GAO Access and Oversight Act of 2017

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that I be permitted to speak as in morning business for 15 minutes.

Mr. President, the Senate is holding hearings on each of President-Elect Trump's nominees to his Cabinet. Traditionally, Presidents are accorded a very high level of deference on assembling their own team, in part because these nominees are directly accountable to the President. But they are accountable to the American people too.

No Cabinet member is more powerful or has more impact on the day-to- day lives of Americans than the Attorney General of the United States.

The Attorney General is, indeed, a general, in command of an army of thousands of lawyers whose words carry enormous weight and power. It is the weight and power of the people of the United States. He speaks for us. He charges defendants in our name. He has sweeping authority to bring criminal charges in all Federal offenses, enormous unreviewable discretion in cases ranging from minor misdemeanors to the most serious felonies. In every sense, as capital penalties can be sought for some of these crimes, he wields the power of life and death.

The Attorney General's authority is not only sweeping, it is uniquely independent of the President's Cabinet. His decisions must supersede partisan politics. In most cases, there is no recourse to overrule his decisions unless there is political interference. He is not just another government lawyer or even just another member of the President's Cabinet. He is the Nation's lawyer, and he must be the Nation's legal counsel and conscience.

The job of U.S. Attorney General at stake here is one that I know pretty well. Like some of my colleagues in this body, I served as U.S. attorney, the chief Federal prosecutor in Connecticut.

I reported to the U.S. Attorney General. For years afterward as a private litigator and then as attorney general of the State of Connecticut for 20 years, I fought alongside and sometimes against the U.S. Attorney General and the legal forces at his disposal. I have seen his power, or hers, firsthand. The power of this Attorney General is awesome, as is that of any Attorney General.

In the best of cases, they are inspiring too. Even as he protects the public from vicious and violent criminal offenders, his role is also to protect the innocent from unfounded charges that could shatter their lives even if they are acquitted. As Justice Robert Jackson, a former Attorney General himself, once said: His job is not to convict, but to assure justice is done.

So this job requires a singular level of intellect and integrity and nonpartisan but passionate devotion to the rule of law and an extraordinary sense of conscience. That is because he is responsible for so much more than prosecuting and preventing crime and ensuring public safety. He is responsible for aggressively upholding our Nation's sacred constitutional commitment to protecting individual rights and liberties and preventing infringement on them, even by the government itself, maybe especially by the government.

This responsibility for safeguarding equal justice under the law is particularly important today, at a time when those civil rights and freedoms are so much in peril. This historic moment demands a person whose life work, professional career, and record shows that he will make the guarantee under our Constitution of equal justice under law a core mandate of his tenure.

Having reviewed the full record and recent testimony, regrettably and respectfully, I cannot support the President-elect's nominee, our colleague and friend Jeff Sessions, for this job.

At his confirmation hearing, Senator Sessions simply said he would follow the law and he would obey it, but the Attorney General of the United States must be more than a follower. He must be a leader in protecting the essential constitutional rights and liberties. He must be a champion, a zealous advocate. He must actively pursue justice, not just passively follow or obey the law.

Senator Sessions' record reflects a hostility and antipathy--in fact, downright opposition--to civil rights and voting rights, women's health care and privacy rights, antidiscrimination measures, and religious freedom safeguards. He has prided himself on his vociferous opposition to immigration reform legislation, a measure that passed this body with 68 bipartisan votes, and a criminal justice reform bill that has attracted a group of 25 cosponsors, Democrats and Republicans. He even split with the majority of his own party to vote against reauthorizing the Violence Against Women Act. He opposed hate crime prohibitions. Senator Sessions' views and positions on these issues and others, which are critical to protecting and championing rights and liberties under our Constitution, are simply out of the mainstream. There is nothing in Senator Sessions' record, including his testimony before the Judiciary Committee this week, that indicates he will be the constitutional champion the Nation needs at this point in its history.

Equally important, the Attorney General must speak truth to power. He must be ready, willing, and able to say no to the President of the United States and ensure that the President is never above the law. Senator Sessions' record and testimony give me no confidence that he will fulfill this core task.

When I asked him about enforcement of cases against illegal conflicts of interest involving the President and his family, such as violations of the emoluments clause or the STOCK Act, he equivocated. When I asked him about appointing a special counsel to investigate criminal wrongdoing at Deutsche Bank, owed more than $300 million by Donald Trump, he equivocated. When I asked him about abstaining from voting on other Presidential nominees while he is in the Senate, he equivocated. Those answers give me no confidence that he will be the independent, nonpolitical law enforcer against conflicts of interest and official self-enrichment that the Nation needs now more than ever--at a moment when the incoming administration faces ethical and legal controversies that are unprecedented in scope and scale.

Senator Sessions' record over many years and his recent testimony fail to demonstrate the core commitments and convictions necessary in our next Attorney General.

Back in 1986, the Senate Judiciary Committee rejected Senator Sessions' nomination to a Federal judgeship due to remarks he made and actions he took in a position of public trust as U.S. attorney in Alabama. However, my position on his nomination is primarily based on his record since those hearings and less on what was considered at that time.

On voting rights, Senator Sessions has often condoned barriers to Americans exercising their franchise. He has been a leading opponent of provisions in the Voting Rights Act designed to ensure that African Americans can vote in places, such as his home State of Alabama, which have a unique history of racial segregation. He has advocated for needlessly restrictive and draconian voter ID laws, citing utterly debunked threats of rampant voter fraud as an excuse for curtailing the real and legitimate rights of entire groups of voters.

On privacy--very important--Senator Sessions has passionately opposed this longstanding American right, which is enshrined in five decades of Supreme Court precedent. It protects women's health care and personal decisions involving reproductive rights. At a time when these rights are facing an unprecedented assault, he has continued to condemn Roe v. Wade and the many court decisions upholding that case.

He is also supported by extremist groups like Operation Rescue that defend the murder of doctors and the vilification and criminalization of women. With him as Attorney General, American women would understandably feel less secure about those rights.

On religious freedom, Senator Sessions has advocated for using a religious test to determine which immigrants can enter this country. When this issue arose in committee, Senator Sessions was the only Senator--the only Senator--to argue forcefully for religious tests and against principles of religious liberty that have animated our Republic since its founding. With Senator Sessions as Attorney General, a Trump administration would enjoy a permanent green light for any racially or religiously discriminatory immigration policy that might appeal to him.

On citizenship, Senator Sessions has called for abolishing a time- honored tradition that dates back to reconstruction. Birthright citizenship is the distinctly American concept that anyone born on our soil is a citizen of our country. We do not exclude people from citizenship based on the nationality of their parents or grandparents. Senator Sessions disagrees, a position that most other Republicans think is extreme.

With Senator Sessions as Attorney General, the Trump administration would be encouraged in attempting to deport American citizens--who have raised families and spent their entire lives here--from the only country they have ever known.

Senator Sessions declined my invitation at his nomination hearing to exercise moral and legal leadership and demonstrate his resolve to serve as the Nation's legal conscience. He refused to reject the possibility of using information voluntarily provided by DACA applicants to deport them and their families. As a matter of fundamental fairness and due process, when a DREAMer has provided information to our government after being invited to come out of the shadows, this information should never be used to deport that person. With Senator Sessions as Attorney General, that sense of legal conscience would be lacking.

On issues of discrimination and equal protection, Senator Sessions has publicly opposed marriage equality, claiming it ``weakens marriage'' and even tried to eliminate protections for LGBT Americans contained in the Runaway and Homeless Youth and Trafficking Prevention Act. He has repeatedly voted against steps to enhance enforcement against hate crimes--violent assaults involving bigotry or bias based on race, religion, and sexual orientation. He even defended President- Elect Trump's shocking admission on video of his pattern of engaging in sexual assault.

Senator Sessions himself has said that public officials can be fairly judged by assessing who their supporters are. Senator Sessions is backed by groups with ties to White supremacists.

He has even accepted an award and repeated campaign donations from groups whose founder openly promotes the goal of maintaining a ``European American majority'' in our society. Neither award, nor many other important parts of Senator Sessions' record, was reported on the questionnaire he prepared for the Judiciary Committee.

I gave Senator Sessions an opportunity at the hearing earlier this week to repudiate these hate groups and racist individuals who have endorsed his nomination and supported him in the past. In fact, instead he doubled down, saying that a man who has accused African Americans of excessive criminality and American Muslims of extensive ties to terrorism was ``a most brilliant individual.''

So I reach my decision to oppose this nomination with regret because Jeff Sessions is a colleague and a friend to all of us. Indeed, he and I have a rapport. I have come to like and respect

him through a number of shared experiences in this building, traveling abroad, and outside.

We have common causes. He and I both support law enforcement professionals who serve our communities and the Nation with dedication and courage. They are never given sufficient thanks and appreciation.

He and I both believe that individual corporate criminal culpability should be pursued more vigorously. Individual corporate executives should be held accountable for the wrongdoing of corporations when they are criminally involved.

This job, this decision, this responsibility is different. Here, my disagreements stem from bedrock constitutional principles. While I could envision deferring to Presidential authority and supporting him for other positions, my objections to his nomination here relate specifically to this particular, essential, all-powerful job.

At this historic moment, there must be no doubt about the ironclad commitment of the Attorney General of the United States to the bedrock principle of equal justice under law, his resolve to be an independent voice, assuring that the President is never above the law, his determination to be a champion for all people of America and our constitutional principles that protect all people, and to be a legal conscience for the Nation.

Reviewing his record, I cannot assure the people of Connecticut or the country that Jeff Sessions would be a vigorous champion of these rights and liberties. Therefore, I stand in opposition to his nomination.

Mr. President, I yield the floor.

I suggest the absence of a quorum

Mr. President, in just a few minutes we are going to vote on a bill that probably will not get a lot of attention in Washington. No cable news shows are going to give it breaking alerts, headlines. Roundtables of pundits will not be gathering to scream about it, and partisans are not going to score the bill.

It is a straightforward bill with a straightforward purpose--to ensure that the Government Accountability Office can tap into the data at the Department of Health and Human Services. But in this case, looks can be deceiving. The GAO Oversight and Access Act of 2017, which I introduced together with Senator Tester 1 year ago, represents a significant victory for taxpayers.

Its impact won't be felt tomorrow in Washington, but over many years to come, taxpayers from Nebraska and across the country will see how passing this legislation played a role in forcing Congress to address some of the biggest problems that our government faces. Let's step back for a moment and understand why. What is the problem?

The Federal Government has a very serious budget problem. This isn't news to anyone who has been paying attention. It is not even something about which Democrats and Republicans disagree. We may not often agree on solutions, but we can and should agree to clearly identify the problems that the government and, therefore, our people face. Some of the problems are very big--so big, in fact, that it is hard to even wrap our minds around how large the numbers are, like the fact that last year this government spent $587 billion more than all it collected in taxes. Consider how big $587 billion is.

National defense is the first and fundamental reason that the Federal Government exists. Last year we spent $595 billion on all of our national security or in the entire defense budget. When Ronald Reagan was sworn into office, the entire Federal budget was $590 billion. Now that is what we are borrowing annually.

Or look at it this way. Historically, the amount we borrowed last year was bigger than every Federal budget for the first 160 years of the Nation--combined. That is, if you added up every dollar that the government spent from 1789 through 1950, it would still be less than the $587 billion that we overspent and therefore borrowed just last year. The former number got us through the Civil War, two world wars, and the Great Depression.

Some of our problems are actually relatively small, but they ultimately add up to something big. Just look at some of the stuff Senator Flake dug up in this year's ``Wastebook'' report or what Senator Lankford put in his report this year entitled ``Federal Fumbles.'' The Commerce Department gave $1.7 million to the National Comedy Museum to resurrect dead comedians using holograms. Also, $70,000 of our taxpayers' money went to a Minnesota theater to put together an opera of Steven King's ``The Shining.'' And $17,000 was spent for people to wear fat suits to learn sensitivity to those with weight problems. These things are tiny individually, but when you put them together, they add up to a lot of our budget.

Expert after expert testifies before our committees that this is unsustainable. We all know this cannot go on forever. At some point, the government's borrowing and overspending ways will catch up with us and we will have a Greek-style debt crisis.

Congress needs to begin acting now to fix the government's structural problems--chiefly in the entitlement programs, for those are the spending categories whose trajectories dwarf all others.

All of this gets to the central problem that the bill we are considering this afternoon was designed to solve--namely, that Congress is flying blind when it comes to overseeing huge portions of our budget, and therefore we don't have the information we need to fix these problems.

The portion in particular I have in mind is the means-tested entitlement programs and the tax credits program. These include Medicaid; the earned-income tax credit, or EITC; the Supplemental Security Income--or disability--Program; food stamps; and Pell grants. All of these were designed to assist our low-income friends and neighbors. All of them together absorb a significant part of today's Federal budget.

As of right now, $1 in every $6 we spend is on only 10 means-tested programs and tax credits like the ones just listed, according to the CBO, but because of an anomaly in the law, Congress has been blocked from getting the best information that is available about how these programs are actually working or not working. What do I mean by that? For years, the Government Accountability Office--the GAO, the agency that is supposed to be the taxpayers' watchdog because it is supposed to hunt down waste and expose

abuses--has been trying to gain access to a database at the Department of Health and Human Services called the National Directory of New Hires. The new hires database was created in 1996 to help enforce child support payments, and in order to do that, it collected some basic information--basically, who has a job, where they work, whom they work for, and how much they make.

The GAO's interest in this data should be pretty obvious. If it could compare the information in the database to the information in the means-tested programs, it could easily spot fraud, waste, and mismanagement. For instance, if a program's rules say that to qualify for benefits, a person needs to earn less than a certain amount of income annually, GAO would be able to use the database to see if the program is actually operating as designed and then issue reports to Congress. This is exactly the kind of thing that the GAO does across all other Federal programs and that Congress routinely uses the GAO for--to take their recommendations to figure out how we should reform programs that are failing. Only in this case, HHS has blocked the GAO from accessing the database.

Again, these are the biggest categories of Federal spending. The place the GAO has not been able to do its work is in the places where we are spending the most money. It is classic Washington--bureaucracy blocking oversight for taxpayers. It is not always malicious, but this is definitely wrong.

HHS has argued that when Congress created the new hires database, it didn't expressly give the GAO permission to look at this data, and so its hands are tied. GAO countered that Congress had previously given blanket permission to the GAO to access all Federal records many years prior.

Many in Congress believed that the law was clear and that GAO is entitled to this entitlement data under the law, but HHS has refused to budge, and the argument stalemated. The result has been the status quo, with GAO repeatedly requesting data and HHS steadfastly refusing to grant them access to the data, which means they have refused to grant us access to the data.

The GAO Access and Oversight Act of 2017 was introduced to settle this legal dispute between GAO and HHS once and for all in GAO's favor or, better, in the taxpayers' favor. In short, today's bill ensures that the GAO will have full access to the data in the national directory. By doing so, it will ensure for the first time that GAO has a key tool it needs to oversee some of the government's largest spending categories.

This bill does two additional things as well. No. 1, it clarifies that GAO does have standing in court to fight for Federal records the next time a Federal agency tries to deny the GAO--and therefore us-- access to that data; and No. 2, it requires the GAO to let all relevant congressional committees know when it issues reports in their jurisdiction.

We are now on the doorstep of hopefully passing this legislation today, which has rightly gotten a lot of support in Congress. When it passes the Senate tonight, it will head straight to the President's desk for figure. Last year, it passed the House by a vote of 403 to 0, and the only reason it failed to pass the Senate was because of an anonymous hold.

In response, the House of Representatives took up this legislation as one of its first pieces of business and sent it over to the Senate 2 weeks ago, on January 4, moving just as quickly. It is a pleasure that the Presiding Officer today happens to be the chairman of the relevant committee that moved so quickly. Chairman Johnson and his new ranking member, Claire McCaskill, immediately took up this legislation and moved it through the Committee on Homeland Security and Governmental Affairs, for both the chairman--the Presiding Officer today--and Senator McCaskill, the champions of oversight of the GAO. I thank the Presiding Officer, the chairman of the committee, for his leadership.

I urge all of my colleagues to support this bill tonight. It is appropriate that one of the first bills of this new Congress will be one to strengthen the authority of the GAO because by strengthening the powers of the GAO, what we are really doing is strengthening the Congress.

There has been lots of talk around here on both sides of the aisle about the needs to reclaim Congress's article I power. Across the 240 years of this Nation--or 226 years since the Constitution; 227 as I do the math here in my head--the Congress is at a fairly weak point in history, and we should be strengthening the article I branch of the Constitution.

One obvious important way to strengthen the powers of the Congress and therefore the accountability that we all have to the American people is by doing better oversight. Conducting hard-hitting but fair oversight of the executive branch agencies is how we protect the separation of powers, and it is how we guard the taxpayers' funds, how we guard the wallet of the people. It is the Congress's job to write the laws and to control the purse strings, and it is the President's job to faithfully execute the laws. Good oversight gives the Congress the information we need to do our job and to ensure that the executive agencies are doing theirs. There is no better friend of the Congress in this regard than the Government Accountability Office. GAO is not simply another agency of a big government; the GAO is a part of the legislative branch, and it works hard to give Congress world-class insights into the operations of the other two branches. GAO is thorough, independent, and respected for its judgments by people of either party and no party at all.

I am deeply proud to see that Senator Tester has joined us on the floor, for he and I were the original sponsors of this bill. It is a pleasure that tonight we will be giving the GAO the tools it needs for oversight and therefore for our oversight.

It would only be natural, at the start of a new administration and a change of party in the executive branch, for Democrats to become more interested in oversight and Republicans to become less so. May that not be the case. I am hopeful that oversight will remain a top priority for Members on both sides of the aisle. None of us came here to be partisan cheerleaders. We came here to exercise the functions of this office on behalf of the people in our States and across this Nation. It is therefore encouraging tonight, even as a new administration is about to begin in 3 days, that Congress will be asserting its constitutional right to oversight with a big bipartisan vote.

I want to thank my partner on the bill, Jon Tester of Montana, who will speak next. When we first heard about this issue together during briefings and committee hearings, we immediately realized that something was wrong, that the GAO had been handcuffed and not able to access this data, and we committed to each other to make sure something was done about it.

I would also like to name the other original cosponsors of this bill, including Ron Johnson, Claire McCaskill, Tom Carper, Mike Enzi, Brian Schatz, Mike Lee, Tammy Baldwin, David Perdue, Joni Ernst, Jim Risch, Steve Daines, Tammy Duckworth, John McCain, Thom Tillis, Todd Young, Rob Portman, and James Lankford.

Finally, I wish to thank our House partners, including Representative Buddy Carter, Chairman Jason Chaffetz, and Ranking Member Elijah Cummings.

Mr. President, I yield the floor, and I reserve the remainder of my time.

Mr. President, I ask unanimous consent that all remaining debate time on H.R. 72 be yielded back.

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

Mr. President, I would say that I also agree. I want to thank the Senator from Rhode Island for his leadership, and I want to thank him for setting the tenor and the environment that surrounds the Armed Services Committee, which resulted in the 24-to-3 vote today in the Armed Services Committee. Because of the relationship that we have, but also because of his leadership, we have a very bipartisan committee, which is vital to maintain, considering the awesome responsibilities we hold.

The Senator from Rhode Island has displayed time after time a willingness to work together for the good of the country. I think this is the latest example, even though he had significant reservations-- which are valid--concerning the short period of transition from wearing the uniform to holding down the highest civilian position as far as defense of the Nation is concerned. I know he didn't reach this conclusion without a lot of thought, a lot of study, a lot of--as he has displayed--references to history; reasons for the origination of this legislation, which requires 7 years before an individual is eligible to be Secretary of Defense after leaving the military.

So I just wanted to thank the Senator from Rhode Island, and I look forward to an overwhelming vote.

Mr. President, could I ask the parliamentary situation as it is right now.

Mr. President, has a time been set for the vote?

I yield to my friend from Rhode Island.

Mr. President, is it accurate to say that 2:45 p.m. is a time that is being seriously considered?

Mr. President, I ask unanimous consent that I be allowed 5 minutes prior to the vote, if the time of the vote is set, and the Senator from Rhode Island be given 5 minutes prior to that, in the case of the time of the vote being set.

Mr. President, I yield the floor.

Mr. President, I would like to modify my unanimous consent request that I be allowed 5 minutes prior to the vote.

Order of Procedure

Before I do that, however, I ask unanimous consent that the time until 2:45 p.m. be equally divided between the managers or their designees, and that following the use or yielding back of that time, the bill be read a third time, and the Senate vote on passage of S. 84; further, that following the disposition of S. 84, the Senate recess subject to the call of the Chair for the all-Members briefing.

So I would ask the Senator from Oregon how much time he needs.

Mr. President, I am asking for a ruling on the unanimous consent request I just made.

Mr. President, I add to that unanimous consent request that I be given the final 5 minutes before the vote.

Mr. President, in response to the Senator from Oregon who asked if there were not any people who were qualified to serve as Secretary of Defense, I am absolutely certain there are. Is there anyone as qualified as General Mattis? My answer to the Senator from Oregon is no. I have watched General Mattis for years. I have seen the way that enlisted and officers react to his leadership. I have seen the scholarly approach he has taken to war and to conflict.

I hope the Senator from Oregon will have at some point a chance to get to know him, and he will then appreciate the unique qualities of leadership that are much needed in these times where the outgoing President of the United States has left the world in a state of chaos because of an absolute failure of leadership, which is disgraceful. We now see an outgoing President of the United States who in 2009 inherited a world that was not being torn apart in the Middle East. The Chinese were not acting assertively in the South China Sea. The Russians had not dismembered Ukraine and taken Crimea, in gross violation of international law. All of those things have come about because of his presidency.

So now he comes to the floor and objects to one of the most highly qualified individuals and leaders in military history. I say to the Senator from Oregon: You are wrong.

I believe the overwhelming majority of this body will repudiate and cancel out his uninformed remarks.

Mr. President, in a few minutes we will vote on a historic piece of legislation. For just the second time in seven decades, the legislation before us would provide an exception to the law preventing any person from serving as Secretary of Defense within 7 years of Active-Duty service as a regular commissioned officer of the Armed Forces. This legislation would allow Gen. James Mattis--the President-elect's selection for Secretary of Defense, who retired from the Marine Corps 3 years ago--to serve in that office.

Earlier today, the Senate Armed Services Committee received testimony from General Mattis. Once again, he demonstrated exceptional command of the issues confronting the United States, the Department of Defense, and our military servicemembers, but he also showed something else-- that his understanding of civil-military relations is deep and that his commitment to civilian control of the Armed Forces is ironclad.

General Mattis's character, judgment, and commitment to defending our Nation and its Constitution have earned him the trust of our next Commander in Chief, Members of Congress on both sides of the aisle, and so many who are serving in our Armed Forces. General Mattis is an exceptional public servant worthy of the exceptional consideration. That is why, directly following the conclusion of today's hearing, the Senate Armed Services Committee reported this legislation to the Senate with an overwhelming bipartisan vote of 24 to 3--I repeat: with an overwhelming vote of 24 to 3.

I am not saying that members of the Armed Services Committee are smarter than the Senator from Oregon, but I am saying that members of the Armed Services Committee have scrutinized--both sides of the aisle, Republican and Democrat, including the ranking member--have looked at General Mattis. Many of us have known him for years and years, as he has shown the outstanding characteristics of leadership that he has had the opportunity to display in his service to the country, and he was voted out by an overwhelming vote of 24 to 3. So obviously there are 24 people on the Armed Services Committee who believe in General Mattis and believe that this exception should be made, as opposed to 3 who share the view of the Senator from Oregon.

That is why, directly following the conclusion of today's hearing, the Senate Armed Services Committee reported this legislation to the Senate with a vote of 24 to 3. I urge this body to follow suit.

That said, it is important for future Senators to understand the context of our action here today. Civilian control of the Armed Forces has been a bedrock principle of American Government since our Revolution. A painting hanging in the Capitol Rotunda not far from this floor celebrates the legacy of George Washington, who voluntarily resigned his commission as commander of the Continental Army to the Congress. This principle is enshrined in our Constitution, which divides control of the Armed Forces among the President as Commander in Chief and the Congress as coequal branches of government.

Since then, Congress has adopted various provisions separating military and civilian positions. In the 19th century, for example, Congress prohibited an Army officer from accepting a civil office, more recently, in the National Security Act of 1947, and subsequent revisions, Congress's 7-year ``cooling off'' period for any person to serve as Secretary of Defense. It was only 3 years later, in 1950, that Congress granted GEN George Marshall an exemption to that law and the Senate confirmed him to be Secretary of Defense.

Indeed, the separation between civilian and military positions has not always been so clear. Twelve of our Nation's Presidents previously served as generals in the Armed Forces, and over the years, numerous high-ranking civilian officials in the Department of

Defense have had long careers in military service.

The basic responsibilities of civilian and military leaders are simple enough--for civilian leaders: to seek the best professional military advice while under no obligation to follow it; for military leaders: to provide candid counsel while recognizing civilians have the final say or, as General Mattis once observed, to insist on being heard and never insist on being obeyed. But the fact is that the relationship between civilian and military leaders is inherently and endlessly complex. It is a relationship of unequals who nonetheless share responsibility for the defense of the Nation. The stakes could not be higher. The gaps in mutual understanding are sometimes wide. Personalities often clash. And the unique features of the profession of arms and the peculiarities of service cultures often prove daunting for civilians who have never served in uniform.

Ultimately, the key to healthy civil-military relations and civilian control of the military is the oath that soldiers and statesmen share in common ``to protect and defend the Constitution.'' It is about the trust they have in one another to perform their respective duties in accordance with our republican system of government. It is about the candid exchange of views engendered by that trust and which is vital to effective decisionmaking. And it is about mutual respect and understanding. The proper balance of civil-military relations is difficult to achieve, and, as history has taught us, achieving that balance requires different leaders at different times.

I believe that in the dangerous times in which we live, General Mattis is the leader our Nation needs as Secretary of Defense. That is why, although I believe we must maintain safeguards of civilian leadership at the Department of Defense, I will support this legislation today and General Mattis' nomination to serve this Nation again as Secretary of Defense.

I want to assure my friend from Rhode Island, the ranking member of the Armed Services Committee, who has very serious concerns--I want to assure him that this is a one-time deal. I know the Senator from Rhode Island had deep concerns about this whole process we have been through. Yet I think he has put the interests of the Nation and placed his confidence in General Mattis as being so exceptional that the law that was passed back in 1947--there can be made one single exception to it.

Has time expired according to the previous UC?

I object.

Mr. President, I rise today to discuss S. 84, a bill that would provide a one-time exception from the longstanding law that requires a member of the military to be retired from the armed services for at least 7 years before being appointed as Secretary of Defense. We are considering this legislation today because the President-elect's nominee for Secretary of Defense, General James Mattis, has only been retired from the U.S. Marine Corps for 3 years.

In considering the unique situation presented by this nomination, this week the Armed Services Committee held two hearings. The first hearing, on Tuesday, had a panel of two excellent outside witnesses who discussed the history of the retirement restriction law and the benefits and challenges of legislating an exception to that law. Then, this morning, the committee held a nomination hearing with General Mattis and examined his views on a wide range of defense challenges facing our country and the Defense Department.

General Mattis has a long and distinguished military career, and he is recognized by his peers as a thoughtful and strategic thinker. However, since its passage in 1947, the statutory requirement designed to protect civilian control of the Armed Forces has only been waived one other time. Therefore, I believe it is extremely important that we carefully consider the consequences of setting aside the law and the implications such a decision may have on the future of civilian and military relations.

Civilian control of the military is enshrined in our Constitution and dates back to George Washington and the Revolutionary War. This principle has distinguished our Nation from many other countries around the world, and it has helped ensure that our democracy remains in the hands of the people.

The National Security Act of 1947, which established the Department of Defense, included a provision prohibiting any individual ``within ten years'' of ``active duty as a commissioned officer in a regular component of the armed services'' from being appointed as the Secretary of Defense. However, in 1950, President Harry Truman nominated former Secretary of State and former Chief of Staff of the United States Army General George Marshall to serve as the Secretary of Defense, thus causing Congress to pass an exception to the statute.

While Congress ultimately waived the restriction for General Marshall, the law included a nonbinding section that stated: ``It is hereby expressed as the intent of the Congress that the authority granted by this Act is not to be construed as approval by the Congress of the continuing appointments of military men to the office of Secretary of Defense in the future. It is hereby expressed as the sense of the Congress that after General Marshall leaves the office of the Secretary of Defense, no additional appointments of military men to that office shall be approved.''

Nearly 70 years later, Congress again must make a determination if an exception should be made in the case of General Mattis. Let me remind my colleagues why making this change is so significant. During our committee hearings, Dr. Kathleen Hicks astutely noted: ``The Defense Secretary position is unique in our system. Other than the President acting as commander in chief, the Secretary of Defense is the only civilian official in the operational chain of command to the Armed Forces. Unlike the President, however, he or she is not an elected official.''

As I stated during the committee's consideration of the waiver legislation, we must be very cautious about any actions, including this legislation, that may inadvertently politicize our Armed Forces. During this past Presidential election cycle, both Democrats and Republicans came dangerously close to compromising the nonpartisan nature of our military with the nominating convention speeches from recently retired general officers advocating for a candidate for President.

I am also concerned about providing a waiver for General Mattis in light of the fact that he will join other recently retired senior military officers who have been selected for high-ranking national security positions in the Trump Administration. Throughout our Nation's history, retired general officers have often held positions at the highest levels of government as civilians. In fact, a few have even been elected President.

What concerns me, however, is the total number of retired senior military officers chosen by the President-elect to lead organizations critical to our national security and the cumulative affect it may have on our overall national security policy. Specifically, there may be unintended consequences having so many senior leaders with similar military backgrounds crafting policy and making decisions as weighty as those facing the next administration.

In the course of our review of General Mattis' nomination, the reason most often cited in support of a waiver allowing him to serve is that a retired four-star general known for his war-fighting skills and strategic judgment to lead the Department of Defense will counterbalance the President-elect's lack of defense and foreign policy experience. As Tom Ricks wrote recently in The New York Times: ``Usually I'd oppose having a general as Secretary of Defense, because it could undermine our tradition of civilian control of the military. But these are not normal times.''

Likewise, Dr. Eliot Cohen testified before the Senate Armed Services Committee earlier this week, and he argued that if it weren't for his deep concern about the Trump Administration, he would oppose the waiver for General Mattis. Specifically, he stated: ``There is no question in my mind that a Secretary Mattis would be a stabilizing and moderating force . . . and over time, helping to steer American foreign and security policy in a sound and sensible direction.''

If Congress provides an exception for General Mattis, we must be mindful of the precedent that action sets for such waivers in the future. The restriction was enacted into law for good reason, and General George Marshall is the only retired military officer to receive this exception.

Based on General Mattis' testimony this morning, as well as his decades of distinguished service in the U.S. Marine Corps, and weighing all of the other factors, I will support a waiver for him to serve as Secretary of Defense. General Mattis testified to the fact that the role of Congress does not end with the passage of this legislation. As Dr. Hicks stated, ``The United States Congress, the nation's statutes and courts, the professionalism of our Armed Forces, and the will of the people are critical safeguards against any perceived attempts to fundamentally alter the quality of civilian control of the military in this country.''

Any of us who support this bill have a profound duty to ensure that the Department of Defense and its leaders,

both civilian and military, are following and protecting the principles upon which this country is founded.

Let me be very clear. I will not support a waiver for any future nominees under the incoming administration or future administrations. I view this as a generational exception, as our bipartisan witnesses recommended. I would ask that my colleagues on both sides of the aisle make this same commitment. Indeed, I intend to propose reestablishing the original 10-year ban which was in place when the Defense Department was established. Restoring the threshold for service to 10 years would send a strong signal that this principle of civilian control of the military is essential to our Democratic system of government.

At this point I would ask if the chairman of the committee might engage in a colloquy. I do that first by thanking him for the extraordinarily fair, thoughtful, and careful way he has guided this nomination through the committee and here to the floor.

I wish to thank the Senator from Arizona for the thoughtful and thorough process we have had in considering the nomination of General Mattis. I think one of the high points was a hearing on civilian military relations with Eliot Cohen and Kathleen Hicks. Both witnesses emphasized that while they supported this waiver, it should be a rare, generational exception to ensure the integrity of civilian control of our military, which is the bedrock of our democracy.

I agree wholeheartedly with that assessment, and I would ask the chairman if he also agrees with that assessment.

Mr. President, I believe I have the floor.

Mr. President, I believe the chairman does concur with me regarding the fact that this is a rare and generational exception; I think that is fair to say.

We hope so, and I think, if we recognize Senator Merkley for his comments, and then I think the chairman of the committee has comments, we would be on that schedule.

Mr. President, I believe I still retain the floor.

Let me make the point that I appreciate very much the Senator from Arizona allowing me 5 minutes, but I will yield that 5 minutes so that at the end, the Senator from Arizona would have 5 minutes, and then I would suggest we recognize Senator Merkley so that we can conduct the vote at 2:45 p.m.

Mr. President, I yield the floor.

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

Mr. President, several years ago, Democrats in Congress pulled out all the stops to pass the so-called Affordable Care Act and force the system we now call ObamaCare on the American people. They passed the law on a purely partisan basis and without any regard for public opinion. Quite simply, it was one of the most blatant exercises in pure partisanship in our Nation's history. It deepened partisan divides in Washington and around the country and contributed to the cynicism many have about whether their government is actually paying attention to their needs. Worst of all, in the years since the passage of ObamaCare, the American people have been paying the price in the form of skyrocketing costs, fewer choices, burdensome mandates, and unfair taxes.

For 7 years, many of us in Congress--virtually all of us on the Republican side--have been working to right what has gone wrong under the Affordable Care Act. We have pledged to our constituents that, given the opportunity, we would repeal ObamaCare and replace it with reforms more worthy of the American people. Those promises are among the biggest reasons why we Republicans are now fortunate enough to find ourselves in control of Congress and, very soon, the White House.

Last night we took a big step in the effort to repeal and replace ObamaCare. With the budget resolution passed, many in Washington and in the media are talking about what happens next. We are hearing a lot of discussion about the timing of our repeal-and-replace efforts, with some arguing that we should hit the brakes and solve every problem in advance of taking another vote. My view is that the repeal of ObamaCare cannot wait. The American people need us to act now. While there is still some debate as to what our replacement plan should look like, a majority of Senators voted last night to give us the tools to take the next steps to repeal and replace ObamaCare. The American people have entrusted us with the power to do just that.

We could spend the next several months coming up with more slogans and analogies, but this is not a campaign. The elections have been won, and it is time to do what our constituents have sent us here to do. I am not saying we need to put off the replacement effort. On the contrary, I think it is important that the legislation we draft pursuant to the budget reconciliation instructions include as many sensible health reforms as possible, keeping in mind the limitations that exist with our rules and the necessary vote count.

We should definitely work on making the largest possible downpayment on the ObamaCare replacement with the budget reconciliation bill. That downpayment should include measures that give individuals and families more control over their health care decisions and empower States to do more of the heavy lifting when it comes to regulating health care. In addition, we need to provide for a smooth transition period so we can maintain some stability in the health insurance markets and ensure that we are not leaving Americans who have insurance under the current system out in the cold.

As chairman of one of the primary committees with jurisdiction over these matters, I have been working closely with my House counterparts-- Chairman Kevin Brady of the House Ways and Means Committee and Chairman Greg Walden of the House Energy and Commerce Committee--to develop proposals on the matters that fall within our purviews. We have been talking with stakeholders throughout the country and working through the various problems that exist. That work will continue unabated as we work on the immediate repeal effort and into the future. I am quite certain that my friend who chairs the Senate HELP Committee has been similarly engaged in addressing the draconian insurance regulations that were imposed under ObamaCare, as well as the other parts of the law that are within that committee's jurisdiction.

In other words, the work to replace ObamaCare is ongoing, and we hope to have some initial elements ready to include in the budget reconciliation package. That work will continue once the repeal has been passed and signed into law so that we can help ensure that affordable health care options exist for Americans. We do not need to wait until every single replacement measure is drafted and agreed upon before moving forward. Instead, we need the incoming administration to add to our current efforts and work with us to produce a full replacement plan and then to execute it. I look forward to continuing to work with President-Elect Trump and his team.

The path forward on replacing ObamaCare could end up taking many forms. We could draft and pass a series of limited reforms to replace ObamaCare piece by piece or we could pull together a full and comprehensive replacement package that puts all the necessary changes into law at once. I think there are merits and potential pitfalls with either approach. That is something we need to consider as we move forward, but it is not a decision that needs to be made before we can keep the promises we all made to our constituents to repeal ObamaCare.

To be sure, replacing ObamaCare is going to be a difficult process; however, with a new and more cooperative administration in place, I have every confidence we can accomplish these important objectives without imposing artificial deadlines or goalposts or putting the repeal process on hold. All of this is possible so long as we remain committed to the principles that have guided most of our efforts thus far. For example, in my view, the new reforms need to be patient- centered, not government-driven. They need to recognize the reality of the marketplace and the benefits of competition. Perhaps most importantly, any suitable reforms need to put the States back in charge of regulating and overseeing health care policy. If the ObamaCare experience has taught us anything, it is that when the Federal Government gets a hold of something that is as consequential as health care, it will overpromise results, overstep its authority, and overregulate the subject matter.

As I have said a number of times, Utah is not California or Massachusetts, and California and Massachusetts are not Utah. All of our States face different challenges and have different needs. There is no reason to begin with the premise that any single approach to health care policy is what is best for the entire country. That is why I, along with several of my colleagues, have been engaging with stakeholders at the State level for quite some time as we work to craft reforms and to put them in place. For example, next week the Senate Finance

Committee is hosting a roundtable discussion on Medicaid with some of the most prominent Governors in the country. I am pleased that Energy and Commerce chairman Greg Walden will join us for the discussion as well. This meeting and others like it will give States the opportunity to detail the challenges they face and how we can empower them to meet those challenges instead of dictating solutions from offices here in Washington, DC.

I believe all of my colleagues want to be judicious and methodical with this undertaking. No one wants to act recklessly and do even more damage to our Nation's health care system. Discussions and debates over the substance of our ObamaCare replacement should continue. As I said, they have been going on for some time now, and they are not going to stop. But after last night, we have the tools we need to take the first major step in this effort by repealing ObamaCare. In my view, we need to take that step now.

Republicans are united in our desire to repeal ObamaCare. We have the support of the American people to do just that, and I personally will do all I can to deliver on that promise. I hope our friends on the other side will work with us. If they will, I think we can come up with an approach toward health care that not only will work but will be better for our country but most importantly, better for our citizens, better for the States that will manage a lot better than we will here, and better for our citizens within those States.

Mr. President, I yield the floor.