EXECUTIVE CALENDAR; Congressional Record Vol. 163, No. 186
(Senate - November 14, 2017)

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[Pages S7206-S7209]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. The clerk will report the nomination.
  The legislative clerk read the nomination of David G. Zatezalo, of 
West Virginia, to be Assistant Secretary of Labor for Mine Safety and 
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Thank you, Mr. President.
  Mr. President, the Senate has just invoked cloture on the nomination 
of David Zatezalo, of West Virginia, to be the Assistant Secretary for 
Mine Safety and Health. Mr. Zatezalo is uniquely qualified to lead the 
U.S. Department of Labor's Mine Safety and Health Administration 
because he knows the industry inside out. He has spent his career in 
mining, starting as a miner. He is a member of a union. He worked his 
way up to general superintendent in Southern Ohio Coal and was a 
general manager at AEP.
  The Health, Education, Labor, and Pensions Committee approved his 
nomination on October 18, and I am glad the Senate will have the 
opportunity to vote on his confirmation.

                               Tax Reform

  Mr. President, for a few minutes I would like to turn to another 
subject. Congress has turned its attention to tax reform, and our 
principal challenge is to find tax breaks and loopholes to eliminate so 
that we can lower rates for taxpayers.
  I have a nomination. The top of the list should be ending the wind 
production tax credit. Congress has already recognized the need to end 
the wind production tax credit by passing legislation to phase out the 
credit by 2020.
  The draft House tax proposal reduces the amount available for new 
wind turbines by returning the credit to its original value instead of 
adjusting it for inflation, but we should do better. Instead of phasing 
it out, we should end the wind production tax credit this year. Ending 
the wind production tax credit on December 31, 2017, would save over $4 
billion, which we could then use to lower tax rates for the American 
  The wind production tax credit has been in place for 25 years. It has 
been extended 10 different times by Congress. It was originally set to 
expire in 1999.
  Tax credits are best used to jump-start new and emerging 
technologies. It has been a quarter of a century. Wind turbines are no 
longer a new technology.
  President Obama's Energy Secretary, Steven Chu, testified that he 
believes that wind is a mature technology. It is time to end this 
wasteful and expensive subsidy for a clearly mature technology.
  To date, the wind production tax credit has already cost the 
taxpayers billions. For 8 years--from 2008 to 2015--the wind production 
tax credit cost taxpayers $9.6 billion. That is more than $1 billion 
per year.
  According to the Congressional Research Service, the wind production 
tax credit is expected to cost taxpayers over $23 billion between 2016 
and 2020, and the cost to taxpayers will continue until 2030. That is 
because when you extend the wind production tax credit for 1 year, it 
is really for 10 years.
  To benefit from the tax credit, wind developers must just begin 
construction of a wind project before December 31, 2019. Then those 
developers can reap the tax benefits for a decade.
  Despite the billions Congress has provided in subsidies, wind energy 
still produces only 6 percent of our country's electricity and 17 
percent of our country's carbon-free electricity. By contrast, nuclear 
is 20 percent of our electricity and 60 percent of our emissions-free, 
carbon-free electricity.
  The wind blows only about one-third of the time. Until there is some 
way to store large amounts of wind, a utility still needs to operate 
nuclear, gas, and coal plants when the wind doesn't blow.

[[Page S7207]]

  On average, wind turbines are over two times as tall as the skyboxes 
at the University of Tennessee's Neyland Stadium and taller than the 
Statue of Liberty. The blades on the windmills can be as long as a 
football field, and their blinking lights can be seen for 20 miles.
  This isn't the first time that I have been to the Senate floor to 
express my concern about the wind production tax credit, but I believe 
that the conversation about energy subsidies and taxes is bigger than 
the wind production tax credit. As Congress examines ways to reduce tax 
rates and to broaden the base, we must be willing to look at all tax 
subsidies from mature technologies. That includes oil and gas 
subsidies. I am here today to challenge my colleagues to be willing to 
consider all energy subsidies from mature technologies--wind, solar, 
oil, gas--as candidates for elimination in a tax reform bill. Those 
dollars could be better spent to lower rates for taxpayers.

  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I come to the floor today to highlight 
yet another dangerous nominee who has been put forth by this 
  During the campaign, President Trump made promise after promise to 
workers. He said he would put them first. He said he would bring back 
good-paying jobs to our struggling communities. While he made this 
promise to all workers, he specifically called out miners on more than 
one occasion, so it would stand to reason that President Trump would 
prioritize the Mine Safety and Health Administration and nominate a 
leader who is committed to the agency's core mission.
  MSHA is critically important to ensuring that mining jobs are safe 
and that mining companies aren't unnecessarily endangering their 
workers' lives and safety. MSHA is responsible for inspecting mines and 
holding companies accountable when they violate safety and health 
standards. MSHA's top priorities are to eliminate fatal mining 
accidents, reduce the frequency and severity of accidents, and minimize 
health hazards for workers through inspection enforcement.
  Unfortunately, we are already seeing MSHA safety standards lapse 
under the Trump administration. Earlier this year, MSHA was set to 
implement a rule that would require safety exams of mines prior to the 
start of a miner's shift. Ensuring mines are safe before miners are put 
at risk should not be controversial. Yet the Trump administration has 
delayed implementation of that rule and proposed changes to actually 
weaken it.
  Given this concerning record so far, it is so critical--absolutely 
critical--that the MSHA Administrator is committed to standing up for 
our miners. But instead of nominating an advocate for workers' health 
and safety, President Trump nominated one of the industry's worst 
  David Zatezalo is a mining industry executive who has made it clear 
that he cares more about corporate profits than workers. When he was 
the CEO of Rhino Resources, one of the mines under Mr. Zatezalo's 
control received unprecedented safety penalties. A Rhino mine was the 
first in history to be cited twice for a pattern of violations, an 
action that is only taken when there is a clear and demonstrated 
disregard for workers' health and safety.
  When the Obama administration issued commonsense rules to improve the 
pattern of violations process, the Ohio Coal Association, where Mr. 
Zatezalo sat on the board of directors, sued to block the rule.
  Under Mr. Zatezalo's leadership, two separate mines owned by Rhino 
Resources had injury rates that far exceeded the national average.
  As a mining executive, Mr. Zatezalo refused to play by the rules. His 
company violated the Federal Mine Safety and Health Act by giving 
advance notice of an MSHA inspection, meaning employees had the 
opportunity to cover up potential health and safety violations.
  Rhino Resources was sued by the EEOC for creating an unlawful, 
hostile work environment by allowing an employee to be targeted based 
on his national origin. The EEOC said Zatezalo's company allowed 
discrimination to ``continue unchecked in the workplace'' and cited 
Rhino for retaliating against the employee instead of reprimanding 
those who were doing the harassing.
  It is clear to me that Mr. Zatezalo is wholly unqualified to serve as 
the Mine Safety and Health Administrator, and I believe that if he is 
confirmed, he will put thousands of miners' lives and safety at risk.
  I am very disappointed that President Trump and congressional 
Republicans are once again breaking promises to workers. I urge my 
colleagues to join me in standing up for our miners across the country 
and vote against Mr. Zatezalo's nomination.
  Once again, the contrast with Democrats' vision couldn't be starker. 
Under the leadership of Senator Casey, Democrats are advocating for 
stronger enforcement abilities for MSHA so we can hold operators who 
show a repeated disregard for miner safety accountable.
  I really want my colleagues on the other side of the aisle to join us 
and pass these commonsense reforms that will help prevent further 
mining accidents and deaths. We will strengthen our economy if we start 
prioritizing workers' health, safety, and well-being over corporate 
profits. I believe that must begin with rejecting President Trump's 
extreme agenda and these nominees who appear all too willing to 
implement it without concern for the workers and families they are 
supposed to serve.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Rubio). The Senator from Utah.

                          Blue Slip Procedure

  Mr. LEE. Mr. President, I wish to speak for a few minutes about the 
Senate blue slip.
  As my colleagues know, when the President nominates someone who will 
be processed by the Senate Judiciary Committee, home State Senators 
receive a letter informing them of the nomination and asking whether 
they approve of the nominee in question. The letter is printed on blue 
paper--thus the name. That is why we call it the blue slip.
  The question on the table is, What should happen if one or both of 
the home State Senators do not approve the nomination?
  In previous years, the chairman of the Senate Judiciary Committee has 
treated the blue slip as a de facto veto, but that is not how the blue 
slip originally functioned. Between 1917, when the blue slip was first 
used, and 1955, the blue slip was never treated as a veto. Instead, it 
gave the home State Senators a special ability to state their 
objections about a nominee during a hearing. The committee could then 
decide how to proceed.
  When James Eastland, a Democrat from Mississippi, became chairman of 
the Senate Judiciary Committee in 1955, he took a different approach. 
Why did Eastland implement this new policy? No one knows for sure, but 
one scholar has written that Eastland, an ardent segregationist, might 
have been trying in part to ``keep Mississippi's federal judicial bench 
free of sympathizers with Brown v. Board of Education.''
  We are evaluating the strength of a custom. It is a custom of 
relatively recent vintage, and its origin story surely matters in how 
we evaluate its ongoing relevance to the Senate today.
  Eastland kept that policy in place for the whopping 22 years he 
served as chairman of the Senate Judiciary Committee. When Senator Ted 
Kennedy took over from Eastland in 1979, he immediately changed the 
status and functioning of the blue slip procedure. As the Congressional 
Research Service reports, Kennedy determined that the blue slip ``did 
not have the same power to automatically stop committee action as 
before.'' Rather, Kennedy affirmed his right to move forward with a 
nomination regardless of the blue slip.
  To make a long story short, since 1955, there have been eight 
chairmen of the Senate Judiciary Committee, including Eastland. By my 
count, two have treated the blue slip as a veto; the other six have 
either said the blue slip was not a veto or have at least not treated 
the blue slip as a veto.
  What to make of this history? For one thing, we often hear that the 
blue slip is a 100-year-old tradition. In my view, it should be equally 
powerful to note that the blue slip originated 128 years after the 
first Congress. That is

[[Page S7208]]

part of the Senate's history, too, and that, too, shouldn't be ignored.
  But there is an even more fundamental point, and that is that even in 
modern times, there isn't exactly an unbroken and lengthy practice of 
treating the blue slip procedure as if it were a veto. The practice is 
even sparser when you consider that the blue slip takes on a different 
function depending on whether the President's party is in control of a 
majority of the seats in the Senate. When the President's party does 
not control the Senate, the blue slip is an efficient way to negotiate 
with the opposition party, which, after all, can vote down the 
President's nominees.
  When you look at the relevant circumstances, here is what you find: 
The blue slip has been treated as a veto for a grand total of 28 years 
when the President's party controlled the Senate. Fourteen of those 
years occurred under Senator Eastland, who was waging a personal 
vendetta against civil rights, including with respect to judicial 
nominees processed by the Judiciary Committee.
  So if the Senate blue slip procedure is not a veto, what function 
should it play? As I have said, the blue slip is the chairman's 
prerogative. But if I were advising the chairman, here is what I would 
say: The blue slip should not be a veto of a nomination so long as the 
executive branch has sufficiently consulted with the home State 
Senators in advance of making this nomination. That rule is consistent 
with the appointments clause of the Constitution, which establishes 
joint shared responsibility for appointments to Federal office.
  It is important to note that, contrary to what some of my colleagues 
have suggested, the appointments clause does not grant individual 
Senators the right to pick nominees, whether processed by the Judiciary 
Committee or otherwise.
  That rule is also consistent with the best reading of Senate custom. 
It is roughly consistent with the practice that unfolded between 1917, 
when the blue slip was first adopted, and 1955, when Senator Eastland 
brought about some changes. It has at least as much support in modern 
  What counts, then, as sufficient consultation? It is hard to come up 
with a precise rule, with a single mathematical definition, but in my 
view, the White House has an obligation to let the home State Senators 
know whom the White House might be considering for a vacancy. The home 
State Senators have the right to review the candidate's record and 
share any concerns they have about the candidate. Qualifications count. 
Character counts. Home State ties and ties to the community count. I 
don't think home State Senators have the right to demand someone who 
shares their particular approach to the law necessarily, but they do 
have the right to insist that the candidate believe in the law as 
something independent from politics, particularly where the candidate 
is being nominated to a life-tenured position in an article III court.
  There is a final point to make. As we move forward, my colleagues 
across the aisle will charge us with hypocrisy just as predictably as 
our prediction that the Sun will come up in the east tomorrow. There 
are two things to say about this.
  First, my approach to the blue slip has remained consistent since I 
took office. I have followed the approach that I have just described.
  Second, until 2013, the blue slip was a lot less important because 
the minority party could filibuster. That is no longer an option 
because the Democrats changed the rules in 2013. When you change the 
rules--the actual written protections upon which we rely--when those 
are changed, then you are left reliant on customs. Customs can always 
be changed. In this case, the custom we are dealing with isn't even a 
particularly strong one. It is not even a particularly long-lasting 
  More broadly, in the Senate we are trying to figure out how to 
process the President's nominees. We have improved the pace of 
confirming nominees recently, but we are still significantly behind in 
modern historical terms from where we should be and from where other 
Senates have been during the first year of other Presidential 
administrations. We need to find a solution to improve the pace, 
including by remaining in session longer so that we can complete this 
important work.
  It is essential that we understand the difference between, on the one 
hand, the Constitution and, on the other hand, the rules; and, on the 
one hand, the rules and, on the other hand, the custom. There is a 
significant difference here. In this case, the custom isn't even all 
that long, not nearly as long as some have suggested, and it certainly 
hasn't been consistent. We can do better, and do better we must.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DAINES. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                               Tax Reform

  Mr. DAINES. Mr. President, as we cut taxes, there is one goal that is 
the most important: We need more good-paying jobs, and we need bigger 
paychecks for hard-working Montanans.
  It was just announced that the Senate's draft tax bill will repeal a 
tax that fundamentally targets those of low to middle income in my 
State and across the Nation. In fact, in Montana alone, 75 percent of 
the people who pay this tax make less than $50,000 a year. In fact, in 
Montana, 32.5 percent make less than $25,000 a year. This is not just 
anecdotal. In 2015, if you looked across the Nation, 79 percent of 
those who paid this tax made less than $50,000 a year. In fact, a 
little over 37 percent made less than $25,000 a year.
  The IRS pickpocketed over $3 billion from approximately 6.5 million 
Americans in 2015 alone, a majority of whom made less than $50,000 per 
year. This is a tax that is targeted at those who are in poverty.
  What is this tax, you might ask? Where in the world did it come from? 
I will tell you where it came from. It came from ObamaCare. It is the 
ObamaCare poverty tax.
  Otherwise known as the individual mandate, which forces people to 
purchase health insurance or pay a fine, the poverty tax systematically 
taxes those who make less than $50,000 a year. If it were not enough 
that ObamaCare plans were already too expensive for some of these 
folks, the IRS adds insult to injury by fining them, taxing them, for 
not being able to afford it. Some say that ObamaCare steals from the 
rich to give to the poor, but, honestly, ObamaCare's individual mandate 
is really Robin Hood in reverse. ObamaCare's poverty tax is like Robin 
Hood stealing from the poor to pay King John.
  It is unthinkable that we would leave such a provision in the law 
when we have the opportunity to repeal it. By repealing it, we would 
save $338 billion over 10 years. That is over $300 billion that we 
could put toward additional tax relief for small businesses and 
  Alternatively, if we do nothing, the CBO projects that we will 
increase taxes by $43 billion because of this poverty tax and that 
those taxes will be paid primarily by America's low- and middle-income 
families--$43 billion in taxes on those who can afford it the least.
  ObamaCare's poverty tax must go, and there is no better time to get 
rid of it than right now. I urge my colleagues on both sides of the 
aisle to join me in fighting on behalf of the low and middle classes of 
our Nation.
  Benjamin Franklin is credited with this phrase: Just two things in 
life are certain--death and taxes.
  That may be so, but we do not need to make them both quite so 
painful. That is why I am glad to see that a repeal of the ObamaCare 
poverty tax has been included in the current Senate draft tax 
legislation. I urge my colleagues in the House of Representatives to do 
the same.
  Thank you.
  The PRESIDING OFFICER. The majority leader.

                           Order of Procedure

  Mr. McCONNELL. Mr. President, I ask unanimous consent that 
notwithstanding rule XXII, at 11:50 a.m. on Wednesday, November 15, the 
Senate proceed to the consideration of the following nomination: 
Executive Calendar No. 463; further, that there be up to 10

[[Page S7209]]

minutes of debate on the nomination, equally divided in the usual form, 
and that following the use or yielding back of time, the Senate vote on 
the nomination with no intervening action or debate; that if confirmed, 
the motion to reconsider be considered made and laid upon the table and 
the President be immediately notified of the Senate's action.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. I further ask unanimous consent that following the 
disposition of the Esper nomination, all postcloture time on Executive 
Calendar No. 383 be considered expired.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. For the information of all Senators, there will be 
three rollcall votes at 12 noon tomorrow.