Floor Statements

Mr. President, today I am introducing legislation along with Senator McConnell, Senator Paul, and Senator Corker, to prevent the U.S. Army Corps of Engineers from restricting fishing rights in some of the best fishing areas in the States of Tennessee and Kentucky below 10 dams along the Cumberland River.

I have talked with the Corps several times about this. They have told me the only solution is legislation. I am hoping there is some other solution by reasonable compromise.

But I am taking the Corps's advice. On Tuesday, Congressman Ed Whitfield, of Kentucky, introduced legislation on this matter, and so I am introducing similar legislation today.

I have also drafted language that could be included in an appropriations bill that would prevent the Corps of Engineers from using any funds to restrict fishing in what is called the tailwaters below these 10 Corps of Engineers dams on the Cumberland River.

Today I spoke with the Secretary of the Army, John McHugh. I urged him to have the Corps give Congress enough time to consider this matter, perhaps to work out something with the Corps by compromise or, if not, to pass legislation.

On Monday, I am meeting with the Assistant Secretary of the Army, Jo- Ellen Darcy, who is in charge of the Corps of Engineers, to ask that the Corps stop taking any further action to build physical barriers along the Cumberland River.

Earlier, I met with James DeLapp, the colonel who is the commander of the Nashville District. Then I met, along with Congressman Whitfield and Congressman Cooper of Nashville, TN, with MG Michael Walsh, who is the deputy commanding general. I have had a number of meetings on this subject, and I am determined to get some result, one way or the other.

I am delighted to have the Republican leader, Senator McConnell, my colleague, Senator Corker from Tennessee, and Senator Rand Paul of Kentucky as cosponsors on the legislation.

One may say, with a large number of problems facing our country--from Iran to the sequester--why is a Senator--in fact, four, and a number of Congressmen interested in fishing?

There are 900,000 Tennesseeans who have fishing licenses, and one of my jobs is to represent them. I know and they know these are some of the best fishing areas in our State.

This is an area where grandfathers and grandsons and granddaughters go on Saturdays and go during the week. There are lots of Tennesseeans who consider these prize properties and their lands. These are public lands, and they feel they have a right to be there.

The problem is that the Corps of Engineers wants to erect physical barriers below the dams to keep the fishermen out of the area that is just below the dam.

The Corps' goal is laudable. The goal is to improve safety, they say. We all support safety, but there are much better solutions than this.

Let me give an analogy. When you have a railroad crossing, you do not keep the gate down at the railroad crossing 100 percent of the time. The track is not dangerous if the train is not coming.

The water comes through these dams only 20 percent of the time, and the water is not dangerous if the water is not spilling through the dams. So if we kept the gate down at the railroad crossing 100 percent of the time, we would never be able to travel anywhere. That is the same sort of reasoning we have here.

From Washington, the Department of the Army is saying they have a policy, which they have had since 1996--which they have never applied on the Cumberland River--that suddenly they have decided, after all these years, they have to close the fishing area 100 percent of the time, even though it might be dangerous only 20 percent of the time.

I am not the only one who thinks this is an unreasonable policy.

Last week, I went to Old Hickory Dam, near Nashville. About 150 fishermen were there with me on the banks of the Cumberland River. I met with the Corps officials. They turned the water on so I could see it spilling through the dam. Then they turned it off. I met with Ed Carter, the director of the Tennessee Wildlife Resources Agency. I met with Mike Butler, the chief executive of the Tennessee Wildlife Federation. I have talked with the Kentucky wildlife people and this is what they say. They think the Corps' plans to improve safety are so unreasonable that the wildlife agencies will not even help them enforce it. But they say, on the other hand, there are reasonable ways to improve safety; that is, to treat the waters below the dam the way the Tennessee Valley Authority does, for example, which is to erect large signs--some of which already exist at Old Hickory Dam--blow the siren when the water is coming through. You can close the parking lot. You could patrol the area. There are lots of ways to put the gate down, in effect, on these fishing areas 20 percent of the time. That makes a lot of sense, and the local agencies are willing to help do that.

Our legislation makes clear that for purposes of this act, installing and maintaining sirens, strobe lights, and signage for alerting the public of hazardous waters shall not be considered a part of the prohibition. It makes no sense to take these public lands and say to people: Well, the lawyers came in and said we need to be careful. Of course we need to be careful; however, being careful does not mean you keep the gate down over the railroad crossing 100 percent of the time, and it doesn't mean you close the area to fishing 100 percent of the time when it is dangerous only 20 percent of the time.

I am also concerned about the $2.6 million the Corps needs to transfer from other parts of its budget to put up these physical barriers. Where is the money coming from? I thought we were in the middle of a big sequester, a big budget crunch. I thought we were out of money. One of the areas which has some of the most difficult problems to deal with is the Department of the Army. This is no time to be wasting money building barriers that the wildlife people in Tennessee and Kentucky, whose job it is to encourage boat safety, think are unreasonable.

I am doing what the Corps has said needs to be done, which is to provide legislation. I look forward to continuing to work with the Corps of Engineers. My hope is that we can work out a reasonable solution with the wildlife agencies.

The county judges on both sides of the border are very involved in this. They see the economic benefit that comes from the large number of people who visit those areas for recreational purposes. They leave their dollars behind. This creates good jobs in Tennessee and Kentucky.

Basically, these are public waters. Tennessee and Kentucky fishermen ought to have access to them, and there shouldn't be an edict from Washington that puts the gate down the railroad crossing 100 percent of the time. I am going to do my best to see that doesn't stand. I hope we can work it out, but if we cannot, I am glad to introduce this legislation with Senator McConnell, Senator Corker, and Senator Paul. The same legislation is in the House of Representatives with Congressman Whitfield. I look forward to my meeting Monday with the Assistant Secretary of the Army.

Mr. President, today I am introducing legislation along with Senator McConnell, Senator Paul, and Senator Corker, to prevent the U.S. Army Corps of Engineers from restricting fishing rights in some of the best fishing areas in the States of Tennessee and Kentucky below 10 dams along the Cumberland River.

I have talked with the Corps several times about this. They have told me the only solution is legislation. I am hoping there is some other solution by reasonable compromise.

But I am taking the Corps's advice. On Tuesday, Congressman Ed Whitfield, of Kentucky, introduced legislation on this matter, and so I am introducing similar legislation today.

I have also drafted language that could be included in an appropriations bill that would prevent the Corps of Engineers from using any funds to restrict fishing in what is called the tailwaters below these 10 Corps of Engineers dams on the Cumberland River.

Today I spoke with the Secretary of the Army, John McHugh. I urged him to have the Corps give Congress enough time to consider this matter, perhaps to work out something with the Corps by compromise or, if not, to pass legislation.

On Monday, I am meeting with the Assistant Secretary of the Army, Jo- Ellen Darcy, who is in charge of the Corps of Engineers, to ask that the Corps stop taking any further action to build physical barriers along the Cumberland River.

Earlier, I met with James DeLapp, the colonel who is the commander of the Nashville District. Then I met, along with Congressman Whitfield and Congressman Cooper of Nashville, TN, with MG Michael Walsh, who is the deputy commanding general. I have had a number of meetings on this subject, and I am determined to get some result, one way or the other.

I am delighted to have the Republican leader, Senator McConnell, my colleague, Senator Corker from Tennessee, and Senator Rand Paul of Kentucky as cosponsors on the legislation.

One may say, with a large number of problems facing our country--from Iran to the sequester--why is a Senator--in fact, four, and a number of Congressmen interested in fishing?

There are 900,000 Tennesseeans who have fishing licenses, and one of my jobs is to represent them. I know and they know these are some of the best fishing areas in our State.

This is an area where grandfathers and grandsons and granddaughters go on Saturdays and go during the week. There are lots of Tennesseeans who consider these prize properties and their lands. These are public lands, and they feel they have a right to be there.

The problem is that the Corps of Engineers wants to erect physical barriers below the dams to keep the fishermen out of the area that is just below the dam.

The Corps' goal is laudable. The goal is to improve safety, they say. We all support safety, but there are much better solutions than this.

Let me give an analogy. When you have a railroad crossing, you do not keep the gate down at the railroad crossing 100 percent of the time. The track is not dangerous if the train is not coming.

The water comes through these dams only 20 percent of the time, and the water is not dangerous if the water is not spilling through the dams. So if we kept the gate down at the railroad crossing 100 percent of the time, we would never be able to travel anywhere. That is the same sort of reasoning we have here.

From Washington, the Department of the Army is saying they have a policy, which they have had since 1996--which they have never applied on the Cumberland River--that suddenly they have decided, after all these years, they have to close the fishing area 100 percent of the time, even though it might be dangerous only 20 percent of the time.

I am not the only one who thinks this is an unreasonable policy.

Last week, I went to Old Hickory Dam, near Nashville. About 150 fishermen were there with me on the banks of the Cumberland River. I met with the Corps officials. They turned the water on so I could see it spilling through the dam. Then they turned it off. I met with Ed Carter, the director of the Tennessee Wildlife Resources Agency. I met with Mike Butler, the chief executive of the Tennessee Wildlife Federation. I have talked with the Kentucky wildlife people and this is what they say. They think the Corps' plans to improve safety are so unreasonable that the wildlife agencies will not even help them enforce it. But they say, on the other hand, there are reasonable ways to improve safety; that is, to treat the waters below the dam the way the Tennessee Valley Authority does, for example, which is to erect large signs--some of which already exist at Old Hickory Dam--blow the siren when the water is coming through. You can close the parking lot. You could patrol the area. There are lots of ways to put the gate down, in effect, on these fishing areas 20 percent of the time. That makes a lot of sense, and the local agencies are willing to help do that.

Our legislation makes clear that for purposes of this act, installing and maintaining sirens, strobe lights, and signage for alerting the public of hazardous waters shall not be considered a part of the prohibition. It makes no sense to take these public lands and say to people: Well, the lawyers came in and said we need to be careful. Of course we need to be careful; however, being careful does not mean you keep the gate down over the railroad crossing 100 percent of the time, and it doesn't mean you close the area to fishing 100 percent of the time when it is dangerous only 20 percent of the time.

I am also concerned about the $2.6 million the Corps needs to transfer from other parts of its budget to put up these physical barriers. Where is the money coming from? I thought we were in the middle of a big sequester, a big budget crunch. I thought we were out of money. One of the areas which has some of the most difficult problems to deal with is the Department of the Army. This is no time to be wasting money building barriers that the wildlife people in Tennessee and Kentucky, whose job it is to encourage boat safety, think are unreasonable.

I am doing what the Corps has said needs to be done, which is to provide legislation. I look forward to continuing to work with the Corps of Engineers. My hope is that we can work out a reasonable solution with the wildlife agencies.

The county judges on both sides of the border are very involved in this. They see the economic benefit that comes from the large number of people who visit those areas for recreational purposes. They leave their dollars behind. This creates good jobs in Tennessee and Kentucky.

Basically, these are public waters. Tennessee and Kentucky fishermen ought to have access to them, and there shouldn't be an edict from Washington that puts the gate down the railroad crossing 100 percent of the time. I am going to do my best to see that doesn't stand. I hope we can work it out, but if we cannot, I am glad to introduce this legislation with Senator McConnell, Senator Corker, and Senator Paul. The same legislation is in the House of Representatives with Congressman Whitfield. I look forward to my meeting Monday with the Assistant Secretary of the Army.

Mr. President, I think the Senator from West Virginia is preparing to speak, but I will speak if he is not ready.

Mr. President, I come to the floor to attempt to clear up some confusion about Senate procedure. The confusion I wish to address is that some observers of the Senate seem to have a hard time telling the difference between a filibuster that is designed to kill the nomination of a Cabinet member or a judge and a motion by the majority leader to cut off debate. Let me say that again--the difference between a filibuster that is designed to prevent the nomination of a Cabinet member or a judge on one hand or a motion by the majority leader of the Senate to cut off debate.

There is a big difference. But sometimes I read in the newspapers that Republicans are filibustering, for example, Senator Hagel, as if a majority of Republicans or a majority of the Senate intended to deny the confirmation of Senator Hagel through a filibuster, when, in fact, what most of the Republicans were saying was: The nomination of the former Senator has come to the floor only 2 days ago. We have Senators who have legitimate questions about the nomination, and we wish to have some time to discuss it.

In that case, we were forced to have a vote on a motion by the majority leader to cut off debate on Thursday before the recess, even though the

Democratic leadership and the White House had been told by Republican Senators--enough of us--if we voted after the recess there would be plenty of votes to make sure the President's nominee had an up-or-down vote, as we have done throughout history in the U.S. Senate.

Now, for whatever reason, the majority leader and the White House felt they had to push through a vote and then went into a large complaint that Republicans are filibustering the President's nominee, Republicans are obstructionists of the President's nominee, when all we were doing was doing what Senators historically do, which is ask for a sufficient time to exercise our constitutional duty of advice and consent.

Advice and consent is our best known constitutional responsibility. Books have been written about it, movies have been written about it, and speeches have been made about it time after time. If we do not do it, we would be derelict in our duty.

So there is a big difference between asking for time to exercise our constitutional duty of advice and consent and using a filibuster to prevent the nomination of a Cabinet member or a judge.

I went back through history as best I could. The Congressional Research Service has issued a report on what has happened throughout the Senate's history on Cabinet members and judges.

On district judges, according to CRS, no district judge nomination has ever failed to be confirmed because they failed to obtain cloture. Did it take some time? Were questions asked? Yes, of course. That is part of the process. But the fact is, no district court nomination has ever failed to be confirmed because they failed to obtain cloture.

So if the majority leader will wait a sufficient amount of time for the minority members to have their questions answered, a district judge in this body today--and we have proved it time and time again--will not be denied his seat because of a 60-vote cloture vote. There will be an up-or-down vote on a district judge.

The same is true so far with a Cabinet member. The only exception I have found is when the Democrats, unfortunately, used a cloture vote--a 60-vote requirement--to block the nomination of John Bolton, President Bush's nominee to be U.S. Representative to the United Nations.

Some Presidents include that position in the Cabinet; some do not. But aside from that singular incident, which I point out was the Democrats--the Democrats--saying they are going to filibuster a nominee by the President and deny him a seat, so far as I have been able to tell, there has not ever been an instance in the history of the Senate where Republicans have used a filibuster to deny a Cabinet member an up-or-down vote when nominated by a President.

That only leaves circuit judge nominees. Up until 2003, so far as I have been able to find, the rule of the Senate was that the President's nominees to be on the Federal courts of appeals always received an up- or-down vote. They were decided by a vote of 51.

Then our friends on the Democratic side, when President Bush became President, decided they did not like that and they changed the practice. They began to filibuster President Bush's judges to deny them their seats.

I had just arrived in the Senate in 2003. I was very upset by that because I knew some of the nominees. I knew about Miguel Estrada. I knew how Charles Pickering, in Mississippi, had been a pioneer in the civil rights movement when people said he was not. I knew that William Pryor had been a law clerk to the Honorable John Minor Wisdom, the Federal courts of appeals judge for whom I clerked in New Orleans. I knew these were good people. They just happen to be conservative. They just happen to be Republicans. So our friends on the other side of the aisle said: We are going to filibuster and kill those nominees.

There were three others: Priscilla Owen, Carolyn Kuhl, Janice Brown. All the cloture votes failed. There was no final vote. And then there were four more in 2004. So there were 10 altogether. Democrats for the first time filibustered to kill 10 of President Bush's judges.

That produced a reaction. That produced Republicans who said: OK, we are going to change the rules of the Senate. We are going to make this a majoritarian institution. We are going to decide these questions by 51 votes.

Well, cooler heads prevailed and we adopted a consensus that only in extraordinary cases would Federal appellate court judges be denied their seat by a cloture vote, by a 60-vote margin. In every other case, it would be 51 votes.

Based on the research I have been able to make, only two of President Obama's circuit court nominees have failed to obtain cloture and were not confirmed, and those are Caitlin Halligan and Goodwin Liu.

So the bottom line of history is, no district judge has ever been denied his seat or her seat by a filibuster. No Cabinet member--with the exception of John Bolton by the Democrats, if you want to count that--has been denied his or her seat by a filibuster.

As far as circuit court nominations go, the score is 10 to 2. The Democrats have filibustered to death 10 of President Bush's nominees, and Republicans, in return, have filibustered 2. I think that is an unfortunate precedent. I would like for the Senate to go back to where it was when even a nominee such as Clarence Thomas for the Supreme Court of the United States was decided by a majority vote.

In addition to that, of course, there is the question of: Do we filibuster legislation? The answer is yes, we do. And sometimes we do on either side to kill a bill. If a bill comes over here to abolish the secret ballot in union elections, I imagine Republicans will do their best to kill the bill with a 60-vote margin. Democrats would do the same with a right-to-work provision if Republicans were in charge. That has happened throughout history. And with lesser nominations that has happened. If a National Labor Relations Board nominee is controversial, there might be a 60-vote requirement--even with a nomination to the Tennessee Valley Authority.

I remember when the distinguished majority leader held up President Bush's TVA nominees because he thought the President should have appointed Democrats instead of Republicans. I pointed out to him that the law did not say he had to do that. But the majority leader said, well, he was going to hold them up anyway. I could not get him to stop doing that until I held up somebody he wanted from Nevada.

So this has gone on throughout history with lesser nominees. It is a part of the advice and consent of the Senate. It is a way we gather information. It is a way we make a point. It is a way we sometimes get something in exchange. It is a power that an individual Senator has.

As with all the powers we have, it should be exercised with restraint. If all 100 of us exercised all the privileges we have at any given time, nothing would happen.

Let me conclude by remaking my first point. Advice and consent is the best known responsibility of this Senate. It is a constitutional duty. We exercise it diligently. It often involves some delay. It often involves asking for more time to consider someone, getting information that was not easily gotten before. Every Senator knows that the time to ask a nominee about an issue is before that nominee is confirmed. They are able to talk about something, it seems, easily. Their appointments are not hard to get. So that is a part of what we do every day.

But I hope the observers of the Senate will make a distinction in the future between the majority leader's effort to cut off debate and the minority's intention to kill a nominee with a filibuster. Because we do not do it with district judges--never have. We do not do it with Cabinet members--never have. We have done it twice on the Republican side with circuit court judges; Democrats have done it 10 times--both unfortunate precedents, I think. But with Cabinet members and district judges, that is the record.

So there is a difference. There is a difference between asking for a reasonable amount of time to debate and exercise advice and consent and a filibuster with the intention of preventing the nomination entirely, finally, of a judge or a Cabinet member.

I thank the Presiding Officer and yield the floor.

I thank the Senator from Arizona. Probably the best known function of the Senate--constitutional responsibility--is the right of advise and consent. We take it very seriously. Here that means we have to consider what happens. The Armed Services Committee, upon which I do not have a chance to serve, completed its consideration of Senator Hagel's nomination 2 days ago. Now it is before the whole body. He is the President's appointee. The President has a right to appoint people in whom he has confidence. But we have a constitutional responsibility to consider the nominee.

A number of Republican Senators have questions, including the Senator from Arizona, the Senator from South Carolina, that they would like to have answered. I think they are entitled to that. I think if the shoe were on the other foot and it were a Republican President making a nomination, Democratic Senators would say the same thing: Give us a reasonable amount of time to consider this nomination on the floor of the Senate.

I have a little experience in that myself. The first President Bush nominated me to be U.S. Education Secretary about 20 years ago. I thought I was a fairly noncontroversial nominee, much less important than the Secretary of Defense. But I remember very well, it was 87 days between the time the President announced my nomination and the day on which the Senate unanimously confirmed me.

There was, at the time, a Senator from Ohio named Metzenbaum, who for whatever reason decided the Senate needed more delay to consider my record and my background.

There is nothing new about this. I would respectfully suggest that the majority leader's motion to cut off debate on Senator Hagel, made 2 days after his nomination comes to the floor of the Senate, is premature.

Republican Senators have questions they would like to have answered. I think they are entitled to do that. When we come back from recess, 10 days from now, I think that is sufficient time to consider those questions. I will vote for cloture so we can have an up-or-down vote on the President's nominee for the Secretary of Defense. I think the President is entitled to that but not prematurely.

I thank the Senator from Arizona for yielding time.

Mr. President, with all due respect to the majority leader, this was an unnecessary vote today. The majority leader said: What is a filibuster? I can remember one that wasn't called a filibuster. I can remember when President Bush the first nominated a very noncontroversial University of Tennessee president who had been Governor to be the Secretary of Education of the United States about 20 years ago.

There was a Democratic Senate at the time, and the Senator from Ohio decided he wanted more time to study the qualifications of the nominee from Tennessee. I was that nominee.

I thought that was an extraordinary period of time. It was 87 days between the time President Bush announced my nomination and the time the Senate unanimously confirmed me. That was a Cabinet position. I went around to see Senator Warren Rudman to see what I should do. He said: You don't have any cards. You don't do anything. The Senate has the right to consider, with its constitutional prerogative of advice and consent, the nominees of the President. That is what the Senate is there for.

I said: Warren, how did you get to be a Senator? He said: Well, I will tell you a story. President Ford nominated me in 1976 to be on--I believe it was the Federal Communications Commission. The Senator from New Hampshire, a Democratic Senator and a Democratic Senate, put a hold on Warren Rudman until Warren Rudman withdrew his nomination.

The end of the story was that Warren Rudman then ran against that Senator, beat him, and that is how Warren Rudman became a Senator.

We know what a filibuster is. A filibuster is when one side or the other--which it has a perfect right to do under our system of government--decides to try to kill a nomination by denying 60 votes or to stop legislation by 60 votes. The Democrats have done it on a regular basis when they were in the minority and the distinguished majority leader was one of the most effective persons in the Senate to do so. I presided many times over the Senate when he objected.

I remember when we were trying to get 60 votes to have a permanent change in the estate law, and we would get up to 57, 58 or 59 and the distinguished majority leader would object.

What are we doing today? We are doing today exactly what was said when the vote was called. The question was do 60 of us believe it is time to end debate on the nomination of the President to be Secretary of Defense, the leader of the largest military organization in the world, the largest employer in the United States. The Senate Armed Services Committee has reported that recommendation to the Senate 2 days ago--not 10 days ago, not 15 days ago, not 30 days ago, 2 days ago.

Most of us aren't on the Armed Services Committee. Are we not entitled, are we not entitled to have more than 2 days to consider one of the most important nominations the President has to make without having the distinguished majority leader accuse us of a filibuster? What we do in this body is debate. We debate issues.

In addition to that, there are a number of people on the Republican side who have asked for information for which they haven't received answers yet.

In every one of those cases, those are not requests I am interested in. They will not produce answers I need to know. They may be outside the range of questions I think ought to be answered.

After only 2 days of a nomination being on the floor, if Republican Senators have questions to ask and information to seek, they ought to be allowed to do that. That is what this is about.

What we have said--and the Democratic leadership knows this--we have talked in good faith through the morning. We have suggested to have this debate when we come back. Instead of 2 days after the bill was reported to the committee or to the Senate floor, it would be 2 days plus 10--a couple weeks. It would give us a chance to read the hearings, consider the evidence, ask our questions.

There were three Senators who came down to the floor today, including the Senator from Arizona and the Senator from South Carolina, who said then we will be ready to vote for cloture. In other words, we will be ready to vote to end debate to do what the Senate should do. Eventually, after a full consideration, we would have an up-or-down vote on a President's nominee for the Cabinet. At least that is my belief, that eventually you should have a an up-or-down vote on the President's nominee for the Cabinet.

It is an unfortunate vote, and it is unfortunate to characterize this as a filibuster. This is a vote by Republicans to say we want more than 2 days after this nomination comes to the floor to carefully consider it because we have questions. Many have questions, and then most of us believe that after a sufficient time--and, for me, a sufficient time will probably be those 10 days--after those 10 days, it will be time to end debate. It will be time to have a vote and then it will be time to move on to something else.

I wish to make sure this is properly characterized. This was a motion to close off debate after 2 days of bringing to the full Senate the President's nomination to lead the largest military organization in the world at a time when Senators had reasonable questions for which they want answers. A vote to extend that until 10 days from now or some other appropriate time after that not only is reasonable, it is in the traditions of the Senate. Such reasonableness has been exercised by Democrats, as well as Republicans throughout the history of the Senate.

Mr. President, I yield the floor.

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

Madam President, I am expecting the Senator from Louisiana, whom I had planned to follow, but since he is not here yet I will go ahead with my remarks unless he walks in the door just now, and then he can follow me.

We are both speaking today about selective enforcement of the law as it relates to the Department of Justice enforcing the law against certain types of energy producers but not other types of energy producers. Senator Vitter from Louisiana will talk about a letter he and I will be sending to the Attorney General of the United States asking why he does it.

I see Senator Vitter coming in just now, so now that I have given him a preamble and a warm-up of about 2 minutes, I think I will sit down and listen to what he has to say, and then I will add my comments to his when he finishes.

Madam President, I am here to join with and congratulate the Senator from Louisiana for his leadership on this issue. These are important matters for a couple of reasons. One is, as the Senator from Louisiana said, the rule of law is one of the fundamental principles of the American character. We expect laws to be enforced evenly, whether it is a little law or whether it is a big law. Obviously, here, the Department of Justice is enforcing a law against oil and gas companies but not against wind companies. It is the same law; it should be applied in the same way.

The second is the matter of birds. Someone might say: Why would Senators take the time to talk about birds?

I am reading one of President Teddy Roosevelt's books. This is about his African game hunt after he was President of the United States. He wrote a lot of books, and he was a great President. All of us concede that. We remember him for many things, but if we read carefully Teddy Roosevelt's biography, his entry into political life was because of his concern for birds. He was a bird man. He protected birds. He captured them and brought them to various museums of America to serve as exhibits. He helped enact the laws that protect birds.

In one of the biographies of Teddy Roosevelt I read, the author pointed out that the single largest spectator sport in the United States is not football, it is not NASCAR, it is bird watching. I am not much of a bird watcher, but these laws are important for that reason as well.

The Senator has spoken very specifically and clearly about what is going

on here. We have the Migratory Bird Treaty Act, almost 100 years old. A person can go to jail if they violate the Migratory Bird Treaty Act. Then there is the Bald and Golden Eagle Act. That protects one of our national symbols. A person can go to jail for that too, and be fined $100,000 and imprisonment of 1 year for killing bald eagles and golden eagles.

The letter Senator Vitter and I sent today to the Attorney General asks: If you are enforcing that law against one kind of energy company, why aren't you enforcing it against another kind of energy company? Or if you think you are not going to enforce the law--and sometimes this administration just decides that it will not enforce the law--then at least enforce the law in an evenhanded way.

The Senator from Louisiana mentioned the energy farm in southeastern Minnesota that has applied for a permit that will allow the wind farm to kill the protected bald eagles. Basically, what is happening here is the wind farm is applying for a federal hunting license to kill eagles, and the U.S. Government is considering granting a hunting license to a wind farm to kill these protected bald eagles. How does that fit with an evenhanded system of justice, equal treatment of the law?

ExxonMobil, in 2009, pled guilty to killing 85 birds that had come into contact with crude oil. Exxon paid $600,000 in fines and fees. PacifiCorp in Oregon paid $1.4 million in fines for killing over 200 eagles in Wyoming. Yet a wind farm in Minnesota is applying for a hunting license to put up Cuisinarts in the sky to kill protected eagles. That is not evenhanded.

It is no excuse to say, well, cats kill birds, windows kill birds, other things kill birds. That may be, but we have Federal laws against those who set out and set up machines that deliberately kill birds. We need to have a rational policy for treating all energy companies the same.

So that is our discussion today. We believe it is important. The head of the Audubon Society in Los Angeles says the threat to golden eagles by wind farms has the potential to wipe this large, long-lived species out of the sky.

I think all of us know these are not our grandmothers' windmills. These are giant turbines that are three times as tall as the sky boxes at one of the most recognizable features in Tennessee, which is the University of Tennessee football stadium. These are huge monstrosities, and they have many detriments to the environment. They destroy viewscapes, they are noisy, and we can see their flashing lights for miles. We don't want to see them on the scenic mountains of east Tennessee where people come to see the Great Smoky Mountains--not to see these big white towers.

In their enthusiasm for wind power as a solution to our electricity needs in the United States, I am afraid the administration is destroying the environment in the name of saving the environment and producing at the same time a type of electricity that is intermittent, that only operates when the wind blows, is expensive, and has huge subsidies from the Federal taxpayer that would make any tax subsidy for oil companies look small by comparison.

Let's put all the questions about wind power to one side except this one: Why is the U.S. Department of Justice enforcing the migratory bird laws against one set of energy producers--oil and gas--and not against another--wind farms? That is what Senator Vitter and I would like to know. That is why we are sending the letter today.

I ask unanimous consent to have printed in the Record two articles: one from the Wall Street Journal and one other article from the Los Angeles Times about the effect of wind farms on protected birds.

Madam President, last Friday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia issued a decision that basically said the era of recess appointments is over. The three-judge court unanimously ruled that President Obama, on January 4, 2012, made three recess appointments which were unconstitutional, and, therefore, said the court, these three individuals--one who is already gone from the NLRB--so two NLRB individuals who were in the case that was before this court hold their seats unconstitutionally.

The Chairman of the National Labor Relations Board nevertheless said, in effect, that the NLRB is open for business. I respectfully suggest that a different sign should go up--``help wanted; nominations needed''--and that the two NLRB members whose recess appointments were unconstitutional should leave the NLRB because the decisions in which they participated--and there were 219 of them--cannot be valid if they are challenged, just as this 1 decision was vacated, because since they were unconstitutionally there, the NLRB did not have a quorum, and therefore, when those decisions are challenged, under the ruling of this court, those decisions cannot stand. They are important decisions. As the Senator from Wyoming undoubtedly will mention more about, they involved some controversial issues.

Several observers have said the court's decision is broad. In fact, it is a breathtaking decision. It is a bold decision. But by all standards, it seems to be the correct decision. This is why I say that if you take an American history book in one hand and the U.S. Constitution in the other and you read them both at the same time, you see that the Constitution, which was ratified a long time ago--before 1800--has in it article II, section 2, which says that the President may make nominations of a number of people, such as soon-to-be Secretary of State Kerry, who was confirmed yesterday--a number of people--but that those nominations require the advice and consent of the Senate.

We have done some work here in the Senate over the last 2 years, and we have improved the nomination process. We have eliminated a number of the nominations that are subject to advice and consent. We have made it easier for people to move through, and we have expedited a large number of those. For example, 273 of the 1,100 nominations that require advice and consent can be sent right to the desk by the President, and if a single Senator does not want it to go through the entire process, after the relevant committee gets all the relevant information, the majority leader can just move, after 10 days, to confirm that person. But if it is a Secretary of State or if it is a Secretary of Defense or if it is a member of the National Labor Relations Board, the Senate has a constitutional responsibility to consider those nominees.

I would suspect that the advice and consent role of the Senate is probably our best known power. It is the title of a book that Allen Drury wrote that came out, I think, in the late 1950s. Most Americans know about the advice and consent role of the Senate, and they know why we have it. We have it because our Founders put their necks on the line in a revolution against a King, and they did not want an imperial Presidency. So they put into place a system of checks and balances, which is being exercised this very moment because of the courts saying that the President's use of the--I ask unanimous consent for another 3 minutes, please.

Madam President, I believe we have 30 minutes for this discussion; is that right?

Yes. I thank the Chair.

So as we look back over the history of checks and balances and the imperial Presidency and the importance of making certain we do not have an imperial Presidency, we are reminded the reason we did that was a single word: liberty--the revulsion by the Founders who created this system and who then made sure our President was a President, not a King. And George Washington, who exercised great modesty and restraint, impressed into the American character his own modesty and restraint when he asked that he be called ``Mr. President,'' not something more grand, when he retired to Mount Vernon after two terms, when he could have been President of the United States for life.

So that is what the Constitution talked about. It said that for these important positions, the President may nominate, but if the Senate does not confirm them, they cannot serve.

There is also a provision toward the end of article II, section 2 about recess appointments. Here is what the court said when it got out its American history book and began to compare that with the Constitution: This was written for a time when it took Senator Houston of Texas--I ask, Madam President, that I have time to speak in morning business.

So this was written at a time when Senator Sam Houston of Texas had to ride a horse, get on a steamboat, get in a stagecoach, and make his way to Washington over a period of 5 or 6 or 7 weeks, and the same to go home; and when President Polk had a vacancy in 1846 in the Attorney General's Office and wrote a letter to someone in New Hampshire and invited him to take the position and that took 2 or 3 weeks to get the letter, and then in 2 or 3 weeks back came the answer: No.

Communication was a little different back then, so it was necessary, for the

government to operate, to put into the Constitution that when the Congress, the Senate was home--which meant all over this big, grand country, before the days of communication and travel--that during a 4- or 5- or 6-month period, the President could appoint someone to that position during the recess, the Constitution says.

The Constitution says, according to the court, that when a vacancy occurs during the recess, the President may make an appointment during that recess. So the court was talking about only one recess, and that is the one between the annual sessions of Congress--the one between when we end in 2012 and start in 2013.

Since that time, starting right after the Civil War, the President and Congress have been inventing these various ideas about other recesses. We even got down to the idea where we created having a recess for 3 days and then having a pro forma session to prevent the President from making any, quote, recess appointment during that time. But what the court has said is that all that does not really matter, that the only recess during which a President may make an appointment is between the end of an annual session and the beginning of the next.

I believe the ruling is correct. I believe it will be affirmed. I have no idea whether the Supreme Court will affirm it in whole, but surely they will at least say that the Senate itself--not the President--will decide when the Senate is in session and when the Senate is in recess, and if they do that, the era of the recess appointment is likely over. There is no need for a recess appointment in a modern era where the Senate is in session almost all the time. And the recess appointment has become used by Presidents to get around the checks and balances that are in article II, section 2 of the Constitution that provide liberty for the citizens of this country by avoiding an imperial Presidency.

So I call on the NLRB to take down the ``open for business'' sign and put up one that says ``help wanted; nominations accepted.'' The NLRB can do a number of things, but the Board cannot as long as it does not have a quorum. And the two members who are there unconstitutionally should leave their positions immediately, and accept no more pay.

Madam President, the Senator from Wyoming has been a leader on this issue, and I would like to now yield the floor and listen to his remarks.

It seems lately that I come to the floor when the Republican leader is making especially reasonable, sensible proposals. I heard him say the same thing last week, and I agree with him.

I saw a number of my Democratic friends this weekend in different places, and I said: Look, the President has been elected. He deserves credit for that, and he now has a chance to define his legacy. He told us what that is in his inaugural address. Isn't this the right time to get out of the way this difficult problem of dealing with entitlements that every single one of us knows we have to do? Hasn't the House of Representatives actually given us an unexpected 3 or 4 months in which we can do it?

If President Obama wants, as I am sure he must, to begin to work on the other issues he talked about in his inaugural address--immigration, for example, and his other important issues--why would we not go to work right now, as the Republican leader says, and deal with the runaway, out-of-control entitlement spending that is going to bankrupt the program the seniors depend upon to pay their medical bills? We know that is going to happen. The Medicare trustees have said it is going to happen in 12 years, and we have all made speeches saying what we should do with it. Let's just do it. As the Republican leader says, this isn't about austerity.

The Australian Foreign Minister came to this country about a month ago, and in his first address--he is a great friend of America's. He said the United States of America is one budget agreement away--one budget agreement away--from reasserting its global preeminence. That is his view from Down Under. Looking at Asia, looking at China, looking at Japan, he wants us to succeed. He thinks that if we succeed, Australia succeeds. He wants us to get this done.

Average families want us to get this done. They don't know why we don't get it done. They understand we can't keep spending money we don't have.

We have had recommendations from the President's debt commission, from the Domenici-Rivlin group, and from the Ryan-Wyden proposal. We have had all of these different ideas. We know exactly what to do, and suddenly we have 3 months to do it. I urge the President to make a proposal, show us what to do. There are 40 or 50--there might be 60 or 70 of us here on both sides of the aisle ready to go the work and to do it now.

I congratulate the Republican leader for his reasonableness and his comments, and I hope he continues to offer this. I might say, without trying to embarrass him, that every time we have had a crisis we need to solve, it has been the Republican leader and the White House that have gotten it done. So why don't they try again? Why don't they try again? That is my wish.

I came here to talk about something else today, but I am glad I was here to hear that, and I congratulate the Republican leader.

I yield to the Senator.

I thank the Senator from Kentucky.

As we spoke on the floor, another example is President Johnson and Everett Dirksen on civil rights. That would not have happened if the government hadn't been divided, and it wouldn't have been as easily accepted by the American people if it had not been divided.

If the Republicans and the Democrats--if this Democratic President and this mixture of Republicans and Democrats in Congress say to the American people: We have a real fiscal cliff for you; all the programs you depend upon to pay your medical bills aren't going to have enough money to pay them, and we are going to have to make some changes to deal with that, people will accept that, especially if it comes from both of us.

As far as who is supposed to propose it, well, Senator Corker and I have proposed it. We proposed what to do, but we are not President. We are not President. I don't know what the experience of the Governor of Virginia was, but if in Tennessee I had waited around for the legislature to come up with a road program, we would still be driving on dirt roads.

The President has to lay it out there and say: Let's do it this way. Then the legislators, all 535 of us, will say: No, Mr. President, we couldn't possibly do it that way. Let's do it a little bit differently, and we will come to a result. That is the way our system works. We have 3 months to do it, and I hope the Republican leader will continue to make his point.

Mr. President, last Friday a three-judge Federal appellate court made an important decision. It said that the President of the United States, President Obama, on January 4, 2012, made some recess appointments when the Senate wasn't in recess. In other words, they were constitutionally invalid.

The President made four appointments on January 4, 2012--three to the National Labor Relations Board and one to the consumer finance agency. He did it under his so-called recess appointment authority, which is defined in article II of the Constitution.

But the Court said: No, Mr. President. The Senate wasn't in recess. The only time you can make those appointments is between the annual sessions of Congress, and the Constitution also says that those vacancies to which you appoint have to happen during that recess.

The Chairman of the National Labor Relations Board made a remarkable response to the order of the Court. The order of the Court, by the way, vacated an important decision the Board made and said the two remaining NLRB members who are still on the Board are unconstitutionally there, so they vacated the order. Instead of recognizing the authority of the Court, the NLRB Chairman said, in effect: I am going to hang up a sign that says ``Open for business. We have important work to do.'' And they are going to keep going despite the fact that the NLRB has made 219 decisions with these two unconstitutionally appointed members since the month of January 2012, all of which, I would say, are invalid because the members who voted on the decisions were unconstitutionally appointed.

I am here today to call for Sharon Block and Richard Griffin--the two

members of the National Labor Relations Board who were unconstitutionally appointed by the President according to the Federal appellate court--calling on them to resign their positions and calling on the President of the United States to nominate a full slate of members to the National Labor Relations Board, and then let's do what the Constitution says we are supposed to do.

The best known authority of this body, the Senate, is likely to be the advice and consent provisions of the Constitution. Article II, section 2: With the advice and consent of the Senate, the President shall appoint Ambassadors and others. There are about 1,100 of those whom the President appoints.

Two years ago and then just last week, we streamlined the confirmation process a little bit to narrow the focus on the most important appointees and make it easier to get them confirmed. Those are the checks and balances the Constitution meant to establish. They did that so we would have liberty from a tyrannical executive branch, which is what the Founders were worried about. The Court has said the President has exceeded that. Therefore, these two remaining members of the NLRB should resign immediately and pack their bags and go home with our thanks for their hard work, despite the fact that the 219 cases they voted on ought to be vacated and probably will be when someone challenges those cases.

A new sign needs to go up at the National Labor Relations Board. Take down the sign that says ``Open for business'' and put up a sign that says ``Help wanted. Nominations accepted.''

The three-judge court of appeals did an interesting thing: They actually read the Constitution in its plain English. Here is what the Constitution says:

The President shall have power to fill up all Vacancies

that may happen during the Recess of the Senate.

Now, what is the recess of the Senate? Well, let's go back to the beginning of our country and for many years thereafter.

Sam Houston, Senator Sam Houston of Texas, had to go from Texas to New Orleans, get on a boat, come up the Mississippi River, and then ride a horse and take a stagecoach to get here. It took him weeks--same to go home.

James K. Polk of Tennessee, Speaker of the House, would take a stagecoach up to Pennsylvania and then follow the road or go on the river up to Pennsylvania and follow the road to the House of Representatives.

At one time, President Polk, after he became the President, had a vacancy in the Attorney General's Office, and he wrote to some person up in New Hampshire and asked him to take the job. It took 2 or 3 weeks to receive the letter, and it took 2 or 3 weeks to get the answer, and the answer was no.

In those days, there were long, extended periods in this country between the annual sessions of the Congress, when the Members of Congress were spread all over the country. The Founders anticipated that, and they wisely put into the Constitution a provision that said that during those times, the President may make a recess appointment while the Senate is in recess. And that person may hold the position until the end of the session.

Well, over the years, that has changed. Various Presidents have tried various ways to fill vacancies during a recess, and that has become something different in the last while. This hasn't been just Democratic Presidents who have done it. Presidents have become frustrated because sometimes Senators don't give their advice and consent. I know about that; I was nominated by President Bush the first to be the Education Secretary, and the Senator from Ohio at the time thought I needed a little examination and held me up for 3 months. Finally, the Senate agreed to my confirmation unanimously.

But that is what we are for. We are supposed to consider the President's nomination of Senator Kerry to be Secretary of State, as we are. We are supposed to consider the nomination of Senator Hagel as Secretary of Defense. And according to the law, we are supposed to consider the President's nominees for the very important National Labor Relations Board. But what the President did was to make three appointments to the Board the day after we went into our annual session. We went into session on January 3, 2012, and he made these appointments on January 4.

The court said the Senate was clearly in session--clearly in session. So if the President disagrees with the Senate, if he is afraid he is about to nominate somebody who the Senate won't like, well, then, he had better get somebody the Senate will approve or else he is not going to get that nominee. But the President said: No, I am going to do it my way, so I will try to change this recess appointment and do it in a way that is more extreme than has ever been done before.

I want to hasten to add there is no excuse here that if the President hadn't acted in this way the Senate might have held up the nomination for too long. Of course, the Senate has that right, if it chooses to do so. But in this case the nominations only arrived 3 weeks before the President made his appointments. So we have a straight-out set of facts here, says the court. According to the Constitution, valid appointments may only be made during the recess between annual sessions of Congress, and these were not. Secondly, it may only be made to a vacancy that occurred during the recess, and two of the three vacancies which we are talking about occurred months before the recess.

The Chairman of the National Labor Relations Board effectively says ``open for business.'' In fact, the board should not be open for business, because the board only has one member who has been constitutionally appointed and confirmed, unanimously by the Senate. So the board, without a full quorum of three members, which it does not have--two are unconstitutionally appointed--can't issue regulations and can't decide cases, including appeals of decisions of unfair labor practices.

Let me give an example that might affect the State of Tennessee. We were very concerned last year--I was; Tennesseans were--when a complaint began to make its way through the National Labor Relations Board affecting the Boeing Company and its decision to put a plant in South Carolina. In other words, Boeing, from a State that does not have a right-to-work law, wanted to put a new plant in a State that does have a right-to-work law, and a complaint was filed, which, on the face of it, made it look like as if, in trying to do that, it is prima facie evidence they were violating national labor laws. That is a very expensive delay for the Boeing Company--or any company. Well, that eventually got settled after a lot of expense.

But let's say we have a small supplier in the State of Illinois, which is not a right-to-work State, that might want to work in Tennessee or Virginia, which are, and someone files a complaint. Do we want a board there that is unconstitutionally placed that might rule that is a prima facie violation of Federal law? To have members of the NLRB who are not confirmed by the U.S. Senate raises the prospect that would undermine the right-to-work law in Tennessee and Virginia and all the other States that have chosen to have one.

So this has very practical, everyday application in the State of Tennessee.

But even though the board can't issue regulations or decide cases, the rest of the NLRB can be open for business while the President makes nominations and the Senate considers those nominations under regular order. For example, the NLRB could conduct elections, it could investigate allegations of unfair labor practices, it could issue a complaint, administrative law judges could hold hearings, regional directors can settle cases, the general counsel may seek to enforce orders, and the general counsel could issue enforcement guidance memoranda.

They are all open for business, but the National Labor Relations Board is not open for business. Its ``open for business'' sign needs to come down, and a new one needs to go up that says: Help wanted. Nominations accepted.

Finally, there is a larger issue here. At the beginning of last year, I visited Mount Vernon. I mentioned it in the 2 minutes I had at the President's inaugural last week, because it made such an impression on me. I was reminded that the American Revolution was about tyranny by a king. That was the danger. That was what caused people to sacrifice their lives.

I saw in the National Archives this weekend the oath of allegiance signed

by George Washington and his troops, which swore allegiance to a country that was not even formed yet--an allegiance that would have caused him to be executed if we had lost the American Revolution. So there was a lot at stake when our country was founded, and so much of it was about liberty and about an ability to resist a king or an imperial leader.

George Washington himself imposed his own character upon the American character by his modesty and restraint, by his decision to step down as general of the American army. He could have been general for the rest of his life. He made the decision to step down as President of the United States after two terms. He could have been President for the rest of his life. But at the beginning of our country, liberty, to many people, meant avoiding an executive that was too strong, that didn't have proper checks and balances. And our Founders put into our Constitution checks and balances with the court and with the legislature.

Of course, as we like to point out, article 1 is about the Congress, about the legislature. And as I said earlier, perhaps the best known function the Senate has is the ability to advise and consent. The President may nominate, but those important people--men and women--may not take their offices until they have been confirmed by the Senate.

This administration, I am sorry to say, has not respected those checks and balances, as I had hoped it would. I would suggest maybe a retreat to Mount Vernon for President Obama and the White House staff. The Obama administration has appointed more czars than the Romanovs. We have always had some czars, such as the drug czars, but they have three dozen--three dozen who aren't subject to the usual restrictions that we have through the appropriations process.

The most blatant example of the imperial Presidency are the recess appointments at a time when the Senate, according to this court, was not in recess, in order to put into those positions men and women with whom the Senate would not agree. If the President could do what the President did on January 4, 2012, on a regular basis, we might take a recess break for lunch and come back and find we have a new Supreme Court Justice.

I am here to suggest the right thing to do would be to respect the tradition of checks and balances that is built into our Constitution. It is at work here, because the President took an action, we didn't like it, and the third branch of government has made a decision the President was wrong. The way to go forward is for the two remaining members of the National Labor Relations Board who were appointed unconstitutionally to resign their position and for the President to nominate as rapidly as he can men or women to fill the remaining vacancies on the board. And to the extent the committee on which I am the ranking Republican, which oversees labor matters, has anything to do with that, I will pledge speedy consideration of those nominees.

Let's get the National Labor Relations Board back in business. But it cannot be open for business today. It cannot be properly open for business today. Those two members should resign their positions and recognize the court has said we still have in America a Constitution that provides checks and balances. So take down the sign that says: Open for business, and put up the sign that says: Help wanted. Nominations accepted.

Mr. President, I commend my colleagues to read my floor remarks of February 2, 2012, about recess appointments, which I made following the President's so-called recess appointments and following my visit to Mount Vernon.

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

Mr. President, I wish to thank Senator Levin for his leadership, as well as Senator McCain, Senators Schumer, Cardin, Pryor, and Senator Kyl--who has now retired from the Senate--and Senator Barrasso. We are hopeful the leaders will be able to recommend to us a set of changes in our rules and procedures and practices that will help the Senate operate in a fairer and more efficient way. That is what all of us want. It is surprising how many of us want that.

We all worked pretty hard to get here. We all understand we are political accidents. The Senator from Maine, the Senator from Arkansas--we all know that. We are very fortunate to be here. While we are here, we would like to contribute something. That gets down to a couple things. Let's make it easy for a committee bill to come to the floor, and let's make it easier for Senators from the various States and from various points of view to have their say. Allow them to offer their amendment and have it voted up or down and to have a final vote. That is all.

I often use the analogy of the Grand Ole Opry. A person is lucky to be on the Grand Ole Opry. If you are there, you want to sing. Sometimes being in the Senate has been like being in the Grand Ole Opry and not being able to sing. We have all done the finger-pointing. The Democrats--the majority--say: You Republicans are filibustering. You are blocking things and keeping things from happening.

What we are saying is the majority leader has used the gag rule 69 times. Senator Daschle only used it once. What the eight of us found very quickly when we sat down in the first meeting a few weeks ago was that we were of the same mind. We honored this institution and we believe our country has serious problems. We want to get to those problems, and we want to serve our country well in the position we have.

If we are from Michigan, we want to be able to offer the voices of Michigan

on the floor of the Senate. If we are from Nashville or the mountains of Tennessee or Maine, we want to be able to do the same. We want our voices heard--not our voices but the voices of the people whom we represent. That is the importance of the discussion we are having today.

My hope is the majority leader and the Republican leader--and I congratulate them for sort of sticking their necks out in their respective conferences--recommend a way that we can do two things: make it easier for bills to come to the floor and make it easier for Senators to get their amendments in. I believe if that happens, this Senate will see a new day.

On this side of the aisle, we believe we don't need rules changes; that we just need a change in behavior. On the other side of the aisle, there are those who say: Let's get rid of the filibuster. I think once we get back into what we call regular order, all that talk will go away. I think Senator Mikulski and Senator Shelby are going to have 10 or 11 or 12 appropriations bills ready to come to the floor within a few weeks, and I think they are going to want them to be considered by this body. If they do, we will be busy for 8 or 10 weeks and we will have dozens of amendments. I heard the chairman of the Budget Committee say she intended to have a budget and, if she does, we will have dozens of amendments. Then the voices of the people of this country will be heard here on the floor of the U.S. Senate. We will have votes, we will have amendments, and we will be doing our job, and all of this talk we are having right now will be pushed into the background.

There is a reason for a Senate that is different than the House of Representatives. It goes all the way back to the founding of our country. It was noticed by the first observers of our country. Alexis de Tocqueville, in his fascinating view of America in ``Democracy in America'' which he wrote in the early part of the 19th century, said America faced two great challenges. One was Russia. The other one was the tyranny of the majority. This is a democracy. This is a majority rules country. But he saw in a great, big, complex country the danger of the tyranny of the majority. And this institution, the U.S. Senate, has from the beginning of the country protected the minority and protected the unpopular view. If a Senator didn't like the Vietnam war, he or she could stand up and say something here and maybe do something about it. Or if a Senator was on the other side, maybe he or she could do something about it. They could make people slow down and stop and think before the country rushes ahead.

Senators of both parties eloquently, as Senator Levin has pointed out, have defended that right. We Republicans in the Bush administration were so upset about the Democrats' blocking of judges that we said we might use the nuclear option, that we might turn this into a majority body. Now there are a number of Democrats who feel the same way here. I hope we put that away and realize that this is the body that stands up for minority views in this country and says, don't run over minorities. Stop and think. Stop and think before you do that. Then we forge a consensus.

To conclude my remarks--because I see the Senator from Arkansas, who has been an outstanding contributor to this effort, as he has been through his time in the Senate--I came to the Senate as a young staff aide in 1967. That was a long time ago. I saw a little bit of how important it is to have a body that gains a consensus when we are talking about a big, difficult issue for the whole country. In 1967, the issue was civil rights. The Senator from Maine knows about those early days in the Senate. The Senator from Michigan does as well. There were a minority of Republicans at that time. Everett Dirksen was the Republican leader. But the civil rights bill of 1968 was written in the Republican leader's office. Why? Because at that time they had to get 67 votes to pass it.

One might say, Well, that shows what is wrong with the Senate, because it slowed things down. But looking back over history, those last 8 or 10 years of civil rights laws, the Voting Rights Act, eventually all of the laws that changed our country and continue to change it, were big steps. And what happened in 1968 once the Senate gained a consensus on civil rights? Senator Russell, who led the opposition to the civil rights bill through his whole career, got on the airplane, went home to Georgia and said, It is the law of the land. Now we obey it.

So the value of having a body in our government that respects the minority and forces a consensus is that once we reach that consensus-- once we reach it--we then have a better chance of having the country behind what we do on the very controversial and difficult issues we face.

So if this works out as I hope it does today, I pledge my part to work with the majority, as one Senator, to help make sure bills come to the floor, and to work with Republican Senators in the minority to help make sure they get their amendments. If we do, I think we will do our job better, we will gain more respect, the country will have a stronger government, and the rights of the minority will be protected.

I thank Senator Levin for his leadership, as well as Senator Pryor and the others with whom I have worked.

I yield the floor.

The Senate works best when committee-approved bills move to the floor in an orderly way and Senators are freely able to debate and amend and vote upon the legislation. Unfortunately, under the current Democratic majority, committee work has been marginalized, as the majority has too often bypassed committees in the legislative process.

And on the Senate floor, the twin hallmarks of the Senate, the right to debate and the right to amend legislation, are barely recognizable: to an unprecedented extent the majority has moved to shut off debate on a matter as soon as the Senate has begun to take up the matter, and it has blocked Members--of both parties--from offering their legislative ideas for the body to consider.

The proposal we developed addressed a concern of the majority-- namely, the ability of a majority to take up a matter--but it conditioned its ability to bring that matter to conclusion by giving the minority the right to have the Senate consider at least two amendments of the minority's choosing--without any requirement of germaneness--as well as two amendments of the majority's choosing.

The minority, in fact, would get to offer the first amendment under this procedure. And while the majority would get to offer the last amendment, all eight of the Members who developed this idea--four Republicans and four Democrats--agreed that the majority could not use its final amendment to strike or eliminate legislative language, if any, that the Senate adopted from one of the minority's amendments.

I strongly agree with the understanding of my friend, the senior Senator from Arizona. I, too, would oppose cloture on a matter if the majority abused the motion to proceed set out in the order by using that procedure as the high-water mark for the consideration of amendments, rather than as a starting point for a robust amendment process.

Madam President, I wonder if I might pose a question to the Republican leader, if he would retake the floor.

I want to congratulate the Republican leader for his remarks.

Here is my question. We have arrived at a time when we have a newly elected President who has had a fine inaugural day. He has an agenda that he wants to follow which he announced in his inaugural address. It is not an agenda that most of us on this side agree with, but he has an agenda that he wants to follow in his second term, all of which would ensure--in his eyes--his legacy as a President.

But isn't there one thing that in order to get to that agenda--or any other thing--he and we have to do, and that is to address the debt? Isn't the very best time--isn't the very best time to do something difficult, something nobody wants to talk about, something that is hard--the best time to do that is at a time when we have a divided government, a Democratic President, a Republican House, and 30 or 40 or 50 of us Senators on both sides of the aisle who have been saying for 2 years that we are ready to fix the debt?

Isn't this an opportunity now? Not just because it is a divided government, but because the House of Representatives today may very well create a 2-month or 3-month window during which we can address all of these issues if we had Presidential leadership?

Madam President, I wonder if I might pose one more question to the Republican leader after making a short statement.

I came to this body as a young lawyer-legislative aide to Senator Howard Baker a long time ago, in 1967. I remember very well Senator Baker's story about how the civil rights bill of 1968 was passed. I have discussed this with the Republican leader before. He knows that era as well or better than I do.

But there was a time when Senator Baker said he was in Everett Dirksen's office--he is the man who had the job that Senator McConnell now has. He was the Republican leader then. He said he heard the telephone ring. He heard only one end of the conversation, but Senator Dirksen was saying: No, Mr. President, I cannot come down and have a drink with you tonight. I did that last night, and Luella is very unhappy with me. And that was the conversation.

About 30 minutes later there was a rustle out in the outer office of the Republican leader's office--the very office that Senator McConnell now holds. Two beagles, followed by the President of the United States, came in. Lyndon Johnson, the President, said to the Republican leader: Everett, if you won't have a drink with me, I am down here to have one with you. And they disappeared in the back room for 45 minutes.

The point of all that is not their socializing. The point was it was in that very office, the Republican leader's office, that in 1968, the next year, the civil rights bill was written and enacted. Lyndon Johnson got the credit for that in history but Everett Dirksen made it possible, and there were at that time many more Democrats in the Senate than Republicans.

What I want to say to Senator McConnell, the Republican leader, the question I want to ask him, is this. He has seen the U.S. Senate and Presidency for the last number of years. He has seen many relationships between the President and leaders of the opposite party. He knows how this place works. My sense of the Republican leader and of the large majority of us is that we wish to see a result. We wish to see a result on this very tough issue of saving Social Security, saving Medicare, saving Medicaid, saving these programs on which seniors depend. I wonder if the Republican leader would agree with me that despite the fact that we engage every day in political matters, that we have big differences of opinion, that on this issue, without Presidential leadership, we cannot get a result and that there are a lot of us on both sides of the aisle who are ready to work with the President to fix the debt?

I thank the Senator from Kentucky for extending his time on the floor. On my own I wish to continue that line of thinking a little bit.

It is traditional that when we have a new President, a newly inaugurated President, that he has a pretty good opportunity to get what he asks; that it is a time of maximum leverage, it is a time to do important things, it is a time to do difficult things, it is a time to do things that otherwise might not get done.

Presidents are defined by their skills--their communication skills, their electoral ability--but they are also defined by their capacity over a period of years to identify the hard issues that are important to our country and cause people, as the President said in his address day before yesterday, to work together to solve those problems. Now the problem is whether you want to raise taxes on the guy down the street with the biggest house. That is not so hard to do. The problem is to spend money that you do not have--because you can do it; that is not so hard to do. If the problem is to address a disaster to help people who are in desperate shape, there might be some debate about whether it is really a disaster or not but it is not hard to do because in the end it is going to happen. What Presidents are remembered for is dealing with important, difficult crises.

President Clinton is remembered for a number of things but one of the things he did was challenge the conventional thinking in his own party to

deal with welfare reform. It would not have happened if he had not done it. It would not have happened if he had not done it because a Republican could not have made the argument. A President's job, according to George Reedy, the former press secretary to Lyndon Johnson, is three things: One is to see an urgent need, two is to develop a strategy to meet the need, and the third is to persuade at least half the people he is right.

President Nixon in the early 1960s went to China. That seems like ancient history but that was straight against the core of the Republican Party at that time. That was something that was inconceivable for a Republican President to do, given the history of mainland China and Taiwan, as they were both called.

There have been many times in our history when Presidents have had to do the hard work. President George H.W. Bush made a budget agreement which may have caused him to lose the election in 1992 because it angered a number of Republicans. But it also helped balance the budget and gave us a period of time in the 1990s when that budget agreement plus a good economy gave us an actual surplus of funding.

I sense that there is at the White House a feeling, two things I wish to disabuse the White House of. The first is that the budget problem is not a real problem. I cannot believe people at the White House think that. Everybody knows it is. Senator McConnell gave a very good explanation of what was going on there. But let me say it this way: In 2025, according to the Congressional Budget Office, every dollar of taxes we collect will go to pay for Medicare, Medicaid, Social Security, and interest on the debt, and there is nothing left for national defense, National Laboratories, Pell grants for education, highways, or the investments that we need to make in research to grow this country. It all goes for Medicare, Medicaid, Social Security, and the interest on debt, every single penny we collect. And that is only 12 years away. That is not me talking. That is the Congressional Budget Office saying that. The Medicare trustees have said that in 2024 the Medicare Program will not have enough money to pay all of its bills. Whose bills? Bills of seniors, bills of Tennesseans, many of whom are literally counting the days until they are old enough to be eligible for Medicare so they can pay their medical bills. It would be a tragedy if that day arrived and there were not enough money to pay the bills. But the Medicare trustees, who by law are supposed to tell us these things, say that day will come in 2024. It is just 11 years away and that is the day for people already on Medicare and people who are going to be on Medicare.

Medicaid, which is a program for lower income Americans, is an important program. As Governor, I dealt with it in my State. But when I was Governor, it was 8 percent of the State budget. Today it is 26 percent of the State budget. It is soaking up almost every dollar that would go to higher education. As a result, students around the country are wondering: Why are my tuition fees going up? It is because of Washington's Medicaid Program requiring States to make decisions that soak up money that otherwise would be used to fund education.

In our State of Tennessee, 30 years ago the State paid 70 percent of the cost of going to the University of Tennessee. Today it pays 30. And Medicaid is the chief culprit.

Everyone knows this. The President's own debt commission has told him this and suggested a way to deal with it. Forty or fifty of us on both sides of the aisle have been working together, meeting together, having dinner together, writing bills together, trying to come up with plans to do it. Senator Corker, my colleague from Tennessee, has developed a bill on which I am his prime cosponsor which says we have found a way to strengthen Medicare and other entitlements by reducing the growth in spending. We understand this.

We passed a Budget Control Act a couple of years ago. People said they didn't like it. It was not so bad because it took 38 percent of the budget, which is all of our discretionary spending--including national defense, national parks, national labs--and said it will go up at about the rate of inflation. This is before we get to the so-called sequester. But what about the rest of the budget? That is the automatic stuff we do not even vote on: Medicare, entitlements, all this? It is going up at about three to four times the rate of inflation. It is going to bankrupt these programs. Seniors will not be able to have their medical bills paid and the country will be bankrupt. That is no overstatement. The former Comptroller of the Currency says that. President Clinton says this is an urgent problem. The former Chairman of the Joint Chiefs of Staff says the national debt is the single biggest threat to our national security. Why are we not dealing with it? I think we are not dealing with it, A, because it is hard to do; B, because on both sides of the aisle we have not been effective in dealing with it before.

I remember when we had an all-Republican cast of characters here in town--President Bush, a Republican majority--we tried to reduce the growth of Medicare and we could not get the votes to do that.

This is not easy to do, but Robert Merry, who wrote a book about President Polk, had lunch with some of us yesterday, made this statement: ``In America's history every crisis has been solved by Presidential leadership or not at all.''

Whether it was Lincoln in the Civil War or Reagan and Tip O'Neill or Nixon to China or Clinton on welfare reform--we can all identify the crises. But it takes Presidential leadership to do it. It takes that to do it.

I was a Governor, which is much smaller potatoes. If I sat around waiting for the State legislature, with all respect, to come up with a road program we would still be driving on dirt roads. They were waiting for the Governor to do it. That is how our system works.

I wonder if the President thinks that the debt is not a problem? I cannot imagine anybody at the White House thinks that. This is a problem. If the President does not address it during his two terms he will be remembered by history as failing to do that. His legacy may be a failure to address financial matters that put this country on a road to bankruptcy. Or, if he were to do it, if he were to provide the leadership, he would be--as the Australian Foreign Minister has said, ``America is one budget agreement away from reasserting its global preeminence.'' Why wouldn't President Obama want to be known as the President who caused America to reassert its global preeminence by dealing with a budget agreement during the first 3 months of his term and then he can get on with his agenda, about which we can argue? That leaves me with only one thought: That the President thinks we don't want to do it. We do want to do it and it is a misunderstanding if he thinks that.

I know the Republican leader would not mind me saying he is a wily, clever tactician who knows the Senate as well as anyone here. But if you look carefully, when we got down to the last few days of the year and needed an agreement on taxes, the Republican leader was in the middle of the agreement. When we needed an agreement to try to avoid default on the debt, the Republican leader was the one who was in the middle of doing that.

I think if the White House thinks that the Republican leader or we on the Republican side do not want to fix the debt, they are badly misunderstanding where we are and who we are. I do not know how we can say it more clearly. We have written bills that do it. We have held dinners to talk about it. We have made public statements with Democrats, 30 or 40 of us at a time, saying we support Simpson-Bowles, we support Domenici-Rivlin, or we support this or we support that. What is missing? Two words: Presidential leadership. This is not a partisan comment. It just does not work unless the President lays out his plan.

Some say the President does not want to lay out his plan. He has to lay out his plan. He is the President. We are just legislators. Senator Corker and I have put out our plan. Who pays attention to that? Madam President, $1 trillion in reductions and a $1 trillion increase in the debt ceiling--it is out there. That is not going to work. However, if President Obama, with his skills, calls together Simpson and Bowles or his advisers and says: Here is

my plan to save Medicare, here is my plan to save Medicaid, here is my plan to fix the debt, and I want bipartisan support to do that, he will get it. At first, because it is a difficult issue, everybody will say: Oh, no, we can't do it that way. We need to sit down, talk, and come up with a result. I think the Republican leader has shown he is prepared and willing to do that. He has said it and done it on other issues. I don't know what else the rest of us can do to show that.

What I am trying to respectfully say today, as much as anything, to the President of the United States is congratulations on your inauguration. I was there. I was proud to participate in it and have the opportunity to speak for a minute and a half about why we celebrate for the 57th time the inauguration of an American President. We celebrate it because our country is distinguished from most other countries in the world by the peaceful transition or reaffirmation of the largest amount of power in the world. We have our political contests, and then we have the restraint to respect the results.

After winning the election, it is important, first, to get the fiscal house in order. The time to do it is while we have a divided government. The time to do it is while the President is at the peak of his popularity. The time to do it is while the House of Representatives--the Republican House--has created a window of 2 or 3 months to deal with all the fiscal issues. The time to do it is after 2 years of discussion with Republicans and Democrats in a bipartisan way about the need to fix the debt and the importance of it for the country.

My hope is that as the President and his advisers look at the Senate, they see a willingness to solve the problem of fixing the debt in a bipartisan way. I get the feeling they don't believe that about us. I don't know what else we can do to cause them to believe that. There is not the same kind of comfortable, back-and-forth relationship there should be. I have heard some people say: Well, the Johnson-Dirksen days are ancient history. That was a long time ago. However, human nature doesn't change. Human nature doesn't change in 50 years, 100 years, or 500 years.

There is plenty of good will across the aisle and on this side of the aisle, at the beginning of this term, to work with a newly inaugurated President and say: Mr. President, we are ready to fix the debt. Provide us the leadership. No great crisis is ever solved without Presidential leadership in the United States. You are the President; you are the only one who can lay out the plan. We will then consider it, amend it, argue about it, change it, and pass it. After that, we can get onto the President's agenda, about which we will have a difference of opinion, but he will go down in history as the man who was willing to do something hard within his own party, which was to fix the debt and save the programs seniors depend upon to pay their medical bills.

I hope I can say that in the spirit of someone who participated in the inauguration and admires the President's considerable abilities. I hope he and his advisers stop, take a look, and say: Maybe we were wrong. Maybe this is the time to do it. Maybe we are the only ones who can do it, so let's make a proposal and get started.

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

Mr. President, Patti Page died on New Year's Day this year. She was 85 years old. The Senate has not been in session for most of the time since then. I wanted to come to the floor to pay a Tennessean's tribute to Patti Page. Patti Page is best known for our State song, the ``Tennessee Waltz.'' A few years ago, in 2007, when I met her for the first time, she told me the story of the ``Tennessee Waltz.'' I knew some of it, but she completed the rest of it.

In 1946, a couple of Tennesseans, Pee Wee King and Redd Stewart, were driving from Memphis to Nashville. That was before the interstate highways. It took a pretty good amount of time to drive that distance. I don't know whether or not they were drinking a beer on the way from Memphis to Nashville but they were relaxed, and one of them said to the other, Why is it Kentucky and Missouri have a waltz and Tennessee doesn't have a waltz? So on the way from Memphis to Nashville they took out a penny matchbox, which is one of these big boxes with wooden matches in it, dumped out the matches on the floorboards of the car, and on the back of the penny matchbox, between Memphis and Nashville, in 1946, Pee Wee King and Redd Stewart wrote the ``Tennessee Waltz.'' They sang it around a few places. Pee Wee King sang it at the Grand Ole Opry. Nobody paid much attention to it. Cowboy Copas sang it. They sang it on Red Foley's show in Missouri. Nothing much happened to the ``Tennessee Waltz'' until 1950, and this is the story Patti Page told me. Mercury Records in New York had a new song they were sure was going to be a big hit. It was called ``Boogie Woogie Santa Claus.'' I don't know whether it was a follow up to ``Rudolph the Red-Nosed Reindeer,'' but the executives in New York were sure it was going to be a big hit so they wanted the hottest young female singer in America to record ``Boogie Woogie Santa Claus'' so they hired Patti Page. She flew to New York, recorded it for Mercury Records, and then in those days you always had to put a record on the back of the main record. You had to pick a song. It would be the ``B'' side. Just as a throw-away they put on the back of it the song by Pee Wee King and Redd Stewart, the ``Tennessee Waltz.''

We know the rest of the story. The ``Tennessee Waltz'' sold about a million copies. Nobody ever heard of the ``Boogie Woogie Santa Claus'' except those who bought the ``Tennessee Waltz.'' Mike Curb, who runs Kerr Records in Nashville, told me it was the best selling record ever by a female artist. Patti Page eventually sold 100 million records. She was the top selling female artist in record sales in history.

I yield the floor.