Big Oil Bailout Prevention Unlimited Liability Act of 2010

Mr. President, I am hoping that later this afternoon there will be a unanimous consent request that relates to an amendment I have introduced, amendment No. 3989, and I wish to take a few minutes now since there is no one else seeking recognition on the floor to describe this amendment in the hopes that when it comes up later, we can move to it and to a vote very quickly.

I have spoken on the floor of the Senate several times about the amendment because it is complicated in one respect. This amendment relates to the fees charged by credit card companies such as Visa and MasterCard to the retailers and businesses that accept the credit cards. So if you are a customer of a shop and you purchase something, you present a credit card. There are then two transactions taking place, at least. One transaction is between you and your credit card company, because you put the credit card out there and you have to pay the bill later on. The other transaction relates to the business, the shop that accepts your credit card. By accepting your credit card, they also accept an obligation to pay the credit card company or the bank issuing the credit card. It is called an interchange fee. There is another one called a swipe fee. So the credit card company is getting paid both ways. They get paid by the customers who pay interest on outstanding balances on their credit cards, and they get paid by the retail establishments that accept the credit cards. The credit card companies have a lucrative business going on both sides of the transaction.

This amendment I am speaking about relates not to you as a customer owning a credit card, but rather to the shop or retail establishment that accepts the credit card. What is a reasonable amount for them to pay?

There are two major types of credit cards. One is a credit card and the other is a debit card. A credit card is basically that. You are buying on credit with the promise to pay when your monthly bill comes around. The debit card is different because it takes the money directly out of your checking account and gives it to the shopowner. They are different in that, No. 1, there is more risk, because people may not pay their credit card balance at the end of the month, so risk is associated with it; and in the other there is very little, if any, risk. If there is no money in the checking account, then it isn't going to be paid to the shopowner. It is a very simple transaction much like writing a check and the bank honoring the check.

My amendment addresses the interchange fee. That is the amount paid by the retail establishment to the credit card company when a customer presents a credit card.

The two major credit cards in America are Visa and MasterCard. They account for over 80 percent of the credit and debit card business in the United States. They are the giants in America. There are others-- Discover, American Express, and others. But the two, Visa and MasterCard, are the two big kids on the block. They have established legal arrangements with the businesses that accept their credit cards. It is those legal arrangements we are questioning with this amendment which I am going to propose later in the day.

This amendment will help small businesses, merchants, and consumers by providing relief from high interchange fees for debit card transactions. We are focusing on debit card transactions because those are the ones that have much less, if any, risk involved to them.

On the floor of the Senate, we are working on a bill to prevent the big banks from basically rigging the financial system in a way that helps Wall Street and hurts the shops on Main Street. If we are going to look at the rigged financial systems that hurt small businesses, we have to include the credit and debit card industries.

Credit and debit cards are rapidly replacing cash and checks in the American economy. There are over 1 billion credit and debit cards in America. Think of that: 300 million people and 1 billion credit and debit cards. That gives you an idea of the number of cards people own.

Last year, Americans conducted $1.7 trillion in transactions on credit cards and $1.6 trillion on debit cards, which are becoming more and more popular. Credit and debit cards are now used in more than half the retail sales in the United States of America. Yes, being able to pay with plastic is a great convenience, but there is another reality. The shift from cash and checks to credit and debit means that the way we do business in America is increasingly falling under the control of these two giants of the credit and debit card industry--Visa and MasterCard.

These card networks dominate the credit and debit industries, as I mentioned earlier. They are used in 80 percent of all such transactions. Unfortunately, these two companies are looking for profits, and they are not always looking out for the best interests of the merchants, the small businesses, the

retail businesses or the consumers. Interchange fees are a classic example.

A lot of people in Congress do not want me to bring up this issue. They have told me this is the wrong bill to talk about it. I think not. I tried to bring it up under credit card reform and they said: No, Senator Durbin, that is the wrong bill. Now I want to bring it up on the Financial Stability Act, and they say: No, it is the wrong bill. I do not think it is. I do not think there is a right bill with an issue that is this controversial and complex. But it is an important enough issue that we should address it and we should vote on it.

Visa and MasterCard require interchange fees every time someone uses a debit or credit card. The fees range from 1 percent to 3 percent of the amount of the transaction. It is a convoluted system. Visa and MasterCard charge interchange fees to the merchants, but instead of keeping the money, they pass the money to the banks that issue the Visa and MasterCard. Why do they do this? Some of it is to help the banks cover the cost of conducting the transaction. Most of it is to induce banks to issue more Visa and MasterCard credit cards.

Around $50 billion in interchange fees were collected in 2008, with about 80 percent of that money going to 10 of the largest banks in America--80 percent of it. The card-issuing banks use this interchange revenue to pay for ads, to offer rewards, to issue more cards. Not surprisingly, the revenue also helps banks make large profits and give bonuses to their CEOs. Banks love the money, and they love the current interchange system.

As interchange fees go up, it means banks get more money to issue more cards and increase their profits. Rising interchange fees also benefit Visa and MasterCard because it means more cards will be issued, and with each card comes another fee, called a network fee, every time the card is used.

What a great system--as long as interchange fees are increasing, both the card networks and the banks could not be happier.

The troubling thing about interchange fees is they are deducted from every transaction left for the seller. This is very different from cash and check systems. When a business makes a cash sale, it gets full payment in hand, and the Federal Reserve requires the checks clear at their full face value. So a $100 sale by cash or check is a $100 sale. But when a business makes a $100 sale by credit or debit card, the banks and their card networks take a cut. The business may end up with only $98 out of $100 that is on the debit card, maybe less. The business is getting shortchanged the actual face value of the transaction.

To make up for interchange fees, businesses are forced to raise their prices, cut back on expenses or something such as that. They may even cut back on employees to keep up with these interchange fees. In a normal market, you see banks competing with one another to do business with the restaurants, shops, and the merchants. With that competition, things would be a lot better. But, in fact, the real world of credit cards with the two giants, Visa and MasterCard, is a world where there is little or no competition.

The credit and debit card markets are not normal. Visa and MasterCard unilaterally set interchange fee rates that apply to all banks within their card networks. There is no negotiation between the banks and merchants over reducing interchange rates. Individual businesses in New Hampshire, Illinois, New York, and all across America have no bargaining power with these giant credit card companies. They set the rules, they fix the fees, take it or leave it.

Visa and MasterCard have every incentive to continue to raise interchange fees because that additional revenue makes it more likely banks will issue more cards.

What can businesses do to stop these rising interchange fees? Almost nothing. Some--very rarely--businesses say they do not accept credit or debit cards, but the vast overwhelming number of businesses do. They have to. It is part of doing business in America.

Visa and MasterCard have 80 percent of the credit and debit market. Merchants have to use them. They tell the merchants: If you want to take our card, you live with the fees we charge. That is not a competitive situation at all.

This current system is not sustainable. If left alone, it is going to get worse for small businesses that face higher fees, for consumers who face higher prices, and for everyone but the banks and credit card networks.

Here is the most unbelievable part. Businesses in every other country in the world get a better interchange deal from Visa and MasterCard than businesses in the United States of America. I told that to someone, and they said: It sounds like pharmaceutical drugs, where you can buy the U.S. pharmaceutical drug more cheaply in Canada, Mexico, and Europe. It is the American consumers paying more.

The same thing is true when it comes to Visa and MasterCard. They charge American businesses higher interchange fees than they charge businesses around the world. Visa and MasterCard already charge the highest interchange rates in the world to American businesses, and the rates keep going up.

There was a GAO report last year. It found that Visa and MasterCard-- listen to this--had voluntarily reduced the interchange fees on businesses in other countries. Just last month, Visa voluntarily lowered many of its European debit rates by 60 percent--unilaterally lowered them by 60 percent. What happened in the United States? They raised the fees by 30 percent on American businesses trying to fight their way out of this recession.

These huge credit card companies had some sympathy for Europe but not for America. That is unacceptable, and we need to do something about it. That is why I offer this amendment.

The amendment requires that debit card interchange fees be reasonable and proportional. I do not pick a number. I do not set a fee. We want to make sure they are proportional and reasonable to the cost incurred in processing the transaction.

Debit card transactions are fundamentally different from credit card transactions. All that happens in a debit card transaction is you deduct money from your bank account. It is akin to writing a check. That is why debit cards are advertised as check cards.

Right now in the United States, there are zero transaction fees deducted when you use a check. The Federal Reserve does not allow transaction fees to be charged for checks. But when it comes to debit cards, Visa and MasterCard charge high interchange fees just as they do for credit. Why? Because they can get away with it. There is no regulation, there is no law, there is no one holding them accountable.

An estimated $20 billion was collected from businesses and consumers across America in debit interchange fees last year--$20 billion. That money comes from the bottom line of every small business in every town in America that accepts payments by debit card.

My amendment will bring some reasonableness to the system. It tells the Federal Reserve to ensure that debit fees are reasonable and proportional to cost and not just a way of generating huge profits at the expense of small businesses. If we can reduce debit interchange fees to a reasonable level, it would be similar to a tax break on every debit card sale a merchant makes. Think how much that would help small businesses on Main Street.

One of my colleagues said: Even if the businesses save money and do not have to pay more to the credit card companies, what makes you think they are going to give the consumers a break with it? They may take it in profits. They can. There is no way to police that.

I just had a press conference with the National Association of Convenience Stores. We know them as the small shop on the corner that has some groceries and maybe candy bars, slurpies--whatever you want to stop and buy. It also turns out these convenience stores sell 82 percent of the gasoline sold in America. They are part of the same association.

I said to the man who ran the association: What guarantee do we have, if we reduce the amount you have to pay the credit card companies, that the consumers will feel it? He said: We are the only business that posts prices right out on the sidewalk for all the motorists to see of our most popular

item, our gasoline. We fight over pennies. If we can reduce it a penny or two a gallon, we are going to attract more customers. If we can save money when it comes to these interchange fees, it puts us in a more competitive position to bring in more customers to buy gasoline. That is one side of the argument that could inure to the benefit of the consumers. There are no guarantees.

In the world I am talking about, you get to shop around. As the customer, you pick the convenience store, you pick the grocery store, you pick the prices. When it comes to the owners of the store using credit cards, they do not get to shop. They get a ``take it or leave it'' from MasterCard and Visa and have no bargaining power whatsoever.

Many Senators are worried about community banks that also issue credit cards. One thing I hear over and over from my colleagues is we do not want to hurt smalltown banks, regional banks, banks that are not the big boys on Wall Street that issue credit cards. That is why I amended my amendment and said we will exempt all banks with less than $10 billion in assets. If you have more than $10 billion in assets, it would be hard to call you a community bank. You are a much bigger operation.

Under my amendment, Visa and MasterCard could continue to set the same debit interchange rates they do today for small banks and credit unions. Ninety-nine percent of banks, 99 percent of credit unions have assets of less than $10 billion. Of all the credit unions in the United States, only three have assets over $10 billion.

One of my colleagues said: I am very close to the credit unions. I say to my colleague: I am sure you are also close to the small businesses in your State, and in this situation, 99 percent of the credit unions, virtually every credit union in your State would be exempt from this law, but your small businesses may benefit from it because the largest banks have the largest impact on credit card interchange fees.

My amendment would subject the biggest banks in America, the ones that issue the vast majority of debit cards and get the vast majority of interchange fees, to a reasonable fee requirement.

I hear the so-called independent community banks of America oppose my amendment. I could not understand it. If I exempted banks with less than $10 billion, that would exempt 99.8 percent of all of the so- called community banks in America. Why do they still oppose it? I have learned why. The Independent Community Bank Association is a major issuer of credit and debit cards. They are one of the top 25 credit card issuers in the United States and are the 23rd largest debit card issuers. They make a lot of money off interchange fees. They do not have clean hands in this debate. They are, in fact, conflicted in this debate. They are not arguing on behalf of small banks. Sadly, they are arguing on behalf of their own trade association credit cards and the fact they receive these generous interchange fees.

ICBA, so-called Independent Community Bankers Association, profits from the unfair swipe-fee system just like the biggest banks in America today. That is a conflict of interest.

Is this Washington trade association truly representing small banks that will get higher interchange fees than the big banks under my amendment or is it just interested in protecting its own revenue stream? I called back to some of my friends in downstate Illinois, where I come from--small town, small city America--and I talked to them about this. I said: I am exempting banks with assets of less than $10 billion.

They said to me: Well, that is perfectly reasonable. It won't touch any community banks you know in downstate Illinois.

That is an indication to me that this trade association out here is not speaking--really speaking--for community banks when they say they oppose this amendment as amended.

My amendment also aims to make sure Visa and MasterCard can't block merchants from offering discounts to their customers. For example, Visa has a provision in its contract with all of the businesses that accept it that the business cannot offer a customer a discount to use a competing credit card, such as a MasterCard. MasterCard has a similar provision. So they are protecting one another. You can't say, for example, that your shop prefers Visa cards because the Visa card charges you less as a business. They prohibit that back and forth.

Some people say: Well, maybe that is okay. Would it be okay if we take it to the next example: It is like Coca Cola saying that a store can sell Coke but only if it agrees not to sell Pepsi at a lower price, and it is like Pepsi saying the same thing. Who loses in that deal? I can tell you who loses--the customer, because there is no competition and the business because it does not attract the customers with competition and lower prices. Translate that into credit cards, and that is what Visa and MasterCard are doing today. My amendment strips these provisions from Visa and MasterCard contracts so merchants can offer discounts without penalty.

My amendment would also allow merchants to offer discounts for customers who pay by cash, check, or debit card as opposed to credit cards. Sometimes, Visa and MasterCard threaten to fine merchants who offer discounts for these cheaper forms of payment. My amendment would end those threats once and for all. This type of effort to promote noncompetitive practices should not be allowed, and my amendment would bring it to an end.

Nothing in my amendment would allow merchants to discriminate against cards issued by small banks and credit unions. That was another comment. They said, well, listen, Durbin, if your amendment passes, they will say: This establishment will not accept credit cards from a small bank that issues these cards. We make it express in the amendment that we are offering that you cannot discriminate against the issuer, that is, the bank, of the credit card. You can only say you prefer one network over another because the interchange fees on your business happen to be lower, but you can't pick out banks. You may say: We prefer Visa or MasterCard, but you cannot pick them out by banks.

Interchange fees have real-life consequences on businesses across America. I have been receiving calls and letters from small business owners all over the State asking Congress to fix this rigged interchange system. Last week, my office received petitions signed by 92,000 Illinois consumers seeking to reform credit and debit interchange fees. The amendment has also been endorsed by 203 national and State trade associations representing every type of business you can think of, and it has been endorsed by Americans for Financial Reform, a coalition of over 250 consumer, civil rights, labor, retiree, and business groups.

If you talk to Visa, MasterCard, and the biggest banks, all you will hear is how well the current system is working and how we ought to keep our hands off it. But if you talk to the local grocery store owner or the person who owns the local restaurant in your hometown or the man who owns the gas station or the family who runs a local diner--small businesses and merchants across America--they will tell you stories about dealing with Visa and MasterCard and what it has meant to them in their business.

This afternoon, Art Potash, who owns some grocery stores in Chicago, came by my office. We had a little press conference. He talked about the competitiveness of the grocery business, where the return is usually 1 or 2 percent and he ends up paying 2 to 3 percent back to the credit card companies for people who use credit and debit cards. He is stuck because if he doesn't accept credit and debit cards, he is really trying to fight the tide. More and more people are using them. But he is paying a fee, which is cutting right into the bottom line. With this interchange fee at a more reasonable level, he would be able to expand his business and hire more people. Wouldn't that be a good outcome in an economy where we are desperate to deal with unemployment?

Let's put Main Street above the big banks and credit card companies. I ask my colleagues to help me in passing this amendment.

Madam President, I have received letters and comments from merchants and businesses across the State of Illinois supporting my amendment for interchange reform. I have received them from James Phillip of Phillip's

Flower Shops in Westmont, IL; Robert Jones, president of American Sale patio store in Tinley Park, IL; George LeDonne, owner of LeDonne Hardware in Berkeley, IL; Russ Peters, owner of Mobile Print in Mount Prospect, IL; Jim Dames, owner of Snackers Cafe in Western Springs; George Preckwinkle, a friend of mine and president of Bishop Hardware and Supply, with 10 locations in central Illinois; Paul Taylor, owner of Taylor's Gifts and Bonsai; Rattanaporn Deeudomchan, owner of the King and I Thai Restaurant in Oak Park; Yvonne Francois, who owns Queenie's Court, a restaurant in the food court at the Ford City Mall in Chicago; and John Gaudette, director of the Illinois Main Street Alliance, representing 450 small businesses across the State.

I ask unanimous consent to have printed in the Record at this stage of the debate some of the comments and letters which have been sent to me.

Madam President, I see one of my colleagues on the Senate floor, so I am going to yield. And I say to my colleagues, I am hoping this amendment comes up this afternoon. I will take less time to describe it then, but I wanted to use this time to put my full statement in the Record. I will just say to my colleagues that there won't be another amendment that we will consider this week or in the near future of such importance to small businesses across America. Let's stand up for these small businesses and give them a fighting chance against giants in the credit card industry. It is only fair, and it is a good way to revive this economy and put people back to work.

Madam President, I yield the floor, and I suggest the absence of a quorum.

Mr. President, I ask the Chair to inform me when I have 1 minute of my 5 minutes remaining.

I think this is an amendment that is well known to my colleagues. I have spoken on the floor several times. It is about the interchange fees charged to small businesses across America for the use of credit cards.

This amendment does the following things: It directs the Federal Reserve to ensure that debit fees on debit cards are reasonable and proportional to processing costs; it stops Visa and MasterCard from imposing any competitive restrictions; it ends prohibitions on discounts for use of different network cards; it ends prohibitions on discounts for cash, debit, or credit; and it ends prohibitions on minimum purchase levels for paying with a credit card.

It does not affect credit card interchange rates. We do not establish a rate. That is left entirely to the Federal Reserve to review. We do not allow discrimination against small banks or credit unions. The modification specifically prohibits any discrimination against the issuer of a credit card. A merchant may decide to favor one network over another but cannot favor one bank over another that issues a card. So there can be no discrimination against a credit union, community bank, or a large bank, for that matter. It doesn't set interchange prices.

By putting a $10 billion threshold in terms of the banks issuing the cards, we literally exempt 99 percent of all banks and credit unions from the application of this law. Still, just going for the largest banks in America--86 banks in America--we will cover 65 percent of all the credit and debit transactions in this country. So it is a significant amendment, and it protects the community banks and the credit unions.

I will tell you that I am very concerned and disappointed by the so- called Independent Community Banks Association, which continues to oppose this amendment despite my best efforts to exempt virtually all of their members from being covered. I understand they have a conflict of interest because they are in the top 25 issuers of credit and debit cards in the United States. They make a lot of money under the current situation. They may not want to change it, but it is not fair to small banks in Illinois and across the Nation for them to speak to this issue when they have this conflict of interest.

The second thing I want to say to the credit unions is that there are 8,200 credit unions in America, and all but 3 are exempt from this law--99.999 percent of credit unions are exempt from this law. For them to be opposing it because of three of the biggest credit unions in America is unfair to the rest of their members and certainly unfair to the merchants who do business with them every day.

This is the single most important amendment for small business and retail business in America that we will consider on this bill. In a time of recession, when we need small businesses to step up and create jobs, this is a way to move forward.

Members have heard from all across the country, from small businesses and retail merchants who are asking for some fairness, some justice when it comes to these major credits cards that literally dictate the terms of their agreements with these small businesses. I urge my colleagues to support the Durbin amendment.

Mr. President, I am going to reserve the remainder of my time.

Mr. President, how much time do I have remaining?

I yield to the Republican side, if there is opposition to the amendment.

I say to my colleagues, I know this is a complex and in some ways a controversial amendment. But I can't think of a better way for us to establish a reasonable standard that debit cards, which are now becoming more common and are equivalent to a check, are going to be charged against the merchant that honors the card only in a reasonable and proportional way by the same agency we used under the consumer credit card reform bill of just last year.

I urge my colleagues, if they are listening to small businesses across America, struggling to survive, trying to add new employees, give them a helping hand by voting for the Durbin amendment so they can have reasonable charges for the use of credit cards and debit cards at their establishment. I urge the passage of this amendment and I yield the remainder of my time.

I ask for the yeas and nays.

I announce that the Senator from West Virginia (Mr. Byrd) and the Senator from Florida (Mr. Nelson) are necessarily absent.

I announce that the Senator from West Virginia (Mr. Byrd), the Senator from New Jersey (Mr. Lautenberg), the Senator from Michigan (Ms. Stabenow), and the Senator from Florida (Mr. Nelson) are necessarily absent.

Madam President, I rise to speak today on amendment No. 3883, which is pending, which I have offered with my good friend and colleague from Arkansas, Senator Pryor.

I ask unanimous consent that Senator Pryor be able to follow my remarks.

I will be glad to yield.

Fifteen minutes.

About 5 minutes.

Madam President, the amendment that is pending that we have offered--and I add that also has been cosponsored by Senator Graham and Senator Menendez--would ensure that small businesses are considered in the federal rulemaking process by the Bureau of Consumer Financial Protection that would be created in this bill.

The more attentive we are with respect to small businesses and the issues incorporated in this legislation, the better small businesses will be in their ability to create jobs and to survive what is a very difficult and tragic economic environment.

This amendment would ensure that when the newly created bureau promulgates rules and regulations, it fully considers the economic impact those rules and regulations would impose on our Nation's more than 30 million small businesses that have created 64 percent of all new jobs over the past 15 years and no question will drive our Nation's economic recovery. Indeed, we are depending on these small businesses to lead us out of this jobless recovery.

We know a jobless recovery is not a true recovery. We have more than 15 million Americans who are unemployed or underemployed. Clearly, it is going to be small businesses that pave the way toward employment.

Plain and simple, onerous regulations are crushing the entrepreneurial spirit of America's small businesses. In 2009 alone, there were close to 70,000 pages in the Federal Register, and the annual cost of Federal regulations now totals more than $1.1 trillion. Furthermore, according to the research by the Small Business Administration's Office of Advocacy, small firms--and this is no surprise--bear a disproportionate burden, paying approximately 45 percent more per employee in annual regulation compliance than larger firms.

The amendment we are offering today would ensure small business fairness and regulatory transparency by first designating the Consumer Financial Protection Bureau as a ``covered agency'' under the Regulatory Flexibility Act so that small business review panel provisions would apply to the bureau's rulemaking. These advisory small business panels currently apply to EPA and OSHA and have been extremely successful in helping to shape more workable regulations at these agencies for small businesses across America.

Since 1996, when these small business panel provisions were passed unanimously in the Senate and signed into law by then-President Clinton, the EPA has convened 35 panels and OSHA has convened 9 panels. The findings of the panel reports have helped EPA and OSHA improve draft proposals by tailoring regulatory approaches to the unique situations of small businesses.

I know there are some who will argue that my amendment will undermine the rulemaking capacity of the bureau. This simply is not the case. According to the SBA Office of Advocacy report, ``The panel process does not replace, but enhances, the regular notice-and-comment process.''

The Office of Advocacy has also found that these small business review panels have facilitated ``revisions or adjustments to be made to an agency draft rule that mitigated its potentially adverse effects on small entities, but did not compromise the rule's public policy objective.''

Others have expressed concern that these small business advocacy review panels should not apply to the bureau because they apply to no other financial regulatory authority. Unfortunately, there is continued frustration by leaders in the small business community toward government agencies and one-size-fits-all regulation. Independent agencies, such as the Securities and Exchange Commission, the SEC, and its approach to regulation under Sarbanes-Oxley, and the Federal Communications Commission, the FCC, and its rulemaking governing telecommunications practices are too often cited as failing to adequately consider their impact on small business prior to issuing new regulatory mandates. This is why it is vital that small business requirements apply to the new independent agency that is created in the underlying legislation.

Still others will argue that our amendment is unnecessary because my earlier amendment to this legislation provides for an exemption for small businesses from the regulatory requirements of the bureau. However, we must go further to ensure that rules that the bureau promulgates do not unintentionally impact small firms' job creation capacity. That is why our amendment would also specify during the rulemaking process the bureau must consider the economic effects its rule would have on the cost of credit for small businesses.

According to a recent National Federation of Independent Business, NFIB, survey--and that is the foremost organization that speaks for small businesses--42 percent of small business owners use a personal credit card for business purposes. It is imperative that small business interests are fully considered when the bureau issues regulations on consumer credit cards, so that however well-intentioned, the bureau does not inadvertently cut off vital small business credit sources, especially during these tenuous economic times when a recent Federal Deposit Insurance Corporation survey noted that banks posted their sharpest decline in lending since 1942.

That is a big issue right now because lending is not occurring to small businesses. That is one of the issues we must address in any small business tax relief package. Those discussions are ongoing right now with the Treasury Department and the Administrator of the Small Business Administration, Karen Mills, with Chairman Landrieu of the Small Business Committee, myself, and key staff from the Finance Committee, and the leadership of both the Republican and Democratic sides because it is so critical. If we cannot get access to lending to small businesses, jobs cannot be created.

We do not want to compound the problem with the creation of this bureau that ignores the implications when it comes to applications for credit from small businesses. After all, all the entities under this legislation--even the smaller institutions--all the entities will be covered under this bureau with respect to regulations. We must make sure that the smallest financial institutions' voices are heard because they are the ones that primarily provide access to small businesses, not to mention the credit card companies that also will certainly be regulated under this bureau.

We want to make sure we are not just having the big institutions' voices heard but not the small financial institutions and not how it will affect small businesses throughout the country.

To give an understanding of how strongly regarded and supported this legislation is, we have a broad cross-section of stakeholders who support this amendment, more than 23 organizations that represent millions and millions of small business owners. I am going to list them now because they are so important, given the support they are providing this amendment and how critical they think it is to the functioning of this bureau and being cognizant of the regulations that are issued, that they do not adversely affect the well-being of small businesses during these tumultuous economic times. You have the Associated Builders and Contractors, the Association of Kentucky Fried Chicken Franchisees,

the Hearth, Patio & Barbecue Association, Hispanic Leadership Fund, Independent Electrical Contractors, Institute for Liberty, International Franchise Association, the National Association for the Self-Employed, the National Federation of Independent Business, the National Lumber and Building Material Dealers Association, the National Restaurant Association, the National Roofing Contractors Association, the National Small Business Association, the Printing Industries of America, the S Corporation Association, Small Business & Entrepreneurship Council, Society of American Florists, the Society of Chemical Manufacturers & Affiliates, the Tire Industry Association, the U.S. Chamber of Commerce, the U.S. Black Chamber of Commerce, the United States Hispanic Chamber of Commerce, and the Women Impacting Public Policy.

As you can see, a broad array of stakeholders are so concerned about the pending legislation with respect to this bureau that they support this amendment.

These groups have sent a letter as well to both the chairman and the ranking member of the Banking Committee as well as the majority and minority leadership because they are so concerned about the underlying legislation, the creation of this Consumer Financial Protection Bureau, and how it will affect small businesses. I wish to quote from their letter. It says that our amendment is:

. . . an effort to prevent unintended consequences by a new

agency that could harm the small business sector . . . and

provides assurance that small business access to credit is a

top consideration by Bureau officials as they take on the

important task of overseeing our financial sector.

Just to give you another indication of how supportive and how important these advisory panels are--the ones that would be created in order to review the regulations that would be issued by this bureau-- this would be before they issue the proposed rule that these advisory panels would be created--this has occurred under EPA as well as OSHA since 1996. To give an illustration of the rules that have been reviewed through these advisory panels that are created--within a 60- day period, I might add, they would be required to report to the bureau on their assessment of any particular rule before they propose and issue that rule so we can understand the ramifications. The EPA has issued rules that created an advisory panel on groundwater, radon and drinking water, arsenic and drinking water, and diesel fuel requirements, just to give an illustration.

Since 1996, these advisory panels, as the SBA Office of Advocacy has indicated in their materials, has provided extremely valuable information on the real-world impact--and that is important to understand, the real-world impact, when a small business has to digest and to live by and to implement any rules and regulations issued by this bureau and the compliance costs of these agency proposals. So, clearly, this will have enormous benefits to small businesses because we will have a chance to review, in advance, through these advisory panels that would be comprised of the rulemaking agency--in this instance it would be the Consumer Financial Protection Bureau-- representatives of the small business community, as well as the Office of Management and Budget's Office of Information and Regulatory Affairs. So there would be a broad array of voices including small business concerns to examine these rules before they are proposed for the rulemaking process.

Doesn't that make sense? Isn't it important to understand the ramifications before we issue these regulations that could have adverse consequences for small businesses as they attempt to survive during these tenuous economic times?

The SBA Office of Advocacy has indicated in their materials with respect to how these panels work--and, again, they are required under law within 60 days to make a proposal to the bureau in terms of the ramifications or the effects or other considerations that ought to be incorporated as they issue their proposed rule.

The purpose of the panel process is threefold, and this is from the SBA Office of Advocacy. First, the panel process ensures that small entities that would be affected by a regulatory proposal are consulted about the pending action and offered an opportunity to provide information on its potential effect. Second, a panel can develop, consider and recommend less burdensome alternatives to a regulatory proposal when warranted. Finally, the rulemaking agency has the benefit of input from both real-world small entities and the panel's report and analysis prior to publication.

Doesn't it make sense? It saves everybody a lot of aggravation, a lot of money, a lot of energy that would have to be devoted in the rulemaking process after they issue the proposal rather than before they issue the proposal for the rulemaking process.

It clearly does make sense and that is why it has worked so well for EPA and OSHA and that is why it will work well under this circumstance and most especially during these times when we are creating this bureau that will have a wide-ranging effect on financial institutions all across this country that ultimately will affect the more than 30 million small businesses, because 42 percent of them depend on personal credit cards for credit. We want to make sure we are considering the consequences of anything that is done.

Also, the downstream effect of bank regulations would be considered as well as a potential effect of a regulation by this bureau. When banking practices are restricted, they do not just affect consumers, they also affect small businesses--higher capital requirements tighten the availability of credit for small businesses. That is another example of a potential rule that would come out of this bureau that could directly affect small businesses. So it is not only consumers, it is also small businesses.

The regulation of angel investors--a very important fact. In fact, NFIB has written on this question because there will be subsequent amendments to address this issue as well. But the regulation of angel investors also affects the economic well-being of small businesses because they use them as a source of capital. I know that NFIB is concerned about the reduced pool, as they have indicated in their letter, with respect to angel investors. Many small businesses depend on these individuals who invest to provide that kind of startup capital in their businesses. There are other significant small entities in the financial products industry who are likely to be overlooked in the bureau's rulemaking process. The panel requirement will benefit these businesses and will benefit the bureau's consideration of how their rules should be tailored to minimize the impact on these businesses while maximizing the intended benefits overall for small businesses.

This is not anything unique to what we don't already know about how important the Regulatory Flexibility Act is overall. Every agency is required to consider the effect of any rule or law and how it is going to have implications on small businesses and two agencies--the EPA and OSHA--are required to establish advisory panels when it is determined rules are going to be issued that have consequences on small businesses and that gives them the opportunity to have input into the process before this bureau issues those rules.

I think it makes a great deal of sense. It is reasonable, it is logical, and it averts any unintended consequences in the onset of the process rather than waiting to see how well it takes effect, and then we discover that, in fact, it depresses the ability of small businesses to create jobs or to survive.

So I hope we can get very strong support for this legislation. I am very appreciative of the work of my colleague, Senator Pryor, with whom I work on the Small Business Committee. He does a great job and has provided a great deal of input into the drafting of this legislation, and I appreciate his leadership. I appreciate the fact that it is done on a bipartisan basis because I think we all recognize the pivotal role small businesses play in today's economy and will certainly depend on playing a critical role in the future.

I ask unanimous consent to have printed in the Record a report regarding the Regulatory Flexibility Act.

Madam President, I yield the floor and now also yield to the Senator from Arkansas.

Madam President, if I may make a suggestion to my friend from Texas, as I understand, my colleagues are going to speak 2 or 3 minutes apiece. So the cumulative time of all three Senators will be about 6 or 8 minutes. I know the Senator from Texas has a longer statement to make on Senator Sessions's amendment.

Madam President, I make that request.

I cannot agree to anything at this point. We can certainly talk with the leadership about that.

I am not in a position to give that consent. That is something that has to go through leadership. Let's get the speeches done so we can get back on the bill.

Let me say first, I appreciate my colleague from North Dakota's inquiry. All I am trying to do in this--and, again, everyone can do that. I suppose there are about 60 amendments, and if we can have everyone's amendment called up, we end up with 60 amendments pending around the place. It adds to the difficulty of sorting it out, because obviously it takes consent to withdraw amendments, to modify amendments, do all sorts of things. So while it seems harmless enough to do so, it complicates the job, which is to sequence events, because obviously then it takes consent to do different things, at which point, for all sorts of different reasons, people can have motivations on why not to give consent, including people who may oppose the amendment, for reasons they want the amendment pending. So I will be very candid with my friend from North Dakota, it complicates my job. But, obviously, I do not want to cause anyone discomfort in the process. They all have amendments they want to bring up, and my job here is to try and orchestrate in a way so that amendments can be brought up, be discussed and debated.

My concern is that we end up with sort of this flood. Then everyone comes over, why not give everyone else the same courtesy along the way. If we do, then we end up potentially with chaos, on what happens to be a pretty good bill, I think at this juncture. More work needs to be done, I will be the first to acknowledge and admit that. But there is no guarantee that because we are in a good spot right now and heading, I think, toward a good conclusion of this bill--there are those who frankly would like to see it lose. I know that. There are thousands of lobbyists who have been hired to oppose this piece of legislation, the underlying bill that is before us. They are here in town and will use every mechanism and vehicle available to them to throw this off track. They are very smart. They do not just get paid well, they are bright, and they know how to do this. Many of them, in fact, worked up in these buildings for years. So they know how the place operates. They know a consent to bring up an amendment is, lay it aside, and pending, and they know what unanimous consent means in this body. Any one Member here can object.

So it does add difficulties to the management of the bill to have an unlimited amount of amendments brought up and pending, of which you then try to go through and orchestrate an outcome here that gets us to a reasonable conclusion where people are given an opportunity to debate their amendments.

So, again, I know what I am in for once this starts. We run the risk, I will say--I am very blunt on the Record. If we start this process, which I am fearful will be the case, we run the risk of losing this bill. That is the reality. This is not hyperbole. I have been here for 30 years, and I have watched what can happen. When you have got this many opponents, the opponents of this bill who are determined to throw this bill off track, to stop too big to fail, consumer protection, from getting the kind of sunlight on derivatives, all of those issues, including what my colleague from North Dakota wishes to achieve, there are people who will use every means available to destroy this piece of legislation.

We only have a couple of days left, maybe, and then we are going to move on to other bills. I urge my colleagues here--Senator Shelby and I are doing our best to try and accommodate all of our colleagues. We have had no tabling motions, we have had no filibusters on this bill, we have dealt with literally I do not know many amendments, I think some 20 or 30 amendments already. So we are moving through it and we are getting to everyone who is along the way.

So, again, if my colleagues want to go this route, I understand it, but I would be less than honest if I said, does it help or hurt the effort. Candidly, having everyone come over and demanding they be in line hurts.

Reserving the right to object, I will make the case again. There are unlimited Members who wish to be in line. I understand that. I warn my colleagues, no amendment, in my view, is more important than the underlying bill. Understand that if we go this route, and I end up with every Member coming over and making that request--and there are many more who want to do that here--once this starts, then my ability to get us to the conclusion of a good bill is at risk. So I am going to object.

Madam President, let me say to my colleague, I have any number of colleagues who would like to be doing the same thing. All of them believe strongly in their amendments. I am not arguing about the substance of the amendment. At the conclusion of last evening, we tried to establish a sequence. I have no problem putting my colleague's amendment in the next tranche. My problem is, what do I say to the next colleague who wants to do the same thing? At what point do I say: I can't manage this if we are going to do it this way. Anyone can make a request, and I am trying to deal with these requests as they come forward and put it together in a way that allows us to go forward.

We will vote shortly on the Sessions amendment, a Franken amendment. Senator Durbin has an amendment I would like to have called up. Trying to get time agreements is the art of management of legislation. I do not want to deprive anyone of offering an amendment. But at some point--what is the point of having someone sit in this chair if we just all come over and offer amendments and get in line somehow and then we have 60 amendments? Taking unanimous consent at some point to drop that creates a problem in terms of managerial capacity.

My colleague will get, to the best of my ability, a chance to have his amendment come up and, hopefully, an adequate amount of time to debate it. I respectfully ask him to give me a chance so I don't end up opening the door to the next Senator making a similar passionate request. At some point we have to put a stop to this so I can manage the bill and go forward. That is all I am saying.

The next three amendments--those of Senators Durbin, Specter, and Franken--are not offered by members of the committee.

Madam President, I was going to address the underlying question here, but I know my colleague from Maine wishes to be heard on a different amendment.

Let me say briefly that I appreciate the comments and I appreciate the efforts of Senator Franken in this regard. Forty pages of our bill are exclusively dedicated to rating agencies. We spent an inordinate amount of time on the rating agency question. This is a complex issue and the source of a lot of discomfort. There is a headline in one of the national newspapers this morning that talks about the rating agencies and the problems they have posed in giving ratings to products that were worth vastly less than their claims.

Very briefly, on the underlying bill, the SEC will have a new office of credit ratings to regulate and promote accuracy in ratings, staffed with experts in structured, corporate, and municipal debt finance. The office's own examination staff will conduct annual inspections, and the essential findings will be available to the public. The SEC will have expanded authority to suspend the registration of agencies that consistently produce ratings without integrity. It will have more authority to sanction ratings agencies that violate the law, including penalties for management for failure to supervise employees who break the law.

The bill imposes tough new requirements on credit rating agencies. Ratings agency boards are subject to new rules for independence. Ratings analysts must be separated from those who sell the firm's services. Agencies must publicly disclose when they materially change their procedures or methodologies or make significant errors and update their credit ratings accordingly. Agencies must establish strong internal controls for following procedures and methodologies and have these attested to by their CEO to the SEC. The agencies must establish hotlines for whistleblowers and complaints, retain complaints about the firm's work for regulators to examine.

Compliance officers must submit annual compliance reports to the SEC. They are required to consider credible information they received from sources other than the issuers in making the ratings, rather than relying on the--basing ratings only on the issuer's representations.

Investors are empowered. The agencies must disclose more about their ratings assumptions, limitations, risks, accuracy, and factors that might lead to change in ratings. Agencies must disclose their track record of ratings in a way that is in compliance so that users can compare ratings for accuracy across different agencies.

It also will have the benefit of having new pleading standards so when private suits are brought, they will be able to have actions brought against these rating agencies.

The issuer or underwriters of any asset-backed security shall make available any due diligence reports, and on and on.

The point I want to make is we have spent a lot of time on this issue. A lot of work went into this issue. My colleague from Minnesota has what I think is a good and sound idea. Here is my concern as chairman of the committee. I do not know what the implications are because we have had no real examination of having the wheel about which my friend from New York talked. Not all rating agencies are equal. There ought to be more of them. There are smaller ones out there that ought to be able to grow in their competency and do things. But there are companies of different sizes and needs, and merely changing a rating agency based on an arbitrary choice without considering whether the rating agency can do the job is my concern.

I like the idea because what it does do is get away from the conflict of interest. That is as it presently exists. Here is the quandary we have: Right now, the company that seeks the rating agency pays the rating agency. Obviously, on its face, you have a problem. If I am buying a service from you--and by the way, I would like to get a AAA rating--I have a pretty good chance of getting it whether I deserve it or not. The alternative idea, somebody said, is why don't you have the buyers of the rating agency? There is a similar problem. They might like to have a DDD rating to lower the value. So you have a conflict on either side of this question that is difficult and difficult to resolve.

Compound the problem with the fact that the rating agencies, as presently construed, prior to our language in this bill, basically rely on the information from the very purchase of the rating agency to determine whether it is a good product. There is no due diligence done by the rating agency. Our bill changes all of that.

It is with a great deal of reluctance--as I said to my colleague from Minnesota, I was prepared to take a good study of this; in fact, language that would recommend the SEC and others--the SEC has authority under existing law to deal with conflicts of interest. They have the power to do it. Whether they do it is another matter. That is always the issue with a regulator.

I am concerned what this means. I say that respectfully to the author. He has worked hard on this amendment. There are a lot of good ideas in it. I am just uneasy about what the implications can be. I would be remiss if I did not express that as chairman of the committee having spent hours listening to the debate back and forth.

On the amendment offered by our colleague from Florida, there is a different set of issues I have, but I also have to express my opposition to that amendment. The reason is because very simply we know that credit ratings are far from the perfect measure. We know that. We wrestled with this.

I agree that the markets may place too much reliance on credit ratings. But the way to address the problem is not to simply repeal the safety and soundness provisions of the law. That is what he is asking us to do.

While I have problems with the present system and we made major inroads on how to address that in ways we thought made some sense, the idea of the Senator from Florida that because we are not happy with the present structure--although I think the bill before us does an awful lot in 40 pages to deal with how this is to be accomplished--he repeals all of it. Someone may have a better idea out there, but to get rid of what we have, leaving a vacant space, in a sense, is not my view of the way this ought to be addressed. Congress could not simply repeal safety and soundness laws without careful prior study of the impact on the markets. That is what we are doing with the LeMieux amendment.

Our bill sets out a process by which overreliance on these rating agencies can be reduced without creating risk throughout the financial system. That is my concern. Stripping everything out of safety and soundness in this area does not get you safety and soundness.

With regard to both amendments, I am more attracted to the amendment offered by Senator Franken, and I like the idea of where he is going. I just do not know whether it is sound. Again, it is the kind of thing I wish to see examined--and that is not to suggest he has not done that-- where you take the time and go through the process.

It is with some reluctance that I express my opposition to both amendments and urge my colleagues to review, if they care to, the 40 pages of effort we have made in our bill.

Jack Reed of Rhode Island deserves a lot of credit for having worked particularly hard on the rating issue in our committee and the subcommittee dealing with securities. We think we have a strong bill in these areas. I would be the first to say it is far from perfect, but we did our best to find a way to get far greater responsibility and accountability out of the credit rating agencies. There is a great concern here that accountability and responsibility needs to be taken into consideration.

As I said, our bill has 40 pages of safeguards to strengthen the SEC, empower investors, and to make rating

agencies far more responsible and accountable.

Madam President, I yield the floor.

Briefly, my concern with this amendment is we are replacing the rating agencies without having anything in their place. I urge my colleagues to vote no and yield back my time.

Mr. President, how much time remains?

I will not use all of 12 minutes. I will take a few minutes.

I spoke last evening about my friend's amendment, and it wasn't to a packed Chamber, I can tell you, at 8 o'clock last night. But I am sure the Senators all received copies of it or listened to it intently as you were dozing off last evening.

Let me, first of all, thank Jeff Sessions. He is a good pal and friend, and we have worked together on a number of issues. Senator Corker, who is on the floor as well, in many ways--both Bob Corker and Mark Warner of Virginia--is as much the coauthor of the very section we are talking about as anyone in this Chamber. He spent a lot of hours trying to put this together.

But here is the quandary with the Sessions amendment. One of the things we have tried to avoid is, of course, getting back to too big to fail. The presumption of our bill is bankruptcy. Clearly, we want to get people into bankruptcy, if they deserve to be there. If they deserve to fail, they should fail. The problem is, when you end up pushing some large, highly complex entity into bankruptcy, it can have the unintended collateral damage effect of affecting otherwise solvent, good companies that are well managed, well run, and who employ a lot of people and are doing a good job. When these highly complex entities are shoved into bankruptcy, there can be collateral damage and other companies can suffer.

I am shorthanding this, in a way. So the idea was, on some rare occasions, and hopefully they are very rare, when that possibility occurs and you have to go through a number of hoops to get to that conclusion, that we would have a mechanism for a resolution, a winding down of that entity, to avoid the kind of collateral damage that could cause if bankruptcy were the only option for those complex entities.

What you are faced with, if the Sessions amendment is adopted, is right back where we were in the fall of 2008 where the choices are bankruptcy or bailout, in a sense, where bankruptcy would pose, as Lehman Brothers potentially did, as we saw, a lot of collateral damage because there was not a wind-down resolution mechanism. Whether it should have been used in that particular fact situation, I don't want to try to make that case. That is not my point, not making my case. But let's say it is a Lehman Brothers-like situation where we would all agree that company ought to be put out of its misery, but to go through traditional bankruptcy would have the collateral effect of taking a lot of other people with it in the process who do not deserve to go down, not to mention the jobs and the impact on the economy.

Senator Corker, Senator Warner, and others obviously working with it, came up with this. They listened to a lot of people. Again, no one ever knows if you have this exactly right. We talked about all the things. We had exactly right what we want to do. We know what we want the outcome to be. Whether we did it right so it will work exactly as we planned we will never know until the first case pops up and determines whether what we put in place achieves its goal. But in the absence of that, we are right back where we were.

If someone said to me: What is the most critical part of this bill-- that is a hard thing to ask someone who has been involved in a lot of it, but if you said: We are only going to let you keep one section of this bill; you are going to have to get rid of everything else; which section would you keep, Senator, this is what I would keep because this is what exposed the American taxpayer to that $700 billion check they had to write because we didn't have an alternative in place to deal with moments like that. Hopefully, they rarely come.

There were a lot of events that led up to it that we tried to deal with in this bill as well, including the underwriting standards and all sorts of things to minimize ever getting to that point where you have to make that decision. But we have all been around long enough to know they can happen, and when they happen again, what will be our answer? We had an option out there, but we got rid of it.

America, you have to make a choice. A lot of other people are going to suffer unnecessarily, but bankruptcy is the only choice to go. We would look back and say: Why didn't we put in place some alternative mechanism in those most rare occasions where some alternative other than bankruptcy should be in place?

That is the shorthand version of a lot of conversation, a lot of talk over a lot of months to this point.

Senator Leahy, the chairman of the Judiciary Committee, opposes the amendment. Other members of the committee may agree with Senator Sessions. I don't want to suggest this is necessarily broad dissent, one side or the other. But this is as critical as it gets on this bill.

I say to my colleagues, there are a lot of amendments being offered, and frankly I might be against them or for them. If they are excluded or included, I might be disappointed one way or the other. If we get rid of this, I don't know how in good conscience you can walk out of the Chamber and look the American taxpayer in the eye and say again: We have now protected you against too big to fail.

For those reasons, I urge the rejection of the Sessions amendment, and I say that respectfully of a good friend.

I yield back the remainder of my time.

I have to ask for the yeas and nays under the order, don't

I will be glad to yield. Instead of yielding my time, let me yield 2 minutes to my friend from Tennessee.

I will take 30 more seconds.

Here is the concern. With smaller entities, I can see the case where they should go to bankruptcy, and that may happen. We are talking about very complex, interconnected ones.

My colleague is correct, by the way. I should have made note of this. We did try. And, again, it is not the fault of the Judiciary Committee. They have been overwhelmed with judicial nominations and everything else.

The present bankruptcy process does pose an issue with large, complex entities for the very reason I outlined, and therefore you need some mechanism because then the alternative is bailout, I presume, rather than having a lot of innocent companies fail, with a lot of unemployment occurring and damage to the economy. There is a step that will have to be worked on.

I don't disagree on GSEs. I care deeply about that, and it is an area that needs to be reformed. But at this juncture, to strip this out is to throw us right back. My concern is not what else needs to be done down the road, but if you strip this out at this juncture, we leave ourselves very vulnerable.

With the Shelby-Dodd amendment that passed 93 to 5, I think it was-- we tried to fill in a lot of gaps people have. We got rid of that prepayment issue that people had a lot concerns about, and it is a postpayment system. All of the issues we tried to resolve.

I appreciate the comments of my colleague from Tennessee.

With that, I yield back the remainder of my time and ask for the yeas and nays.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that the pending amendment be set aside so that I may call up Senator Wyden's amendment No. 4019 and Senator Thune's amendment No. 3987.

Mr. President, I ask the senior Senator from Oregon, does he want to be heard on his amendment?

My pleasure is we have the vote on the Wyden-Grassley amendment. So whenever that can occur, I am for it. We can do it right now. I am for it now.

It is not my sole decision, of course.

I can say to my colleague from Oregon that I expect momentarily we will work out some time agreements and we will schedule a vote fairly quickly.

I suggest the absence of a quorum.

Madam President, before our colleague from Delaware leaves the floor--I said this once before, but I want to repeat it. Our colleague from Delaware has only been here a few months, I guess--a little over a year now; it goes by very quickly--having stepped in after our colleague, Joe Biden, became Vice President, and I do not know how well noticed it goes, but Senator Kaufman, I believe almost on a daily basis or something like that----

On a weekly basis--takes a few minutes to recognize people whose names and faces I am sure most Americans have never known or seen. Their families and neighbors are familiar with them. But he chooses three or four people who have worked on behalf of all of us, in many cases for years, without ever getting the kind of notoriety and celebration people in elective office receive. I wish to thank him for doing it. It is not a piece of legislation. It is not an amendment to a bill. It is not some ordinance or some treaty this Senate has an obligation to engage in; it is merely taking a little time to recognize some very fine Americans. We all hear about the ones who mess up and do things that are wrong. They get the headlines. But every day, there are literally thousands of people in this country who go to work on behalf of the American public who do their jobs diligently and serve us all tremendously well. The fact that one Member in this body every week takes a few minutes to say thank you is something I deeply appreciate, and I thank him.

I note the absence of a quorum.

Mr. President, what is the pending question?

Mr. President, I now withdraw the Wyden amendment.

Mr. President, I ask unanimous consent that the Senate now resume consideration of the Durbin amendment No. 3989 and the Thune amendment No. 3987; that the Durbin amendment be modified with the changes at the desk; that the amendments be debated concurrently for a total of 10 minutes, with the time equally divided and controlled in the usual form; that no amendment be in order to any of the amendments in this agreement prior to a vote; that upon the use or yielding back of time, the Senate proceed to vote in relation to the following amendments; that the Durbin amendment be subject to an affirmative 60- vote threshold; that if the amendment achieves the threshold, then it be agreed to and the motion to reconsider be laid upon the table; that if the amendment does not achieve the threshold, it be withdrawn: Durbin amendment No. 3989, as modified; Thune amendment No. 3987; that after the first vote, the succeeding vote be limited to 10 minutes, with 2 minutes of debate prior to each vote, equally divided and controlled.

Mr. President, I couldn't hear. What is the situation we are in?

Mr. President, I suggest the absence of a quorum.

Mr. President, I renew my unanimous consent request.

Mr. President, I ask unanimous consent that upon disposition of the above-mentioned amendments, the Senate resume consideration of the Collins amendment No. 3879 and that the amendment be considered and agreed to and the motion to reconsider be considered made and laid upon the table.

Mr. President, I ask unanimous consent that the following be the next first-degree amendments in order: Rockefeller-Hutchison, the FTC amendment; Senator Crapo, the GSE on budget amendment; Senator Mark Udall of Colorado, No. 4016 regarding credit scores; Senator Shelby's amendment No. 4010 re: the consumer bureau; Senator Whitehouse's State usury laws; Senator Vitter, No. 4003, the manufacturing amendment; Senator Cantwell and Senator McCain's Glass- Steagall amendment; and Senator Cornyn, No. 3986 regarding the IMF.

Mr. President, I thank my colleague from Rhode Island for his very generous comments. We have worked closely together. He hasn't been here a great deal of time, but he was an invaluable asset last year about this time when we were spending an awful lot of time together. I had become sort of the acting chairman of the HELP Committee when my dearest friend in this Chamber became terribly ill, Senator Kennedy. He asked me to take over that committee for him. We were charged with the responsibility of putting together a sizable portion of the health care proposal. The Senator from Rhode Island was an invaluable asset in that process. We had some critical moments, which I will not go into now, but in those critical moments, he played a remarkably important role. Some day, I will have time to spend more time going back and writing or talking about those days. I can point to several moments when, in the absence of Senator Whitehouse's involvement, I am not sure we would have ever concluded the process as successfully as we did. I am eternally grateful to him for that. He has since then moved off that committee and he is doing other things. He is terribly interested in this subject matter, financial reform. I commend him for his passion and determination to have these issues raised.

Mr. President, I am going to be very brief. Our staff has been very patient all week. You only get to see them when the cameras pull back and we are in a quorum call. The wonderful floor staff people do a remarkable job. Our reporters of debates here do a terrific job reporting the words of every Senator who has spoken. I am grateful to them.

I briefly say, Mr. President, we have now, I think, done some 30, 35 amendments on this bill. We have been at this for a couple of weeks. The legislative days, I think, are 6 working days--maybe 7, which doesn't seem like much, but it is an awful lot. Important amendments have been debated, accepted, and rejected on both sides of the aisle.

I was determined at the outset to prove not only that we can pass important legislation, but that we can do it with a strong dose of civility in the process, and that while we have strong views and we speak, as I do from time to time, with some degree of emotion and passion about things I care deeply about, that should in no way be a reflection of my feelings for my colleagues. We have allowed a lack of civility in recent years, which makes it more difficult to get our jobs done. We didn't get elected here to let those emotions dominate our jobs on behalf of the people who sent us here.

In the last couple of weeks, we have produced a good bill, a stronger bill, but in a way the American people can take pride in how their Senate is operating. I am grateful to all my colleagues and the staffs and others who make it possible for us to do this. These people are knowledgeable about what needs to be done to work out language that allows us to move forward. They don't get mentioned or talked about, and they don't give speeches, but they play an integral and important role in how this institution works.

Amendment No. 3758 to Amendment No. 3739

Mr. President, I ask unanimous consent that the pending amendment be set aside, and on behalf of Senator Rockefeller, I call up amendment No. 3758 and ask that once it is reported by number, it be set aside.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Yes.

Mr. President, thank you very much.

Let me particularly express my appreciation to the chairman of the full committee, Senator Dodd. He has been extraordinarily patient, and especially with the large bipartisan coalition that has come together behind this amendment to ensure that finally the secret hold in the Senate--one of the most powerful tools a Senator has in the Senate--is no longer.

I say to the Presiding Officer, you have done very good work on this issue, along with a number of colleagues on both sides of the aisle. The reason we feel so strongly is because the secret hold in the Senate is an indefensible violation of the public's right to know.

We all understand every time we are home in our States how frustrated people are with the way business is done in Washington, DC. One way to send a message we are going to start doing business differently is to throw open the doors of government and to make sure nominations and legislation that is important gets debated in public, and people actually get to see the give-and-take of colleagues on both sides of the aisle--Democrats and Republicans--that is essential to making good policy.

Most Americans have no idea what a secret hold is, and I have said on many occasions that my guess is a lot of them think this is some kind of hair spray or something. But the fact is, this is an extraordinary tool that Senators have to effect the lives of our people, and it ought to be something that is exposed to public scrutiny and public accountability.

When asked why he robbed banks, Willie Sutton said: That is where the money is. In the Senate, secret holds are where the power is.

What our bipartisan group has said is, it is wrong for a Senator to block a piece of legislation or a nomination in secret by simply telling the leader of their party of their desire. What this has meant--and there have been scores and scores of these secret holds in recent years--is that one person, without any public disclosure whatsoever, can keep the American people from even getting a small peek at what is public business. That is not right, and it is time to eliminate secret holds.

In 2007, Senators on both sides of the aisle sought to finally bring some sunlight to this practice. Senator Grassley, the distinguished Senator from Iowa, and I have worked on this for over a decade. Unfortunately, a number of loopholes have been developed since that provision was accepted, and today too much Senate business is done in the dark, unaccountable, and away from public scrutiny and public exposure.

This amendment closes the loopholes, and it is going to be enforced.

With this approach, every hold--every single hold--is going to have a public owner within 2 days.

I want to close by just briefly describing how this would work. Under this proposal, if a Senator puts a hold on a bill or a nomination, they are required to submit a written notice in the Congressional Record within 2 days. When that bill or nomination comes to the floor, and any Senator objects to its consideration on the grounds of a hold, one of two things is going to happen: either the Senator placing the secret hold is going to have their name publicly released, or the Senator who objected on their behalf is going to own that hold. That Senator will own it. Their name is going to be published in the congressional calendar.

So for the first time--after all of these months and months of debate about secret holds in the Senate--there is going to be public pressure and peer pressure on those who try to do Senate business behind closed doors.

Two last points with respect to reforms included in this amendment: The proposal eliminates the ability that a Senator now has to lift a hold before the current 6-day period expires and never have it disclosed.

The Presiding Officer and I have talked a bit about this matter of revolving holds in a 6-day period. This has been a huge abuse. It has allowed a Senator to do business in secret and never have it recorded. With this new bipartisan proposal, if a Senator places a hold, even for a day, even for a minute, the hold is going to be disclosed.

Finally, the proposal makes it harder for a group of Senators to replace revolving holds on a nomination or bill. With the 6-day time period, a group of Senators can pass a hold from one colleague to another and never have it discussed. By requiring all holds to be made public, it will be much more difficult to find new Senators to place revolving holds.

The last point: It seems to me, in addition to taking a step the country feels very strongly about, which is doing more public business in public, this is being done in a bipartisan way. This is being done in a way that can bring Democrats and Republicans together, in a way that doesn't involve a lot of fingerpointing. I wish to mention a number of colleagues: the Presiding Officer, the distinguished Senator from Virginia, has been very constructive and has had many conversations with me about this; Senator Inhofe, Senator Collins, and Senator Grassley. Senator Inhofe has been talking about this issue with me and others for almost a decade as well. Senator Bennet, Senator Merkley, Senator Whitehouse, all of these Senators, a large, bipartisan group come together to urge the passage of this amendment. I want to single out too, though, for particular commendation, Mrs. McCaskill, the Senator from Missouri, because we wouldn't be on this floor today had not the Senator from Missouri prosecuted this cause relentlessly. She has brought to light the number of holds. When we have talked about it, she has made the point that this has gone on on both sides of the aisle. She deserves great credit for this reform being made today.

Let me also thank Senator Coburn--Dr. Coburn--of Oklahoma. He has been very involved in reform issues for many years. We are looking forward to an additional reform he is going to be advancing that I look forward to sponsoring.

I wrap up only by way of trying to highlight that after the Senate has spent a lot of time discussing secret holds over the last few months, on a bipartisan basis, the Senate comes together today with an approach that has actually brought Senators together and is going to ensure that every single secret hold is going to have an owner. That is going to be a big change. It is high time. The public deserves to have public business actually done in public, and with the adoption of this amendment, that will be done.

The chairman of the full committee has been very gracious to me. I wish to ask for the yeas and nays at this time, and I wish to engage the chairman of the full committee in a colloquy. The chairman has been very helpful with respect to scheduling this.

Is it the pleasure of the chairman of the committee that now, having debated this, we set it aside for a vote later in the day?

I am ready to go to the yeas and nays.

Mr. President, I ask for the yeas and nays.

Mr. President, I withdraw that request. I thank the chairman of the committee.

The chairman of the full committee has been very patient with us. He has done an extraordinary amount of work. Let us, with that request, hold off on the yeas and nays, and I ask the chairman that it be scheduled with the next group of votes.

I thank the chairman.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent to speak as in morning business.

Mr. President and colleagues, the American people are furious at the way business is done in Washington, DC. Today, on the floor of the Senate, we saw a pretty good reason why.

For many months, a large group of Senators on both sides of the aisle--Senator Grassley, Senator Inhofe, Senator Collins, and Senator Bennett, among the Republicans; a host of my colleagues on our side of the aisle, led by Senator McCaskill--have been working to try to eliminate the secret hold in the Senate, which is, in my view, one of the most pernicious, most antidemocratic practices in government.

What the secret hold allows is for just one Senator--just one--to anonymously keep the American people from getting any sense of a particular piece of legislation, someone who has been nominated for an appointment--any sense of some of the most important business that is before the Senate.

The Senator from Missouri, who is in the Chamber, has noted that at times there are scores and scores of these secret holds. I have pointed out this has happened for years on both sides of the aisle.

So this has been an opportunity, when the country is crying out for bipartisanship, for Democrats and Republicans to together--as our large group has done--fix this, to open our government, to ensure that democracy is accountable, and that public business is actually done in public.

Until about an hour or so ago, I thought we would win a dramatic victory for the cause of open government. We had a good debate this morning on the measure. Colleagues on both sides of the aisle talked about it.

Not one Senator objected, not one was willing to say in public they were in favor of secret holds. Quite the opposite: We talked for some time, and no one objected at all. We were under the impression that the matter would be scheduled for a vote this afternoon.

Given that, I was flabbergasted that right before it was time to vote, one Senator--just one--without any notice whatever--no notice to me, no notice to any of the other sponsors, sponsors on the other side of the aisle--one Senator sought to attach to our amendment, which would have received a resounding vote because Senators are not going to vote in favor of secrecy when they are on the record--one Senator attached a completely unrelated matter, a very controversial matter.

I say to the Chair, I say to all my colleagues, I never, ever would have done that to another colleague. I have felt for many years now that the great challenge in the Senate is to have colleagues work together, to have colleagues come together on both sides, because that is going to help us advance the cause of open government, it is going to help us get the best possible policy.

So if I had been in our colleague's shoes, and I was interested in advancing this other issue, I would have come to that particular Senator and said: How can we work this out? That did not happen. So all of us, at the last minute, when we were looking forward to celebrating what, in my view, would have been a historic vote for open government, after all these months of Democrats and Republicans debating secrecy in government, we now sit here on Thursday evening, with secrecy having won once more, doing government in the shadows winning once more, denying the American people the accountability this institution is all about winning once again.

I think the American people deserve better. We spent a lot of time today bringing all sides together. The chairman of the committee, Senator Dodd, is here with us. The whole essence of the Wall Street legislation has been to ensure more openness and more accountability in these essential financial transactions. Chairman Dodd has done a superb job in advancing that case.

What Senators on both sides of the aisle sought to do, until there was an objection from one Senator at the last minute--with no notice-- what we sought to do was to say: If we are going to open our system of financial transactions so there would be more transparency and more accountability, let's also open the way we do business in the Senate so the American people are not kept in the dark any longer about major judgments with respect to legislation or nominations. One Senator--just one--without notice, kept us from bringing that new accountability and openness to the Senate.

I know colleagues want to bring up other matters. I simply wish to say--I think I have been in this body now for a little over a decade--I cannot recall another instance where the cause of open government took a beating, took a blindsiding, like the cause of open government took this afternoon.

I wish to tell my colleagues, I intend to come back to my post here again and again and again until we abolish the secret hold, until we ensure that the American people see that government is being brought out of the shadows and debates are out in the open, where they ought to be.

We did not win this afternoon because I think we got kneecapped. I do not know how to describe it any other way. But I do not think, at this time in American history, where the American people are this angry-- this angry--at the way Washington, DC, does business, that those who advocate secrecy are on the right side of history. I do not think they are going to be able to defend in broad daylight opposing a bipartisan coalition.

Senator Grassley has worked with me on this for a decade. He has, again and again, championed the cause of transparency and openness in government, not just on this question of abolishing secret holds but on inspectors general and a variety of other practices.

So these are colleagues--Democrats and Republicans--who want to show the American people they are going to stand for open government, and they are going to do it in a way where the American people will say: Those folks finally get it. Instead of spending their time in these petty food fights, they are a group of Democrats and Republicans who acted like adults and got together and solved a major problem--a major problem--by eliminating secrecy and making government more open.

So it is my intent to come back, if possible, day in and day out until this changes. I think this is unconscionable. I can tell you, I have never seen anything like this in my time in the Senate: one Senator coming in, at the last moment, with no notice, trying to derail the cause of open government.

I am not going to stand for it. I do not think the American people are going to stand for it. We will be back here for as long as it takes to bring some real sunshine to this cause of the Senate doing its business in public rather than in the shadows.

I yield the floor.