Floor Statements

I thank the Senators from Illinois and Wyoming for their comments. Basically, the Senator from Illinois has said the bill is ready to be amended. It is here for that purpose. We encourage our colleagues to bring amendments if they have them.

We could have started the amendments on Monday if the opponents had agreed to that. But we were forced, through Senate procedure, to go through Monday and Tuesday and most of today in order to deal with the filibuster. But we are about to be ready to vote on amendments.

It was unfortunate; some people have said in a misleading way that this taxes the Internet. Of course, it does not. There is a Federal law against taxing the Internet. The Senator from Arkansas attempted to extend that ban on taxing the Internet for 10 years and one of the opponents to our legislation blocked that. He blocked even having a vote on that. That is unfortunate.

It is ironic that the Senator from Montana would object to the fact that this is an 11-page bill. I don't want to relitigate some of the other bills we have passed around here, but there was a big hue and cry when Senators got a 2,700-page bill that dealt with health care and it was complicated and hard to read. We have gone in a different direction. We have an 11-page bill that is the result of work that has gone on

since 2001 by the Senator from Wyoming, that was introduced in 2011 in substantially this form, on which there was a full hearing in the Commerce Committee in 2012 and a partial hearing in the Finance Committee in 2012. It has been introduced with exactly these 11 pages since February of this year. So everybody can read it. It is not complicated. It is plain and simple. It is about States rights. I think it is good that we have an uncomplicated 11-page bill we all can read and we have had plenty of time to read it.

Of course, we would have preferred to have it reported by the Finance Committee, but they would not report it. So the only choice we had was to bring it to the floor. Now it is open for amendment so I hope we will do that.

The only other point is it was said there is no benefit to an out-of- State seller from, say, selling into Tennessee, if someone from Wyoming is selling into Tennessee. Of course there is a benefit. We are buying that business's goods. All we want to be able to do is to have the right to say: Mr. Wyoming, if you want to sell into Tennessee, you are going to play by the same rules the Tennessee businesses have to play by. That is all we want to do. The equal protection clause of the Constitution guarantees we cannot do anything worse to you. But if you want to sell to us, you do what we do.

We think that is fair and we think that not allowing States to consider that is forcing States to play ``Mother May I'' with Members of Congress about matters which should be within their own sovereign jurisdiction and keeping States from doing what they think is fair.

I thank Senators Durbin and Enzi for their leadership.

Mr. President, I have enjoyed the discussion on the Marketplace Fairness Act. It is nice to have a good debate and I am looking forward to voting on amendments that are here.

I wish to address two or three points that have been made during the debate. The first is about what we call here regular order. What we mean by that is that the bill was introduced, it goes to a committee, and the committee reports it to the floor, and we bring it up on the floor, and we have a debate and then we vote on it. We want to see more of that around here.

Well, the problem with this bill is that the Finance Committee would not act on it. Let's be straightforward about it. This bill has been around a long time. The Finance Committee chairman is the only one who can schedule a hearing and cause it to be acted on. He did not want to do that, despite the fact that we asked him to do it. So as a result, the majority leader used a procedure that brings the bill to the floor.

To underscore that, let me ask unanimous consent to have printed in the Record a timeline for the Marketplace Fairness Act. It details the steps we have taken since 2001.

To summarize some of these steps, this began in the 107th Congress in 2001. Now Senator Enzi started even before that, I think, with Senator Dorgan. They introduced the Internet Tax Moratorium and Equity Act in 2000 and 2001. Then in 2003, the Streamlined Sales and Use Tax Act was introduced by Senator Enzi. That is 10 years ago.

Then again in 2005 and 2006 Senator Enzi and Senator Dorgan. Then again in 2007 and 2008, Senator Enzi. In the 111th Congress no bill was introduced. But now we are getting to a little more recent history. Last Congress, 2011 and 2012, Senator Durbin introduced the Main Street Fairness Act. Senator Enzi joined him in that. It was referred to the Senate Finance Committee.

So for all of that time, the Finance Committee has had an opportunity to work on this legislation in the way

they thought it should be. There were hearings in the Senate Commerce Committee in August of 2012 on essentially the same 11-page bill that has been introduced here today and that we are acting on.

There was a partial hearing in the Senate Finance Committee during that year. But that was all. Then, in this year, in February, on Valentine's Day, Senator Enzi introduced the Marketplace Fairness Act we are debating here, this 11-page bill. There was a letter from 16 Senators, Republicans and Democrats, asking the Finance Committee to hold a hearing and to deal with it. But it has not.

I respect the decision of the chairman to be opposed to the bill and not to hold a hearing and not to report the bill to the floor. But if he does that, then I would suggest he should respect the right of the majority leader to bring the bill to the floor and allow the Senate to debate it.

As far as the regular order goes, a week should be long enough to consider this bill, which has been in one form or another around since 2001. We could have begun debating amendments on Monday. That is when the bill came to the floor. But the opponents filibustered it. This was not a Republican or a Democratic filibuster, it was both sides, from opponents. And what that deprived us of was an opportunity to vote and debate amendments on Monday and Tuesday.

Then we had another vote. So we have now had three votes, one during the budget session, one on cloture on the motion to proceed, and then one on the motion to proceed itself. We have gotten 74, 75 votes each time. It is a majority of the Democratic Senators, it is a majority of the Republican Senators. This does not happen all the time, that we have such strong majorities on each side of the aisle, saying in three successive votes of 74 and 75 votes: We favor an important piece of legislation.

I would hope the better course would be to come to some agreement that we can take the amendments we have here from Democrats and from Republicans, bring them up, table them, vote on them, debate them, and act on this and bring this to a conclusion this week.

Then there is substantial support in the House of Representatives for this. The bill could then go to the House. The House could do whatever the House wishes. There could be a conference and we could get a result. Every attempt has been made by the sponsors of this legislation since 2001 to bring this through the regular order, which means take it through the committee. The opponents of the idea have chosen first in the Finance Committee to not allow there to be a markup of the bill, and then on the floor to not allow us to debate amendments.

For example, some people say this legislation taxes the Internet. Of course, that is 100 percent wrong, because there is a Federal law banning State taxation of the Internet. Senator Pryor of Arkansas sought to extend that ban for 10 more years today. The opponents of the bill objected even to a vote on taxing the Internet. This is very disappointing. That is the information about the timeline I wanted to put in.

Here is some more information that I ask unanimous consent to have printed in the Record at this point.

These are letters from Senators to the leaders of the Finance Committee. The first letter is dated January 31, 2012, last year, at the beginning of the year. It was from five Democrats and five Republicans who introduced the Marketplace Fairness Act. It asks for a hearing, asks for the committee to act. That is the first letter.

The next letter came this year, on February 14, from 16 Senators, both parties, to the Finance Committee, asking the Finance Committee to act on the Marketplace Fairness Act.

Then there is a letter to the leaders of the Finance Committee from the National Governors Association, signed by the Democratic Governor of Washington and the Republican Governor of Tennessee, asking the Finance Committee, on behalf of the States, to consider this legislation and act on it. The Finance Committee elected not to do that.

This information will be part of the Record.

Finally, there is also a letter dated April 22 of this year from the National Governors Association urging Senators Reid and McConnell to pass this legislation. I ask unanimous consent that it be printed in the Record.

Now, finally, I ask unanimous consent to have printed in the Record the names of the Governors and former Governors who support this legislation.

I do that with a little bit of obvious bias as a former Governor. I think it is important that the country know what the Governors think, because the legislation we are talking about today is a States rights bill. It is an 11-page bill. It is a very simple, straightforward bill. It simply says that Tennessee, Alabama, Virginia, New Jersey, any State, has the right to decide for itself whether it wants to collect taxes that are already owed from some of the people who owe the taxes or all of the people who owe the taxes. That is it. That is it. That is all it does.

The Governors who supported it are the Governor of Alabama, Virginia, New Jersey, South Carolina, Nevada, Iowa, South Dakota, Maine, Pennsylvania, Indiana, Tennessee, Michigan, Governor Otter of Idaho, Arizona, Louisiana, Florida, Georgia, Rhode Island, Kentucky, Hawaii.

I just read a bunch of Republican Governors. Now I am into the Democrats: Kentucky, Hawaii, Arkansas, California, Minnesota, Colorado, Maryland, Connecticut, Missouri, Massachusetts, Illinois and West Virginia. The former Governors include Mitch Daniels, Jeb Bush, and the former Democratic Governor of Washington.

Here we have a bill on the floor that we have voted on three times already that has a majority of the Democratic Senators and a majority of the Republican Senators, and 75 votes three times--74 one time, 75 twice. The bill also has the support of a long list of Republican Governors--actually more Republican than Democratic Governors. Yet we have got some people in Washington who say, we do not trust the States to make these decisions. I wonder if these people have ever read the Constitution of the United States? I wonder if they know what the 10th Amendment says? This was a very important part of the creation of this country.

Sovereign States had reserved to them their powers. They didn't expect to come to Washington and play ``Mother May I'' to a bunch of Senators and Congressmen who fly here on airplanes and think they are smarter than they were when they left Nashville, Memphis or wherever their hometown is. The purpose of this bill is to leave within the States the responsibility for making decisions.

Some people up here think they know best. Maybe they do, maybe they don't. Tennessee doesn't have an income tax. I would like for every State not to have an income tax, but I am not going to impose that from Washington just because I am a Senator.

Tennessee has a right-to-work law. I would like for every State to have a right-to-work law, but I am not going to impose that from Washington. States have the right to be right, States have the right to be wrong, and Washington has no business telling sovereign States what its tax structure ought to be. Washington certainly has no business standing in the way of States stopping discrimination against taxpayers and businesses because that is exactly what we are doing if we don't act.

We are perpetuating discrimination. Most conservatives I know don't like picking and choosing between winners and losers.

They don't like treating one taxpayer one way and one in a similar situation another way, one business one way and another one another way. That is exactly what we are doing if we don't act.

We are discriminating against the shoestore in Wyoming, against the boot store in Nashville, and against the small store in Maryville, TN. We are saying collect the tax when you sell something, but if your competitor from outside your State sells it, he or she does not have to. That is discrimination.

That is why the leading conservatives such as the chairman of the American Conservative Union, William Buckley, before he died; and Art Laffer, the economist who helped President Reagan develop his ideas; and the Governors such as Mitch Daniels, Jeb Bush, Chris Christie, and Bill Haslam, that is why these conservatives say they support the bill.

We are not even deciding whether States will collect taxes from out- of-State sellers. We are just saying States have the right to do it. Of course they have the right to do it.

That is why I am including this list of Governors. I think it is part of our job as Senators to respect the sovereign States from where we come, to respect the rights of the States to not think that just because we are in Washington we know better. Most Tennesseans don't like that.

I know when I was Governor nothing used to make me madder than a bunch of legislators coming up with some bright idea in Washington, passing it, turning it into a law, holding a press conference, taking the credit for it, and then sending the bill to me. The next thing you know they would be home making a speech at the Lincoln Day Dinner or Jefferson Day Dinner, if they were a Democrat, about local control. Well, it is about local control.

The idea that people in Washington would say we don't trust the States to make decisions about how to spend money, look at our record. We are running up trillion-dollar deficits every year, borrowing 26 cents out of every $1 we spend.

I come from a State that has no State debt on roads. It has to balance the budget every year. It has a AAA bond rating. I would trust Governor Haslam, Lieutenant Governor Ramsey, the Speaker of the House, and the Republican legislature a lot more than I do the Senate and Congress to make decisions about tax dollars.

I think I know pretty well what they will do if they have power to do it. I suspect they will say they are not going to pick and choose winners and losers. I know they are going to say that because the Governor and Lieutenant Governor told me. I expect what they will say is this will bring in more revenue so we will lower our tax rate because we will start collecting money from all the people who owe it instead of some of the people who owe it.

It is correct that some Governors have already said that. We were told today that in Ohio they have already said if this bill passes, they will collect money from everybody who owes it and then they will lower their income taxes.

Art Laffer said in his column in the Wall Street Journal: That is precisely what we ought to do to stimulate growth. He said: If we are going to have a tax, the best tax, said Mr. Laffer, is a tax that covers the largest number of people at the lowest possible rate.

If that is the case, what we are perpetuating within action is the worst kind of tax, which is the tax that States are allowed to tax a smaller range of people at a higher rate. This permits them to tax all the people who are in a similarly situated place at a lower rate, if that is what they choose to do.

The arrogance of those in Washington who would say they don't trust the States to make those decisions, they need to go back to seventh grade, read the U.S. Constitution and learn a little American history about where this country came from.

I am very proud of this Senate for, on this important issue led by Senator Durbin and Senator Enzi, coming up with 75 and 74 votes 3 consecutive times to say we believe in a two-word principle on this 11- page bill, States rights or 10th Amendment, that we will recognize the power of States to make their own decisions.

If we don't act, all these claims about what happened to the 9,600 jurisdictions will come true. Some Governor--I know I would do it if I were still there--the Senate didn't act on this, the Congress didn't act, I would go right back to the Supreme Court. I would bet that 20 years after the Quill case that Senator Heitkamp brought, back before there was an Internet, when the Court then said that requiring out-of- State sellers to collect the tax was burdensome, they would look at the Internet.

Those Justices know they can find out the weather in their hometowns by putting in the ZIP Code and putting in the name of the town. They know that an out-of-State seller could figure out the sales tax from the ZIP Code of the buyer. They know that.

I will predict that they would hold it is not an undue burden, and then all

the out-of-State sellers really would have 9,600 jurisdictions to deal with. We are simplifying, and we are creating something that will work. We are following a process that is well tried. There are a great many out-of-State catalog sellers and online sellers that today do exactly what the instate sellers do. They collect the sales tax. They do it through the ZIP Code over the Internet. We are saying everybody should do that except those who sell less than $1 million a year. They don't have to do anything under this law.

According to many economists, that takes 99 percent of the online sellers out of the effect of this bill. We have tried to bring this through regular order. We are down here trying right now. We have received substantial support. There have been hearings. There has been a lot of work in the House, and there is broad support from the Governors. I am hopeful we will move forward tomorrow, finish this legislation, send it to the House, and take a step toward recognizing the Constitutional framework of our country by honoring the sovereign States rights to make decisions for themselves and stopping this attitude of requiring Governors and legislators to come to Washington and play ``Mother May I'' with responsibilities that ought to be clearly the responsibility of States.

I yield the floor and note the absence of a quorum.

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

Mr. President, I know Senator Barrasso is coming, but until he does, I wish to make a few comments about the Marketplace Fairness Act, which is the legislation before us today, and especially, to begin with, Senator Heitkamp's address, the new Senator from North Dakota.

It is rare that a new Senator has a chance to come to the Senate and in her first few months find us debating a bill she brought when she was a State official in North Dakota 20 years ago. That shows why the Senate is a good place for people with a little bit of experience because she can bring to us exactly what we are talking about.

Her story about the small business people who are making a few dollars and have a very small margin for profit and then who are discriminated against by out-of-State sellers who don't have to collect the tax that is already owed is a real story, and she made a remarkably good address and I compliment her for that and welcome her to the Senate.

Sometimes we launch into these complicated debates without saying what we are talking about. Let me see if I can say in a few simple words exactly what we are talking about here.

My wife gave me an ice cream freezer for my birthday last year. She got it from Williams-Sonoma. It is not one of those freezers you have to crank, as I did when I was a kid, and when you eat the ice cream it makes your head hurt because you would eat it too fast. This is a modern ice cream freezer, and you mix the stuff up and put it in, and after a while here comes the ice cream. But then I discovered that Williams-Sonoma also sells a mix you can order and that makes it even easier. So I ordered the mix.

Williams-Sonoma has stores in Tennessee, but I ordered mine online. I don't do this very much so I am not the best online purchaser who is around. But I looked up the catalog number, punched a few buttons on my computer, and I ordered my ice cream ingredients. It asked for my name, address, and the information on my credit card. And with that information, two things happened: I ordered the ingredients and they arrived within a few days. But Williams-Sonoma, through the Internet, determined from my ZIP Code what the sales tax is in Tennessee and in my home county and will remit it electronically to the State of Tennessee. That is what we are talking about.

If I go to the Williams-Sonoma store in Nashville and I buy the ice cream freezer or the ingredients, they add our 10-percent sales tax to it. If I order it online from Williams-Sonoma, they add the 10 percent, too, because I put my ZIP Code in. The way software is today, it is very simple to find out what the tax is in any jurisdiction. It is as easy as finding out the weather. If I want to know the weather in Maryville, TN, I put weather 37205. That is my ZIP Code. I find out the weather. Williams-Sonoma can find out the tax I owe on the ice cream ingredients that way.

So the Williams-Sonoma store in Nashville collects the tax, and they have to do it by law. That is part of their business responsibility in the State of Tennessee. The Williams-Sonoma store online collects the tax because they have stores in Tennessee. But lots of other out-of- State sellers do not collect the tax that is already owed. It is owed.

It is said there is a new tax here. I don't know where everybody got that. They must not have read the bill carefully. The U.S. Congress can't change the sales tax in Tennessee. We can't impose it, we can't lower it, we can't raise it. That is under the responsibility of the sovereign State of Tennessee.

This bill has nothing to do with the Federal Tax Code. Caterpillars have as much to do with the Federal Tax Code as this bill does. So it has nothing to do with taxes. This bill has to do with two words, and two words alone: States rights. Or you could substitute those two words with Tenth Amendment.

Do we believe here in the Senate that the Governor of Tennessee or Massachusetts or Kentucky or Wyoming or anywhere else has to come here and play ``mother, may I'' to ask permission to decide what the State tax policy ought to be in Tennessee?

Tennessee imposes its own State sales tax. That is its decision. We do not have a State income tax. That is Tennessee's decision. Some States do. States have the right to be right; States have the right to be wrong. That came with our constitutional framework. We ignore it all the time.

A lot of Senators who fly to Washington somehow get the idea--if they can get through the delay on the tarmac everybody else is experiencing right now--that this 1-hour flight makes them smarter because they flew up here. No, it doesn't make us smarter. In fact, we ought to leave to States the responsibilities that States are supposed to have--whether it is in education or in health care or anything else, but certainly in matters of State tax policy. We shouldn't be trying to tell Tennessee or Massachusetts or anybody else what their taxes ought to be.

What we are doing with this bill is we are doing what the Supreme Court said we are the best persons to do. That is what Senator Heitkamp said a little while ago. We are the ones to write the rules to say: States, of course, may decide whether they want to collect the State sales tax and use tax from all the people who owe it or some of the people who owe it. That is what the issue is.

Let's say we pass the Marketplace Fairness Act. It says that Tennessee can make its own decision about how it collects its sales tax and its use tax. Tennessee could decide it wants to discriminate against the Nashville Boot Company that sells boots out the front door, collects the sales tax, and sends it to the State. Let's discriminate against the Nashville Boot Company and tell the out-of-State seller of boots, You don't have to do that. Or, the State may decide--as I am sure it will, because the Governor, the Lieutenant Governor, and the legislators have told me they will. They may decide: We don't pick and choose between winners and losers, we don't pick and choose between taxpayers, we don't pick and choose between businesses. We want a level playing field. So we are going to say to the out-of-State seller-- catalog, online, or whatever it is--welcome. You can sell in Tennessee if you play by the same rules that people who live in Tennessee do. That is all you have to do.

So the States are going to require, as it does, the Nashville Boot Company, the Williams-Sonoma store, the service station, the drugstore, to collect the sales tax and send it in to the States, and it is going to require the out-of-State seller to do the same thing. That is all we are talking about. If the out-of-State seller doesn't want to do it, it doesn't have to. Nobody is requiring people to sell their stuff in Tennessee. It is a free country. It is a big country.

It is a big market. We produce 25 percent of all the money in the world. If you don't like Tennessee's rules, as long as they fit the constitutional framework of not imposing a burden on interstate commerce, you don't have to sell in Tennessee. We hope you will. And if it is as easy for you to collect the tax as it is to find out the weather in your hometown, we don't know why you wouldn't.

We don't know why you would even expect that you would be treated better than somebody who lives in Tennessee and goes to work every day in Tennessee and pays taxes in Tennessee and collects taxes in Tennessee. We will treat you just as well as we do the local folks, but we are not going to treat you any better and put you at an advantage with our hometown businesses. That is what this is about, and that is all it is about.

Let's make clear what this is not. It is not a tax. It is about taxes already owed. It is not a Federal tax. It is State taxes already owed. Sales taxes and use taxes, that is all we are talking about.

Are we telling any State they must do this or must do that? No. We are saying to States that we are simply affirming the spirit of the Tenth Amendment, which says: You have the right to decide for yourself, Mr. Governor, Ms. Legislator, what your State tax structure ought to be. It is up to you. If you want to have just some people pay the sales taxes and use taxes that are owed and other people to not pay them, that is up to you too. That is your business. But this is a States rights Tenth Amendment decision that leaves to the States this ability.

I wanted to talk mostly about what we are talking about: We are talking about what happens when you buy something online, from a catalog, and the local store, and making sure that States are able, if they wish, to treat all businesses in the same way. That is why so many conservative leaders, as they have understood this bill, have come to support it.

This is a rarity in the Senate. This is an 11-page bill. Some people say it has been rushed. I wish to respectfully disagree with that. This legislation was introduced beginning in 2001. It was introduced in almost exactly the same form in 2011. It had a full hearing in the Senate Commerce Committee in 2011 in almost the same form of the 11- page bill that is before us today. Exactly this bill was filed on February 14, 2013, so everyone has had plenty of time to read it since February 14.

This is a bill that has been here for a long time, and the reason it is before us and hasn't come through the Finance Committee is because the Finance Committee simply wouldn't hear it, act on it, and report it. We have a chance to amend it. The majority leader has said there will be amendments. It is my hope that Senators will come to the floor with their amendments as early as this afternoon. I hope Senators would want to keep amendments aimed at the subject of the debate, the marketplace fairness debate. There are many issues that have been raised. Let's bring them up, let's debate them, and let's vote on them. That is what we do when we are acting properly in the Senate.

I mentioned some of the conservative leaders who have talked about this issue. William F. Buckley, before he died, talked about the unfairness of treating instate sellers one way and out-of-State sellers another way. Another leading advocate for the idea of marketplace fairness is Al Cardenas, who is chairman of the American Conservative Union. He has written eloquently about it.

Former Governor Jeb Bush, former Governor Mitch Daniels, Governor Mike Pence, the Congressman from Indiana--these are leading conservatives on the Republican side. They have all said if Congress does not act, it freezes into place a system that picks and chooses among winners and losers, that treats one taxpayer one way and one business another way. That is not a good principle. That is not a good conservative principle at all. That is why so many of the Republican Governors, the Republican leaders--Art Laffer, President Reagan's favorite economist and distinguished writer, wrote in the Wall Street Journal last week that it would actually help economic growth if States were permitted to collect taxes from all of the people who owe it rather than some of the people who owe it. Mr. Laffer said, and I am paraphrasing, that the best tax policy is one that, when there has to be a tax, taxes the largest number of people at the lowest possible rate.

Governor Haslam of Tennessee, Governor Otter of Idaho, many of the Governors have said if we have the opportunity to collect the taxes from everybody who already owes them, we have in mind a tax rate we would like to lower. We would like to have a lower sales tax rate in Tennessee. We don't like a 10-percent tax rate. One reason we have it is because some people do not pay it even though they owe it. The reason they do not pay it is because out-of-State sellers--catalog, online--many of them do not collect it as others will do.

I think that is a summary of the legislation before us. It is about States rights. It is an 11-page bill. It has been before the Senate for months. The idea has been before the Senate for years. It does not seek to tell any State to do anything.

New Hampshire does not have a sales tax. After this law is passed New Hampshire citizens will not have to pay a sales tax. If a New Hampshire company or Michigan company sells in Tennessee they will have to do what Tennessee companies do, or anybody else who sells in Tennessee will have to collect the tax and send it to the State government--or not sell. But unlike 20 years ago, that is pretty easy today. As I have said, it is as easy as putting in a ZIP code and finding out the weather. One can compute the tax the same way I found out what my ice cream ingredients from Williams-Sonoma cost and what the tax was, and in the same way I paid that tax.

I look forward to the debate. I hope we can enact this bill. We have had 2 good votes: one at 74 votes and one at 75 votes. A majority of Democrats supported each vote. A majority of Republicans supported each vote. There is substantial support in the House of Representatives. This is an important States rights piece of legislation. It is part of our job to simplify things and not to require States to play ``Mother may I?'' with Congress about what their tax structure ought to be.

Mr. President, seeing no other Senator here, I would like to turn to another matter. In his biography of Thomas Jefferson, Jon Meacham writes that Jefferson liked to fish. Jefferson ``had a favorite spot,'' Meacham writes, ``below the old dam on the Rivanna River.'' Thomas Jefferson, if he were alive, would be pleased to know Americans followed his example. Americans like to fish, and in Tennessee we have nearly 900,000 Tennesseans who bought fishing licenses last year, and they like to fish below the dams just like President Jefferson liked to do because they know that is where the fishing is sometimes the best.

That is why there is such an uproar in Tennessee and in Kentucky and from fishermen all over the country about the unreasonable obstinance of the U.S. Army Corps of Engineers in seeking to put up physical barriers to fishing below the 10 dams on the Cumberland River.

The Corps of Engineers is an honorable institution. The flooding season is upon us, and we all remember the terrific job they did last year and the year before when we had such serious floods along the Mississippi. We are grateful to them for that. But for whatever reason, the Corps of Engineers is rejecting every reasonable proposal from the States of Tennessee and Kentucky to say let us work with you to ensure safety below the dams on the Cumberland River in a way that continues to allow fishing when it is safe and that allows us to attract the jobs into our area.

Senator Corker, Senator McConnell, Senator Paul, Congressman Whitfield, Congressman Cooper, Congresswoman Blackburn--we have all introduced legislation we call the Freedom to Fish Act. I met with every general and colonel I could find. I even talked to the Secretary of the Army and said: What in the world are you doing here? On these 10 dams ever since they have been built in the 1960s, people have been fishing there with their children and grandchildren. Some of the most ardent fisherman are retired Army Corps of Engineers people.

They always come back and say: We have to ensure public safety. Of course they have to ensure public safety, but there are various ways to do that. They do not have to put up physical barriers across the dam. So they are on a path to take $2.6 million, during a time of sequester, that is needed for other projects to build these monstrosities across the river below these 10 dams.

Up to now it has been mostly those of us in Congress who registered the complaints of the men and women who like to fish. I went to a rally at Old Hickory Lake about a month ago. There were a lot of people there. They were not of any particular party, I would say. They were tea party, environmentalist, outdoors men and women, retired Corps of Engineers people, a lot of grandparents--people were mad because they fished there with their grandchildren and wanted to keep doing it. Then I went up to Kentucky to Lake Barkley a week ago with Senator McConnell, Senator Paul, and Congressman Whitfield and found the same sort of thing there.

The argument is that it is unsafe. Of course it is unsafe when the water is spilling through the dam. That is about 20 percent of the time. The rest of the time it is safe. Restricting fishing below the dams 100 percent of the time when it is only dangerous 20 percent of the time is like keeping the crossing gate down over the railroad track 100 percent of the time. We could do that. I think we have nearly 130,000 railroad crossings, but if we had a gate down on them all the time we could never go anywhere. People expect drivers to have enough sense to stay off the track when the train is coming. The track is not dangerous when the train is not coming and the water is not dangerous for fishing when it is not spilling through the dam.

One reason we are outdoorsmen in this country--and the great American outdoors is a part of the American character and our ethic--is we want to go outside and evaluate the risk. We want to be on our own. We want to be able to make decisions. We don't want a government that is so all powerful and all knowing that it makes it risk free when we go into the great American outdoors.

Now we have an additional voice that comes from the Democratic side of the aisle, and more important from the legal side. The Corps of Engineers, in talking with me, said: You know, we have legal liability. Here is an article that was in the Tennessean yesterday about the comments of Jerry Martin, the U.S. attorney for the Middle District of Tennessee, who retired last week. He was appointed by President Obama as a leading Democrat in the area. This is the U.S. attorney position that was first held by Andrew Jackson at one time. This is what the article said:

Responding to the U.S. Army Corps of Engineers' proposal to

limit fishing on dams along the Cumberland River and its

tributaries in Kentucky, former U.S. Attorney Jerry Martin

said that the Corps' plan is not worth the effort.

Martin, who just weeks ago would have been responsible with

carrying out the Corps' wishes, said the Tennessee Valley

Authority's siren system, which goes off when water is

released from the dams, is enough to ensure public safety.

The Corps has proposed barriers along the river that would

limit fishing access, citing safety concerns. Detractors say

the move could cost millions of tourism dollars every year.

``These waters belong to the citizens,'' Martin, who was appointed by President Barack Obama in 2010, said in a prepared statement. ``In light of the tremendous protection from liability enjoyed by the Corps, I don't think it's reasonable for the Corps to ban everyone at all times from these public places.

I am concluding my remarks because I see the Senator from Wyoming has arrived.

Let's stop and think about this a minute. The Corps of Engineers now already has everybody in Tennessee of any political stripe saying: You are taking an unreasonable step. They have the wildlife agencies of Tennessee and Kentucky saying: We would like to work with you to help you do a better job of ensuring safety below the dams when the water is spilling through the dams, which is 20 percent of the time. We have the Tennessee Valley Authority with dams on the Tennessee River, which makes the Cumberland look like a stream, and the TVA allows fishing below the dams. It has sirens, it has signs, it has whistles. It assumes people are wise enough not to roll up just below the dam when the water is spilling through it. Just like we assume we are wise enough, if we put on a siren and put on the red lights, not to sit on the railroad tracks when a train is coming.

Now the former lawyer who would have been responsible for defending the U.S. Army Corps of Engineers in a liability case says:

These waters belong to the citizens. In light of the

tremendous protection from liability enjoyed by the Corps, I

do not believe it is reasonable for the Corps to ban everyone

at all times from these public places.

I call on the U.S. Army Corps of Engineers to recognize the voices of the people of our country--all over the country--who fish below these dams and accept the offer of the two States, Kentucky and Tennessee, to work with the corps to develop a reasonable attitude, a reasonable way of ensuring public safety for fishing below the dams. That is our opinion. We will pass a law to make it happen if we have to, but given the statement, especially of the retired U.S. attorney, Jerry Martin, who would have been the corps's lawyer in defending lawsuits about this, the corps needs to change its mind, act reasonably, and spend that $2.6 million on some more needed project.

I yield the floor.

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

Mr. President, occasionally some of my friends on the other side of the aisle will say President Obama is being poorly treated on his nominations. That did not ring true to me because it seems to me that just the reverse was true. I have spent a good deal of time in the last two Congresses to actually make it easier for Presidents--not just President Obama but any President--to have his or her nominations considered in a timely fashion.

There are about 1,000 nominations that a President makes in the whole government that are subject to advice and consent. This is the constitutional authority of the Senate. It was put there deliberately by the Founders to provide a check and balance. The Founders did not want a king. They had been accustomed to tyranny and they wanted to think of ways to avoid that. So they created a President, not a king. They said the President shall, with these important nominations, send them up to the Senate. The Senate has the right to advise and consent. Movies and books have been writing about this. It is well known. Some of the most celebrated debates we have had in the Senate have been about Presidential nominations.

But for the most part, the Senate listens to the President's nominations, extends to him the courtesy that he was, after all, elected by the American people, that he has a right to staff his government. He has the benefit of the doubt on his nominations for judges.

So I was surprised to keep hearing from some of my Democratic friends. Every time we confirmed a judge, somebody would come on the floor and say: The Republicans are holding up President Obama's nominations. I did not think that was true. So I asked my staff to work with the Congressional Research Service. I come to the floor to include in the Record the facts which show it is not true.

Here is the bottom line. The Senate has confirmed President Obama's nominations for Cabinet more rapidly than it did those of President George W. Bush or President Clinton; and has confirmed Obama's nominations to circuit courts--but not his district court nominations-- more rapidly than it did those of President George W. Bush.

In 2013, the Senate changed its rules to speed up consideration of those district judge nominations. In the history of the Senate, of course this includes President Obama, no Cabinet member, unless we count John Bolton's nomination by George W. Bush to be the U.N. Ambassador, and no district judge has ever been denied his or her seat because of a filibuster; that is, a failed cloture vote.

In the history of the Senate, only seven circuit judge nominees have been denied their seats by a filibuster, five of George W. Bush's nominees and two of President Obama's nominees. I ask unanimous consent to have printed in the Record this summary of President Obama's nominations, along with an article from the Washington Post that points out that President Obama's nominees have been confirmed more rapidly than those of the last three Presidents in his first term.

To be more specific about these matters, let's take circuit court judicial confirmations in President Obama's first term. According to our research, the average time for President Obama's nominees was 240 days. That is faster than President George W. Bush, 277 days from nomination to confirmation. So circuit court judicial confirmations which are usually the subject of great interest around here, President Obama treated better than President George W. Bush, slightly better.

First-term district court nominees. The Obama average time, 221 days is slower than George W. Bush, 156 days from nomination to confirmation. That is why in January of 2013 we changed the Senate rules to speed this up. Apparently, that is working. Last time I checked, during this year, the beginning of President Obama's second term, he has to date had 13 judges confirmed. President Bush, in this same period of time in his second term, had one judge confirmed. Second-term Cabinet confirmations. The average time of President Obama's nominees is 46 days. That is faster than George W. Bush, 55 days, and faster than Bill Clinton, 68 days from announcement to confirmation.

I mentioned the Washington Post article which said--it was published March 18, 2013. It says:

He has announced eight nominees and still has four more

cabinet or cabinet-ranked jobs to fill. By contrast, George

W. Bush had made 11 nominations by this time in his second

term--nine of which he made in the six weeks after

reelection. Bill Clinton had announced 12 nominees by the end

of December after his reelection.

In other words, President Obama is a little slower in making his second-term nominations.

According to the Congressional Research Service,--

Says the Washington Post:

--it took an average of 54.6 days for Bush's second-term

nominees; that figure was 67.8 days for Clinton's picks and

56 days for Ronald Reagan's. So the Obama nominees were

moving more rapidly.

Senate filibusters that denied a Cabinet nominee his or her seat due to a failed cloture vote. It has never happened in Senate history so far as we can find, with the exception of President George W. Bush's nomination of John Bolton.

There have been occasions when the minority says we are not ready to cut off debate yet. We have more information we want about a Cabinet member. That happened with Secretary Hagel. Many of us made it clear to the majority leader that his motion to cut off debate on Secretary Hagel's nomination was premature because it had only been reported by committee for 2 days; we requested another 10 days to consider it, that was until after the recess, and said that there would be an up-or-down vote.

But so far as we are able to tell, there has always been an up-or- down vote on any President's nominee for the Cabinet, after that Cabinet member has gotten to floor. Now it may be that in the past some Cabinet nominees fell by the wayside in committee. I have repeated on the floor my own experience in 1991, when President Bush nominated me to be Education Secretary and Senator Metzenbaum put a hold on my nomination that lasted a month, but I was eventually confirmed unanimously.

So there may have been secret holds in the past that slowed down nominations or even may have killed one. But so far as the Congressional Research Service has found, no Cabinet member by President Obama or any President has been denied his or her seat ultimately by a failed cloture vote.

Same with district judges. No district judge in the history of the Senate has been denied his or her seat by a failed cloture vote. There may have been a cloture vote on one or two occasions, but in the end, that person was finally seated.

Then, as far as circuit judges, one of my great disappointments in the Senate was when I arrived in 2003. The Democrats had cooked up a plan to filibuster President Bush's circuit court Federal nominees. So far as I can tell, that had never been done before. There was always an up-or-down vote. Even in the case of Clarence Thomas, for example, a controversial nominee for the Supreme Court, I think the vote was 53 to 47 or 52 to 48. There was no thought of killing Clarence Thomas's nomination by a cloture vote, by a 60-vote margin.

What happened was, without dwelling on it too much, Democrats decided they did not like some of President Bush's nominees. It was not they were not qualified. Michael Estrada was one, one of the most eminently qualified persons ever nominated. Bill Pryor was another one, from Alabama, former law clerk to Judge Wisdom for whom I used to clerk. Pickering of Mississippi was another.

They were basically smeared is what happened. It was an outrageous thing. I remember I was waiting to make my maiden speech as a Senator in 2003 on another subject. I got so upset about this. The first time I spoke on the Senate floor was against that, against that practice of denying a President an up-or-down vote on his circuit judge nominees.

If you do not like the person, vote against him or her but at least allow an up-or-down vote. That so enraged the other Republicans that they wanted to change the rules of the Senate. They said: OK. We have the majority. There are 55 of us. We will just change the rules. We will confirm all of President Bush's judges with 51 votes. That is what the Democrats have tried to do at the beginning of the last two Congresses: We have enough votes to do it. We will change the rules and everything will be 51.

Cooler heads prevailed. I made a couple speeches about it. Democrats and Republicans got together, one of these gangs that we have, maybe 14 Members, they said: Look, except in extraordinary cases in the case of circuit judges, there will always be an up-or-down vote on a President's nominee.

But a lot of the damage had been done. Five of President George W. Bush's Federal circuit judge nominees were denied their seat because of a filibuster. So as far as we can tell, with the research of the Congressional Research Service, that was the first time in the history of the Senate that it happened. As one might expect, now Republicans have done the same thing, twice in the case of Ms. Halligan. If we count her as twice, that is three. But we can count Miguel Estrada several times because he was filibustered a half dozen times.

The record is the Democrats have now blocked five of President Bush's Republican nominees for circuit judge, and Republicans have blocked two of President Obama's nominees. I don't believe this is good for the Senate or for the country. It would be better if we had up-or-down votes for Cabinet members and for Federal judges, both Cabinet and district.

The body of the Senate has precedents. My own personal view is as far

as district judges go I will always vote for an up-or-down vote. As far as circuit judges go, I will always do so except in an extraordinary case. I have always thought a President ought to be able to have an up- or-down vote on a Cabinet member. Again, the Democrats, under President Bush, decided once not to do this.

I believe it is important to bring this before the Senate. I would like us not to go any further in the direction we have followed in the last 20 years. I would like for us in the Senate to get back to where we recognize elections have consequences. The President needs to staff his government. Give the President the presumption of the doubt on judicial nominees. If we don't like the judge, vote no.

This means Republicans now need to swallow a little hard because there is a Democratic President and a Democratic Senate. It will not always be this way. We may have a Republican President and a Democratic Senate. Then the Democratic Senate could decide never to confirm a Cabinet member or never to confirm a circuit judge. I think the American people would be very upset with that. It is important to bring this to the attention of the full Senate and place this in the record.

One other aspect which is important, we have had very good conversations at the beginning of the last two Congresses about the rules of the Senate. The rules of the Senate are not as exciting as a debate about guns, immigration, or a debate about marketplace fairness, which is really the 10th Amendment we are having today. However, they are very fundamental to our country's structure.

The wisdom of our Founders was that they set up three competing, sound branches of government. All need to function well in order for us to have our liberty. This is why we have checks and balances. We want our liberty. We don't want a king, we don't want a runaway parliament, and we don't want a runaway court. We want checks and balances so we, as individuals, can retain our liberty.

I wish the Senate to function as it should and the advice and consent nomination to function as it should.

This is why as part of our rules change we took some steps to streamline the advice and consent role of the Senate. We did this when it wasn't clear whether there would be a President Obama or a President Romney, which is one way we were able to do it with the Democratic Senate and a Republican House.

We took some important steps. For example, we reduced the number of Presidential nominees which require a full-blown Senate confirmation by approximately 170. We took approximately 200 of those nominees right to the desk, and they were expedited. Unless an individual Senator says: I wish to have a full hearing on a member of the board for the Goldwater Scholarship Fund--or something such as this, then it stays on the desk, goes through the committee for vetting, and is moved to the calendar for a vote. This has worked pretty well.

We did one other thing which was important and which, hopefully, the President and his administration are taking advantage of, we tried to work on the innocent-until-nominated syndrome which has existed around here for a long time.

Whenever someone is nominated for a Cabinet position, we need to go through such a process of vetting, public scrutiny, and general indignation, we wonder why anybody in his or her right mind would do it. Many people won't. This is why we call it innocent until nominated.

One reason for this is because of the multiplicity of forms a nominee such as the Secretary of Education needs to fill out. They might need to fill out one form about what their income was in 1977 and then another form about what their income was in 1977 by a different definition. When they arrive at their hearing and someone has made a mistake, some Senator accuses the nominee of perjury because he was sworn in and said he was going to tell the truth. It was easy to make a mistake under those circumstances.

What we did was create a working group to review all the forms. They made recommendations mainly to the executive branch about simplifying them. The executive branch has worked with our Senate committees. They are doing this now.

As a result, if I am nominated for Secretary of Education, I might fill out a single form which might comprise the only form I would need to fill out for the executive branch. Any Senate committee could ask any question at once and add that to the form, but they might agree to start with this form. It should make it simpler for the nominee, easier for the Senators as we go through the confirmation process, and it might be a way to help encourage talented men and women to enter public service.

The President has said to several of us before that he recognizes part of the reason his nominations aren't moving as rapidly as he would wish is because of the vetting process, the process he and his administration need to go through before they even send anybody over to the Senate.

Much of the delay is in the time which comes before a nomination actually arrives in the Senate.

I hope this review will help to quiet down these--as Senator Grassley said--crocodile tears on the other side of the aisle. We don't think they are deserved.

The President's nominees are moving more rapidly than the last three Presidents, and his circuit court nominees moved more rapidly than those of George W. Bush. As we change the rules to speed up his district court nominees--he is ahead 13 to 1 in terms of nominations in the second term for judges. This is a pretty good record.

It is my desire the President will work with us to speed up the vetting process to develop an innocent-until-nominated effort, which is ongoing to enable it to be an advantage not to just this President but future Presidents. Hopefully, we may give respect and due consideration to any nominee the President sends forward.

At the same time, the President will recognize we have an advice and consent responsibility. It may take some time. We will ask questions and may not want to move to a final vote at the very moment the majority leader may. This doesn't necessarily mean the nominee will be denied his or her seat. As a matter of fact, as far as I can find in the history of the Senate, it has not, with the exception of John Bolton.

I yield the floor.

Mr. President, I see the principal leaders for this legislation, Senators Durbin and Enzi, and I congratulate them for their leadership. What they have been able to do is to come up with a simple, 11-page bill that has two words for a theme--States rights or 10th Amendment. We have a majority of Senators on the Democratic side and a majority of Senators on the Republican side who have indicated their support for it. They voted twice in support of it.

I talked with Senators at the Republican luncheon today, and at least one Member told me he had a couple of amendments, and I encouraged him to bring them on down because we want amendments. We want this to be discussed on the Senate floor. Senator Reid, the majority leader, has said there will be amendments. I have a fishing amendment I would like to get passed somewhere, but I will not offer it on this bill because I want to offer amendments that are related to marketplace fairness. But there are a number of ideas that are, and they ought to be discussed.

I wonder if, before I finish, I might ask the distinguished Senator from Illinois a question. Maybe I am just sensitive to this as a former Governor, as I know the occupant of the Chair is as well, but I wonder if the Senator from Illinois finds it a little ironic there are some people in Washington who say they do not trust the States to make decisions about their own tax structure. I was Governor of a State that has a triple-A bond rating, no State debt on roads, no income tax, is one of the best run States, and when I was there had eight balanced budgets. Unfortunately, during the 10 years I have been in the Senate, we haven't had any of that. So I feel just the reverse.

In a constitutional framework that has a 10th Amendment that says decisions are reserved to the sovereign State, it not only smacks of a lack of respect for our constitutional structure, but it makes no sense to me that Members of Congress would not trust the Governor of Tennessee and the Legislature of Tennessee to make their own decisions.

We had a representative today at a meeting that all three of us attended who said that in Ohio, as I recall, the legislature and the Governor have already decided that if we pass this law permitting Ohio to collect taxes from everybody who already owes them rather than just some people, they will reduce their income tax rate.

So does the Senator find it ironic there would be people in Washington

who don't trust the States to make decisions for themselves in a constitutional system that was created by sovereign States?

Mr. President, I wonder if I could, through the Chair, pose another question to the Senator from Illinois.

If I am not mistaken, there is a Federal moratorium on Internet taxes; that is, there is a Federal temporary ban on State taxes on access to the Internet. Am I not correct that if the Marketplace Fairness Act passes, that ban will still be there? In other words, today there is a Federal ban on Internet taxes, and after this law passes there will continue to be a ban on Internet taxes? And this is not about Internet taxes, it is about State sales and use taxes that are already owed but in some cases are not collected.

Mr. President, the Senator alluded to this in his remarks, and we both heard Senator Heitkamp from North Dakota. It is pretty remarkable that a Senator, in her first 3 months, would find herself in the middle of a debate about a problem she created 20 years ago in North Dakota. She brought this case that created this situation.

But let me ask the Senator from Illinois what he envisions will happen if we do not act. If I am not mistaken, under the arrangements we now have today, if a big Internet seller in Illinois--someone who sells more than $1 million a year--and as I understand it, 99 percent of Internet sellers are exempt from this, but let's say you are in that 1 percent and you want to sell in Tennessee--your responsibility is to file one return in Tennessee, and you are subject to one audit, period. And if you sell in another State, the same thing. So you might be subject to filing one report and one audit in all the States, and many of the States are part of what is called a streamline structure where they work together, so they audit together. And audits don't occur every year.

But there are 9,600 taxing jurisdictions in the United States. So what we have done or propose to do is simplify this greatly so that if you are an Internet seller, if you sell online or by catalog from Illinois to Tennessee, you have a very small number of reports you need to fill out, a very small number of audits to which you might be subjected. And your liability is very limited for making a mistake because the State has to provide the software, and if the software doesn't work, that is the State's fault and not yours.

But what would happen if we didn't act, I would ask the Senator from Illinois? What if we did not act to simplify this system, as the Supreme Court said 20 years ago is our responsibility?

In addition to that, let's say I am the Governor of Tennessee and I look to the Senate and say: These guys can't get anything done. They have been debating this ever since Senator Enzi has been a Senator. They have been debating it for 14 years. They are never going to do anything.

So I just bring a lawsuit and I say: If you are going to sell in Tennessee, you are welcome, but you are going to collect the tax. I mean, Tennessee businesses collect the tax and send it in. So if you want to come in and sell to us, you do that too. We are going to treat you exactly the same way.

Now, let's say the Congress hasn't acted. Then that seller in Illinois who wants to sell in Tennessee has not only the State taxing jurisdiction to consider, he has 95 counties to consider, he has several dozen cities with local sales taxes to consider, and he has 9,600 jurisdictions across the country to consider if we don't act.

So some of the opponents of this legislation who raise this 9,600 jurisdictions--this is the solution to that problem. If you want to sell by catalog or online, this simplifies it for you, it reduces your liability, it reduces the number of forms, and it requires the States to provide the software that you would use, which many businesses are using today and it works for them.

So I would ask the Senator from Illinois, don't you imagine if we don't act, another consequence will be some Governor in some State will go back to the Supreme Court, and the Supreme Court will say: Twenty years have passed. We now have an Internet. There is no burden on interstate commerce, so it is up to the States to decide what to do.

And then we would have a big free-for-all.

Mr. President, I see Senator Enzi is here, and I appreciate his patience in allowing me to go ahead, but I know if I were still the Governor of Tennessee--which I am not, and I won't be again--and Congress did not act on this and I saw an opportunity--if I looked across my State and I saw that our tax laws treated some taxpayers one way and other taxpayers a different way and instate businesses one way and out-of-State businesses better, it wouldn't take me 20 minutes to call the attorney general over and say: Let's take this case to court. Let's go back to court. If somebody is going to sell in Tennessee, they are going to collect the tax.

I believe I would have a reasonably good chance of winning. And I am confident that, knowing a number of the Governors around this country, if we fail to act, I will bet one of them will be in court the next day.

I congratulate Senator Durbin and Senator Enzi for their persistence in creating what is an 11-page bill about two words--States rights-- that will--my prediction--allow many States to lower their tax rates when they collect taxes that are already owed but not paid and treat businesses the same way and taxpayers the same way.

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

I thank the Senator from New Hampshire for her courtesy. I am perfectly agreeable, following her speech, to dividing it, if Senator Durbin wishes to suggest an allocation of time.

I thank the Senator from New Hampshire for her courtesy.

I thank the Senator from New Hampshire and the Senator from Illinois for allowing me to have 5 minutes.

I do believe in having regular order. I have been looking for it for quite a while on this bill. But let me start with exactly what the point of this bill is. This bill is about two words. It is about States rights. I say that as a former Governor who cares a lot about States rights.

I see another former Governor sitting in the chair up there. What this bill does is it allows the Governor of Tennessee and the Legislature of Tennessee to decide whether to require out-of-State sellers in Tennessee to do the same thing we require of instate sellers in Tennessee. In other words, if the National Boot Company has to collect the State sales tax and send it to the State government when it sells a pair of boots, then an out-of-State catalog seller or an out- of-State online seller who sells boots in Tennessee has to do the same thing. It is that simple.

It is an 11-page bill. That is a rarity around here, an 11-page bill. It doesn't make any of these decisions for the States; it just says the States can make that decision for themselves. With all respect to ourselves, I trust the Governor of Tennessee and the legislators of Tennessee to make tax decisions a lot more than I trust Washington politicians to make them.

This has nothing to do with the Federal Tax Code. It has zero to do with it. It has about as much to do with the Federal Tax Code as the milk production bill. Actually, milk production has more to do with the Federal Tax Code. This is about what a State can decide for itself.

If somebody from Ohio or Illinois wants to sell in Tennessee, they need to play by the same rules everybody in Tennessee has to play by-- which is all we are deciding, or at least the Governor and Legislature of Tennessee ought to be able to decide that.

It is going to be done fairly. We have an equal protection clause in the Constitution that says you cannot treat an out-of-State seller in a different way than you do an instate seller, but that is the first point. This is about States rights. It is about the 10th amendment. It is about our saying: Yes, Governor, yes, legislature, you don't have to play ``Mother, may I?'' to the Congress. Make your own decisions about taxes. If you decide you want to treat one set of businesses differently than others and one set of taxpayers differently than others, you have the right to be wrong. That is your business. But if you decide you want to collect taxes that are already owed--that are already owed; this is not a new tax, taxes that are already owed--from everybody who owes the tax so you can lower your tax rate for everybody, you are free to decide that.

That was the argument Art Laffer made in the Wall Street Journal last week. Art Laffer was President Reagan's favorite economist. That is the point he made. States have the right to be right. He said this: States have the right to be wrong. But if Tennessee or Idaho or any State can collect taxes from everybody who owes them, it can lower the tax rate for everybody.

That is why so many conservative leaders support this, Art Laffer, Al Cardenas, the chairman of the American Conservative Union, Gov. Mike Pence, Gov. Mitch Daniels--almost all the Republican Governors support this. But all we are deciding here in this 11-page bill is two words: Do we respect States' rights to decide their own tax policy? Do we respect States rights as the 10th amendment suggests we do?

As far as regular order, I wish the Finance Committee had reported a bill. This legislation was first introduced in some form in 2001. As the chairman of the Finance Committee said, he had a hearing on part of it last year. That was good. The Commerce Committee had a hearing on almost this identical 11-page bill last August. There have been repeated requests of the chairman of the Finance Committee to report the bill. He has not. That is what rule XIV is about.

The majority leader said: If the committee is not going to hold a hearing and report the bill after that amount of time, then let's put it on the floor, let's debate it, let's amendment it.

It has been thoroughly considered. It has been before this body and the American people for a good bit of time. The bill we were to move to today is exactly the bill that was introduced on February 14 of this year, this 11 pages--exactly the bill. It has been out there for everybody to see all that time.

I urge the 75 Senators who voted for this during the budget resolution to reaffirm their vote for States rights--at least vote tonight to move ahead, and let's debate it. Let's put it on the floor. If people have amendments or objections, let's bring them down here and let's debate them and vote on it. If we do not, as Senator Heitkamp has said, who knows----

If I may use 30 more seconds?

Senator Heitkamp has pointed out that if we do not act, it will be one big mess. Instead of having a handful of jurisdictions where a seller can simply--when you buy your ice cream over at Williams-Sonoma and put in your credit card and ZIP Code, automatically the tax is collected by the seller out of State and sent to the State. Instead of that, you will have thousands of jurisdictions to contend with. This simplifies the process.

This is States rights. This is an opportunity to debate a bill that has been around for more than a decade and that the country has been able to see for a couple of months.

I urge our colleagues on both sides to take the conservative point of view and vote yes and move forward.

I yield the floor.

Mr. President, I understand that unanimous consent was given earlier to have printed in the Record an op-ed from the Wall Street Journal by Arthur B. Laffer entitled ``Tax Internet Sales Stimulate Growth.''

Mr. Laffer, as most Americans know, is a distinguished economist. People sometimes said he was President Reagan's favorite economist. He makes the argument that many conservatives and many Governors across the country make, which is: Give us the authority to make these decisions for ourselves. We will collect taxes from everybody who already owes the taxes by requiring sellers to collect the taxes whether they are in State or out of State, and then we will lower the tax rate.

Mr. Laffer says fairness legislation that collects taxes from everyone who owes it and then lowers the tax rate is better for economic growth, which is something our country desperately needs.

Mr. President, I also ask unanimous consent to have printed in the Record the comments supporting specifically the legislation from Al Cardenas, chairman of the American Conservative Union, Governor Mike Pence of Indiana, and former Governor Mitch Daniels of Indiana.

Mr. President, this bill was unanimously accepted in committee. It has the contributions of many Senators on both sides. It improves prevention and intervention in our schools, universities, communities, doctors' offices, and mental health clinics. I urge a ``yes'' vote. It is an authorization bill and, therefore, has no score.

Madam President, I share the perplexed attitude of the Senator from Iowa about our friends' concern about nominations. The President has even talked about it. I have gone back and looked at the record. There was a Washington Post article 3 weeks ago. I gave a copy of it to the President. This is what it said: On Cabinet nominations, this Senate has considered President Obama's Cabinet nominations more rapidly than they did the last three Presidents. That is Cabinet nominations. Never in the history of the Senate has the Senate denied a Cabinet nomination by filibuster, with the exception of the Democrats blocking John Bolton in the George W. Bush administration. So the President is treated better on Cabinet nominations.

Evidence from the Congressional Research Service says President Obama's circuit judges in his first term were considered more rapidly than President George W. Bush's circuit judges. Senator Grassley just pointed out that in the second term of President Bush he had 1 judge confirmed by this time; President Obama has 13.

On district judges, according to the Congressional Research Service, during the first term of President Obama his district judges were considered a little more slowly than President George W. Bush's, but the Senate changed the rules earlier this year to cut down the postcloture debate time to make it easier to bring judges to the floor and get them through more rapidly. Perhaps that is why the score is 13 to 1, with Obama getting 13 judges and Bush getting 1 in the same period of time in the second term.

I do not know where this is coming from. In addition, we have never blocked a district judge by filibuster--neither party in the history of the Senate. In the circuit judges we never blocked a circuit judge until George W. Bush made some nominations about the time I came to the Senate 10 years ago, and the Democrats started it. They caused Miguel Estrada to be blocked and a number of others, and they brought up cloture motions time after time and we had a gang of 6, 8, 10 or 14 who slowed it all down. But still the score is 5 to 2; 5 Republican judges blocked for confirmation by the Democrats under President Bush, and 2 by Republicans with President Obama.

We worked pretty hard for the President to confirm his nominations. We had two sets of rules changes, and we have a number of expedited nominations which come now to the desk. We had about 170 nominations that have been completely removed from Senate confirmation. I would think the Obama administration would be thanking the Senate for its work to make it easier for any President to get confirmations. In any event, when we are talking about Cabinet Members, President Obama is being better treated than the last three Presidents. When we are talking about circuit judges he is better treated than George W. Bush. When we are talking about district judges he is treated a little worse in his first term than George W. Bush, but we changed the rules to speed up district judges. The score in the second term, as I have said twice now, is Obama 13, Bush 1--Obama way ahead.

I like to see confirmations move ahead. I hope I do not hear this much more, when the record shows that in fact it is a manufactured crisis.

I yield the floor.

Madam President, I ask for the yeas and nays.

Mr. President, on March 27, Governor Bill Haslam signed a resolution passed by the Tennessee General Assembly supporting efforts in the U.S. Senate and the U.S. House of Representatives to prevent the U.S. Army Corps of Engineers from restricting public access to fishing areas below dams on the Cumberland River in Tennessee.

The resolution, sponsored by State Senator Jim Tracy, recognizes the traditions that Tennessee anglers have enjoyed for generations, and the dire economic impact that the Corps' proposed restrictions would have on the State of Tennessee. I, along with the members of the Tennessee General Assembly, will continue to urge the Corps to consider alternatives that do not unilaterally prohibit access to some of the highest quality fishing areas in Tennessee and address the concerns of Tennesseans.

I ask that Senate Joint Resolution 114, as passed by the Tennessee General Assembly and signed by Governor Bill Haslam, be printed in the Record.

Mr. President, I thank Senator Durbin and Senator Enzi for their hard work. They have taken a problem and simplified it and solved it, in my opinion. This is an 11-page bill, a rarity. It does only one thing. It gives States and State legislatures the right to decide to collect sales and use taxes that are already owed from all the people who owe it rather than just some of the people who owe it.

I have a very conservative friend over here on the Republican side who said to me: I hate taxes, but the one thing I hate worse is people who owe taxes who do not pay them. That is what this is about. But for me as a former Governor, there is something even more important; that is, the importance that we respect our constitutional framework, which says Governors and legislatures should make their own decisions about their services and their taxes.

That is the spirit of the 10th amendment. That is the spirit of this country. We don't require States to play Mother May I to the Congress of the United States. So we say to the Governor of Tennessee and the legislature of Tennessee: You decide whether you want to allow people who owe the sales tax not to have to pay it because the sellers do not collect it.

That is why many Democratic Governors support this. But a growing number, an honor role of conservative leaders and Governors, support the Marketplace Fairness Act. Al Cardenas, chairman of the American Conservative Union, supports it. He says the system we have today is outdated and unfair. After that, Governor McDonnell of Virginia, Governor Corbett of Pennsylvania, Governor Haslam of Tennessee, Chris Christie of New Jersey, Mike Pence of Indiana, Mitch Daniels, Jeb Bush, Haley Barbour, Rick Snyder--they all say: Look, we are Governors of the States. We should have the responsibility for doing that.

There have been some strange arguments made against this, such as wait for tax reform. How can you do this in tax reform if it not in the Tax Code? Have we sunk to a new low where we use the State budgets to balance our own budget?

No, this is a straightforward issue. Are we going to respect, as we swore to do when we took an oath to this constitutional framework--are we going to respect the States, recognize that States have the right to be right and the States have the right to be wrong; that Illinois is different than Tennessee and Tennessee is different than Wyoming. Governors in those States can decide what their tax structure should be, how they want to direct it, and they should decide, in my opinion, although we do not have to decide that here, that they would not pick and choose between sellers, pick and choose

between taxpayers and businesses. If I walk into the National Boot Company and try on a boot and buy it, the seller collects the tax, sales tax. If I order in a catalog the seller does not. The Governor of Tennessee wants to be able to treat them the same.

I think we should do this. I fly up here every week for an hour. That hour plane ride doesn't make me any smarter than I was when I left Nashville. I think our Governor, our Lieutenant Governor, our legislature--very conservative, very Republican--understand that they do not like taxes, but they do not like, worse--they do not like, worse, people who owe taxes but do not pay them, and they want the right to fix that problem.

I am in strong support and stand with the 15 or so Senators on both sides of the aisle who endorse the Marketplace Fairness Act. I congratulate Senator Durbin and Senator Enzi for their hard work.

I yield the floor.

Thank you, Mr. President. We talked about how difficult this is. This is a good example of why we need to get this out of Washington and back in the States. For the last 15 years the States have been figuring out how to do this. They have it pretty well worked out, and in just a 20-minute debate we make it sound complicated.

Here is how hard it is. If I buy some ice cream ingredients from Williams Sonoma, and they are in another State, I use my credit card, I put in my ZIP Code, and the software automatically tells Williams Sonoma what the sales tax is that is owed. They collect it and they wire it to the State government. That is all that happens.

This debate sounds like it happened in 1890 before the horse and buggy, before the Internet. I mean, we live in a different world.

Here is what is fair. What is fair is allowing a State--not Washington--listen to the chairman of the American Conservative Union Al Cardenas. He says:

When it comes to state sales taxes, it is time to address

the area where federally mandated prejudice is most

egregious--the policy towards Internet sales, the decades-old

inequity between online sales and in-person sales as outdated

and unfair.

If I am trying to run the International Boot Company, I have to pay a 10-percent penalty to somebody who is out of State. If somebody is out of State and by catalog or by Internet they want to sell to the 6 million people in Tennessee, they don't have to do that. They can sell in Kentucky, they can sell in Ohio, they can sell everywhere else. But if they want to sell in our State, they should live by the same rules Tennesseans do.

We don't believe in picking and choosing winners and losers. We don't believe in treating one taxpayer this way and another one that way. We don't want to pick one business this way and another that way, and we don't like the idea of Washington making us play Mother May I to come up here and ask permission to decide whether we are going to collect a sales tax from everybody who already owes it rather than just some people who owe it.

I call up amendment No. 515.

Mr. President, I offer this amendment on behalf of Senator Paul and myself, with Senators Toomey and McConnell cosponsoring. It is designed to help 11 million low-income children in this country. We appropriate $14.5 billion every year through our title I Federal funding. It is supposed to go to them but it doesn't get there. That is agreed upon by both the left and the right.

For example, Marguerite Roza, writing for the Center for American Progress, says the difference between school expenditures is often substantial, and she pointed out the money goes to schools where teachers are paid more but the children aren't necessarily the poorer children. So the poorer children--the ones we intend to help--are left in schools with less money. And sometimes the money can add up to quite a bit.

The same analysis has been found by the Fordham Foundation--I would say that is a center-right organization--because of the Federal formula we use.

So we are suggesting to let the money follow the child to the school, whether it is public or private and accredited.

I thank the Chair, and I yield the floor.

Madam President, if I might ask the Senator from Missouri to go ahead of me, if that is agreeable with the Senator from Washington.

Madam President, I thank the Senator from Montana for his comments, since Senator Enzi has probably been considering this bill his whole career. He came to the Senate nearly 18 years ago, and he introduced it 14 years ago. So even by Senate standards, it has had a good deal of calm deliberation.

We have also had a hearing in the Finance Committee, where the distinguished chairman is in charge, and we have asked for a markup, which we haven't had.

I thank the chairman for his commitment to a markup. I wonder if I might ask through the Chair when that would come.

Madam President, I think this illustrates the problem we are having. How can this be a part of tax reform when it is not part of the Tax Code? It has been heard by the Commerce Committee in the Senate. It has been heard by the Finance Committee. It has not been marked up. It has been heard by the House Judiciary Committee. Senator Enzi has been working on it for 14 years.

This is a very simple question. It is a matter of States rights, two words. Does a State, any State, have the right to decide whether to collect existing taxes from some of the people who owe the taxes or from all of the people who owe the taxes?

In the State of Tennessee, at the Nashville Boot Company store, I walk in, I try on a pair of boots, then I go order it over the Internet so I do not have to pay the sales tax. What the State of Tennessee wants to do--the conservative Governor Bill Haslam, the conservative Lieutenant Governor Ron Ramsey, the Republican legislature, these are not a bunch of big tax people--they want to collect the sales tax from everybody who owes it and they would like to require those who sell into Tennessee to do the very same thing they do, what the Nashville Boot Company does when I buy from it: They add the sales tax to the bill. They collect it and send it to the State. How hard is that to do?

My wife gave me an ice cream maker for my birthday last year. I ordered some ingredients to make chocolate ice cream, over the Internet. When I did that they added to my bill the sales tax based on my ZIP Code. It is as easy as looking up the weather on your computer.

That is all we are deciding here. We are only deciding whether we in the Congress are going to make State governments in our constitutional framework play Mother May I, by coming and pleading with us to allow the State to decide what to do about its own taxes. The State of Tennessee wishes to reduce its tax rate. It wishes to avoid a State income tax. It doesn't like the idea of treating one taxpayer one way and another one another way; and one business one way and another business another way. It wants to make that decision for itself.

When I was the Governor of Tennessee, nothing made me more unhappy than to look up at Washington and see people of my own political party come up here and think since they had taken an airplane to Washington, they had gotten smarter than I was, suddenly, just by an hour plane ride, and they were going to tell me what to do.

Now we have an honor roll of conservatives, and I will just speak to the conservatives on my side for a while, who said we do not think States ought to be playing Mother May I to the Federal Government on this question. Give State legislatures the power to make these decisions for themselves. That is consistent with the tenth amendment. That is consistent with our constitutional framework. And most of them are saying, as ours is in Tennessee: If you give us this power, the right to do it, which the Supreme Court has said you clearly have the right to do it--you, Congress, are the most qualified to do it. You can make this decision. Give us this power and we will lower our tax rate. That is what our State wants to do.

It might use the money another way. They might use it to pay outstanding teachers more, to lower the tuition rate. But States have the right to be right, and States have the right to be wrong.

There was a Supreme Court case 20 years ago at a time when most Senators didn't even know there was an Internet. The Court did say that States could not impose a burden on interstate commerce. But it said Congress could write the rules for doing that. Now it is about as easy to add the sales tax if you are buying from a catalog or buying over the Internet as it is if you buy from a local store. There is no reason for us to take the position that only we know best about how States should make decisions about their services or their taxes.

Some are worried that this might increase taxes. I have said most Governors think they will lower tax rates. But here is the honor roll of conservatives who are asking the Congress to reaffirm our commitment and understanding of our constitutional system which allows States to make this decision: Al Cardenas, chairman of the American Conservative Union; Governor Bob McDonnell, Virginia; Governor Tom Corbett, Pennsylvania; Governor Bill Haslam, Tennessee; Governor Chris Christie, New Jersey; Governor Rick Snyder, Michigan; Governor Butch Otter, Idaho; Governor Mitch Daniels, Indiana; former Governor Jeb Bush, Florida; former Governor Haley Barbour; the writings of the late William F. Buckley, et cetera, et cetera.

It is time after 20 years to take this simple 11-page bill that says States have the right to decide for themselves whether to collect an existing tax from some of the people who owe it or from all the people who owe it, by requiring the seller to collect the tax at the time of the sale: same tax, same store. They ought to be able to do that.

Finally, I ask unanimous consent to have printed in the Record following my remarks the comments of a number of conservative supporters of the Marketplace Fairness Act.

In our State of Tennessee this bill is an insurance policy against a State income tax. We don't have one. We don't want one.

It is also an opportunity for us to treat every taxpayer the same way. If you owe the tax, it is collected at the time of sale and you pay it, you don't avoid it. It is also a chance to treat all of the businesses that sell into Tennessee the same way. If you are going to sell to our 6 million people, we are going to treat you the same way we treat people in the State. We don't want to create an incentive for people to move out of Tennessee in order to sell into Tennessee. We want there to be a level playing field.

If Montana businesses do not want to sell in Tennessee, that is their prerogative. But if they do, we want to treat them in the same way we treat all the other businesses in Tennessee. Let's make it very clear: This is not a tax on the Internet. We have a Federal law that placed a moratorium on Internet access taxes. Let me repeat that. We have a Federal law that is an existing moratorium on taxing the Internet.

This is a question about whether the State of Idaho, the State of Wyoming, the State of Tennessee, the State of Massachusetts, or any other State, that may say if we are going to have a sales tax then we are going to collect it in the same way from all the people who sell to the people in our State. That is infinitely logical. With the advent of technology it is about as easy to collect it one way as the other. And it is fair.

I congratulate Senator Enzi and Senator Durbin for their years of work. I appreciate very much the commitment of the chairman of the Finance Committee to say there will be a markup. I think it is absolutely wrong to think of it as part of tax reform since it is not part of the Tax Code. We might include a milk producers bill in tax reform as well by the Chairman's logic. They do not belong in the same place. This bill boils down to two words: It is a States rights bill. Do we have a tenth amendment, or the spirit of a tenth amendment, or do we not? Do we trust Governors and legislatures to make decisions, or do we not? Then they can decide whether they want to raise or lower taxes, whether they want to collect taxes from some of the people who owe it or from all the people who owe it. That is the issue, these two words: States rights. I think this issue is perfectly appropriate to bring up after 14 years of work by Senator Enzi, after hearing from the Senate Finance and Commerce Committee and the House Judiciary Committee. This is an opportunity for us to express our support for this principle of States rights and to give Governors and legislatures across the country a chance to treat businesses and taxpayers in the same way--stop picking winners and stop picking losers.

Mr. President, I wish to speak for a few minutes about 11 million low-income children in America, children which all of us would like to help. These are children that I wish would have a chance to get a little help getting to the starting line towards realizing the American dream. I am talking about the children we help through the Federal education program called title I of the elementary and secondary education act.

It is the largest of our Federal programs aiding elementary and secondary schools. It provides $14.5 billion a year to local school districts. The express purpose of it is to help low-income children in schools across our country.

The problem is that the money is not going to help those children as it was intended. It is being diverted for other purposes.

As part of our discussion today and tomorrow on the budget, I will be offering an amendment on behalf of myself, Senator Paul, Senator Rubio, Senator Toomey, and Senator McConnell, which will redirect the 14.5 billion Federal dollars we spend on behalf of 11 million children living in poverty.

This is the way we would do it: We would simply pin $1,300 in funds to each of those children, and let this money follow the child to the school they attend, any accredited school, public or private.

In a contentious Washington world this is a problem which seems to have a broad amount of agreement from the left and the right. As I said, this $14.5 billion, which is appropriated expressly to help these 11 million children, isn't getting to them. It is ending up in other places. It is distributed by a complicated Federal formula which is generally based on the percentage or number of low-income children in a particular school district and the average per-pupil expenditure in the State.

What happens is the money largely follows the teachers' salaries. The children in wealthier districts are usually taught by teachers who earn higher salaries. The children in poor districts are usually taught by the teachers who earn lower salaries. A lot of the title I money ends up in the schools with more of the wealthier children instead of the schools with the poorer children.

Marguerite Roza, in a report by the Center for American Progress-- which I think can be fairly described as a progressive think tank, explained:

The difference in actual school expenditures are often substantial because teachers' salaries are based on their experience and credits or degrees earned, and because high-poverty schools have many more less experienced, lower paid teachers and much more turnover than low- poverty schools.

She offers Baltimore as an example:

When teachers at one school in a high-poverty neighborhood

were paid an average of $37,618, at another school in the

same district the average teacher's salary was $57,000.

Assuming the same average number of teachers per school, say 20, the difference in dollars for the two schools is $387,640. That is a lot of money per school.

Under the Federal formula, this is considered ``comparable'' or fair, which means the poor school is essentially stuck with newer, less expert teachers. This is a system designed for the bureaucracy and the adults, not the students.

A different report by the Fordham Foundation, which I would call a center-right foundation, came to a similar conclusion. It summed up its findings by saying:

All of these problems have a common root: today, money does

not follow children to the schools they attend according to

their needs. Instead, money flows on the basis of factors

which have little to do with the needs of students, the

resources required to educate them successfully, or the

educational preferences of their parents.

We have scholars from the Center for American Progress and Fordham Foundation coming to the same conclusion, largely because the title I money is distributed based on teachers' salaries and because very often the wealthier school districts pay teachers more. We have significantly more title I money in a school with wealthier children than with poor children, even though the purpose of the $14.5 billion is to help those low-income children move from the back of the line to the front of the line.

This is a lot of money. This is $1,300 per child. If you have a school full of children who bring $1,300 with them pinned on their jackets, they have a lot of money to help those children. I think most of us believe that if we are trying to help children get to the starting line, children who might not have had as much help as other children, might not have had a book read to them by their parents, might not have eaten lunch that day, and who have other challenges associated with living in poverty, then we want to make sure we are spending every single dollar designated toward them for them.

Why isn't the right solution simply to say let's take these $1,300 per student and let it follow the student to the school they attend? This means almost all the money would go to public schools. We have 100,000 public schools in the country, but children are usually assigned to public schools. Sometimes they may choose a public school. This is a matter of State law. This wouldn't interfere with that at all. If the parent chooses instead for their child to go to a nonprofit or attend a private school, as long as that school is accredited, the $1,300 would follow the child to that school.

Some may say that sounds a little different than the way we do it now. It is a little different, but the main difference is the money follows the child. It is not different that we spend public money in private schools. We already do that with title I money by providing services to children who go to private schools under a formula in the Federal law. We have long experience, dating back to World War II, with public money following college students to community colleges, to universities, and even after World War II to high schools. The GI bill followed the veteran to the school they wanted to go to, whether it was the University of Tennessee, Notre Dame, Yeshiva, or any other school, as long as it was an accredited school.

Of course, in our system of education I think we would all agree that we have had the greatest success with higher education, for a variety of reasons. I believe one of the reasons for this success is we have provided generous amounts of Federal dollars that follow the student to the accredited college of their choice, public or private. We call those Pell grants. We call those federal loans. More than half of the college students in the country today go there with some government money that follows them to the academic institution of their choice.

By allowing title I money to do this, we could say the $1,300 scholarship is almost a Pell grant for kids. We could say we will attach it right to the child. It follows the child to the school. It is the most logical way to do that.

Some of my colleagues would like to fix this comparability problem by imposing a whole series of mandates on State and local school districts even though the Federal Government only supplies about 10 percent of all the money spent on local elementary and secondary schools. This would produce a minor revolution in the country, and it would be a gross overextension of Federal power to say that just because we provide 10 percent of the money, and we don't give it effectively, we are going to make it our job to tell Tennessee, Georgia, New Mexico, or any other State how to spend it.

The simple and logical way to solve the comparability problem that the left and the right agree on is to let the $14.5 billion follow each of the 11 million children living in poverty to the school they attend. Then we could make sure that taxpayer dollars are

being used in the most effective way to help these children have the single best opportunity they may have to get a leg up on reaching the American dream, which is through a good education in the best possible school.

I look forward to introducing an amendment to do this. As the ranking member of the Health, Education, Labor and Pensions Committee, I look forward to working with Senator Paul, Senator Rubio, Senator Toomey, Senator McConnell, and, hopefully, a number of my Democratic colleagues to solve the misallocation of title I money.

Let's do the simple and logical thing: Let the funds follow low- income children to the school they attend.

I yield the floor.

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

Mr. President, I ask unanimous consent to speak for 10 minutes and ask that the Chair let me know when 9 minutes has elapsed.

Mr. President, we remember President Lyndon Johnson's courage and skill in passing the Civil Rights Act. We remember President Nixon going to China. We remember President Carter and the Panama Canal treaties. We remember President Reagan fixing Social Security and George H.W. Bush balancing the budget by raising taxes. We remember President Clinton and welfare reform. We remember President George W. Bush tackling immigration reform. If the history books were written today, we would remember President Obama for the sequester.

This is unique in history. This is not the way our Presidents usually conduct themselves. Here we have a policy that was designed to be the worst possible policy, and that may be what our talented, intelligent current President is remembered for. He is remembered for it because it comes from a process he recommended, he signed into law, that he has known about for the last year, that he has done nothing about except to campaign around the country blaming others for it over the last month, and he seems determined to keep it in law.

Now, for what reason could this be possible?

Well, let's go back to why the President agreed to the sequester. He agreed to it in 2011 after suggesting the process from which it came in order to get $2.2 trillion in spending reductions so he could get a debt ceiling increase that lasted through the election. And he did it, for the second reason, because he did not want to go against his own party's constituency in tackling the biggest problem our country faces--the biggest problem according to the former Chairman of the Joint Chiefs of Staff, the biggest problem according to the President's own debt commission--the out-of-control automatic spending increases that are in the Federal budget.

So we are left today with a sequester--automatic spending decreases which are the result of the automatic spending increases in entitlements the President is unwilling to confront. We are slashing the part of the budget that is basically under control. It is growing at about the rate of inflation. I am talking about national defense, national parks, National Laboratories, Pell grants, and cancer research. All that is growing at about the rate of inflation. We are slashing that part of the budget because the President does not want to challenge his own party on the part of the budget that is out of control, growing at two or three times the rate of inflation: Medicare, Medicaid, Social Security, and other entitlements.

This is not how our Presidents usually have acted when confronted with a great crisis. When President Johnson dealt with civil rights, he knew he would be terribly unpopular in Texas and throughout the South. When President Nixon went to China, he knew Republican conservatives would be angry with him. President Carter enraged many Americans by his support for the Panama Canal Treaty. President Reagan made many seniors unhappy when he fixed Social Security. George H.W. Bush probably lost the 1992 election when he raised taxes to balance the budget. Bill Clinton was pilloried by his own party when he worked with Republicans to reform welfare. George W. Bush made many radio talk show hosts very unhappy when he tried to change our immigration laws.

Why did they do it? They did it because they were the President of the United States, and that is what presidents do.

Robert Merry, a biographer of President James K. Polk, told me recently that every great crisis in our country has been solved by presidential leadership or not at all. Every great crisis in American history has been solved by presidential leadership or not at all. Yet this president seems determined not to exercise that sort of presidential leadership. So his presidential leadership is a colossal failure, first, because he will not respect this Congress and work with it in a way to get results that all of the presidents I just mentioned did.

The New York Times had a very interesting story this Sunday about how President Woodrow Wilson would come down to the President's Room right off the Senate and sit there three days a week with the door open, and he got almost everything he proposed passed, until he went over the heads of Congress around the country about the League of Nations and lost.

Or Senator Howard Baker used to tell the story of how, when Senator Everett Dirksen, the Republican leader, would not go down to the White House and have a drink with President Johnson in 1967, President Johnson showed up with his beagles in the Republican leader's office and said: Everett, if you won't come have a drink with me, I am here to have a drink with you.

I am not here to advocate having drinks, but I am here to suggest that when they disappeared into the back room together for 45 minutes, that played a big role in writing the Civil Rights Act of 1968 because it was written in Everett Dirksen's Republican leader office right down the hall, at the request of the Democratic President of the United States.

And Senator Harkin--I do not think he will mind me telling the story about the afternoon 20 years ago when he was in his office and he got a telephone call from President George H.W. Bush's office. Would he come down with a few other Congressmen? The President was there for the afternoon. Mrs. Bush was in Texas. They spent an hour together, and the President showed them around. On the way out, Senator Harkin said to President Bush: Mr. President, I don't want to turn this into a business meeting, but one of your staff members is slowing down the Americans with Disabilities bill. That conversation, Senator Harkin says, changed things at the White House and helped that bill to pass.

Or Tip O'Neill, going into the Democratic Caucus in the 1980s and being criticized by his fellow caucus members: Why are you spending so much time with Ronald Reagan? Why are you fixing Social Security? He said: Because I like him. Because I like him.

Technology has changed a lot. But human nature has not. And relationships are essential in the Senate, in the White House, in politics, in church, in business, and all of our Presidents have known that you need to show respect to the people with whom you work if you are going to solve difficult problems. That is why I am disappointed by our talented President's unwillingness to work with Congress. There is no reaching out.

It was 18 months before he had his first meeting with the Republican leader one on one. He has known for a year the sequester was coming, but there was no meeting with the Republican or Democratic leaders that I know about until the day it started. It is breaking news when the President makes a telephone call to a Senate leader. And then the President spends his time running around the country taunting and heckling the Members of Congress that he is supposed to work with to get a result. What kind of leadership is that?

I started in 1969 working in congressional relations for a President of the United States. I have worked with or for eight. I have never seen anything like it in my life.

I have been a governor. That is small potatoes compared to being a president. I know that. But I worked with a Democratic legislature, and I guarantee you, if I had taunted them and heckled them and criticized them, I never would have gotten anything passed to improve roads or schools or get the auto industry into Tennessee. Instead, I would meet with them regularly. I would listen to them. I would change my proposals based on what they had to say. I would know they had to go back into their caucuses and still survive. I did not think about ever putting them in an awkward position when we were trying to get something done. I tried to put them in a position to make it easier to get something done. I changed my ideas and I could get a result. During elections we tried to beat each other. Between elections we sought to govern.

This is all made worse by the Democratic leadership of the Senate deliberately bringing business to a halt we have a fiscal crisis, we have not had a budget in 4 years, we did not even pass any appropriations bills last year, there is little respect for committee work, and he has used the gag rule 70 times to cut off amendments from the Republican side of the aisle.

For example, last week, we had several options on our side--I think there were some on the other side--to make the sequester go down a little bit easier, to make it make more common sense, and what did we end up doing? We were here all week, and we ended up voting on two proposals. They were procedural votes, and everybody knew they were political posturing not designed to pass. Why did we not just put it on the floor? There are 100 of us here.

We are all grownups. We worked hard to get here. We have ideas. We might have improved the sequester. We had time to do it. But the Democratic leadership did not allow us to bring it up. So we end up with deliberately bad policy becoming law.

It is not too late. There are things the President and we can still do. We could spread the pain across the whole budget. We could spread it across part of the budget. We could give the President more flexibility in making decisions. Or the President could come to us with his plan, this month, for dealing with the biggest problem facing our country: the out-of-control mandatory spending. He could do what Presidents Johnson and Nixon and Carter and Bush did before him. He could confront it, go against the grain of his party, work with Members of both sides, and get a result. It is not that hard to do. Senator Corker and I have a proposal to do it. There is the Domenici-Rivlin proposal to do it. There is the Ryan-Wyden proposal to do it.

When part of the budget is growing at two to three times inflation and the rest is growing at about the rate of inflation, it is obvious which part we need to work on.

It may be the President does not like some of us. Well, President Eisenhower had that same feeling about Members of Congress. Someone asked him: Then how do you get along with them? He said: I look first at the office. I respect the office. I do not think about the person who occupies the office.

There are real victims here. In the short term with the sequester, there is cancer research, there are airline travelers, there are many people--the President has let us know about this--who are going to be hurt by this and be inconvenienced. In the long term, if we do not deal with this No. 1 fiscal problem we have, the real victims will be seniors who will not have all of their hospital bills paid in 11 years because the Medicare trustees have told us Medicare will not be able to pay all of them--the Medicare Trust Fund will be out of money--and young Americans will be forever destined to be the debt-paying generation because we and the President did not have the courage to face up to our responsibilities.

So I would say, with respect, it is time for this President to show the kind of Presidential leadership that President Johnson did on civil rights, that President Nixon did on China, that President Carter did on the Panama Canal Treaty, that President Reagan did on Social Security, and that Presidents George H.W. Bush and Clinton and George W. Bush did. Respect the other branches of government. Confront your own party where necessary. Listen to what both have to say and fashion a consensus that most of us can support.

We are one budget agreement away from reasserting our global preeminence and getting the economy moving again. As Robert Merry said: Every great crisis is solved by Presidential leadership or not at all.

It is time, Mr. President, for Presidential leadership.

I ask unanimous consent to have printed in the Record the article in the New York Times, from Sunday, entitled ``Wilson to Obama: March Forth!''

I yield the floor.

Madam President, I thank the Senator from Utah for his leadership on these two pieces of legislation, and the answer is: No, the new health care law hasn't lived up to the promises.

Let me cite an example. The President promised in the debates leading up to the health care act that if someone wanted to keep the insurance they had, they would be able to do that. I am afraid it is not working out that way, and here is why.

What happens is that businesses around the country are finding out when the health care law goes into effect fully they will either have to supply a certain type of health care insurance, which in many cases--as many as half the cases according to some studies--is a better policy and more expensive policy than they are now offering their employees, or they will have to pay a $2,000 tax, to the Internal Revenue Service. That means the employee, if the business decides to do that, will go into the exchange and lose the employer insurance they had.

Based on my experience in talking to many businesses, there is going to be a massive rush, by small businesses in particular and by many large businesses, to stop offering employer-sponsored health insurance to their employees and, instead, pay the $2,000 penalty, or tax, which means all of those employees--most of them lower income employees or middle-income employees--will lose the insurance they had and be in the exchanges looking for a new insurance policy.

I agree with the Senator from Utah. I think he stated clearly what the constitutionality is and he has been a most forceful advocate of that.

As I think about the legislation we are talking about, I am thinking also about the employer mandate and the requirement that, as I mentioned earlier, employers pay $2,000 if they do not

offer insurance or a $3,000 penalty if they offer the wrong kinds of insurance.

I would say to the Senator from Utah that we are making it more difficult to lower the unemployment rate in this country, which has stayed too high, with 12 million people unemployed, when we keep loading up employers with costs that make it more expensive to hire an employee. If we make it more expensive to hire an employee, we don't give the employer an incentive to hire more people. In fact, we discourage the employer from hiring more people.

I wonder if I might ask the Senator, in thinking about the employer mandate, if he agrees that employers across the country are considering reducing their number of employees, having more part-time employees in order to deal with this new cost of the employer mandate which is part of the health care law.

No, I would say to my friend from Utah, I am afraid the President was mistaken about that. And we have talked about some specifics, but let me give some very specific examples of why I believe that is true.

Some time ago I met with a large group of chief executive officers of restaurant companies in America. The service and hospitality industries are the largest employers in America. Restaurant companies are the largest employer of low-income, young, usually minority people. These are Americans who are often getting their first job or they are Americans of any age who are trying to work their way up the economic ladder, starting with a lower paying job, a job that doesn't require as many skills, and hoping that instead of having a minimum wage they will end up someday with a maximum wage. But in order to get that maximum wage they have to get on the ladder. They have to start somewhere.

Here is what I was told. The chief executive officer of Ruby Tuesday, Incorporated, which has about 800 restaurants, said to me--and he didn't mind being quoted--that the cost to his company of implementing the new health care law would equal his entire profit for the company last year and that he wouldn't build anymore new restaurants in the United States as a result of that. He said he would look to expand outside.

Another, even larger restaurant company, said because of their analysis of the law, instead of operating their stores with 90 employees, they would try to offer it through stores with 70 employees. So that means fewer employees and it means fewer employees receiving employer health care.

Then almost every other restaurant said they were looking for ways to have more part-time employees so they didn't have to incur the expense of the new health care law.

So at least with that industry and those low-income, usually minority, often young employees, the jobs are going away because of the health care law. And with those jobs goes whatever employer health care insurance was being offered by those companies.

I certainly agree with the Senator from Utah, and that is the purpose of our legislation. We could offer more examples. The Wall Street Journal article of February 22 of this year said:

Many franchisees of Burger King, McDonalds, Red Lobster,

KFC, Dunkin' Donuts and Taco Bell have started to cut back on

full-time employment, though many are terrified to talk on

the record.

These are the kinds of companies I was talking about.

The article also references a 2011 Hudson Institute study that estimates the employer mandate will cost the franchise industry $6.4 billion and put 3.2 million jobs at risk.

I thank the Senator from Utah for this opportunity to have a colloquy with him, and I ask unanimous consent to have printed in the Record following my remarks letters from the National Restaurant Association, Chamber of Commerce of the United States, and the National Retail Federation, each of which strongly supports our legislation and makes the points we have made about the employer mandate.

Madam President, I see the Senator from Maryland is waiting, and I wonder, if we are through with our colloquy, if the Senator would allow me 2 or 3 minutes to correct a mistake I made on the floor of the Senate last week.

Confessing error: I came to the floor following the vote on the Hagel nomination to point out the difference between a vote against a premature motion to cut off debate--which I thought the majority leader made--and an effort to kill a nomination with a filibuster, which are two different things. I pointed out--correctly--that in the history of the Senate, we have never denied to a district judge nominee his or her seat because of a failed cloture vote, and I don't believe we should. I pointed out we have never denied a Cabinet nominee his or her seat because of a filibuster, with the possible exception of John Bolton, whom the Democrats filibustered. Some Presidents count that nomination to the U.N. in their Cabinet and some don't.

I then went on to say--incorrectly--that on appellate judges, the Democratic majority had filibustered and killed 10 of President Bush's nominations, and Republicans had in response denied two appellate judge seats by filibuster. Senator Schumer of New York--ever wary of what I might say--corrected me and said it was less than that. So I have consulted with him and his staff, and the score is actually 5 to 2.

The correct result is that before George W. Bush became President-- and the Senator from Utah knows this story very well--there were no instances of an appellate Federal judge being denied his or her seat because of a filibuster. Then our friends on the Democratic side invented the idea of filibustering circuit judges and voted against a whole series of President Bush's nominees just as I came to the Senate: Miguel Estrada, Charles Pickering, William Pryor, Priscilla Owen, Carolyn Kuhl, Janice Brown, and then four more in 2004: William Myers, David McKeague, Henry Saad, and Richard Griffin.

But then we had a cooling of tempers and a coming to our senses and a bipartisan Gang of 14 said we don't want to make this a new precedent, and we agreed--there was a consensus, anyway--that only in a case of extraordinary circumstance would there be a denial of a nominee of an appellate judge by a cloture vote. So then 5 of those 10 Bush nominees were approved.

So the Schumer staff and my staff agreed with this--and if anybody thinks it is wrong, I would like to know--that only in five cases have Democrats denied a Republican President an appellate judge nominee by filibuster and only in two cases have Republicans denied a Democratic President's nominee by filibuster in the case of appellate judges. As I said when I began, the answer is never in the case of district judges and never in the case of Cabinet members, with the possible exception of John Bolton.

I am glad to come to the floor and correct the record. I thank Senator Schumer for his diligence in noting my error.