Floor Statements

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I am here today to celebrate the 18th Annual National Charter Schools Week and thank the students, parents, and teachers from charter schools across the United States for their ongoing contributions to education. Senator Bennet of Colorado and I introduced a resolution marking this event, which the Senate approved yesterday.

Let me tell you my favorite story about charter schools. It was 24 years ago, 1992. I was in my last month as U.S. Secretary of Education, and as my last official act, I wrote a letter to every school superintendent in the country asking them to consider replicating the early success of the State of Minnesota in creating charter schools. There were about a dozen of them then, and they were created by the Democratic-Farmer-Labor Party of Minnesota. That was consistent with what President George H.W. Bush and I had been encouraging, which was what we called start-from-scratch schools--schools that gave teachers more freedom and parents more choices. We thought that could improve education in the country and might lead to what we call new American schools.

The first charter schools were created in the State of Minnesota nearly a quarter of a century ago, led by the Democratic-Farmer-Labor Party, and there were about a dozen of them. Since then, there has been broad bipartisan, mainstream support for charter schools.

Let's remember that charter schools are public schools. They are simply public schools which are freer from government rules, Federal rules, State rules, and union rules and which give teachers more freedom to teach the children who are presented to them and parents more freedom to choose those public schools.

Some of those who supported the creation of charter schools include Albert Shanker, the late head of the American Federation of Teachers. In 1997, President Clinton said: We need 3,000 charter schools by the year 2002. George W. Bush, in the No Child Left Behind legislation, supported charter schools. President Obama was a strong supporter of charter schools while he was in office. His first U.S. Secretary of Education, Arne Duncan, called himself a ``strong supporter'' of charter schools. President Obama's second U.S. Education Secretary, John King, founded a charter school and ran a system of charter schools. Secretary Betsy DeVos, the current Secretary of Education, has spent most of her life as a strong supporter of charter schools. In 1994, 1998, 2001, and 2015, the U.S. Congress supported charter schools by large margins and in a bipartisan manner. Over 44 States and the District of Columbia have created an environment through their laws for charter schools.

In 30 years, public charter schools have grown from a dozen in Minnesota to more than 6,900 today. Today, charter schools are serving over 3.1 million students. Over 6 percent of all public school students in America today now attend charter schools, and another 1 million students are on waiting lists for charter schools. This past year saw an estimated enrollment increase of over 200,000 students, representing a 7-percent growth in just one school year.

Over half of the students served by these institutions are eligible for free or reduced-priced lunches, over half are students of color, and 17 percent are limited English proficient--all higher percentages than those served in traditional public schools.

As I said earlier, charter schools are about freedom for teachers, choices for parents, and more and better opportunities for students. Charter schools enable people. They enable parents to help their children get a real opportunity by choosing better schools or at least schools that fit them better and help them succeed. They enable students to learn and succeed. They enable teachers to succeed by giving them the freedom to use their firsthand knowledge. They enable administrators to succeed by ending bureaucratic mandates and giving them a chance to use their own good judgment.

In amending the No Child Left Behind Act, which we called the Every Student Succeeds Act, we made a number of changes to strengthen and expand the Federal Charter Schools Program, which since 1994 has given grants to States to start new charter schools.

ESSA, as we call it, made improvements to that program to ensure that those funds are used as effectively as possible to increase the number of high-quality charter schools. Specifically, ESSA invests more Federal funds in the replication and expansion of high-quality charter schools with a proven record of success, while still giving States the flexibility to invest in innovative new methods. ESSA continues Federal support for nonprofit organizations which help charter schools find suitable facilities, while also encouraging States to assist charter schools in this task.

Now these hard-working and creative educators who are seeking to open charter schools have greater flexibility in how they use Federal startup funds--for example, by allowing them to use the funds for transportation or facilities improvement, if that is what they decide is the best use of those funds for their children and their community.

Finally, the Every Student Succeeds Act encourages States to provide charter schools with the support they need to be successful and to hold them accountable when they fail to demonstrate positive results.

Charter schools are public schools stripped of many Federal, State, and union rules and constraints that are placed on traditional public schools. The money the State would ordinarily spend on the district school follows each child to the charter school instead.

Across Tennessee, more than 30,000 students now have that same opportunity to attend one of 107 charter schools, and they are thriving as a result. A recent study by Stanford University found that on average, Tennessee students attending charter schools gained the equivalent of 86 additional days of instruction in reading and 72 additional days of instruction in math each year than did students attending traditional district schools. In other words, they make almost a year and a half's worth of progress in a single school year.

More than 80 percent of students attending charter schools in Tennessee are low income, and more than 94 percent are African American or Hispanic. In other words, charter schools in Tennessee are making a difference for those students who have traditionally been least well- served by our Nation's public schools. That is a worthy event to celebrate in this 18th annual National Charter Schools Week, to celebrate how charter schools have grown from a dozen start-from- scratch schools in the State of Minnesota 25 years ago to more than 6,900 today.

I thank the Presiding Officer.

I yield the floor.

I suggest the absence of a quorum.

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, later this afternoon the Senate will vote on the President's nomination of Alexander Acosta to serve as the U.S. Secretary of Labor. Mr. Acosta has excellent credentials and is well qualified for the position. He understands that a good-paying job is critical to helping workers realize the American dream for themselves and for their families.

After immigrating to the United States from Cuba, Mr. Acosta's parents worked hard to create more opportunities for their son. Alexander Acosta became the first person in his family to go to college, and from there he has had quite an impressive career.

He has already been confirmed by the U.S. Senate three different times: He served as a Republican member of the National Labor Relations Board, he

served as Assistant Attorney General for the U.S. Justice Department's Civil Rights Division, and he served as U.S. Attorney for the Southern District of Florida.

Mr. Acosta's most recent role was serving as dean of Florida International University's law school. The school's president told the Miami Herald recently, ``Alex has a destiny in public service. . . . He's a person of integrity, conscientious, thoughtful, he doesn't overreach.''

On March 22, Mr. Acosta had a hearing in the Senate Labor Committee that lasted two and a half hours. Following his hearing, he answered 380 follow-up questions for the record--604 questions if you count the sub-questions. Then, on March 30, our committee approved Mr. Acosta's nomination, readying the nomination for consideration by the full Senate.

Mr. President, I ask unanimous consent to have printed in the Record a list of 140 groups, which includes business groups and labor unions, which support Mr. Acosta's nomination.

Mr. President, the supporters include the U.S. Chamber of Commerce, the National Retail Federation, the National Federation of Independent Business, the National Association of Manufacturers, the International Franchise Association, the Associated Builders and Contractors, and the American Beverage Association.

Here are some examples of what these groups had to say about Mr. Acosta. The International Franchise Association said, ``Franchise owners around the country are facing a great deal of regulatory uncertainty as a result of the wreckage created by the previous administration's out-of-control Department of Labor. Mr. Acosta's exemplary record handling labor issues as a member of the NLRB has shown the appropriate balance needed to protect the interests of employees and employers.''

The National Federation of Independent Business said, ``Alexander Acosta is an experienced public servant with a distinguished record. His knowledge of labor issues and his service as U.S. Attorney make him an especially strong candidate to take on the entrenched bureaucracy, which has imposed unbelievably severe and costly regulations on small business in the recent years.''

The National Retail Federation said, ``Mr. Acosta's diverse experiences in both public service and the private sector position him well to be an effective and pragmatic leader at the Department of Labor.''

Why is this nomination so important? In his new book, New York Times columnist Thomas Friedman uses the term ``Great Acceleration'' for all of the technological, social, environmental, and market changes simultaneously sweeping across the globe and argues that we are now ``living through one of the greatest inflection points in history'' as a result. Add Ball State University's finding that automation is responsible for the loss of 88 percent of our manufacturing jobs. Add globalization. Add social, cultural, climate changes, and terrorism, and you get a big mismatch between the change of pace and the ability of the average American worker to keep up and fit in the accelerating forces shaping the workplace.

Earlier this year, after a group of senators listened to a group of scientists talk about the advances in artificial intelligence, one Senator asked, ``Where are we all going to work?''

Tom Friedman says that probably the most important governance challenge is a great need ``to develop the learning systems, training systems, management systems, social safety nets, and government regulations that would enable citizens to get the most out of these accelerations and cushion their worst impacts.''

One of the federal government's chief actors in this drama should be the U.S. Secretary of Labor. In fact, as many have suggested and the House of Representatives has done, the title of the job for which Alexander Acosta has been nominated should be changed to the Secretary of Workforce, not Secretary of Labor.

Labor union membership in the private sector today is down to less than

7 percent. The issue for workers today is not whether they belong to a union. It is whether they have the skills to adapt to the changing workplace and to find and keep a job. To be accurate, to create and keep a job. My generation found jobs. This generation is more likely to have to create their own jobs.

In his inaugural address, President Trump said he heard ``forgotten men and women'' who are struggling to keep up and fit into today's changing world: ``[F]or too many of our citizens, a different reality exists: mothers and children trapped in poverty in our inner cities; rusted out factories scattered like tombstones across the landscape of our nation . . . `' That is what President Trump said in his inaugural address.

Ten days earlier, in his farewell address, President Obama said he, too, heard those same voices: ``[T]oo many families, in inner cities and in rural counties, have been left behind . . . if we don't create opportunity for all people, the disaffection and division that has stalled our progress will only sharpen in years to come. . . . `'

That was President Obama.

What can we do about this? The most important thing is to work with employers and community colleges and technical institutes and find ways to increase the number of Americans earning post-secondary certificates and two-year degrees or more.

Georgetown University's Center on Education and the Workforce says that by 2020--3 years from now--65 percent of the jobs in this country will require some college or more. And at the rate we are going, Georgetown predicts the United States will lack 5 million workers with an adequate post-secondary education by 2020.

Unfortunately, too many of the federal government's actions over the last few years have made it harder for American workers to keep up, to adjust to the changing world, and to create, find, or keep a job.

President Obama's Department of Labor issued 130 percent more final rules than the previous administration's labor department. Overall, the Obama Administration issued an average of 85 major rules. These are rules that may have an impact of $100 million or more a year on the economy. Eighty-five major rules a year. President Bush, on the other hand, averaged about 62 a year. That is a 37-percent increase under President Obama.

Take the overtime rule. In my state, its costs would add hundreds of dollars per student in college tuition and it would force small businesses across the country to reduce the jobs that provide the stability that families need. This rule has been delayed by the courts until at least June 30th of this year.

Take the so-called joint employer policy. This is a policy that affects franchising and makes it more likely that a parent company will own and operate its stores instead of allowing franchisees to own and operate those stores. A Republican majority at the National Labor Relations Board can start undoing the damage caused by this harmful decision.

Then, there is the fiduciary rule, which is going to make it too expensive for the average worker to obtain investment advice about retirement benefits--again making it harder, not easier, to adjust to the changing world of work. The Department of Labor under the Trump administration has delayed this rule for 60 days, until June 9, 2017. Some parts of the rule are delayed until January 1, 2018.

One rule after another from the Obama administration has stacked a big wet blanket of costs and time-consuming mandates on job creators, causing them to create fewer jobs.

The Equal Employment Opportunity Commission's EEO-1 form will require employers to provide to the government 20 times as much information as they do today about how they pay workers. Earlier this month, the Senator from Kansas, Senator Pat Roberts, and I asked the Office of Management and Budget to rescind this time-wasting mandate.

There is the ridiculously complex 108-question FAFSA, the federal aid application form that 20 million families fill out every year as students go to college. It turns away from college many of the very students who most need to adjust to this changing world.

The Affordable Care Act defined full-time work as only 30 hours, forcing employers to cut their workers' hours or reduce hiring altogether in order to escape the law's mandate and its unaffordable penalties.

Many of these rules, like the persuader rule, which chills the ability of employers to retain legal advice during union organizing activities, seemed designed for the purpose of strengthening the membership and the power of labor unions.

We are fortunate to have a nominee in Mr. Acosta who can use his good judgment to reevaluate labor policies that make it much harder to create jobs and to find jobs.

We know that Mr. Acosta has support from members of both political parties, and that raises a question for me: Why did the Senate yesterday have to vote to invoke cloture on Mr. Acosta's nomination? The vote was bipartisan, with 61 senators voting to end debate so Mr. Acosta could have had an up or down vote. He could have been approved by majority vote yesterday. That has been the tradition in the U.S. Senate for 230 years. There never has been a Cabinet member denied his or her position by requiring them to get more than 51 votes. There have been some cloture votes for delay or to take some extra time, but no one has ever been denied the position by requiring more than 51 votes.

During most of the 20th century, when one party controlled the White House and the Senate seventy percent of the time, the minority never filibustered to death a single presidential nominee. The practice in the Senate since the Senate's beginning has been that the President nominates and the Senate decides by majority vote whether to approve the nomination. Why are we having these cloture votes? We are getting into more and more of a difficult situation with these votes. It is a bad habit and both sides, Republicans and Democrats, have caused the problem.

During the Obama administration, over the 8 years, there were 173 cloture votes on nominations, and I voted to invoke cloture 41 of those times. For 10 of those nominees, I voted to end debate so that their nomination could have an up or down vote even though I opposed their confirmation.

No one has ever disputed our right in the Senate, regardless of who was in charge, to use our constitutional duty of advice and consent to delay and examine, sometimes causing nominations to be withdrawn or even defeating nominees by a majority vote.

What I would like to suggest today is that if we continue the trend of requiring cloture votes on presidential nominees--cabinet members and others--that may work fine as long as we have a president and a Senate of the same political party, but if we have a president and a Senate of different political parties and everybody has become accustomed to voting no on cloture, to requiring a cloture vote and voting no, the Senate may never be able to confirm any cabinet members or any sub-cabinet members when the Senate and the president are of different political parties.

I would suggest to my friends on the other side of the aisle that the Senate is a body of precedent, and I think it would be wise for us to stop and think, as we proceed, about whether it is wise to require cloture votes for presidential nominees. Why don't we simply go ahead and approve them or not approve them by majority vote?

We have an excellent nominee in Mr. Acosta. We are fortunate that someone of his intelligence and experience is willing to serve as our U.S. Secretary of Labor. I look forward to voting for and to the Senate approving his confirmation later today.

I yield the floor.

Mr. President, today I wish to recognize and commend Maj. Gen. H. Michael Edwards, who retired on March 31, 2017, after 43 years of exceptional leadership and service to our country, including 36 years in the Colorado Air National Guard.

For almost a decade in the position of the adjutant general for Colorado, General Edwards was responsible for the command administration of over 5,300 Army and Air National Guard members.

He also served as the executive director of the Department of Military & Veterans Affairs and was a member of the Governor's cabinet.

He had responsibility for the Colorado National Guard's primary missions of national defense and State emergency response. In addition, he was responsible for supporting the missions of the Civil Air Patrol's Colorado Wing.

General Edwards received his commission in 1973, after graduating from the U.S. Air Force Academy, and earned his pilot wings in 1974 at Reese Air Force Base, TX.

He served as an F-4 pilot and AT-38 Fighter lead-in instructor pilot at Osan Air Base, Korea, and Holloman Air Force Base, NM, respectively.

General Edwards joined the Colorado Air National Guard in August 1980. He has served in numerous assignments in flying and operations, as well as command positions at squadron, group, and wing levels-- culminating as the adjutant general for Colorado.

During his tenure as adjutant general, more than 6,000 Colorado National Guard citizen-soldiers and citizen-airmen have mobilized in support of overseas contingency operations.

He also oversaw the Colorado National Guard's record-setting response to some of the worst natural disasters impacting Colorado, including the High Park fire and the Waldo Canyon fire during 2012, followed by the Black Forest fire and historic flooding along the Colorado Front Range in 2013.

Furthermore, General Edwards was instrumental in bringing a new National Guard cyber protection team to Colorado, bolstering the State's cyber defenses. He also diversified the Colorado National Guard through the appointment of its first female general officer.

Over a period of 10 years, General Edwards significantly grew the Colorado National Guard's enduring relationships with the Republic of Slovenia and the Hashemite Kingdom of Jordan under the National Guard State Partnership Program.

These military-to-military exchanges have supported combatant command security cooperation objectives, promoted regional stability, and increased partner capacity and interoperability.

General Edwards has also overseen the missions of the Civil Air Patrol's Colorado Wing, consisting of more than 1,600 volunteers. Under his leadership, the Civil Air Patrol took on a bigger role in State response, flying fire watch, and conducting flood damage surveys.

Colorado's Civil Air Patrol was first to fly support of the U.S. Army's on-base unmanned aerial systems operations.

General Edwards has flown over 4,600 mishap-free flight hours in a variety of aircraft to include the AT-38, A-7, C-21, F-4, F-16, T-37 and T-38.

Of note, he has achieved the distinction of the wing's ``Top Gun'' award on five separate occasions in his decorated flying career.

Major Edwards has received numerous military decorations, including two Legion of Merit awards and three Meritorious Service medal awards, along with many others from the State of Colorado.

General Edwards' operational experience, charismatic leadership, and unyielding patriotism have served him well in a lifetime of military service, both in the Colorado Air National Guard and abroad.

Today we honor his distinguished service to our Nation as one of the most accomplished adjutant generals in Colorado history.

We offer our heartfelt appreciation to his family for their countless sacrifices and selfless support to our country spanning over four decades.

On behalf of the Senate and a grateful nation, I congratulate Maj. Gen. H. Michael Edwards on a job well done and wish him the very best as he begins a hard-earned retirement in the great State of Colorado.

I look forward to our continued friendship. Thank you.

Mr. President, I notice my distinguished friend was indignant over the Supreme Court debate. I think each of us has a right to have his own opinion. Here is mine.

There is such a thing called the Thurmond-Leahy rule. It has been in place for a while. I think it reads that after June of a Presidential election year, the Senate will not confirm a

President's nominees. That is a bipartisan rule that has been enforced by the Senate for several years. Senator McConnell moved it up three months, from June to March--that is true--even though Democratic leaders said that is exactly what they would have done if the shoe had been on the other foot.

Democrats are saying that as a result of that--the 3-month change-- which is what they said they would have done anyway, they are going to do something that has never been done before: They are going to deny a Supreme Court Justice a nomination by not allowing a majority vote. That has never happened in 230 years. Our nominations have always been decided by a majority vote. There was a little incident in 1968 with Abe Fortas when President Johnson sought to elevate him to Chief Justice, but that has been the tradition in the Senate. We have always approved Presidential nominees by a majority vote, and we have always approved Cabinet members by a majority vote, even controversial ones. We have never required them to get 60 votes--ever--and the same with Federal district judges. And the same was true with Federal circuit judges until the Democrats started using the filibuster to require 60 votes, as has been well documented here. So I think people need to know the facts.

What the Democrats are proposing to do next week--quite apart from the fact that Judge Gorsuch is one of the most eminently qualified people we have seen come around in a long time--flies in the face of 230 years of tradition in the Senate by insisting that a Presidential nominee to the Supreme Court requires more than 51 votes to be confirmed.

I looked very quickly back at my own votes. None of us are perfect, and I am not asking for any merit badges, but I wonder where the Democrats are who are trying to do at least what I was trying to do when President Obama was there. I found at least 10 times that I voted for cloture--voted to cut off debate--on controversial nominees with whom I disagreed, and then I voted against them when the vote was 51.

With Secretary of Labor Perez, cloture was invoked 60 to 40. If I had voted no, that would have denied him his Cabinet position. He is now the chairman of the Democratic National Committee. I cannot think of any Cabinet member I disagreed more with, other than perhaps the one I am about to mention next, but I thought the President deserved to have his own nominee, and I thought we ought to respect the tradition of never having denied a Cabinet member a position because of a 60-vote requirement.

Another one was John King, the Education Secretary. I asked President Obama to appoint him or somebody of his choosing. I thought we needed an Education Secretary for a year even though I have great differences with John King. I respect him greatly, but I have differences with him.

So I got him confirmed as chairman--I don't want to say it that way. I asked the President to do it, as chairman of the committee. I saw that he had a prompt confirmation, and then I made sure he had enough votes to be confirmed--not by much. When it came to cloture, I may have even voted for him when it came to it, just because I thought the President deserved to have his own appointment.

Then there was Attorney General Lynch. Cloture was invoked with only 66 votes. I voted to end debate and have a vote on her.

Secretary of Defense Chuck Hagel--there was opposition to him. I voted no there on confirmation, but I voted to make sure that there was a vote. I voted for cloture.

For two National Labor Relations Board members and a National Labor Relations Board General Counsel, cloture was invoked by 64, 65, and 62 votes--very close. I voted against all three of them for confirmation, just as I did Secretary Perez, because I disagreed with them so much. But I thought that we ought to respect the fact that we confirm Presidential appointees by 51 votes.

There are three or four others, but I want to mention only one more specifically: District Court Judge John McConnell, Jr., from Rhode Island. There was an effort on this side of the aisle to deny him a cloture vote. I resisted that. I talked to some other Republicans. I voted for him for cloture. He got it 63 to 33. Then I voted against him for judge.

The importance of that was if he had had his nomination blocked by the cloture vote, he would have been the first Federal istrict judge in the history of the court to not have been allowed to have an up-or-down vote, majority vote. So I resisted that in that instance. I resisted that for Perez. I may have been the deciding vote; there were only 60 votes.

While I said I am not looking for merit badges, where are the Democrats who are willing to vote like that--to preserve the Senate's 230-year tradition of approving Presidential nominees by a majority vote? I think this is a terrible precedent, not justified, and I am sorry to see things heading in this direction.

Now I wish to make some remarks on another matter.

(The remarks of Mr. Alexander pertaining to the introduction of S. 761 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. President, the Health Care Options Act of 2017, introduced by Senator Corker and me, would address the emergency in the health insurance exchanges in Tennessee and in other States. This legislation would allow any American who receives a subsidy and has no insurance available on their exchange next year to use that subsidy to buy any State-approved insurance off the exchange.

Second, the legislation would waive the Affordable Care Act requirement that these Americans--who, remember, have zero insurance options for their subsidies--have to pay a penalty for not purchasing the insurance.

Third, the legislation would bring peace of mind between now and the beginning of 2018 to millions of Americans--some of the most vulnerable people in our country--who face having zero options of health insurance to purchase with their subsidy in the year 2018 because of the collapsing ObamaCare exchange markets.

Here is why urgent action is needed. There are 11 million Americans who buy individual insurance now on the Affordable Care Act exchanges. Approximately 85 percent of them receive a subsidy to help them buy insurance. For those who don't like subsidies for people buying insurance, I would remind us that about 60 percent of insured Americans get insurance on the job, and the average tax break for people with employer sponsored insurance is about $5,000. What we are talking about is the 4 percent of insured people who don't get insurance on the job, who don't get it from the government and Medicare and Medicaid, and this subsidy gives them some money to help them buy insurance if they are mostly low income.

While these 11 million make up only 4 percent of the total insured population in this country, this 4 percent is where much of today's political turmoil rests.

In the Knoxville area where I live, the one remaining insurance company on the Affordable Care Act exchange has pulled out for the year 2018. So it is a near certainty that there will be zero insurance options for 40,000 Tennesseans who live there and buy their insurance on the exchange. In other words, for approximately 34,000 Tennesseans living in Knoxville who rely on an Affordable Care Act subsidy to buy health insurance, their subsidies will be worth as much as a bus ticket in a town with no buses running.

There is a real prospect that the same thing may happen to all 230,000 Tennesseans who buy insurance on the exchange. As I said, 85 percent of them rely on a subsidy to afford insurance; they just will not have any insurance policies to buy.

The decision Friday by the House of Representatives to not vote on the health care bill changes nothing about the urgency of rescuing these 230,000 Tennesseans who buy insurance on the ObamaCare exchanges that our State insurance commissioner has told us are ``very near collapse.''

While Congress continues its work to enact long-term structural health reforms, we must take immediate action to help these 230,000 Tennesseans and millions of Americans in other States facing the same dire consequences.

This is not just a problem for Tennesseans. Last year, 7 percent of counties in the country had just one insurer offering plans on their Affordable Care Act exchange. This year, that 7 percent has risen to 32 percent of the counties in this country having just one insurer offering plans on the Affordable Care Act exchange. There are five States this year that have only a single insurer offering ACA plans in their entire State--Alabama, Alaska, Oklahoma, South Carolina, and Wyoming. And in nine States, there is only one insurer offering ACA plans in a majority of the

counties in the States: Tennessee, North Carolina, West Virginia, Utah, Nevada, Arizona, Mississippi, Missouri, and Florida.

Next year, in 2018, we know the problem will be much worse. As more insurance companies announce their plans for the 2018 plan year, it is very likely that more counties across the Nation will face challenges similar to those in the Knoxville, Tennessee, area, where, again, having an ObamaCare subsidy will be as useful as having a bus ticket in a town with no buses running.

Now, there is a solution to this. As I mentioned, the legislation that Senator Corker and I are introducing will do three things: First, it will allow Americans to use their Affordable Care Act subsidy--the money they are getting now--to purchase any health insurance plan outside of the exchange, as long as the insurance is approved by the State for sale in the individual market. That means Americans on the exchanges will have options to purchase insurance where the Affordable Care Act has left them with none. This option will be given to individuals who live in the counties where the Secretary of Health and Human Services certifies that there are zero options on the ACA exchange.

Second, when the Secretary certifies that there are zero insurance options on the exchange, the legislation will waive the Affordable Care Act's requirement to buy a specific health plan or pay a fine of as much as $2,000 for a family of four. The law's individual mandate, in other words, will not apply to these individuals. And, of course, it shouldn't. They shouldn't be penalized for not buying insurance when there is no insurance to buy.

The legislation's temporary authority would be in place only through the end of the 2019 plan year.

Third, I hope that this legislation will provide some peace of mind for those Knoxville area residents and Americans in counties across the country trapped in collapsing exchanges.

This is not a permanent solution. Congress has a responsibility to continue its work to solve this problem and to give more Americans more choices of lower cost health insurance.

Long term, Americans should have the freedom to make their own choices about their family's health care needs. But in the short term, we must act on behalf of 230,000 Tennesseans, some of the most vulnerable citizens in our State, and millions of other Americans in other States who are likely to have zero choices of insurance in 2018.

Earlier this afternoon, the Tennessee insurance commissioner, Julie Mix McPeak, who has testified before the Senate and made public statements that the Tennessee Affordable Care Act exchanges were in virtual collapse--what she means by that is no one will be selling insurance in them--issued this statement in support of the bill that Senator Corker and I have introduced. She said:

This bill ``would definitely be helpful for Tennessee

consumers. We are in favor of any legislation that improves

consumer choice and provides access for Tennesseans. It is

completely unacceptable for our consumers to have a subsidy

but no ability to purchase insurance on the exchange. We

support any option that avoids that result.''

I yield the floor.

Mr. President, the Health Care Options Act of 2017, introduced by Senator Corker and me, would address the emergency in the health insurance exchanges in Tennessee and in other States. This legislation would allow any American who receives a subsidy and has no insurance available on their exchange next year to use that subsidy to buy any State-approved insurance off the exchange.

Second, the legislation would waive the Affordable Care Act requirement that these Americans--who, remember, have zero insurance options for their subsidies--have to pay a penalty for not purchasing the insurance.

Third, the legislation would bring peace of mind between now and the beginning of 2018 to millions of Americans--some of the most vulnerable people in our country--who face having zero options of health insurance to purchase with their subsidy in the year 2018 because of the collapsing ObamaCare exchange markets.

Here is why urgent action is needed. There are 11 million Americans who buy individual insurance now on the Affordable Care Act exchanges. Approximately 85 percent of them receive a subsidy to help them buy insurance. For those who don't like subsidies for people buying insurance, I would remind us that about 60 percent of insured Americans get insurance on the job, and the average tax break for people with employer sponsored insurance is about $5,000. What we are talking about is the 4 percent of insured people who don't get insurance on the job, who don't get it from the government and Medicare and Medicaid, and this subsidy gives them some money to help them buy insurance if they are mostly low income.

While these 11 million make up only 4 percent of the total insured population in this country, this 4 percent is where much of today's political turmoil rests.

In the Knoxville area where I live, the one remaining insurance company on the Affordable Care Act exchange has pulled out for the year 2018. So it is a near certainty that there will be zero insurance options for 40,000 Tennesseans who live there and buy their insurance on the exchange. In other words, for approximately 34,000 Tennesseans living in Knoxville who rely on an Affordable Care Act subsidy to buy health insurance, their subsidies will be worth as much as a bus ticket in a town with no buses running.

There is a real prospect that the same thing may happen to all 230,000 Tennesseans who buy insurance on the exchange. As I said, 85 percent of them rely on a subsidy to afford insurance; they just will not have any insurance policies to buy.

The decision Friday by the House of Representatives to not vote on the health care bill changes nothing about the urgency of rescuing these 230,000 Tennesseans who buy insurance on the ObamaCare exchanges that our State insurance commissioner has told us are ``very near collapse.''

While Congress continues its work to enact long-term structural health reforms, we must take immediate action to help these 230,000 Tennesseans and millions of Americans in other States facing the same dire consequences.

This is not just a problem for Tennesseans. Last year, 7 percent of counties in the country had just one insurer offering plans on their Affordable Care Act exchange. This year, that 7 percent has risen to 32 percent of the counties in this country having just one insurer offering plans on the Affordable Care Act exchange. There are five States this year that have only a single insurer offering ACA plans in their entire State--Alabama, Alaska, Oklahoma, South Carolina, and Wyoming. And in nine States, there is only one insurer offering ACA plans in a majority of the

counties in the States: Tennessee, North Carolina, West Virginia, Utah, Nevada, Arizona, Mississippi, Missouri, and Florida.

Next year, in 2018, we know the problem will be much worse. As more insurance companies announce their plans for the 2018 plan year, it is very likely that more counties across the Nation will face challenges similar to those in the Knoxville, Tennessee, area, where, again, having an ObamaCare subsidy will be as useful as having a bus ticket in a town with no buses running.

Now, there is a solution to this. As I mentioned, the legislation that Senator Corker and I are introducing will do three things: First, it will allow Americans to use their Affordable Care Act subsidy--the money they are getting now--to purchase any health insurance plan outside of the exchange, as long as the insurance is approved by the State for sale in the individual market. That means Americans on the exchanges will have options to purchase insurance where the Affordable Care Act has left them with none. This option will be given to individuals who live in the counties where the Secretary of Health and Human Services certifies that there are zero options on the ACA exchange.

Second, when the Secretary certifies that there are zero insurance options on the exchange, the legislation will waive the Affordable Care Act's requirement to buy a specific health plan or pay a fine of as much as $2,000 for a family of four. The law's individual mandate, in other words, will not apply to these individuals. And, of course, it shouldn't. They shouldn't be penalized for not buying insurance when there is no insurance to buy.

The legislation's temporary authority would be in place only through the end of the 2019 plan year.

Third, I hope that this legislation will provide some peace of mind for those Knoxville area residents and Americans in counties across the country trapped in collapsing exchanges.

This is not a permanent solution. Congress has a responsibility to continue its work to solve this problem and to give more Americans more choices of lower cost health insurance.

Long term, Americans should have the freedom to make their own choices about their family's health care needs. But in the short term, we must act on behalf of 230,000 Tennesseans, some of the most vulnerable citizens in our State, and millions of other Americans in other States who are likely to have zero choices of insurance in 2018.

Earlier this afternoon, the Tennessee insurance commissioner, Julie Mix McPeak, who has testified before the Senate and made public statements that the Tennessee Affordable Care Act exchanges were in virtual collapse--what she means by that is no one will be selling insurance in them--issued this statement in support of the bill that Senator Corker and I have introduced. She said:

This bill ``would definitely be helpful for Tennessee

consumers. We are in favor of any legislation that improves

consumer choice and provides access for Tennesseans. It is

completely unacceptable for our consumers to have a subsidy

but no ability to purchase insurance on the exchange. We

support any option that avoids that result.''

I yield the floor.

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

Mr. President, redundancy is often a virtue, so I am about to practice redundancy.

Last week, I made a speech on the floor of the Senate about the upcoming votes in connection with the President's nomination of Neil Gorsuch to be Associate Justice of the Supreme Court of the United States, and I talked about the 230-year history of this body to always have Presidential nominations for judges--for Supreme Court Justices, for Federal district judges, and for circuit judges up to 2003 by a majority vote. Never in the history of this body has the Senate refused to allow a vote, an up-or-down vote on a Supreme Court Justice.

Because I hear that may be what the Democrats are planning to do-- even though Mr. Gorsuch may be one of the most remarkably talented nominees in a long, long time--I want to make the address that I made last week again, and I am going to deliver it word for word in hopes that someone may actually hear it.

President Trump's nomination of Judge Neil Gorsuch to be a member of the U.S. Supreme Court will be considered on the floor of the Senate next week. Some have suggested that instead of allowing a majority of Senators to decide whether to approve the Gorsuch nomination, there should first be a so-called cloture vote to determine whether to cut off debate.

Now, you can see what would happen. Cutting off debate requires the approval of 60 Senators. There are 46 Democratic Senators, so if 41 of the 46 Democrat Senators vote not to cut off debate, we would never get to a vote on Judge Gorsuch. We would never get to a vote. In other words, the 41 Democratic Senators would have filibustered to death the Gorsuch nomination to the Supreme Court of the United States, a partisan act that has never happened before in the 230 years of the Senate.

Filibustering to death the Gorsuch nomination or any Presidential nomination, for that matter, flies in the face of 230 years of Senate tradition.

Throughout the Senate's history, approval of even the most controversial Presidential nominations have required only a majority vote. For example, in 1991, President George H.W. Bush nominated Clarence Thomas to be Associate Justice of the U.S. Supreme

Court. The debate was bitter. The vote was narrow. The Senate confirmed Justice Thomas 52 to 48.

Although Senate rules have allowed any one Senator to try to filibuster the nomination to death, to insist on a 60-vote vote, not one did. In fact, Senate rules have always allowed Senators the option to filibuster to death a Presidential nomination, yet it has almost never happened.

According to the former Senate historian, with one possible exception, which I will describe later, the number of Supreme Court Justices in our country's history who have been denied their seats by filibuster is zero. The number of the President's Cabinet members in our country's history who have been denied their seats by a filibuster is zero. The number of Federal district judges in our country's history who have been denied their seats by a filibuster is zero. I know that for a fact because an attempt was made to filibuster one--Judge McConnell from Rhode Island--and I voted against that, as did other Republican Senators, because we thought it was wrong to break the Senate's 230-year tradition of always considering judges by majority vote, and we prevailed.

We could have done it, but we didn't do it. That is the point.

Next week, the Democrats can filibuster Judge Gorsuch to death, but they shouldn't do it. They shouldn't do it.

Until 2003, the number of circuit judges in our country's history who have been denied their seats by filibuster was zero.

Senator Everett Dirksen did not filibuster President Lyndon Johnson's nominees. Senator Robert Byrd did not filibuster President Reagan's nominees. Senator Howard Baker did not filibuster President Carter's nominees. Senator Bob Dole did not filibuster President Clinton's nominees.

During most of the 20th century, when one party controlled the White House and the Senate 70 percent of the time, the minority never filibustered to death a single Presidential nomination.

On the other hand, there have been plenty of filibusters on legislation--so many that in 1917, the Senate adopted the so-called cloture rule as a way to end filibusters. The idea is, after you talk enough, you should bring it to an end, so they had a supermajority for that purpose. The rule was amended in 1949, 1959, 1975, 1979, and 1986--always in response to filibusters on legislation, never on nominations. It was the 1975 change that established the current cloture standard of 60 votes to end debate, except on amendments to the Standing Rules.

Filibustering a Presidential nomination has always been treated differently than filibustering a legislative matter. The filibuster of legislation is perhaps the Senate's most famous characteristic. It has been called ``democracy's finest show, the right to talk your head off.''

As the actor Jimmy Stewart says in the movie ``Mr. Smith Goes to Washington'': ``Wild horses aren't going to drag me off this floor until those people have heard everything I've got to say, even if it takes all winter.'' That was Jimmy Stewart talking about his filibuster.

The late Robert Byrd described the importance of a legislative filibuster in this way in his last speech to the Senate: ``Our Founding Fathers intended the Senate to be a continuing body that allows for open and unlimited debate and protection of minority rights. Senators have understood this since the Senate first convened.''

In fact, the whole idea of the Senate is not to have a majority rule on legislation. Throughout Senate history, the purpose of the legislative filibuster has been to force consensus on issues, to force there to be a group of Senators on either side who have to respect one another's views so they work together and produce 60 votes on important matters. We did that last December in a piece of legislation that the majority leader called the most important legislation of the Congress, the 21st Century Cures Act. There were enormous differences of opinion about it, but because Senator Murray, the ranking Democrat and I, and the Democrats and Republicans in the Senate and in the House, and President Obama and Vice President Biden all wanted a result, we formed a consensus. We resolved our differences, and we agreed on this most important piece of legislation that will help virtually every American family by advancing cures for cancer, Alzheimer's, diabetes, and a variety of diseases.

Nominations have always been treated differently from legislation. For example, under Senate rule XIV, any Senator can bring legislation directly to the Calendar of General Orders, bypassing committees. There is no such power for nominations. There is no rule XIV for nominations. Senate rules allow debate and, therefore, the possibility of filibuster on a motion to proceed to legislation. Debate is not allowed on a motion to proceed to nominations. So there can't be a filibuster on a motion to proceed to a nomination. In summary, while Senate rules have always allowed for extended debate or filibusters, the filibuster was never used to block a nomination until recently.

As I mentioned earlier, it was never used to block a Cabinet nomination, never used to block a Federal district judge, until 2003, never used to block a Federal circuit judge, and never used to block a Supreme Court Justice, with one possible exception. The exception occurred in 1968 when President Lyndon Johnson sought to elevate Associate Justice Abe Fortas to be Chief Justice. There was bipartisan opposition to that idea. When it became clear that the Senate majority would not agree, President Johnson engineered a 45-43 cloture vote so that Fortas could save face and appear to have won something, according to the former Senate Historian. Fortas then asked the President to withdraw the nomination.

Other than that, never has a Supreme Court nominee been filibustered to death in the Senate. Other than the Fortas nomination, the filibuster was never used to block any judicial nomination until 2003 and 2004, when Democrats for the first time decided to use the 60-vote cloture requirement to block 10 of President George W. Bush's nominees. I had just arrived in the Senate. I remember it well. I was really outraged by it because, as for the nominees, it was the right of the President to name them and the right of the Senate to reject them. But throughout history it was always by 51 votes. This unprecedented action by the Senate Democrats produced a threat by Republicans to change the Senate rules to make it clear that only a majority is required to approve a Presidential nomination. There was a negotiation, and eventually five of Bush's nominees were approved, five were blocked, and the rules weren't changed.

Then in 2011 and 2013, Republicans returned the favor. That happens around here--a precedent set by that side then becomes a precedent that this side, then, undertakes. In 2011 and 2013, the Republicans returned the favor by seeking to block five of President Obama's nominees for the circuit court by insisting on a 60-vote cloture on each. Republicans alleged the President was trying to pack the Federal Circuit Court of the District of Columbia with three liberal justices. To overcome Republican objections, the Democrats invoked the so-called nuclear option. They broke the Senate rules to change the rules. The new rule eliminated the possibility of 60-vote cloture motions for all Presidential nominations except for the Supreme Court, which is where we are today.

There have been other examples of minority Senators filibustering nominations to death, all of them during the last three administrations and all involving sub-Cabinet nominations. Then, of course, there have been delays in considering nominations.

My own nomination in 1991 as U.S. Education Secretary was delayed for 51 days--I thought improperly--by a Democratic Senator. President Reagan's nomination of Ed Meese as Attorney General of the United States was delayed 1 year by a Democratic Senate. No one has ever disputed our right in the Senate, regardless of who was in charge, to use our constitutional duty of advice and consent to delay and examine and sometimes to cause nominations to be withdrawn or even to defeat nominees by a majority vote.

But, as we approach the vote next week on Neil Gorsuch on the floor of the Senate, it is useful to remember that the tradition of the Senate has been to treat legislative matters one way and Presidential nominations a different way: to filibuster to death

legislation, yes; to filibuster to death Presidential nominations, no.

Should the Gorsuch nomination come to the floor soon, as I believe it will, overwhelming Senate tradition requires that whether to approve it should be decided by a majority vote and there should be no attempt by the minority to filibuster the nomination, especially of such a qualified man.

I thank the Presiding Officer, and I yield the floor.

I suggest the absence of a quorum.

Mr. President, while the Senator from Rhode Island is still here, I was pleased to join with him in an article published in the New York Times not long ago. We don't agree on everything, but we do agree on this: Climate change is a serious problem, and it makes no sense to close nuclear power plants while they are safely operating and producing 60 percent of our carbon-free electricity in the United States.

So I thank him for his partnership on that article in the New York Times.

Mr. President, today I come to the floor to express my opposition once again to the possibility that the Tennessee Valley Authority--the TVA, as we call it--might raise our electric bills and waste more than $1 billion buying electricity the region does not need by agreeing to purchase power from the Clean Line Energy Partners' proposed Plains & Eastern wind power transmission project.

Congress has a responsibility to conduct oversight of TVA's decisions and also to ensure that TVA is fulfilling its missions, as defined by the TVA Act. Although TVA does not receive any Federal funding from Congress, TVA is a Federal corporation, and its board members are nominated by the President of the United States and confirmed by the Senate.

The House Transportation and Infrastructure Committee and the Senate Environment and Public Works Committee, the committees responsible for the oversight of TVA, have held hearings to discuss TVA's budget and policies.

So as a U.S. Senator, today I am here to exercise my oversight responsibilities on TVA. Clean Line Energy Partners, a Texas-based company, is proposing to build giant, unsightly transmission towers from Oklahoma, through Arkansas, to Tennessee--known as the Plains & Eastern Clean Line--to carry comparatively more expensive, less reliable electricity to Tennessee and other Southeastern States.

For the first time ever, Federal eminent domain will be used over the objection of the State of Arkansas and both of Arkansas's U.S. Senators to acquire the land necessary for the transmission line. In order to move forward with the construction of a single 700-mile, high-voltage, direct current transmission line, Clean Line Energy Partners must find utilities in the Southeast that are willing to purchase the power produced by an Oklahoma wind farm and transmitted by the Plains & Eastern Clean Line. For this reason, Clean Line Energy Partners and their supporters have been urging the Tennessee Valley Authority to agree to a long-term power purchase agreement for wind power.

In November, shortly after the election, the Southern Alliance for Clean Energy said: ``We strongly encourage TVA's Board of Directors to immediately contract for at least 1,000 megawatts of wind power on the Plains and Eastern Clean Line.'' Why the rush, I would ask. The answer is this: Federal subsidies for wind power--subsidies that waste billions of dollars of taxpayer money each year--end after 2019. A petition being pushed by the Southern Alliance for Clean Energy urging TVA to purchase the power spells this out. They said: ``Critical deadlines regarding the Federal production tax credit for wind power are fast approaching. . . . The time to contract for low-cost wind power is now.''

So last December, I wrote to the TVA and said: ``There should not be a rush to approve any proposal from Clean Line Energy Partners. This is a big, expensive decision and should be left to the new board next year.''

While this decision should be left to a full TVA board when all of its members are confirmed, I don't know why either a board with three vacancies, which is what we have today, or a complete board with all of its members confirmed would even consider approving such a deal. A contract with Clean Line Energy Partners could cost TVA ratepayers more than $1 billion over the next 20 to 30 years, the typical length of such an agreement. TVA would be disregarding its mission to provide low-cost power to the region if it were to contract for power the region doesn't need regardless of the source of the electricity.

In recent years, according to TVA, power demand throughout the Tennessee Valley has declined.

In 2013, TVA began working with its customers to develop a long-term plan to meet the region's power needs through 2033. In 2015, when TVA completed its Integrated Resource Plan, that plan concluded--this is TVA talking--that ``there is no immediate need for new base load plants after Watts Bar Nuclear Unit 2 comes online and upgrades are completed at Browns Ferry Nuclear Plant.'' As a result of this conclusion, because TVA did not need power, TVA decided last year to sell the unfinished Bellefonte nuclear power plant.

For the foreseeable future, TVA has said it doesn't need any new baseload power and doesn't plan on any major new capital construction projects. This is good news for ratepayers because it means TVA can reduce debt and keep electric rates low. So why would TVA announce that it doesn't need new power for the next 15 years, sell a nuclear power plant capable of producing reliable baseload power for the next 60 years, and then turn around and buy unreliable wind power that might only be available for 20 or 30 years until the turbines break down?

TVA is, generally speaking, on a very good path. Its leadership has made sound decisions that will benefit ratepayers and our region. To fulfill its mission to provide safe, clean, reliable, and affordable power for the region's homes and businesses--that is its mission--it has opened the first nuclear power reactor in the 21st century. And I may say, going back to Senator Whitehouse's speech, nuclear power is

emission free--no sulfur, no nitrogen, no mercury, no carbon. Nuclear power produces 60 percent of all of our carbon-free electricity. TVA is also placing pollution control equipment on all of its coal plants and is completing new natural gas plants. The TVA has done this while reducing its debt and reducing electric rates, which is good news for jobs and economic development in the region. Even if TVA did need more power, which it has said it does not, TVA should not agree to buy more wind power which is comparatively unreliable and expensive.

A look at TVA's previous experience with wind power illustrates how unreliable it can be, especially in our region. In 2001, TVA opened its first commercial-scale wind project in the Southeast. It is generous to say that it has been a failure. This project on Buffalo Mountain near Knoxville has the capacity to generate 27 megawatts of electricity; however, according to TVA, in 2016--last year--the Buffalo Mountain wind turbines produced only 4.3 megawatts on average. Capacity is 27 megawatts and generation was 4.3 megawatts--that is just 16 percent of their rated capacity. In other words, these turbines, which cost as much as $40 million to build and must cost millions more over the life of the contract, produce little electricity and little value to TVA's ratepayers.

Wind usually blows at night when consumers are asleep and don't need as much electricity. Until there is some way to store large amounts of wind power, a utility still needs to operate gas, nuclear, or coal plants when the wind doesn't blow. For example, take a recent TVA peak summer day. On July 26, 2016, Tennessee Valley homes and businesses consumed 29,512 megawatts of electricity--nearly all of TVA's capacity of 33,000 megawatts of electricity. Part of TVA's capacity on that day included contracts for nearly 1,250 megawatts of electricity produced by wind power. However, at the peak demand during the day, when power is most urgently needed, those wind turbines with a rated capacity of 1,250 megawatts actually delivered only 185 megawatts of electricity. So on a day when the Tennessee Valley needed power the most, wind turbines provided less than 15 percent of their rated capacity and less than 1 percent of the total electricity needed to power our region's homes and businesses.

Not only is wind power unreliable, it can be more expensive than nuclear, which also produces zero emissions, or natural gas, which is low emission.

TVA is currently completing a new 900-megawatt natural gas plant for roughly $975 million that will improve air quality in Memphis and be one of the most efficient natural gas plants in the world. Natural gas plants usually operate for at least 30 years and according to TVA can provide power in as little as 20 minutes to meet peak demand during hot summer afternoons and cold winter nights.

Last year, TVA opened the country's first nuclear power reactor in the 21st century, Watts Bar 2, at a cost of $5 billion. Watts Bar 2 will safely provide 1,150 megawatts of power more than 90 percent of the time for the next 40, 60, and possibly even 80 years, all of it emission free, no sulfur, no nitrogen, no mercury, no carbon.

The point is, TVA has concluded that it doesn't need more power for the foreseeable future; therefore, its board should resist obligating TVA's ratepayers for any new large power contracts, much less contracts for comparatively expensive and unreliable wind power. Instead, TVA should continue to provide low-cost, reliable power to the region because that boosts economic development throughout the Tennessee Valley.

I thank the Presiding Officer, and I yield the floor.

I suggest the absence of a quorum.

Mr. President, President Trump's nomination of Judge Neil Gorsuch to be a member of the U.S. Supreme Court is being considered this week in the Senate Judiciary Committee. Soon, the nomination is likely to move to the floor for debate.

Some have suggested that instead of allowing a majority of Senators to decide whether to approve the nomination of Judge Gorsuch, there should be first a cloture vote to determine whether to cut off debate. Cutting off debate requires the approval of 60 Senators, so if 41 of the 46 Democratic Senators vote not to cut off debate, there would never be an up-or-down majority vote to approve Judge Gorsuch. In other words, the 41 Democratic Senators would have filibustered to death the Gorsuch nomination.

Filibustering to death the Gorsuch nomination--or any Presidential nomination, for that matter--flies in the face of 230 years of Senate tradition. Throughout the Senate's history, approval of even the most controversial Presidential nominations has required only a majority vote. For example, in 1991 President George H.W. Bush nominated Clarence Thomas to be an Associate Justice of the Supreme Court. The debate was bitter. The Senate confirmed Judge Thomas narrowly, 52 to 48. Although the Senate rules allowed any Senator to try to filibuster the nomination to death, none did. In fact, Senate rules have always allowed Senators the option to filibuster to death a Presidential nomination; yet it has almost never happened. According to the former Senate Historian, with one possible exception, which I will mention in a minute, the number of Supreme Court Justices in our country's history who have been denied their seat by filibuster is zero. The number of Cabinet members in our country's history who have been denied their seats by filibuster is zero. The number of Federal district judges in our country's history who have been denied their seats by filibuster is zero. And until 2003, the number of Federal circuit judges in our country's history who have been denied their seats by filibuster was zero.

Senator Everett Dirksen did not filibuster President Lyndon Johnson's Presidential nominations. Senator Robert Byrd did not filibuster President Reagan's nominees. Senator Howard Baker did not filibuster President Carter's nominees. Senator Bob Dole did not filibuster President Clinton's nominees. During most of the 20th century, when one party controlled the White House and the Senate 70 percent of the time, the minority never filibustered to death a single Presidential nominee.

On the other hand, there have been plenty of filibusters on legislation--so many that in 1917, the Senate adopted a cloture rule as a way to end filibusters. The rule was amended in 1949, 1959, 1975, 1979, and 1986--always in response to filibusters on legislation, never on nominations. It was the 1975 change that established the current cloture standard of 60 votes to end debate except on amendments to the standing rules of the Senate.

Filibustering a Presidential nomination has always been treated differently than filibustering a legislative matter. The filibuster of legislation is perhaps the Senate's most famous characteristic. It has been called ``democracy's finest show, the right to talk your head off.'' As the actor Jimmy Stewart said in the movie ``Mr. Smith Goes to Washington,'' ``Wild horses aren't going to drag me off this floor until those people have heard everything I've got to say, even if it takes all winter.'' That was Jimmy Stewart in ``Mr. Smith Goes to Washington.''

The late Senator Robert C. Byrd of West Virginia described the importance of the legislative filibuster in a different way. He said in his last speech:

Our Founding Fathers intended the Senate to be a continuing

body that allows for open and unlimited debate and the

protection of minority rights. Senators have understood this

since the Senate first convened.

In fact, the whole idea of the Senate is not to have majority rule on legislation. Throughout Senate history, the purpose of the legislative filibuster has been to force consensus on issues, to force there to be a group of Senators on either side who have to respect one another's views so they work together and produce 60 votes on important matters, as we did on the 21st Century Cures bill and as we did on the bill fixing No Child Left Behind.

Nominations have always been treated differently from legislation. For example, under rule XIV, any Senator could bring legislation directly to the calendar bypassing committees. There is no such power for nominations. Senate rules allow debate and therefore the possibility of filibuster on a motion to proceed to legislation. Debate is not allowed on a motion to proceed to nominations.

In summary, while Senate rules have always allowed extended debate or filibusters, the filibuster was never used to block a nomination until recently. As I mentioned earlier, it was never used to block a Cabinet nomination, never used to block a Federal district judge, and until 2003, never used to block a circuit judge, and never used to block a Supreme Court Justice in the country's history, with one possible exception. That was in 1968, when President Johnson sought to elevate Associate Justice Abe Fortas to be Chief Justice. When it became clear the Senate majority wouldn't agree, Johnson engineered a 45-to-43 cloture vote so forces could save face and appear to have won something. Fortas then asked the President to withdraw the nomination.

Other than the Fortas nomination, the filibuster was never used to block any judicial nomination until 2003 and 2004, when Democrats decided to use the 60-vote cloture requirement to block 10 of President George W. Bush's nominations. This unprecedented action produced a threat by Republicans to change the Senate rules, to make it clear that only a majority vote is required to approve a Presidential nomination. There was a negotiation and eventually five of Bush's nominations were approved, five were blocked and the rules were not changed. Then, in 2011 and 2013, Republicans returned the favor--as often happens around here--by seeking to block 5 of President Obama's nominees for the circuit court by insisting on a 60-vote cloture for

each. Republicans alleged that President Obama was trying to pack the circuit court in the District of Columbia with three liberal judges.

To overcome Republican objections, Democrats invoked the so-called nuclear option. They broke the Senate rules to change the Senate rules. The new rule eliminated the possibility of 60-vote cloture motions for all Presidential nominees except for the Supreme Court.

That is where we stand today. There have been other examples of minority Senators filibustering nominations to death, all of them during the last three administrations and all involving sub-Cabinet nominations. Of course, there have been delays in considering nominations. My own nomination in 1991 as U.S. Education Secretary was delayed 51 days by Democratic Senators. Of course, I thought unnecessarily.

President Reagan's nomination of Ed Meese as Attorney General of the United States was delayed a year by a Democratic Senate. No one has ever disputed our right in the Senate, regardless of who is in charge, to use our constitutional duty of advice and consent to delay and examine and sometimes cause nominations to be withdrawn or even to defeat nominees by a majority vote.

As we approach a vote on Judge Gorsuch on the floor of the Senate, it is useful to remember that the tradition of the United States Senate, for 230 years, has been to treat legislative matters and nominations differently. Filibuster to death legislation, yes. Filibuster to death Presidential nominations? No. Should the Gorsuch nomination come to the floor soon, as I believe it will, overwhelming Senate tradition requires that whether to approve it should be decided by a majority vote of Senators, and there should be no attempt by the minority to filibuster the nomination to death.

I yield the floor.

Mr. President, I ask unanimous consent to have printed in the Record a copy of my remarks at the Senate Committee on Health, Education, Labor, and Pensions earlier today.

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

Mr. President, in 2015, 85 U.S. Senators voted to fix the No Child Left Behind Act. We reversed the trend to a national school board and began to restore decisions to classroom teachers, local school boards, and States. The Wall Street Journal said that it was ``the largest devolution of federal control to the States'' in 25 years.

The Department of Education regulation that we seek to overturn today does exactly the reverse. It begins to restore the national school board, and it begins to take away responsibility from classroom teachers, local school boards, and States. It does that in direct violation of the law we passed with 85 Senators voting for it 15 months ago.

The question before us today is not only whether we believe in a national school board or local school board, the question is whether we believe Congress ought to write the law or the U.S. Department of Education ought to write the law. Article I of the U.S. Constitution says that the U.S. Congress--we--should write the law.

The purpose of this resolution is to overturn a Department of Education regulation that in seven specific cases directly violates the Every Student Succeeds Act passed 15 months ago, and in 16 additional cases exceeds the authority allowed by the law. I spoke on this floor yesterday in detail of each of those 23 instances.

It is very unusual for the Congress to actually prohibit a department from regulating on an issue, but that is exactly what Congress did. The regulation we are seeking to overturn says to States: Ignore the law that 85 Senators passed 15 months ago. Ignore the law President Obama called a ``Christmas miracle.'' Ignore the law Governors, teachers, school boards, and superintendents all supported, and even ignore why they supported it, and listen instead to unelected bureaucrats at the U.S. Department of Education.

This regulation issued by the Department of Education specifically does things or requires States to do things Congress said in our law that the Department cannot do; therefore, it violates the law.

For example, Congress said to the Department: You cannot tell States what to do about fixing low-performing schools in Alaska or Tennessee or your State; that is a State decision. But this regulation does that anyway.

Congress said to the Department: You cannot tell States exactly how to rate the public schools. But this regulation does that anyway.

This isn't a trivial matter. The remarkable consensus that developed in 2015 in support of the bill fixing No Child Left Behind was, as I said earlier, to reverse the trend toward a national school board and restore to States, classrooms, teachers, and communities decisions about what to do about schools. People are fed up with Washington telling teachers and schools and superintendents and States so much about what to do about their children in 100,000 public schools. So this regulation, which contravenes the law, goes to the heart of that consensus.

This resolution ensures that the law is implemented the way Congress wrote it. This resolution restores flexibility. This resolution preserves local decision making. This resolution scuttles new and burdensome reporting requirements that are in the Department regulation. This resolution ensures strong accountability for our schools, but it is State accountability. That is what we decided in our law.

Chaos? My distinguished friend from Washington said ``chaos.'' The Secretary of Education has announced that States may continue to follow the exact same timeline that the former Secretary, Secretary King, announced for sending in their State plans. If they have questions about how to do that, they can read the law, they can read the guidance, they can read frequently asked questions, or they can make a telephone call.

This resolution does not in any way give the Secretary new authority. In fact, it limits her authority and the authority of the next Secretary. If we stand up and say we are not going to allow any Secretary of Education, whether it is Secretary King or Secretary DeVos, to, in 23 different instances in a regulation, contravene the authority granted in a law, that means we won't have Secretaries imposing their own policies. We will have Congress writing the law. This regulation--the one we are overturning is not required by the law. It is allowed by the law, but it is not required by the law. School districts can read the law.

Future Secretaries will be able to write regulations on this subject. Of course they will. When you overturn a regulation, it does mean the Secretary can't issue a new regulation that is substantially the same, but that simply means, in a commonsense way, the Secretary can't turn right around and do the same thing we just overturned.

This is a question of whether we are going to restore the national school board that 85 Senators voted to reverse. This is a question of whether you believe Congress writes the law or the U.S. Department of Education writes the law. This resolution upholds the law that received 85 votes from U.S. Senators.

I urge my colleagues to vote aye. An ``aye'' vote preserves the bipartisan

consensus. A ``nay'' vote undermines the bipartisan consensus.

I yield the floor.

I yield back any remaining time.

Mr. President, I wish to address the resolution the Senate is now considering.

In 2015, 85 U.S. Senators voted for the law fixing No Child Left Behind, which reversed the trend to a national school board and restored decisions to classroom teachers, local school boards, and States. The Wall Street Journal said it was the ``largest devolution of federal control to the states in a quarter of a century.''

The Department of Education regulation this resolution seeks to overturn does exactly the reverse. It begins to restore the national school board, and it takes away responsibilities from classroom teachers, local school boards, and States. It does this in direct violation of the law that 85 Senators voted for just 15 months ago. So the question before us, today, is not only whether we believe in a national school board or local school boards. More important, perhaps, the question is: who writes the law? Does the U.S. Congress write the law, or does the U.S. Department of Education write the law? Article I of the U.S. Constitution says that the Congress, elected by the people, writes the law.

The purpose of this resolution is to overturn a regulation of the Department of Education that in 7 cases directly violates the Every Student Succeeds Act, passed just 15 months ago, and in 16 other cases exceeds the authority allowed by that law.

This regulation would say to States: Ignore the law 85 Senators passed 15 months ago. Ignore the law that President Obama called a Christmas miracle. Ignore the law that Governors, teachers, school boards, and superintendents all supported, and even ignore why they supported it. Instead, listen to the unelected bureaucrats at the U.S. Department of Education.

This regulation issued by the Department of Education specifically does things or requires States to do things that Congress said, in our law fixing No Child Left Behind, that the Department of Education cannot do. Therefore, it violates the law.

In this law, Congress said to the Department: You cannot tell States exactly what to do about fixing low-performing schools; that is a State decision. But this regulation does that anyway.

Congress said to the Department: You cannot tell States exactly how to rate the public schools in your State. But this regulation does that anyway.

This is not a minor matter.

The remarkable consensus that developed in the 2015 bill in support of fixing No Child Left Behind was to reverse the trend toward a national school board and restore to States, classroom teachers, and school boards decisions about what to do about their children in 100,000 public schools. Teachers, Governors, and school board members were fed up with Washington telling them so much about what to do about the children in their schools. So this regulation, which contravenes the law specifically, goes to the heart of the bill fixing No Child Left Behind.

It is very unusual in Federal law to specifically prohibit a department from regulating on an issue, but that is exactly what Congress did in 2015. Here are seven specific examples of how the regulation which we seek to overturn violates prohibitions that Congress explicitly wrote into the law:

No. 1, the regulation prescribes the long-term goals and measurements of progress that States establish for student subgroups.

The law says, for example, that the Secretary may not tell a State that goals set for students of one race must improve their progress 20 percent better than the progress of a group of students of another race. Yet the regulation says that States must establish goals and measurements for lower performing subgroups who ``require greater rates of improvement,'' which would necessarily mean that students of one race would have to do better than students of another race.

No. 2, the regulation requires federally prescribed actions to be taken in schools that do not annually test at least 95 percent of students.

The law says that States must annually test not less than 95 percent of all students and each subgroup of students, but States determine how to hold schools accountable for ensuring that 95 percent of students participate on annual tests. The law says that the Secretary of Education may not prescribe ``the way in which the State factors'' the 95 percent testing requirement into their accountability system. Yet the regulation we seek to overturn prescribes four different specific ways that States must take action in schools that miss the 95 percent requirement.

No. 3, the regulation prescribes that schools with consistently underperforming subgroups of students be identified with a lower summative determination.

The law says that States are required to identify schools for targeted support when a subgroup of students is ``consistently underperforming'' in a manner ``as determined by the state.'' So under the law, the Secretary can't tell States how to identify the lowest performing schools or what a school's rating should be. Yet the regulation we are seeking to overturn says that States are required to ``demonstrate that a school with a consistently underperforming subgroup . . . receive a lower summative determination. . . . than it would have otherwise received.'' The Department of Education is meddling into the methodology of school ratings again, despite the fact that Congress said it could not.

No. 4, the regulation prescribes the timeline for identifying schools with consistently underperforming subgroups.

The law says that States are required to identify schools for targeted support when a subgroup of students is ``consistently underperforming'' in a manner ``as determined by the state.''

We had lengthy discussions about this. These issues in education are filled with conflict and filled with different opinions. I said many times during the debate that working on an education bill in the Senate is kind of like being in a football stadium on game day at Penn State or the University of Tennessee: Everybody in the stands has played football, and they know what play to call, and they usually do. So everybody had a point. We had to work these things out and we wrote down carefully the agreement we had. We wrote down that the Secretary of Education may not impose new requirements or criteria on State accountability systems, such as a timeline for the identification of lowest performing schools. Yet the regulation prescribes an exact timeline of 2 years.

No. 5, the regulation requires States to resubmit their plans to the Secretary every 4 years.

The law says that each State plan ``shall . . . be periodically reviewed and revised as necessary by the State educational agency.'' Yet the regulation says States must review and revise their State plans ``at least once every four years'' and ``submit its revisions to the Secretary for review and approval.''

No. 6, the regulation dictates exactly how school districts with significant numbers of low-performing schools must measure resources for students.

The law says States must ``periodically review resource allocation to support school improvement'' in districts that are serving a significant number of low-performing schools. The law says the Secretary cannot tell States what to review. Yet the regulation says that in addressing resource inequities, States must review differences in the following: rates of ineffective, out-of-field, or inexperienced teachers; access to advanced coursework; access to full-day kindergarten and preschool programs; access to specialized instructional support personnel; and per-pupil expenditures of Federal, State, and local funds.

But the law said the Secretary could not tell States what to review.

No. 7, the regulation tells States how to count students in subgroups.

The law says each State decides the minimum number of students who should be included in the State's count of subgroups. So, a State might decide that for students to be included in the State's subgroup data, there needs to be at least 35 students, for example, of a subgroup in a school. The law says the Secretary may not impose new requirements or criteria on State accountability systems. Yet the regulation we are seeking to overturn says States must pick a number below 30 or States will have to explain themselves to the Secretary. That is in violation of a specific prohibition passed by this body with 85 votes and signed by the President of the United States.

Those are seven ways the regulation specifically violates prohibitions in the law that were intended to keep the Secretary from doing what the Secretary then turned around and did.

Here are 16 more ways the regulation exceeds the authority of the U.S. Department of Education. To some, this may seem minor. To some, it may seem dull. It is not dull to me. I don't think it is dull to most Senators. Article I of the Constitution isn't dull. We are elected to write the laws, and anytime we turn over to somebody else--whether it is the court, whether it is the executive branch--that constitutional prerogative, we violate our oath, in my opinion.

No. 1, the regulation limits how States measure school quality or student success. The law says States must include at least one measure of school quality or student success that has to be ``valid, reliable, comparable, and statewide.''

The Secretary cannot tell States what measures to use in their State accountability system. Yet the regulation tells States they can only choose indicators that meet the criteria the Department came up with.

No. 2, the regulation limits how States measure school quality or student success for indicators used specifically in high school.

The law says States must include at least one measure of school quality or student success, specific to high schools, and it has to be ``valid, reliable, comparable, and statewide.'' The Secretary cannot tell States what measures to use in their State accountability system. Yet the regulation tells States they can only choose indicators that meet criteria the Department came up with.

No. 3, the regulation tells schools marked as low-performing that they will always be low-performing unless they improve on indicators the U.S. Department of Education has identified.

The law says something different. The law says that tests and graduation rates have to count more in the State accountability systems than indicators of school quality or student success. The Secretary of Education may not prescribe ``the weight of any measure or indicator used to identify or meaningfully differentiate schools.''

The regulation says that a low-performing school must continue to be identified as low-performing unless it improves on tests and graduation rates, even if the school is making significant progress on other measures of school quality or student success, such as, for example, absenteeism or family engagement, something chosen by the State.

No. 4, the regulation requires school districts where schools aren't testing 95 percent of students to develop and implement a Federal improvement plan.

The law says States must annually test not less than 95 percent of all students and each subgroup of students. The law leaves it to States to determine what to do in school districts with schools that are failing to meet the participation requirement. Yet the regulation tells States how to address school districts where schools aren't testing 95 percent of students. It invents out of whole cloth the idea of a Federal improvement plan, and then it mandates it.

No. 5, similarly, the regulation requires schools that aren't testing 95 percent of students to develop and implement a Federal improvement plan.

The law says that States must annually test not less than 95 percent of all students and each subgroup of students. The law leaves it to States to determine what to do in schools that are failing to meet the participation requirement. Yet the regulation tells States how to address schools that aren't testing 95 percent of students.

Again, it invents out of whole cloth the idea of a Federal improvement plan with four federally prescribed elements, and then it mandates it.

No. 6, the regulation tells States how to measure high school graduation rates.

The law says each State will establish long-term goals for ``all students and each subgroup of students in the State,'' including the goal of high school graduation rates using either the ``four-year adjusted cohort graduation rate'' or ``at the State's discretion, the extended-year adjusted cohort graduation rate.'' Yet the regulation says States can only use the four-year adjusted cohort graduation rate to identify low-performing schools in their accountability systems.

You can see that throughout these examples there appears to be a deliberate attempt by the Department of Education not to interpret the law but to ignore the law or, specifically, to contravene the law, to thumb the nose of regulation writers at the Congress and the President who passed and signed the law.

No. 7, the regulation requires each State to come up with a definition for an ``ineffective teacher.'' The law says each State will describe how low-income and minority children enrolled in schools are not served at disproportionate rates by ineffective teachers. Yet the regulations says States have to define ``ineffective teachers.'' It is going to make it nearly impossible for States not to implement an entire teacher evaluation system.

No. 8, in the same way, the regulation requires each State to come up with a definition of an ``out-of-field teacher.''

That is what the regulation does, but the law just says States will describe how low-income and minority children enrolled in schools are not served at disproportionate rates by ``out-of-field teachers.'' The regulation says you have to define that.

No. 9, the regulation requires each State to come up with a definition for an ``inexperienced teacher.''

The law simply says a State will describe how low-income and minority children are not served at disproportionate rates by ``inexperienced teachers.'' Yet the regulation goes on to require a definition.

No. 10, the regulation tells States to report on the number and percentage of all students and subgroups of students who are not included in the State's accountability system.

The law says each State will report a clear and concise description of the State's accountability system, including the minimum number of students that the State determines are necessary to be included in each of the subgroups of students. Yet the regulation requires States to provide new information outside of the scope of what is required by the law.

No. 11, the regulation tells States how to rate schools and that the State accountability system has to produce a single rating for each school.

That was not envisioned by the law. The law says that States must create a system of evaluating all public schools in the State. It says, further, that the Secretary of Education may not prescribe the specific methodology used by States to evaluate schools. Yet the regulation tells States that the results must lead to a ``single summative determination'' for each school.

A State might choose to do that or a State might choose not to do that. That was the decision of the Congress, but the Department decided differently.

No. 12, the regulation adds a requirement that the State's accountability system has to include at least three levels of performance.

The law says that States have the flexibility to establish a system of meaningful differentiation of schools without any parameters or federally prescribed methodology. That couldn't be clearer--without any parameters or federally described methodology. Yet the regulation prescribes a requirement that States use at least three distinct levels of performance for schools.

No. 13, the regulation prescribes when schools may exit from identification as the lowest-performing.

The law says States must establish statewide criteria for schools to exit from being identified as in need of improvement. The law says that the Secretary of Education may not prescribe what the exit criteria are. That is a decision left up to States, but the regulation narrows the States' ability to develop their own criteria for schools to no longer be identified as the lowest performing.

No. 14, the regulation prescribes how States intervene in school districts with schools that are labeled as the lowest-performing. The law says that if a low-performing school does not meet a State's criteria for no longer being identified as lowest-performing, then the State must take a ``more rigorous State-determined action.'' The Secretary of Education cannot prescribe, under the law, any specific strategies to improve schools. Yet the regulation requires the State to tell school districts to take interventions the Department has prescribed.

No. 15, the regulation prescribes how school districts intervene in schools that are labeled as low-performing.

The law says if a low-performing school does not meet statewide criteria for no longer being identified as lowest-performing, the State must take a ``more rigorous State-determined action.'' The Secretary cannot prescribe any specific strategies to improve schools. Yet the regulation requires a school to take federally prescribed actions.

We have already tried Federal one-size-fits-all actions under the School Improvement Grant program in No Child Left Behind. We rejected that. We don't think Washington should be in the business of telling schools how to fix themselves.

Finally, No. 16, the regulation limits how States award school improvement funding to school districts and schools.

The law says States must establish the method they will use to award school improvement funding to school districts. The regulation dictates to States how much they have to award to low-performing schools receiving school improvement funds.

Here is what this resolution overturning the regulation would do. The resolution would ensure that the law fixing No Child Left Behind is implemented as Congress wrote it. The regulation violates the law and its clear prohibitions on the Secretary by prescribing new requirements through regulation or as a condition of a State plan approval.

In the law we passed, Congress reached an agreement about requiring States to identify a certain number and types of schools that need to be improved, but we left it to the States to determine how to go about fixing those schools and how long they had to fix the schools. The regulation prescribes how States and school districts intervene in and improve schools that do not improve.

Secondly, this resolution restores State flexibility. The regulation is in direct conflict with the intent of the law to allow States and school districts

to have greater flexibility to implement the law, as Congress intended.

Congress reached an agreement that there are some essential elements of a State accountability plan that need to be included in a State plan. The other half of the agreement was that we left to the States the decisions about how to include these factors into their accountability systems. This is about article I of the Constitution.

Congress wrote the law with specific rules in mind. The Secretary of Education and his or her bureaucracy do not get to treat Congress as a minor impediment to the education system of their choosing. If they want to write the laws of the land, they should run for Congress and get themselves elected, draft a bill or an amendment--not wait for Congress to finish our work and try to undo it through a simple regulation.

This resolution, overturning the regulation, would preserve local decision-making. As I mentioned, the Wall Street Journal editorialized, when we passed the law, that it was ``the largest devolution of Federal control to States in a quarter-century.''

The regulation tried to restore Washington, DC, decision-making with mandates that States comply with specific requirements instead of letting States determine how to best proceed.

This resolution scuttles new and burdensome reporting requirements. The regulation created new reporting requirements on States and school districts that will drive up compliance costs and divert resources away from students and classrooms.

Let me conclude by dealing with some of the arguments and misinformation that I have been hearing about the resolution. No. 1, I want to make clear that this resolution overturning the regulation strengthens accountability in our public schools the way Congress determined to do it in the law fixing No Child Left Behind.

We transferred most of that responsibility for accountability from Washington, DC, to States and local school boards. We did not want a national school board.

The law also includes Federal guardrails to ensure a quality, public education for all students, including, for example, requiring States to identify and provide support to low-performing schools--at least the lowest performing bottom 5 percent of each State's schools--and requiring academic and English language proficiency indicators to be included in each State's accountability system. The law's Federal guardrails will shape how States design their accountability systems because a State plan would not be following the law if the State fails to include accountability provisions in their plan.

The repeal of this regulation does not let States--the ones who are supposed to be addressing accountability--off the hook by any means. Repealing this regulation simply ensures that individual States and their Governors, legislators, chief State school officers, local school boards, superintendents, principals, parents, and classroom teachers are responsible for these decisions.

This resolution, overturning the regulation, will allow States to implement the new law on the existing timeline to submit their plans and have the Department review and approve State plans.

U.S. Education Secretary DeVos has said that she favors the current timeline, the one established by former Secretary King. She said this at her confirmation hearing before our committee. She confirmed that again after taking office.

Mr. President, I ask unanimous consent that Secretary DeVos's letter of February 10 to the Chief State School Officers outlining the timeline be printed in the Record.

So there is no confusion, let me clearly state what that timeline is. No. 1, States should continue to submit State accountability plans by the April or September 2017 deadlines. No. 2, States should continue to implement a State accountability system in the 2017-2018 school year. No. 3, States should continue to identify the lowest performing schools in need of comprehensive support and improvement by the beginning of the 2018-2019 school year.

To write these plans, States need simply to consult the law. The Every Student Succeeds Act requires States to submit a plan for peer review and approval by Secretary DeVos and the Education Department. The Department is committed to working with States by providing technical assistance, issuing non-regulatory guidance and other support materials.

If questions arise, there are a variety of ways to answer the questions. The Department will continue to provide States with clarification on how to comply with the law through the use of non- regulatory guidance, ``Dear Colleague'' letters, frequently asked questions documents, webinars, phone calls, and in-person conferences. In other words, if there are any questions about how to comply with the new law, there are plenty of ways for Chief State School Officers and others to ask the U.S. Department of Education to provide the answers.

It is important to emphasize that this resolution does not in any way give the Education Secretary a path to creating a new Federal voucher program. Some of my friends on the other side of this debate have been resorting to scare tactics and alleging Secretary DeVos will use this opportunity to regulate into existence a mandate that State and local school districts adopt a school voucher program. The Secretary of Education does not have that power, and this Secretary of Education has said she does not want it. Secretary DeVos has repeatedly affirmed her opposition to federally mandating school choice, saying that she does ``not and will not advocate for any Federal mandates requiring vouchers. States should determine the mechanism of choice, if any.''

A school choice program cannot be unilaterally created by the U.S. Department of Education. Only Congress could create a voucher program. I tried to do that on the floor of this Senate during the debate about fixing No Child Left Behind. I offered an amendment called Scholarships for Kids that would have allowed States to use existing Federal dollars to follow the children of low-income families to schools of their parents' choice. Senator Scott of South Carolina offered a similar amendment, but only 45 Senators voted for our proposals. If you pay attention around here, you know that the most important things usually take 60 votes to gain approval.

Also, the 2015 law that we passed actually includes provisions that would prohibit the Secretary from mandating, directing, or controlling a State, school district or school's allocation of State or local resources, and it bars the Department of Education from requiring States and districts to spend any funds or incur any costs not paid for under the law--for example, vouchers. Now I agree that previous Secretaries of Education have imposed their own personal, policy preferences on States and school districts. I opposed such mandates and worked against them. Congress writes the law, not the Secretary and not the bureaucracy.

Instead of using this scare tactic to rile up teachers and parents around the country, misleading them and confusing them about what the Secretary of Education might do, I would take that argument and turn it around. If Congress takes a stand here and now and says that this regulation exceeds the authority granted by Congress--the authority delegated to the Secretary of Education--because the Secretary imposed conditions on States not allowed by the law, then that means any current or future Secretary of Education would be similarly prevented from imposing their own conditions on States.

So there could be no legal method of forcing States to adopt a voucher program, unless Congress passes a new law. There could be no legal method of reinterpreting the Every Student Succeeds Act to impose the next good education idea--however well-intended--unless Congress acts first.

The suggestion has been made that this new law requires regulations. This regulation is not required by the law. The law does not specifically call for accountability regulations. The law allows for accountability regulations, but ``only to the extent that such regulations are necessary to ensure that there is compliance.'' So there is no requirement for this regulation. It is allowed, but it is not required.

Congress wrote prohibitions on the Secretary so that States would not be faced with a bunch of new mandates that ``add new requirements that are inconsistent with or outside the scope'' or ``add new criteria that are inconsistent with or outside the scope'' or are ``in excess of statutory authority granted to the Secretary.'' That is what Congress did. In the law, we laid out requirements for State plans. States can simply follow the law. A regulation isn't necessary.

Future Secretaries will still be able to write regulations on this subject. Under the Congressional Review Act, which is the procedure under which we are operating, if Congress overturns a regulation--as I hope it will in this case--the Department of Education is prevented from making final a new regulation that is ``substantially the same'' as the overturned regulation, unless Congress passes a new law to create an opportunity for that new regulation. But no court has defined what ``substantially the same'' means. But the commonsense interpretation of that is very simple: The Department simply can't turn right around and do the same thing Congress has just overturned. It could do something else by regulation, but it could not do precisely that.

So this is a question of whether we are going to restore the national school board that 85 Senators voted to reverse 15 months ago. And this is also a question of whether you believe that the U.S. Congress writes the law or the U.S. Department of Education writes the law. I believe that under article I of our Constitution, the U.S. Congress writes the law, and when signed by the President, then that is the law. The regulations must stay within it, and that is especially true when Congress has written explicit prohibitions about what a Secretary may do and may not do.

The remarkable consensus around the bill fixing No Child Left Behind was to reverse the trend to a national school board and restore to States, to classroom teachers, and to parents the decisions about what to do about their children in public schools. Teachers, Governors, school boards, and parents were all are fed up with Washington telling them so much about what to do with their children in 100,000 public schools.

So this regulation, which contravenes the law specifically, goes to the heart of the bill fixing No Child Left Behind, which received 85 votes here in the Senate. And this resolution to overturn that regulation upholds the law that received ``aye'' votes from those 85 Senators. I encourage my colleagues to support this resolution and to vote aye one more time.

I believe that overturning the regulation preserves the consensus and the compromise that we achieved when we enacted the law fixing No Child Left Behind.

I yield the floor.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent to have printed in the Record a copy of the Tennessee General Assembly's proclamation recognizing the city of Kingsport, TN, centennial celebration.