federal nominees--why would they go from that to where they were just a 
couple weeks ago when they executed their plan and unilaterally broke 
the rules so they could change the rules to inflict that very policy on 
the current minority party, the Republican Party?
  We can look at what the majority leader said at the time. One of the 
things he said on November 21, 2013, the day on which the majority 
leader made this change:

       There has been unbelievable, unprecedented obstruction. For 
     the first time in the history of our Republic, Republicans 
     have routinely used the filibuster to prevent President Obama 
     from appointing his executive team or confirming judges.

  That is what Senator Reid has asserted as his justification for this 
unilateral, unprecedented deprivation of minority party rights. In 
fact, just this evening Senator Reid was back on the Senate floor, and 
he used the word ``obstructionism'' about a dozen times. So I think it 
is worth considering what has actually happened. What does the record 
show? Let's go back to March 2011 because that is an interesting moment 
in this discussion about how and whether and when and under what 
circumstances to confirm nominees.
  In March 2011, Republicans decided that, you know what, it probably 
would be a good idea for the President--President Obama at this time, 
obviously--to be able to get a very large number of nominees appointed 
and confirmed without even having to go through the Senate process. The 
legislation is called the Presidential Appointment Efficiency and 
Streamlining Act of 2011. Under this act, thousands of appointees from 
the executive branch were simply no longer subject to Senate 
  So what Republicans did in March 2011--far from obstructing 
anything--was to say: Mr. President, here is a huge category of Federal 
nominees, and we won't even require a vote. We won't even require 
Senate consideration. You get these, all of them. You nominate them, 
they are done, period.
  Does that sound like obstruction? Not to me. It was passed by a 
Republican-controlled House, supported by Republicans in the Senate, 
and signed into law.
  So today the law of the land, as a result of Republican cooperation, 
is that this President enjoys a luxury no previous President has had--
this huge category of nominees who are solely, exclusively at his 
discretion. It doesn't matter if a single Senator or every Senator 
strongly objects. It doesn't matter. It is totally irrelevant.
  So I think we ought to consider that legislation in the context of 
this discussion. But let's take a look at those nominees who remain 
subject to and who prior to this legislation have been subject to 
Senate confirmation.
  One category is Federal judges. We have many district courts around 
the country. So far, the President has nominated 174 candidates to 
Federal district courts around the country. Of the 174 the President 
has nominated, I wonder if you could guess how many have been 
confirmed. I will tell you how many have been confirmed--174. There 
have been 174 confirmed and zero rejected. At the circuit court level, 
prior to the recent episode, the President had nominated 41 candidates 
to the circuit court. Of the 41, 39 had been confirmed. So the total of 
judicial nominees President Obama has sent to us in the Senate is 217, 
and 215 have been confirmed and 2 have been objected to. By my math, 
that is something like 1 percent objected to, 99 percent confirmed. 
This doesn't strike me as unreasonable obstruction.
  But judges aren't the whole story. There are also the nonjudicial 
nominees, and we ought to consider those as well. So far, at least as 
of when we compiled this data, the President has nominated 1,488 
individuals to various Federal spots throughout the executive branch--
the agencies, his departments, and so on. Of the 1,488, 1,486 have been 
confirmed and 2 have been blocked by Republicans. That would include 
100 percent of the President's Cabinet

[[Page S8657]]

nominees and 100 percent of virtually every other category but not 
every last one. If we add those together, the total of the President's 
nominees, both judicial and nonjudicial, 1,707 confirmed, 4 rejected. 
So that works out to something like the Senate has confirmed with 
Republican support--because prior to the rule change, it couldn't 
happen without Republican support--the Senate has confirmed 99.9 
percent of President Obama's nominees to judgeships and to 
nonjudgeships. You have to ask yourself, could that possibly constitute 
outrageous obstruction, unprecedented obstruction, as Senator Reid has 
said, preventing President Obama from appointing his executive team or 
confirming judges? How can this possibly be?
  The majority leader came down to the Senate floor on the date on 
which he decided to unilaterally change the rules by breaking the rules 
and he cited as an example the outrageous case of Chuck Hagel, who had 
served in this body. Chuck Hagel. Whatever became of Chuck Hagel? Oh, 
that is right, he was confirmed to be Secretary of Defense, as has 
virtually every single other nominee the President has proposed.
  The leader seemed to think it was completely unreasonable that 
Republican Senators would demand some information from former-Senator 
Hagel along the way. It seems to me the fact that he is a former 
Senator should not change his obligation to provide the information the 
Senate requests, and when he provided that information, he was 
confirmed easily.
  So it seems pretty clear to me, it seems pretty indisputable that 
this really never was about obstructionism. A 99.9-percent confirmation 
rate? It just can't be about obstruction. It is clearly not.
  So we have to ask ourselves, if it is not the case that Republicans 
have been obstructing the President's team--and it is clearly not--then 
why did the majority in this body decide to unilaterally change the 
rules and deny the minority the opportunity to have any say whatsoever 
on the confirmation process? Fortunately, some of our colleagues on the 
other side have explained this for us. They have told us why they made 
this change. But let me put it in a little bit of context.
  We are in a situation here where we have a divided government. It is 
true that the American people elected President Obama to a second term, 
and elections have consequences. But on the very same day, the American 
people reelected Republicans to be the majority party in the House. And 
all elections have consequences, not just Presidential elections.
  So the reality is that the very liberal agenda President Obama would 
like to pursue is very difficult. He can't get most of the liberal 
things he wants to do, whether it is some kind of cap and trade or card 
check or his war on coal. This is well outside of the mainstream of 
where the American public is, and it is not where the consensus is in 
the House of Representatives. So his legislative agenda isn't going 
anywhere in the House. The administration understands that very well, 
the President understands that very well, and so do the members of the 
majority party here in the Senate.
  What do you do if you have an agenda that is out of step with the 
American people and can't pass in a duly-elected House of 
Representatives? Well, some people think the thing to do is do an end 
run around the legislative body, bypass the legislation, and use an 
undemocratic--I would argue unconstitutional--process and have 
unelected, unaccountable bureaucrats impose by fiat and through 
regulation that which you cannot achieve through legislation.
  Of course, that is completely inconsistent with our Constitution, 
with the way our Federal Government is intended to operate, and with 
the principle of the separation of powers. It would require pursuing an 
agenda that is out of step with the American people and without the 
consent of Congress, which, of course, is supposed to be a partner with 
any executive branch, with any President in pursuing any agenda.
  Of course, our Founders foresaw the danger of an Executive who would 
try this sort of thing and would do an end run around the legislature 
and try to use the enormous power at the disposal of the Executive, who 
has massive staff and huge agencies and all kinds of resources, and 
understood that it is quite possible that you could have an Executive 
who would try, for instance, selective enforcement of laws, maybe 
unilateral suspension of laws, as we have seen this administration do, 
writing rules and regulations that are inconsistent with the laws. 
These are all behaviors we could anticipate.
  Our Founders did. They did. They anticipated this could happen. So 
what they did is they built a system that would have some checks and 
balances, that would provide some limitations. Among the other ways 
they did it--there were many ways this was done, but one of them was 
the separation of powers and specifically the creation of a judiciary 
which would be a referee on whether, for instance, a given agency, a 
given regulator, was in fact complying with the laws or whether they 
had gone rogue, whether they had gone overboard, whether they were 
overreaching, whether they were pursuing some agenda for which they did 
not have authority.
  These courts play an absolutely vital and I would say completely 
indispensable role in giving individual Americans their last hope in 
seeking to preserve their liberty against an unfair, arbitrary, and 
even unconstitutional executive overreach. That is what the courts do.
  As it happens, there is one particular court that plays a 
disproportionate role in this process of adjudicating and officiating 
over Federal regulations. It just so happens that by virtue of its 
location, a big majority of cases in which an American citizen 
challenges a regulation because that citizen believes this is a 
regulation that is unfair, unconstitutional, illegal or otherwise not 
consistent with our laws--the venue where this ends up finally getting 
adjudicated is very often the DC Circuit Court of Appeals.
  This has become a bit of a problem for the administration and some of 
our friends in the Senate because the DC Circuit Court of Appeals has 
become a bit of an obstacle to some of the ambitions they would like to 
impose. One example, for instance, is last year the DC Circuit Court of 
Appeals struck down for the second time in 4 years the EPA's 
regulations on cross-State air pollution. This is a complicated story. 
We do not have to get into all the details but, bottom line, these are 
regulations that would among other things have a devastating impact on 
States such as Pennsylvania that have a big coal industry and that have 
a big utility industry that uses coal to fire generators. The court 
found that the EPA had gone beyond its legal authority. The statute 
clearly says what the EPA may do and may not do. They were going beyond 
what they are permitted to do and the DC Circuit Court of Appeals said 
  That is not the only case in which the DC Circuit Court of Appeals 
has ruled in ways that are problematic to some of our friends here. 
Another was a decision they made regarding recess appointments. You may 
remember this. A while back, the President made a very extraordinary 
decision. The President decided for the first time in the history of 
the Republic that it was up to him to determine when the Senate was in 
recess and when it was not; that was his unilateral decision to make. 
No other President ever took it upon himself to decide it was his power 
to determine when a different branch of government was in recess, but 
this President did. He said that is his decision. So I guess by his 
logic he could decide when we are out on lunch, that is a recess; out 
on the weekend, that is a recess; that is up to him by his standard. So 
he created an opportunity for himself to make appointments that he knew 
would not be confirmed in the Senate or were unlikely to be confirmed.
  There was bipartisan, in some cases, concern about some of these 
folks. He went ahead and made the appointments. The DC Circuit Court of 
Appeals said actually, no, the Constitution is pretty clear. You do not 
have that authority.
  These are just a couple of examples where a nonpartisan, completely 
competent, and very highly respected appellate court made decisions 
about Executive behavior. This has not sat so well with some of our 
  Why do I bring this all up? Because this is what this is truly all 
about. This

[[Page S8658]]

is not about Republican obstructionism. What this is about is our 
Democratic friends want to pursue a very liberal agenda. They cannot do 
it through legislation so they intend to do it through regulation. As 
they overreach and go beyond the legal authority, which they have 
already done and intend to continue to do, the victims, American 
citizens who are victims of this overreach, are going to challenge 
these rules and regulations in court. When they do, they are going to 
end up in the DC Circuit Court of Appeals.
  Some of our friends want to do whatever it takes to make sure they 
can win those decisions. Those are not just my words. The senior 
Senator from New York complained about the DC Circuit. He was on record 
claiming the DC Circuit ``overturned the EPA's ability to regulate 
existing coal plants.''
  OK. He further went on to say, ``The SEC cannot pass rulings unless 
they do what is called a cost-benefit analysis.'' That was another 
complaint the senior Senator from New York made about the DC Circuit.
  So he told a group of supporters that in order to reverse this, 
Democrats will ``fill up the DC Circuit one way or another.''
  I think this is about as clear as it could be. There are people who 
do not like the decisions coming out of the court and so their 
intention is to pack the court with people who share their political 
views and will therefore sustain decisions about the advancement of 
their liberal agenda.
  But it was not only the senior Senator from New York who made these 
comments. The majority leader himself explained this as well. Referring 
to the DC Circuit Court he said:

       They're the ones that said . . . the president can't have 
     recess appointments. . . . They've done a lot of bad things, 
     so we're focusing a very intently on the D.C. Circuit. We 
     need at least one more. There's three vacancies, we need at 
     least one more and that will switch the majority.

  Could there be a more direct, straightforward statement about what 
their real intent is? Their intent is to pack the court with partisan 
people who will give them the decisions they need so they can advance 
the agenda they want when it is blocked through the ordinary legal and 
constitutional legislative process. That is what is going on here. That 
is why we are here tonight. That is what is taking place.
  When Republicans decided that we do not think it is a good idea to 
manipulate courts this way, to populate them with partisans, to try 
court stacking for the purpose of advancing an agenda, that is when our 
Democratic friends decided to go nuclear. The pity of this is our 
Founders had enormous foresight. They were absolutely brilliant. They 
constructed an incredible document, a series of documents that have 
guided this Republic for centuries now. They anticipated a lot. I do 
not think they anticipated that the leader of the majority party in the 
Senate would just turn it over to the control of the executive branch 
and make this institution just a rubberstamp for what the President 
wants to do. But that is where we are.

  What is the practical consequence of all this? Why is it that this is 
such a terrible idea? Let me touch on a few of the reasons. There are a 
lot of reasons I think this is a disastrous policy, but let me touch on 
a few of them. One result of this is undoubtedly a further 
polarization, in fact a radicalization of the Federal Government.
  The second is that as a direct result of this unilateral decision and 
the ability now of our Democratic friends to simply steamroll nominees 
through without any consideration by the minority party, we will have 
to expect fluctuations, volatility in administrative and regulatory 
  Then last and probably most disturbingly, I think there is a real 
danger that a justice system that has been the envy of the world and is 
recognized for its impartial and nonpartisan integrity may very well be 
increasingly viewed as a partisan and biased one.
  Let me explain this a little bit, the idea that we have a more 
radicalized Federal Government. For 200 years, a President has always 
known that in order to nominate and to get confirmed one of his 
nominees he would need broad support in the Senate. It would not fly if 
he selected someone who was only appealing to a few or even a very 
small majority. So what does this do? That forces any President, 
whether it is a Republican or a Democrat, to nominate people who would 
have that broader bipartisan appeal. Frankly, Presidents of both 
parties are always under pressure from their respective bases to pick 
the most extreme people. That is what pleases the base of either party. 
It has always served the Republic well that a President can say I have 
to get that person confirmed through the Senate and if I pick the most 
extreme people that is going to be a problem. The fact that a President 
has needed that bipartisan support has essentially required that a 
President look for people who represent a broad consensus across 
  In this postnuclear Senate, that moderating influence is gone. There 
is no such influence anymore, and I think it is a safe bet that we can 
expect more extreme nominees. We have already seen some evidence of it. 
The Hill ran a story recently. It reported that now that the nuclear 
option has been detonated, far left interest groups are ``pressing 
President Obama to select left-wing nominees for key regulatory and 
judicial posts, nominees who could never have been confirmable 
before.'' That is no surprise. That is exactly the kind of consequence 
we should expect.
  The second consideration is stability in rules and regulations that 
are promulgated by the various regulators and agencies. I hear every 
day across Pennsylvania one of the grave concerns of business that is 
hampering our ability to have a stronger economy, to have the kind of 
growth we would like to have, is uncertainty about regulations.
  It is true and it is important. Guess what. It is likely to get worse 
because, first of all, this huge administrative, bureaucratic State 
that we have devolved into recently touches on virtually every aspect 
of our life and there are hundreds of agencies, boards, and commissions 
that the administration controls. What is likely to happen now is that 
if the White House and control of the Senate changes parties, we are 
likely to see big swings in the ideology and the partisanship of these 
folks because they were not consensus candidates in the first place, 
right. Given that now we have a situation where a majority party just 
steamrolls their way through whomever they want and has every incentive 
to go to the extremes, when they lose an election what are we going to 
have? We are going to have the exact opposite swing. So for businesses 
trying to make a decision about whether to invest in America to grow 
their company, to hire more workers, they are going to worry and 
wonder: What will the regulatory regime look like in just a few years, 
depending on how the election goes? It is much less predictability, 
less stability, and the direct result of that is going to be less 
investment and fewer jobs. This is not good news for our economy at 
  Finally, my concern is that for similar reasons we are going to see a 
diminishing of the judiciary, of the status of the judiciary among the 
American people, of the credibility, of the respect the American people 
have had.
  A moment ago I said I think one of the great strengths of the 
American Federal Government throughout our history has been, generally 
speaking, that--and there have been exceptions, and there will always 
be some exceptions--by and large at all levels the American people have 
had a pretty high respect for the judiciary. They respect the fact that 
our judges are capable and competent and tend not to be partisan hacks. 
They tend not to be polarizing political figures who are trying to 
advance an agenda. They have tended to be men and women of ability and 
integrity who were calling balls and strikes the way they see fit. They 
realize they are the umps and referees; they are not the players on the 
field. They are not there to advance an agenda; they are there to 
officiate based on the law and the Constitution. That has been the 
  The reason our judiciary has been so respected is because it is 
nonpartisan. It is independent of the other branches of government, and 
it has behaved that way. The American people have the confidence that 
they can go before a Federal judge and receive a fair and unbiased 
hearing whether the judge is a Democrat, Republican, liberal, or 
conservative. The fact is that most Americans don't worry and say: Wait 
a minute. Is that judge a Republican? It

[[Page S8659]]

doesn't occur to most people to ask that question, nor should it 
because it doesn't matter in most cases.
  This respect for the judiciary that the American people have is 
extremely important. In Federalist 78, Alexander Hamilton talked about 
the importance of this deep respect for the judiciary. He said:

       The judiciary is beyond comparison the weakest of the three 
     departments of power.

  Whereas the executive branch has the military and Congress has the 
power of the purse, the judiciary cannot enforce its own decisions. It 
relies on Americans' respect for it and willingness to enforce its 
rulings as essential.
  The fact is that the deep respect the American people have had for 
the judiciary has allowed our courts, including the Supreme Court of 
the United States, to issue decisions that have profoundly affected our 
lives, profoundly changed our society, and so many times so much for 
the better. A famous example would be Brown v. the Board of Education, 
which reversed the separate-but-equal doctrine. It ended the southern 
government laws that banned White and Black persons from associating 
with each other. This created a certain upheaval at the time, but it 
stuck, and part of the reason it stuck was because the public saw that 
this was a decision by a nonpartisan court that was acting as an 
arbiter of our Constitution. The respect the American people had for 
our courts was a big part of why a contentious decision quickly became 
accepted and became part of our fabric.
  Alexander Hamilton explained that the judiciary's integrity and 
independence are absolutely critical; otherwise, Americans' 
``confidence'' in the courts will be replaced by what he described as 
``universal distrust and distress.'' He said:

       The benefits of the integrity and moderation of the 
     judiciary . . . must have commanded the esteem and applause 
     of all the virtuous and disinterested.
       Considerate men of every description ought to prize 
     whatever will tend to beget or fortify that temper in the 
     courts: as no man can be sure that he may not be to-morrow 
     the victim of a spirit of injustice, by which he may be a 
     gainer to-day.
       The inevitable tendency of such a spirit is to sap the 
     foundations of public and private confidence, and to 
     introduce in its stead universal distrust and distress.

  When a President, with the cooperation of a legislature, rubberstamps 
judicial nominees for the purpose of ratifying a political agenda--when 
this happens, the American people's trust in the judiciary will be 
badly damaged, and we are at the threshold of that moment now. Of 
course, it also completely undermines our whole system of separation of 
powers. The fact is that when judges are seen as being at the beck and 
call of a legislature, a President, or a party, our individual liberty 
is simply not secure.
  Again, to quote Hamilton:

       The general liberty of the people can never be endangered 
     from [the courts] . . . so long as the judiciary remains 
     truly distinct from both the legislature and the Executive.

  He goes on to say:

       Liberty can have nothing to fear from the judiciary alone, 
     but would have everything to fear from its union with either 
     of the other departments.

  When you have one party ruling and completely controlling this 
process--and controlling it for the purpose of advancing a partisan 
agenda--that strikes me as exactly the danger Hamilton warned us of.
  So where does that leave us in this regard? I don't think we are 
doomed, but I do think it is very important that the American people 
rise and make their objection to this clearly heard. It is important 
that the American people contact their Members of Congress. They need 
to exercise their ultimate control of this process at the ballot box 
and urge the Senate majority to give up its plan to use the courts to 
achieve a legislative agenda that they cannot get through a duly-
elected Congress that represents the American people.
  By the way, there is another big incentive for our friends to want to 
pack this DC Circuit Court, and that is because the front-burner and 
most prominent policy and political issue of the day is largely going 
to be litigated right there very soon. The DC Circuit is going to hear 
a very important case that goes to heart of ObamaCare. The DC Circuit 
is hearing a case about how the IRS has chosen to implement some rules. 
The law is very clear. The law unambiguously states that the subsidies 
ObamaCare has designed for many people who buy health insurance through 
their exchange--those subsidies will only be available through the 
State exchanges.
  As the Presiding Officer knows, ObamaCare contemplates two different 
categories of exchanges through which people are forced to buy the 
mandated insurance. There are State exchanges, and in those States that 
don't operate an exchange, there are Federal exchanges. Well, the law 
says that the subsidies are available only for the people who purchase 
their health insurance through the State exchanges. What the 
administration is attempting to do is to completely disregard the law 
and make the subsidies available to people who buy through either the 
State exchange or the Federal exchange. That is not what the law says. 
I understand that this administration routinely disregards the law, but 
that is why we have an independent judiciary--to impose a check when 
they do this.

  There is a legal scholar by the name of Mike Garvin who is following 
this case closely. He has explained what is going on. He said:

       Congress knew that the federal government cannot require 
     the states to establish or operate Exchanges, so it offered 
     subsidized insurance premiums for residents of states with 
     State-operated exchanges to entice states to undertake this 
     responsibility. Instead, fully 33 states--from Texas to Ohio 
     to President Obama's and Vice President Biden's home states 
     of Illinois and Delaware--have said ``thanks, but no 
     thanks.'' Instead, these states have chosen to shield their 
     businesses and residents from the worst of the potential 
     ``train wreck.''

  That creates a bit of a problem for the administration because with 
so many States choosing not to participate in this disaster and having 
only a Federal exchange, if they actually comply with the law they 
signed, then there would be a lot of people who would not be eligible 
for the subsidy. If the DC Circuit Court of Appeals were to simply 
follow and impose the law, then that would create a huge problem, which 
strikes me as yet another incentive for why perhaps we have gone 
through what we have gone through over the last couple of weeks--
because it is so important for our friends on the other side to get the 
decisions they want out of this court.
  All of this brings me to what we really ought to be working on. By 
the way, all of these nominees who are before us and tying us up this 
week are all entirely at the choosing of the majority leader. None of 
these are essential, none of these are urgent, and none of these are 
emergencies. We could be passing legislation, such as our Defense 
authorization legislation. We have a budget deal that could be on the 
floor. We have a farm bill that is overdue. We have a lot of things we 
could be doing. We could be trying to deal with the enormous problems 
caused by ObamaCare, but we are not. We are dealing with nominees 
  I think we ought to focus on the problems that ObamaCare is causing, 
and I will admit that sometimes it is hard to know where to begin 
because these problems are so huge. I will start with the taxes 
ObamaCare has been imposing on us and continues to impose on us. It is 
a pretty extraordinary list. As best we could tabulate, there are 
something like 20 different taxes that were created as part of 
ObamaCare. There is over $1 trillion worth of taxes to burden this 
economy and diminish our opportunities to grow and invest and create 
the jobs we need at a time when our economy is weak and needs an 
opportunity to recover. Instead, we saddle it with all of these taxes.
  For instance, we have an excise tax on charitable hospitals.
  We have a tax in the form of the codification of the economic 
substance doctrine. It is a tax hike of $4.5 billion that allows the 
IRS to completely disallow legal tax deductions.
  We have the black liquor tax hike, which is a tax increase on a type 
of biofuel.
  We have a tax on innovator drug companies.
  We have a $2.3 billion annual tax on the industry. We have a Blue 
Cross Blue Shield tax hike, which is a special tax deduction in current 
law that would only be allowed if 85 percent or more of the premiums 
are spent on clinical services. That is a tax increase which went into 
effect in 2010.

[[Page S8660]]

  We have a tax on indoor tanning services.
  We have taxes that took effect in 2011. There is the medicine cabinet 
tax. Americans are no longer able to use health savings accounts or 
flexible savings accounts or health reimbursement pretax dollars to 
purchase nonprescription over-the-counter medicine. So the inability to 
use these taxpayer accounts for legitimate medical needs is a tax 
  We have the HSA withdrawal tax hike.
  Going into effect in 2012, we have the employer reporting of 
insurance on W-2.
  In 2013 we have a surtax on investment income. We have a whole new 
3.8-percent surtax on investment incomes, and this can only have the 
effect of diminishing investment in our economy. It diminishes the 
return on investment, diminishes the incentive to take a risk and start 
a new business, provide capital to a new business, grow a business, 
which is all due to ObamaCare.
  We have the hike in the Medicare payroll tax.
  One of the most egregious of them all--we have the tax on medical 
device manufacturers. This one is particularly egregious because it is 
so badly designed on top of being ill-conceived. This is a 2.3-percent 
tax on the sale of medical devices. Irrespective of whether a company 
has any income whatsoever or makes any money from this, we are imposing 
a tax on the sale of these products. The average medical device company 
has a profit margin of less than 5 percent. A 2.3-percent tax is about 
half of all their income that now goes to a new sales tax. By the way, 
they still have to pay income taxes, all the ordinary income taxes.

  This is absolutely devastating, because what these companies are then 
forced to do is, if virtually the entire bottom line goes for taxes, 
they don't have the money to reinvest in their business. The medical 
device industry is one of the best industries we have in this country. 
It is so dynamic. It is so creative.
  I wish my colleagues would come with me to parts of Pennsylvania 
where this industry is just thriving--or was thriving but not so much 
anymore. It was thriving because of the creativity, the innovation, the 
devices, and inventions that people are making, improving the quality 
of life and extending life. It is amazing, the marriage of technology 
and creative minds and experts in health care, what they are creating.
  But, unfortunately, for a lot of these products, it takes a long time 
before they are actually profitable for the company that sells them, 
long after they have begun sales. This tax imposes the burden before 
they have ever become profitable. What is the effect of that? It is 
that it makes this whole industry less appealing to invest in, less 
attractive to entrepreneurs, to investors. Whether it is venture 
capital or private equity or wherever the source might be, less is 
going to medical devices, an industry that is saving lives and 
improving the quality of lives. It is a big manufacturing industry. 
Most of these companies manufacture their products in the United States 
and many in Pennsylvania. We sell a lot of them overseas. We have a big 
trade surplus in medical devices because we lead the world.
  What does ObamaCare do? It slaps a new tax on the sales. It is a 
terrible policy.
  We have a high medical bills tax. Currently, those people who face 
high medical bills are allowed a deduction for medical expenses to the 
extent that those expenses exceed 7.5 percent of adjusted gross income. 
The new provision, which took effect just earlier this year, raises 
that threshold before a person can take that deduction. That is just a 
complicated, convoluted tax increase on people who have high medical 
  There is the flexible spending account cap. There is the elimination 
of the tax deduction for employer-provided retirement drug coverage in 
coordination with Medicare Part D. There is the individual mandate 
excise tax. There is the employer mandate tax. There is the tax on 
health insurers. There is an excise tax on comprehensive health 
insurance plans.
  There are 20 different taxes, the combined effect of which is, 
without a doubt, to significantly weaken our economy.
  But that is not the only way ObamaCare weakens our economy. The 
mandate ObamaCare imposes on employers kicks in on employers who have 
50 or more employees. I have spoken with a number of Pennsylvania 
employers who have 45 or 47 or 48 employees. They are not subject to 
the hugely expensive mandates of ObamaCare, and do my colleagues know 
what they tell me? They are not going to be subject to it. They will go 
to great lengths to avoid hiring the fiftieth employee. They will hire 
temps. They will pursue automation. They will do all kinds of things 
they wouldn't otherwise do because this government makes it too 
expensive for them to hire a fiftieth employee. At a time when our 
workforce participation rate is at a record low because so many people 
have given up even trying to find work, ObamaCare makes it too 
expensive for employers to hire new workers.
  It has a similar effect on hours worked, because this 50-employee 
count applies to anybody who works 30 hours or more, so one of the ways 
a business can avoid these crippling costs is to cut back on the number 
of hours for their workers. That doesn't work out so well for somebody 
who needs those hours to pay their bills to support their family. It is 
happening all across the country.
  Another aspect that is really outrageous is this mandate in ObamaCare 
that employers must--regardless of whether the employees want it or 
not--provide contraceptive and abortifacient coverage. One of the 
problems with this is that these services run completely contrary to 
deeply held religious views for a lot of people, faith-based 
institutions, and others. So the administration decided they will offer 
an accommodation for faith-based institutions. The accommodation they 
offer is pure sophistry. What they offered was to say you won't have 
to--you, the faith-based institution--you won't have to actually pay 
for those services which you find objectionable based on your faith. 
You won't have to pay for them, but you have to buy an insurance plan 
that has them and the insurance company will just have to give you that 
for free.
  This is the most ridiculous thing in the world. Private companies 
aren't in the business of offering their services for free. If there is 
an aspect of it that they supposedly have to give away, then they will 
pass on the costs for the services they provide. Nobody is fooled by 
this. This is yet another of the details of ObamaCare.
  But, really, some of the biggest problems I have saved for the end, 
and that is the series of broken promises that ObamaCare constitutes. 
One of the most glaring is this promise we have all heard. I don't know 
how many times we have heard it, but we all have. We heard the 
President and so many of our Democratic colleagues who support this 
bill say: If you like your health plan, you can keep your health plan. 
Let's be very clear. Everybody who supported this bill who is familiar 
with it--and that would certainly include the President of the United 
States and my friends here--they knew from the beginning that was not 
possible. They knew that because the legislation was designed to 
prevent many people from keeping their health insurance. It was written 
for that purpose, in part, because they had to. The whole point, or a 
big part of the point of ObamaCare was to establish standards that the 
government determined were appropriate, regardless of whether an 
individual American thinks that a given plan is adequate or not or 
suitable for herself or her family. It was up to the government to make 
this decision, not the individual, and they would establish criteria, 
and if your plan didn't meet the criteria, your plan was going to be 
canceled. That is in the legislation. That is codified. It always was. 
It is at the heart of this legislation.
  So for anybody to go around the country saying, If you like your 
health plan, you can keep your health plan, they were knowingly stating 
something that was completely untrue, was always untrue, and was 
necessarily untrue. The examples abound.
  I have emails from constituents. I have too many. I won't have a 
chance to run through them all this evening. I may have to come back on 
another occasion. But I will share a few with my

[[Page S8661]]

colleagues. This is from a small business owner from Lancaster County, 
PA. I got this just--I think I got this earlier today. I will just 
quote from this email from my constituent, addressed to me. It says:

       As my Congressional representative, you need to know how 
     ObamaCare is harming my life and health care.
       I work for a small construction company. My cost for family 
     health care was already over $11,000 per year. We received 
     notification that our policy was being canceled since it did 
     not comply with the requirements of the Affordable Care Act.
       Our company looked for the best rates they could find for 
     comparable coverage which did comply. They chose a new 
     insurance company. We just recently were given the costs for 
     next year. My costs to cover myself and my family will be 
     over $17,500, a 59-percent increase. Even with that, the 
     deductibles and out-of-pocket maximums are higher. This is 
     not ``Affordable Care''. This would eat up a major part of my 
       I attempted to log onto the healthcare.gov website several 
     times, but always get kicked out. I do not hold much hope 
     that I will get any better rates, because I don't qualify for 
     a credit.
       We were already struggling to live on my take home pay. We 
     cannot afford to have it reduced by over $6,500.00. We may 
     have to drop coverage for my wife or kids, and pay the 
       I suspect that this law will result in many more people 
     losing more health care, at the expense of a few getting free 
     or reduced cost healthcare.

  I got this just a week ago from a man from Cumberland County, PA. He 

       My wife Barb and I have been trying for almost three weeks 
     now to get signed up. . . . all income and health info and 
     private information is on the unsecured web site and the 
     application is accepted . . . but we have not been able to 
     get on to pick the plan or get our price . . . so nobody has 
     been paid. Thus our canceled insurance ends on Dec. 31st and 
     we look to be out.
       A BIG mistake by the folks who voted for this . . . I've 
     had cancer a couple times, my wife has had cancer and we both 
     see our doctors when needed. This ACA will ruin many families 
     if we can't get onto an insurance plan.

  A woman from Lebanon County, PA, sent me this email a week ago. She 

       We had our healthcare discontinued, and after an appeal we 
     were able to get it reinstated, but only for this year. 
     Currently we have a health care savings plan with a 
     deductible of $3,000 a year. . . . In the new plan, our 
     deductible would increase to $12,000 . . . and our premiums 
     would increase to $9,000 a year. How is a middle class 
     married family supposed to pay for that?
       This is absolutely ridiculous, and this is our situation. I 
     hope every government worker has to purchase their plan 
     through this plan.

  Here is another. A man from Delaware County in southeastern 

       I am 66 and I am on Medicare. My wife is 63. Her insurance 
     company canceled her ``longstanding'' policy due to the 
     requirements of the ACA. Her ``new'' policy costs $350 more 
     per month. We are on a strict budget. . . . We are the hard 
     working middle class. Who stands for us?

  There was another promise we frequently heard, and that promise we 
frequently heard was that if you like your doctor, you will be able to 
keep your doctor. This too was known to be impossible. Since the law 
was designed to discontinue health insurance plans and force people on 
to alternative plans, not all plans cover the same doctors. Certainly, 
some were going to lose their coverage. Let me give an example of an 
email I got from Westmoreland County just last week. She writes:

       I have been self-employed for 13 years and have never been 
     without health insurance. 3 years ago I was diagnosed with 
     multiple sclerosis. Having an expensive preexisting condition 
     was not a problem for me as I had never let my insurance 
     lapse. My medications cost (without insurance) $4,000+ per 
     month. I received notice several weeks ago that they would 
     now cancel my plan and would do so as of Jan 1, and I had to 
     sign up for new coverage through the health insurance 

  My staff reached out to this woman and tried to help and, after 
several attempts, she was able to access the exchange. Do my colleagues 
know what she learned? She learned that in her region there were two 
options available to her. One covers her doctors who have been treating 
her for her MS for years. The other covers her prescription drugs. 
Neither one covers both.
  These are the kinds of decisions people are being forced to make all 
over America. They are the kinds of decisions people are being forced 
to make every day. It is the direct result of the loss of personal 
freedom that this legislation imposes on people, and this is the topic 
that we ought to be addressing in this body so we can pursue the only 
solution, which is to repeal this bill and move health care in a 
completely different direction.
  I believe my time has expired, so I will yield the floor.
  The PRESIDING OFFICER. The Senator from New York.

          Fallen Firefighters Assistance Tax Clarification Act

  Mr. SCHUMER. Mr. President, I rise to speak about a particular 
incident that occurred in Webster, NY, a beautiful town near the City 
of Rochester.
  On Christmas Eve, 2012, nearly 1 year ago today, the 125-member West 
Webster Volunteer Firemen's Association--a volunteer fire department 
east of Rochester, NY--faced an unimaginable tragedy when four of their 
brave members were wounded, two fatally, when they responded to a fire 
but instead faced an ambush of unspeakable proportions.
  While many families across our Nation were waking up last Christmas 
Eve morning to finish preparing Christmas dinner, shopping, wrapping 
presents, picking up the family from the airport, four Webster families 
were instead confronting a heart-wrenching tragedy.
  The call of a house on fire came into the West Webster Fire 
Department at 5:30 a.m. on December 24, and although it was a cold 
snowy morning, still dark before the Sun rose, everyday heroes from the 
West Webster Fire Department courageously did what they volunteered to 
do on behalf of their neighbors and on behalf of their hometowns. They, 
similar to millions of brave volunteer firefighters throughout our 
country and throughout its history, left their homes and their families 
in safety to put out a fire that always creates danger.
  This routine call turned into a tragedy which shocked the community, 
people throughout the country, and even people throughout the world.
  Firefighter Joseph Hofstetter, a 14-year volunteer for West Webster 
Fire Department, arrived first on the scene. Firefighter Theodore 
Scardino arrived soon after with LT Mike Chiapperini in a pumper truck, 
followed by 19-year-old firefighter Tomasz Kaczowka driving the 
department's SUV.
  What they did not know was that the fire was intentionally set by the 
home's owner in order to lure these innocent firefighters into a 
senseless sniper ambush. The sniper was hiding behind a berm amid the 
chaos of the fire and began shooting at the responding firefighters.
  The firefighters were confused at first to hear popping sounds and 
thought it might be from the fire but LT Mike Chiapperini, who was also 
a Webster police officer, knew better and shouted to his fellow 
volunteers to take cover, but unfortunately it was too late.
  Firefighter Hofstetter was shot in the pelvis while trying to alert 
dispatchers on the radio to the situation.
  Ted Scardino was shot in the shoulder, and 5 minutes later he was 
shot again in the leg. The 16-year volunteer lay there while bleeding 
for over an hour, enduring the December cold while sustaining second-
degree burns on his head as the fire now spread to consume six other 
neighboring homes.
  Lieutenant Chiapperini and Firefighter Kaczowka both died in the 
  As news of this horrific, senseless Christmas Eve tragedy spread, 
well-meaning people from across the Rochester and Finger Lakes area, 
across New York State, across the Nation and the world reached out to 
the West Webster Volunteer Firemen's Association to offer support and 
  Thousands of incredibly generous people flooded the department with 
countless financial contributions to support the volunteer department, 
to support the four firefighters--and in the case of Lieutenant 
Chiapperini and Firefighter Kaczowka, to support the families they had 
left behind.
  Not realizing that collecting and distributing the funds to the 
families would jeopardize the association's tax-exempt status with the 
IRS, the association accepted donations from generous people all around 
the Nation wanting to help the four families who suffered the most on 
that day.
  They collected these donations for the victims, for their families, 
and they want to give these donations to

[[Page S8662]]

the victims and their families. It defies reason that they would be 
unable to do so now because of a technicality in the Tax Code.
  Just as we did after 9/11, and again after a similar fire department 
tragedy in California in 2006, it is our obligation to make sure the 
West Webster Volunteer Firemen's Association can now disburse to these 
families the contributions that their neighbors and unknown, countless, 
generous others wanted them to have.
  As it is, the disbursement of these funds has been delayed for months 
and now almost 1 year. That is why I am asking the Senate to proceed 
with consideration of the Fallen Firefighters Assistance Tax 
Clarification Act.
  This proposal merely clarifies--as we did after 9/11 and again after 
the California tragedy in 2006--that the West Webster Volunteer Fire 
Department will not lose its status as a nonprofit association by 
distributing the donations to these firefighters and their families.
  As we again enter the Christmas season and approach the 1-year 
anniversary of this tragedy, now is the time to make this right.
  We need to do it on behalf of the families of the fallen and the 
injured. The family of 43-year-old LT Mike Chiapperini includes his 
wife Kim, his 19-year-old son Nick, and his daughters, 4-year-old Kacie 
and 3-year-old Kylie.
  Known to many as Chip, Lieutenant Chiapperini was a West Webster Fire 
Department volunteer firefighter for 25 years. He was past chief of the 
West Webster Fire Department and adviser for its Fire Explorer Post. He 
also served with distinction for 19 years as a police officer with the 
Webster Police Department and rose through the ranks as a dispatcher, 
police officer, investigator, sergeant, and lieutenant. In short, he 
committed his entire life to public service for the town of Webster.
  Likewise, 19-year-old firefighter Tomasz Kaczowka left behind his 
parents Janina and Marian Kaczowka, along with his older twin brothers 
and a large extended family. Firefighter Kaczowka was selflessly 
devoted to his family and his community. In fact, he was not even 
supposed to be on duty that Christmas Eve but elected to make the shift 
so that older department members could be home with their families that 
  The surviving firefighters, Ted Scardino and Joseph Hofstetter, have 
had to endure long rehabilitations for their injuries and their 
families have had to deal with life's ordinary challenges and day-to-
day expenses as Ted and Joseph recover and move forward with their 
  The fact is, ordinary Americans, moved by the heroic sacrifice of 
these volunteer firefighters, have offered their generous support. They 
have intended their contributions to help these families in the wake of 
the tragedy and in recognition of the service of these brave 
  These were volunteer firefighters--volunteers. I know many of my 
colleagues on both sides of the aisle are well acquainted with the 
volunteer fire service. Many may even have a membership in a volunteer 
fire company themselves.
  You all know men and women just like the members of West Webster. 
They are the epitome of the American spirit.
  The French observer de Tocqueville was taken by that spirit when he 
visited America and the Rochester area in 1831 and thought voluntarism 
was one of the things that set America apart from the rest of the 
world. That was true then. It is still true today.
  These heroes do not ask for anything. They just want to protect their 
neighbors and their community. It is just plain wrong that they would 
lose their not-for-profit status simply for being a passthrough to 
convey donations to these families after an unspeakable tragedy.
  In that same spirit, I had hoped to request unanimous consent this 
evening to move forward with the consideration of this legislation. Who 
could object? Who could object? However, I understand that some of my 
colleagues on the other side of the aisle object to me making the 
request at this time. Therefore, I will withhold that request this 
evening and sincerely hope my colleagues will think about this 
overnight and allow us to proceed with consideration tomorrow. It is, 
indeed, the right thing to do.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I appreciate the comments of my colleague 
from New York. He has been a tireless champion for the terrific, 
dedicated, self-sacrificing firefighters of New York City.
  Tonight we are on the floor addressing the question of whether we 
should confirm Cornelia Pillard as a candidate for the DC Circuit 
Court. She is a law scholar with a long track record of public service. 
She served twice in the Justice Department and successfully defended 
the Family and Medical Leave Act, a crucial piece of legislation for 
working families. She now teaches law at Georgetown University, one of 
the top law schools in the Nation.
  The truth is, she is an extremely well-qualified nominee who will be 
an excellent addition to the DC Circuit Court. She has personally 
argued and briefed Supreme Court cases brought or defended by 
government lawyers from Republican administrations, and Republican-
appointed Justices have often authored majority opinions in her favor.
  She is currently the codirector of the Supreme Court Institute at 
Georgetown Law, where she personally assists lawyers preparing for the 
Supreme Court on a pro bono, first-come basis, without regard to which 
side they represent.
  In fact, Professor Pillard chaired the American Bar Association 
Reading Committee that reviewed Samuel Alito's writings during his 
nomination process for the Supreme Court. Her committee's assessment 
led the ABA to give Justice Alito their highest rating of ``well-
  Professor Pillard's unbiased approach to the law has won the respect 
of her colleagues in law and in government, including former Department 
of Justice officials in Republican administrations who have endorsed 
her nomination to the DC Circuit.
  In short, Professor Pillard is a fairminded, highly accomplished 
litigator, with an outstanding reputation for public service.
  Then why are we here now, after midnight, carrying on this debate? To 
get to the root of that question, we have to examine the dysfunction 
that is present in the Senate.
  Virtually all Americans know Congress is not working well. Virtually 
all Americans know the Senate is broken. I saw a poll that said 92 
percent of Americans believe Congress is dysfunctional, and I wondered: 
What is wrong with the other 8 percent? They must not be paying 
attention. Because what we have experienced in the Senate is a 
continuous campaign of obstruction and paralysis of the normal 
  There was a time when we had a Senate that had a core principle, 
which was up-or-down votes, with rare exception--up-or-down votes, with 
rare exception. That was the tradition of the Senate. That tradition 
was rooted in the courtesy--the courtesy--of hearing out every Senator 
who wished to share their opinion on a topic before the Senate would 
make a decision.
  Maybe that was something easier to do when there were only 26 Members 
of the Senate. We now have 100 Members of the Senate. So maybe it takes 
a while to hear the opinions of every Member, but still that courtesy 
has been honored through the years. But the counterpart to that is that 
folks knew in the end the Senate, with very rare exception, would get 
to a simple majority vote. The entire structure of our Constitution and 
the vision of our Founders was that this body would make decisions with 
a simple majority vote.
  Recall, if you will, that the Founders put into the Constitution 
special occasions for a supermajority. Those special occasions were 
things such as overriding a Presidential veto. Those special occasions 
were things such as reviewing a treaty. But they envisioned a simple 
majority vote for the legislature because they felt the majority 
decision most of the time would be a better direction to go than the 
minority opinion. That is the principle of democracy. The direction 
that most Senators believe is the correct direction is the basis for 
going forward.
  This principle has been completely lost in the last few years. A 

[[Page S8663]]

group of Senators decided they should replace the constitutional 
principle of a simple majority with a supermajority, that virtually 
every action would be subject to a requirement to have 60 votes to 
close debate rather than the constitutional 51.
  This has been applied in ways American citizens cannot even imagine. 
Let's take motions to proceed. A motion to proceed simply says it is 
time to take up this bill. Let's vote yes or no on taking up this bill. 
That is the motion to proceed.
  But in recent times the minority has said: You know what. We can use 
this motion to proceed as an opportunity to paralyze the Senate. We can 
object to having that simple majority vote, and then we can deny--there 
being this supermajority to close debate--even if we have nothing to 
say, and we can simply waste the Senate's time on debating whether to 
  I have argued for a long time that this abuse must end. It is time to 
get rid of the filibuster on this motion to proceed. But nonetheless we 
have it and my colleagues in this permanent campaign to paralyze the 
Senate have chosen to exercise this filibuster, if you will, this 
supermajority requirement, simply on a motion to debate an issue as 
opposed to actually being in debate.
  Let's take conference committees. It was extraordinarily rare for 
conference committees--the formation of them--to be subject to a 
supermajority in the history of the Senate. Conference committees were 
very common in the seventies and eighties. I was first here as an 
intern in 1976 with Senator Hatfield, here on Capitol Hill working for 
Congress in the 1980s.
  If one Chamber of Congress and the other Chamber had both passed a 
bill, well then automatically you had a conference committee meet and 
resolve the differences. That is just common sense. Why would you delay 
that for a second? But when I came to the Senate in 2009 as a Senator, 
I was mystified to discover that conference committees were not being 
held. So I inquired why that was. The answer was that the minority had 
decided to use the filibuster, the supermajority, on establishing a 
conference committee; in other words, block the House and Senate from 
even talking to each other to resolve differences between two houses.
  That drove the debate out of the public realm, in a public room with 
a TV camera, into private discussions as negotiators tried to resolve 
and develop a common version of the bill. There too I proposed that we 
need to get rid of this filibuster on conference committees. It is 
disrespectful of the most valuable commodity of this body; that is, 
time; that is, time is wasted on filibusters on whether to start a 
discussion with the House when both the House and Senate have passed a 
version of the bill.
  Then, of course, we have the ongoing campaign of subjecting virtually 
every nomination to a supermajority. In fact, in the history of 
America, in the entire history, before President Obama, only three 
times was there a filibuster of a district court nominee. But in the 
time President Obama has been in office, we have had 20 filibusters of 
district court nominees. Only 3 in our history until President Obama is 
President and then 20 filibusters when he became President until now--
20 out of 23.
  That is just a pure deliberate campaign of paralysis and obstruction, 
undermining the contribution of this body, its responsibility as a 
legislative body. It is not only judicial nominees, it is executive 
nominees as well. In our entire history as a nation, 168 nominations 
have been filibustered--168 in our entire history--82 of them have been 
nominations by President Obama; 82 nominees just in the 5 years 
President Obama has been in office out of the 168 in our entire 
history. So we see, whether we are looking at motions to proceed or 
conference committees or judicial nominees or executive nominees, a 
campaign of deliberate paralysis and obstruction rather than a 
dedication to serving our Nation as the Constitution requires.
  Indeed, some have justified this ongoing paralysis. Some of my 
colleagues have said: But remember, President Washington said the 
Senate should be a cooling saucer. That concept is that you have a cup 
of hot tea, and it is too hot to drink, you pour it into a saucer, it 
cools and then it is just right.
  President Washington would never recognize this strategy of 
obstruction and paralysis as legitimate under the U.S. Constitution. 
Indeed, there were elements designed to make this body deliberative. 
But there is a difference between deliberation and the destruction of 
the legislative process. There is a difference between a cooling 
saucer, thoughtful deliberation, and a deep freeze.
  But certain Members of this body have decided they did not come here 
to fulfill the constitutional vision of the Senate as a deliberative 
body, they instead have come to paralyze the function of this body, to 
obstruct this body.
  So there we see it in the filibuster of the conference committees, in 
the filibuster of the motions to proceed, in the filibuster of the 
executive branch nominees, filibuster of the judicial nominees, and, of 
course, the filibuster of legislation that has reached extraordinary 
levels never seen in the history of our Nation.
  Just a little while ago one of my colleagues chose to quote Alexander 
Hamilton in defense of this strategy of paralysis. I would encourage my 
colleague to actually read more of Alexander Hamilton because he 
actually directly addressed this question of filibusters and the 
potential to obstruct the will of the majority.
  What did Alexander Hamilton say? He said: The real operation of the 
filibuster ``is to embarrass the administration, to destroy the energy 
of government, and to substitute the pleasure, caprice or artifices of 
a significant, insignificant, turbulent or corrupt junta, to the 
regular deliberations and decisions of a respectable majority.
  He went on to say: When the majority must conform to the views of the 
minority, the consequence is ``tedious delays, continual negotiation 
and intrigue, contemptible compromises of the public good.''
  That is a pretty good description of what Americans see happening in 
this Chamber as a result of the deliberate campaign of paralysis and 
obstruction: tedious delays, continual intrigue, contemptible 
compromises of the public good.
  Many in this Chamber have tried to reason and convey to Members that 
we should return to the tradition of the Senate, up-or-down votes with 
rare exception. In 2005 it was the Democrats in the minority and it was 
the Republicans who were in the majority. At that time the Democrats 
decided to filibuster a series of judicial nominees. So this was 
certainly a tactic employed by both Democrats and Republicans.
  Our Republican friends who were in the majority said: That is not 
acceptable. They said: That is not consistent with the philosophy of 
up-or-down votes with rare exception. They said that is not consistent 
with the power vested in the Constitution and the President to be able 
to place forward his nominees for consideration under the advice and 
consent clause of the Constitution.
  Our Republican colleagues were persuasive. The Democrats in the 
minority agreed not to filibuster judges except under rare exceptions, 
exceptions of extraordinary flaws of character and experience. Then the 
clock turned. We came to 2009. Now we have a Democratic President and 
Democratic majority. The deal that was cut in 2005, agreed to by both 
sides, that there would be only rare filibusters based on exceptional 
flaws of character or experience disappeared. It disappeared 
completely. The new minority did not honor the deal that had been 
negotiated in 2005.
  So come January 2011, there was a debate on this floor about trying 
to again restore the traditional understanding, up-or-down votes with 
rare exception. There was a deal made. It did not last but a few weeks. 
Then there was another attempt in January 2013. On this occasion, there 
was a promise made on the floor of the Senate. The minority leader came 
to the floor and said: The Republicans will return to the norms and 
traditions of the Senate regarding nominations.
  What are those norms and traditions? Those norms and traditions are a 
simple majority vote with rare exception. Within weeks, that promise 
was completely shattered. The first ever filibuster in U.S. history of 
a Defense nominee, ironically a former colleague from the Republican 
side of the aisle.
  Then we had 43 Senators write a letter and say they would not allow 
anyone to be confirmed for the position as

[[Page S8664]]

Director of the Consumer Federal Protection Bureau, certainly 
inconsistent with up-or-down votes with rare exception for issues of 
  Then there was another big effort in July of 2013, just earlier this 
year. We all got together in the Old Senate Chamber and we shared our 
frustrations and our views. Again, the promise was put forward: We will 
stop filibustering except under rare circumstances related to character 
or qualifications.
  Well, that was terrific.
  We had confirmation of the person who was awaiting to be Director of 
the Environmental Protection Agency, Gina McCarthy. We had confirmation 
of the person who had been waiting for a very long time as the nominee 
of the Labor Department, Tom Perez. We had the confirmation of the 
folks who had been waiting to be confirmed to the National Labor 
Relations Board. In fact, I think that was the first time we had all 
five members Senate confirmed in 10 years.
  We had the Director of the Consumer Financial Protection Bureau, 
Richard Cordray was finally confirmed. Shortly thereafter, we had 
Samantha Powers confirmed to the United Nations, and so forth. The norm 
was restored but only for a couple of weeks.
  Then came the nomination of Mel Watt to head the Federal Housing 
Finance Agency. Suddenly the commitment for up-or-down votes 
disappeared. Then we had a whole new strategy on the judiciary. This 
strategy had never been experienced in U.S. history. It was: No matter 
whom President Obama nominates for the DC Circuit Court, we are going 
to block that nominee because we only want to leave in place the 
nominees that were put in place by President Bush.
  That is in direct contravention of the vision of the Constitution 
where each President as elected has the power to nominate. This Chamber 
is a check. It gets to vote up or down and decide whether they should 
be in office. But this was a deliberate strategy to pack the Court, to 
say that when a President of my party is in power, there will be up-or-
down votes, as was insisted in 2005 when the tables were turned, but 
when the President is of the other party, we are going to have a 
perpetual campaign and we are going to block up-or-down votes.
  Let's picture down the road and the new President is a Republican 
President. Is there truly any Member here who would say, from the 
Republican side, that when the Republican President is in place, they 
were still going to believe they should not fill vacancies on key 
courts around this country?
  It is too bad this campaign of paralysis has been allowed to go on so 
long. We should have acted long before to fulfil our responsibility to 
have a deliberative body because that is what legislation is. It is 
doing enormous damage to the United States of America. First, because 
of the paralysis, we are not doing the work we should be on 
legislation. We are not addressing the big issues facing America. There 
are all kinds of job creation bills that have not been able to get to 
this floor because they have not been able to get through the gauntlet 
of paralyzing filibusters that have been laid down.
  Americans actually want to work. Americans want to have living-wage 
jobs. They expect us to act, to make that happen, not to paralyze this 
institution so it is unable to do so. Indeed, in addition, we are 
damaging the view of the United States around the world because it used 
to be the world looked to the United States and said: Look how well 
their Congress works. They had this Great Depression. They took on and 
fixed all kinds of flaws in their financial system. They established 
insurance for bank accounts so there would not be runs on the banks. 
They replaced a flawed mortgage strategy, which involved callable 
balloon mortgages, with noncallable fully amortizing mortgages so we 
did not create a series of dominoes.
  They took and created organizations, the Securities and Exchange 
Commission, to oversee stock markets so folks could have faith, invest 
in stocks, and put their capital in knowing there was a very good 
chance that capital would be well utilized because there were 
accounting standards and qualifications that block predatory practices 
on Wall Street.
  The world saw the U.S. respond to World War II and convert our 
economy through enormous amounts of legislation in a single year to 
apply it to the war effort and take on the big challenge of defeating 
the Nazis.
  Then the world saw America use its legislative power to build the 
largest middle class the world has ever seen. Those living wage jobs, 
every one of them means a foundation for a family. If we want to talk 
family values, then fight to have this body, this Senate, work on 
legislation that creates living-wage jobs. Quit paralyzing the Senate.
  Then we have, of course, the fact of this new strategy in these 
recent months, a deliberate attack on the balance of powers. The 
Constitution envisioned three branches in balance. It has no hint of 
any kind that a minority of one branch should be able to undermine the 
operation of the other two branches. Some colleagues have seized upon a 
strategy of trying to undermine the integrity of our judiciary. Some 
colleagues have seized on a strategy of trying to undermine the 
capability of the elected executive branch, the President and his 
executive branch.
  Read your history--balance of powers, not the ability of the minority 
or one branch to undermine the success of the other two branches. We 
need these three branches each doing their assigned roles.
  We are at this point after this long set of strategies of paralysis, 
on motions to proceed, on legislation, on conference committees, on 
executive branch nominees, on judicial nominees. We have taken the 
first step toward restoring the function of the Senate, and we have 
said we should return to the notion of up-and-down votes as envisioned 
under advise and consent. This is as envisioned by Alexander Hamilton 
and the other Founders who railed against the notion that a minority 
would be able to block the will of a majority in the Chamber.
  We have done that with nominations. In a continuation of a strategy 
of paralysis, we are here tonight rather than having voted much earlier 
in the day. Instead of working on legislation that would create jobs, 
we are standing here through a series of nominations as the minority 
insists on wasting the valuable commodity of time in this Chamber.
  I hope my colleagues who are intent upon creating this huge imbalance 
between the branches will reconsider, that they will decide they want 
to see this Chamber become what it was when I was first here in the 
1970s and when I worked for Congress in the 1980s, a great deliberative 
body. What it was when we took on the Great Depression, what it was 
when we took on World War II, what it was when we built the great 
middle class, this is what the United States wants to see. May we make 
it so.
  Thank you, Mr. President.
  Mr. LEAHY. Mr. President, tonight we will vote on the nomination of 
Nina Pillard to the U.S. Court of Appeals for the DC Circuit. On 
Tuesday, we were finally able to invoke cloture on her nomination, 
after it had been unjustifiably filibustered by Senate Republicans for 
nearly 3 months after being favorably voted out of the Senate Judiciary 
Committee. The DC Circuit is often considered to be the second most 
important court in the Nation and should be operating at full strength. 
We are finally taking another step towards making this Court operate at 
full strength for the American people.
  Nina Pillard is an accomplished litigator whose work includes 9 
Supreme Court oral arguments, and briefs in more than 25 Supreme Court 
cases. She drafted the Federal Government's brief in United States v. 
Virginia, which after a 7 to 1 decision by the Supreme Court made 
history by opening the Virginia Military Institute's doors to female 
students and expanded educational opportunity for women across the 
country. Since then, hundreds of women have had the opportunity to 
attend VMI and go on to serve our country.
  She has not only stood up for equal opportunities for women, but for 
men as well. In Nevada v. Hibbs, Ms. Pillard successfully represented a 
male employee of the State of Nevada who was fired when he tried to 
take unpaid leave under the Family Medical Leave Act to care for his 
sick wife. In a 6 to 3 opinion authored by then-Chief Justice William 
Rehnquist, the Supreme Court ruled for her client, recognizing

[[Page S8665]]

that the law protects both men and women in their caregiving roles 
within the family.
  She has also worked at the Department of Justice as the Deputy 
Assistant Attorney General in the Office of Legal Counsel, an office 
that advises on the most complex constitutional issues facing the 
executive branch. And prior to that, Ms. Pillard litigated numerous 
civil rights cases as an assistant counsel at the NAACP Legal Defense & 
Educational Fund. At Georgetown Law, Ms. Pillard teaches advanced 
courses on constitutional law and civil procedure, and co-directs the 
law school's Supreme Court Institute. She has earned the American Bar 
Association's highest possible ranking--Unanimously Well Qualified--to 
serve as a Federal appellate judge on the DC Circuit.
  Today, however, I have heard some unfortunate and unfair attacks on 
this fine woman. I have heard comments that she would be ``the most 
left wing judge'' in U.S. history; that she has extreme views on 
abortion and religious liberty; and that she would ``rubber stamp'' the 
most radical legislative and regulatory proposals. One might expect 
these outrageous accusations to come from right wing fringe groups, but 
to hear some of these outlandish accusations on the Senate floor is 
  So let me clear the record. Nina Pillard is one of the finest 
nominees we have had before this body. On the issue of abortion, 
Republicans have cherry picked quotes and taken them out of context to 
try to paint her as someone she is not. The truth is that taken as a 
whole, her writings have focused on bridging the gap between pro-life 
and pro-choice advocates by ``finding common ground for ways to reduce 
reliance on abortion.''
  More importantly, I cannot ignore the double standard of certain 
Senators on the issue of abortion. In 2002, the Senate unanimously 
confirmed President Bush's nomination of Michael McConnell to the Tenth 
Circuit by voice vote. Professor McConnell argued that Roe v. Wade was 
wrongly decided and urged the Supreme Court to overturn it. He 
applauded a Federal judge for refusing to convict anti-abortion 
protestors, even though they had clearly violated the law, because of 
his sympathetic reading of the defendants' motives.
  Similarly, in 2002, the Senate confirmed William Pryor to the 
Eleventh Circuit, even though he called Roe v. Wade the ``worst 
abomination in the history of constitutional law.'' Another President 
Bush nominee, J. Leon Holmes, was confirmed to the Federal district 
court in Arkansas, even though he had argued that abortion should be 
banned even in case of rape because pregnancy from rape is as uncommon 
as ``snowfall in Miami.'' He had also written that wives should be 
submissive to their husbands. He was not filibustered. He was 
  Each of these judicial nominees stated under oath in testimony before 
the Senate Judiciary Committee that they could set aside their personal 
beliefs and would interpret the law consistent with the Constitution 
and Supreme Court precedent. They were confirmed. Nina Pillard 
testified under the same oath that, ``A judge's opinions and views 
should have no role in interpreting the Constitution.'' Are we to 
believe that only judicial nominees who do not support a woman's access 
to abortion services are able to set aside their personal views to be 
fair and impartial judges? I cannot help but notice the glaring double 
standard that is imposed on Nina Pillard.
  On the issue of religious liberty, Senate Republicans continue to 
misrepresent comments Ms. Pillard made about the possible outcome of a 
Supreme Court case to suggest she is hostile to religious freedom. In a 
2011 briefing to educate the press on legal issues in Hosanna Tabor v. 
EEOC, she described the issue in the case, identified what was 
difficult about it, and offered a prediction of how the Court might 
resolve it. Her prediction turned out to be wrong.
  If Senators, who have also sworn to uphold the Constitution, were 
held accountable every time they incorrectly predicted the outcome of a 
Supreme Court case, I am not sure how many of us would be left. 
Ultimately, she has testified that if confirmed she would uphold the 
Supreme Court's precedent on the issue.
  The suggestion that Ms. Pillard will be ``the most left-wing judge in 
the history'' is simply outlandish hyperbole, as demonstrated by the 
bipartisan support she has received. Viet Dinh, the former Assistant 
Attorney General for the Office of Legal Policy under President George 
W. Bush, wrote in a letter of support for her nomination that ``Based 
on our long and varied professional experience together, I know that 
Professor Pillard is exceptionally bright, a patient and unbiased 
listener, and a lawyer of great judgment and unquestioned integrity. . 
. Nina has always been fair, reasonable, and sensible in her judgments. 
. . She is a fair-minded thinker with enormous respect for the law and 
for the limited, and essential, role of the federal appellate judge--
qualities that make her well prepared to take on the work of a D.C. 
Federal Judge.''
  Former FBI Director and Chief Judge of the Western District of Texas 
William Sessions has written that her ``rare combination of experience, 
both defending and advising government officials, and representing 
individuals seeking to vindicate their rights, would be especially 
valuable in informing her responsibilities as a judge.''
  Nina Pillard has also received letters of support from 30 former 
members of the U.S. Armed Forces, including 8 retired generals; 25 
former Federal prosecutors and other law enforcement officials; 40 
Supreme Court practitioners, including Laurence Tribe and Carter 
Phillips, among many others.
  Despite having filled nearly half of law school classrooms for the 
last 20 years, women are grossly underrepresented on our Federal 
courts. We need women on the Federal bench. A vote to end this 
filibuster is a vote to break yet another barrier and move in the 
historic direction of having our Federal appellate courts more 
accurately reflect the gender balance of the country.
  I commend President Obama on his nominations of highly qualified 
women like Nina Pillard, Patricia Millett, Elena Kagan and Sonia 
Sotomayor. In each of these women, the Senate has had the opportunity 
to vote to confirm women practicing at the pinnacle of the legal 
profession. Once the Senate confirmed Justice Kagan, the highest court 
in the land had more women than ever before serving on its bench. With 
the confirmation and appointment of Nina Pillard, the same will be true 
for what many consider to be the second highest court in the land, the 
DC Circuit because she will be the fifth active female judge on the 
court. Never before have five women jurists actively served on that 
court at one time. I look forward to that moment and to further 
increasing the diversity of our Federal bench.
  I urge my colleagues to vote to confirm this outstanding nominee. 
This Nation would be better off for Nina Pillard serving as a judge on 
the DC Circuit.
  Today, the Senate will also vote on the nominations of Elizabeth A. 
Wolford, of New York, to be U.S. District Judge for the Western 
District of New York; Landya B. McCafferty, of New Hampshire, to be 
U.S. District Judge for the District of New Hampshire; Brian Morris, of 
Montana, to be U.S. District Judge for the District of Montana; and 
Susan P. Watters, of Montana, to be U.S. District Judge for the 
District of Montana.
  Senate Republicans have continued to abuse the filibuster and 
required cloture to confirm all four of these noncontroversial district 
court nominees. All four of these nominees were reported unanimously by 
voice vote from the Senate Judiciary Committee. They all have the 
support of their home State senators. With the filibuster of these four 
district court nominees, Senate Republicans have now filibustered 24 of 
President Obama's district court nominees. Not a single district court 
nominee was filibustered under President Bush's 8 years in office. I 
hope Senate Republicans come around so that we can work together to 
meet the needs of our Federal judiciary so that the American people can 
have the justice system they deserve.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. SCOTT. To change the rules our friends on the left had to break 
the rules. We are here tonight because the Obama administration and our 
friends on the left needed a distraction by invoking the nuclear option 
leading up to the vote on Nina Pillard of the DC Circuit. They are 
attempting to quiet a disaster of their own making.

[[Page S8666]]

  Please note that this is a court that will hear the ACA disputes. It 
was easy enough for them to paint a rosy picture of life after 
ObamaCare. For 3 years they did it, and they did their best to do so, 
but words could only go so far and no speech will help the failed 
implementation of the monster they have created.
  Health care premiums for the average American family have already 
gone up by $2,500 since ObamaCare has become law. I wish to say that 
one more time. The average premium that an American family will have to 
face and then pay is $2,500.
  As costs continue to rise for middle-class Americans, the median 
household income has dropped by more than $3,600 under President Obama. 
If we take $2,500 and add in the drop of income of $3,600, the 
difference for the average American household under President Obama's 
watch is significant. That doesn't even take into consideration the 
skyrocketing costs and the increasing deductibles under ObamaCare.
  According to the Wall Street Journal, the average individual 
deductible for what is called a Bronze plan on the exchange, the 
lowest-priced coverage is a $5,000 average deductible. This is 42 
percent higher than the average deductible today of $3,589 one would 
currently purchase in 2013.
  Tell me how this helps those in need. How does this help the most 
vulnerable in our society? The answer is simple. It doesn't.
  We are here because Democrats need a break from having this pointed 
out to them again and again as newspapers, magazines, and TV stations 
have been doing for the last several weeks.
  In South Carolina we have about 4.7 million people and 600,000 or 
700,000 folks do not have health insurance coverage. Think about that. 
There are 4.7 million South Carolinians, of which about 700,000 today 
do not have health insurance.
  Under ObamaCare, we would hope that the number would go down, not up, 
that it would go down from 700,000 to 600,000 or 500,000 or 400,000. 
Over 430,000 of the 700,000 people are eligible for ObamaCare. The 
number is not going down. The number is going up because 150,000 South 
Carolinians have received cancellation notices.
  Let us frame that a little bit. We have 700,000 uninsured, of which 
430,000 are eligible for ObamaCare. Instead of seeing the number of 
uninsured go from 700,000 down to 600,000 or 500,000 or 400,000, we 
have seen the number go up because 150,000 people have received 
cancellation notices--150,000 South Carolinians have received 
cancellation notices.
  Someone would obviously ask the question: How many folks have signed 
up for ObamaCare in South Carolina?
  If 430,000 South Carolinians are eligible to sign up, we ought to 
answer the question of how many have signed up.
  As of late November, only 600 South Carolinians have successfully 
signed up for ObamaCare. This means that under the implementation 
process of what some consider the solution to America's woes on health 
insurance, only 600 South Carolinians have been able to successfully 
sign up for ObamaCare, even though 430,000 are eligible and 700,00 do 
not have insurance. Only 600 of them have been able to sign up for 
  When we think about those numbers, it reminds me of the challenges we 
face with going through the process of seeing the DC Circuit Court 
stacked to hear the disputes.
  Part of the challenge we see is that ObamaCare hasn't worked, so 
stacking the court seems that it is the most likely option for our 
friends on the left.
  When we started out having these conversations about ObamaCare, we 
started a conversation about those who are uninsured. I think every 
American in our country wants to see greater access to health 
  The vast majority of Americans do not want to see the government take 
it over, and now we understand why. In 2009--not 1999, but 2009--we had 
estimated for the unaffordable care act around $900 billion. In 2011 
they came back and said: Wait, wait, I need to take another look at 
  The estimate came back at $1.8 trillion. In 2009, it was $900 billion 
and in 2011 the number had already increased to $1.8 trillion or a 100-
percent increase in the estimated cost of the Affordable Care Act.
  Only 2 more years later we could see that the number could perhaps 
eclipse $3 trillion. All we are talking about is the up-front pricetag, 
the price of ObamaCare on the front. We haven't delved into the actual 
cost of ObamaCare because those estimates say that on the back end of 
the Affordable Care Act we are going to see a $7 trillion increase or 
addition to our debt.
  We started in 2009 with $900 billion; in 2011, $1.8 trillion; in 
2013, perhaps over $3 trillion, adding $7 trillion to the deficit. That 
is not the whole picture.
  Families in South Carolina still have to struggle with finding access 
to affordable health care, and ObamaCare is not simply providing the 
access. We see families such as the Hucks, the everyday American 
family. Mr. Hucks loves his family. He is in Greenville, SC. He loves 
his family. He spends 12 to 14 hours a day working as a financial 
adviser in South Carolina.
  Mr. Hucks, unfortunately, faces the challenge of buying health 
insurance through ObamaCare. As he went through the process of trying 
to figure out what would happen--certainly he liked his coverage, but, 
of course, he can't keep it, period. He can't keep it. He cannot keep 
his coverage.
  As I was talking to Jason Hucks in Greenville 2 weeks ago, Jason 
currently has a Blue Cross Blue Shield high-deductible plan. Remember 
the word ``deductible'' because we will come back and have a 
conversation about deductibles. He has a high-deductible plan that 
covers him, his wife, and their two cute little boys.
  Instead of having a conversation between Mr. and Mrs. Hucks about 
planning for the college education of those two fine young men, they 
are having instead a conversation about whether they can afford the 
health care coverage.
  What has happened? Let us take a look. Their current plan was a 
$10,000 deductible that cost them over $415 a month.
  To stay on the Blue Cross Blue Shield plan under ObamaCare, Mr. Hucks 
and his family would have to pay nearly $1,000 a month--$895--almost 
$1,000 a month, more than doubling the premium. They will see their 
deductible increase by 150 percent.
  A deductible that was $10,000 is pretty high, significantly high. It 
will go to $25,000 for this young family of four. That doesn't seem 
right to me; it doesn't seem fair.
  We believe in fairness. For those who are most vulnerable, having 
access to $25,000 before their health insurance company is able to 
start paying is quite a high price to pay. Digging into your savings 
account for $25,000--because ObamaCare takes their $10,000 deductible, 
and not the $15,000, not the $20,000, but the $25,000--is simply not 
fair. This is not how we treat the most vulnerable in our society, by 
seeing their deductible go up by 150 percent. I simply don't 
understand. It is just wrong. It is not right.

  Even if they were willing to switch companies, he would still see his 
rates rise almost 75 percent and his deductible would still rise from 
$10,000 to $12,000. No wonder they are trying to stack the DC courts. 
We see here a young family not planning for a 529 plan, not planning to 
send their kids to Clinton University or the University of South 
Carolina, but instead they are planning on tightening their belts 
because they have to have a budget that plans for not a $10,000 
deductible but a $12,000 deductible, with a 20-percent increase in the 
deductible and a 75-percent increase in the cost. This is the effect of 
the Affordable Care Act. It becomes unaffordable for the average 
American family.
  As for a plan with copays, Mr. Hucks says flatly that he can't afford 
to have a conversation about copays because a plan with a copay would 
skyrocket his premiums from $415 or so to as high as $1,200 or $1,500 a 
month. So instead of being able to go see a doctor and have a 
conversation and pay a 20-percent copay, instead of having the 
opportunity to do what many of us have been doing for the last decade-
plus--pay a $15 or $20 or $25 or $30 copay when you go see your 
doctor--he has to first satisfy a deductible of not $15,000 but now a 
$25,000 deductible. This is higher than $15,000. This is wrong. It is 
not right.
  Mr. Hucks' family is an example of how it is not just premiums that 

[[Page S8667]]

rising but deductibles are going through the roof. This is painful for 
a family who should be planning for college but instead is planning to 
spend more money on their health care because the Affordable Care Act 
is so unaffordable.
  The New York Times recently quoted someone faced with this problem as 
saying the deductibles were so high--$4,000 to $6,000 a year--that it 
very much defeats the purpose of having insurance. I wonder why we say 
that. Well, think about it for a minute or two. Think about a family 
who has a $4,000 deductible. What does that mean to the average family, 
where Americans are spending over 100 percent of their income? What 
that means to the average family is they have to figure out how to pay 
$4,000 for visiting their doctors, getting their x rays, and having 
everything done at the doctor's office, getting their blood work done, 
before they can satisfy that $4,000 deductible and their health 
insurance plan starts paying. Under ObamaCare, one would think that 
number would go down, but it doesn't. It goes up. As a matter of fact, 
it goes up quickly in the first year of ObamaCare. It goes from an 
average out-of-pocket expense of $63.50 to over $12,000--not $4,000, 
not $5,000, not $6,000 but over $12,000 in out-of-pocket expenses.
  So I am looking forward to the day we have a serious conversation 
about a free market solution that would reduce the cost of health 
insurance and at the exact same time create greater access for the 
average person in America to afford a free market health insurance 
policy. That is where we need to go. That is where the conversation 
should be. Instead of having that conversation, we are having a 
conversation about deductibles jumping $5,000, out-of-pocket expenses 
going up significantly. And I should have said that when you combine 
the out-of-pocket expenses and the deductibles, the out-of-pocket total 
for a year is the $12,000. The average deductible is a little over 
  We are talking about a significant taking from the average American 
family--taking their money out of their pockets in the form of 
deductibles, taking money out of their pockets in the form of copays. 
And God forbid they actually go outside of the network. In many of 
these plans, we are talking about zero coverage out of network for 
ambulatory care. A family would bear 100 percent of the cost. So don't 
travel to the wrong place with the wrong plan at the wrong time. You 
will find yourself stuck without benefits because, unfortunately, the 
ACA isn't affordable for most Americans. I find that sad.
  We think we are having a conversation about nominees here today, and 
we think we are having a conversation about nominees because President 
Obama has somehow, some way been treated differently than President 
Bush and other folks. But the facts are simply inconsistent with the 
reality of the alternate universe that has been created by the left.
  The PRESIDING OFFICER. All postcloture time has expired.
  The majority leader.
  Mr. REID. Mr. President, we are going to have a confirmation vote on 
Cornelia Pillard. That will be the first vote. Then we are going to 
have--I don't believe there will be a need for a rollcall vote on the 
quorum. I think there will be enough Senators here that the Chair will 
be able to see clearly there are 51 Senators here. Then we will have a 
cloture on Executive Calendar No. 378, Chai Rachel Feldblum of the 
District of Columbia to be a member of the Equal Employment Opportunity 
Commission. Then, Mr. President, the next vote will be tomorrow morning 
at 9 a.m. This morning, yes; I am sorry.
  We are going to do everything we can to finish our schedule before 
Christmas, but it is going to be pushing it. We will do our best. But 
this session doesn't end until the end of the year, so we are going to 
continue working until we get our work done. I am not going to yield 
back all of our time on all of our nominations. We are going to do 
those piece by piece.
  I hope the body has been able to understand what a waste of time this 
has been, but we are going to confirm these nominations, and that is a 
step in the right direction.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Cornelia T.L. Pillard, of the District of 
Columbia, to be United States Circuit Judge for the District of 
Columbia Circuit.
  Mr. COATS. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  The PRESIDING OFFICER (Ms. Baldwin). Are there any other Senators in 
the Chamber desiring to vote?
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Carper) is 
necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Georgia (Mr. Chambliss), the Senator from Oklahoma (Mr. 
Coburn), the Senator from Illinois (Mr. Kirk), and the Senator from 
Kansas (Mr. Moran).
  The result was announced--yeas 51, nays 44, as follows:

                      [Rollcall Vote No. 256 Ex.]


     Johnson (SD)
     Udall (CO)
     Udall (NM)


     Johnson (WI)

                             NOT VOTING--5

  The nomination was confirmed.